Lead Opinion
Earl Bradford died on July 6, 1986, at Bay-state Medical Center (Baystate) in Springfield after his my-cotic (i.e., infected) aortic aneurysm ruptured. The plaintiff commenced this action alleging medical malpractice against Baystate, Robert Austin, Kevin Martin, and several other physicians.
A medical malpractice panel, convened pursuant to G. L. c. 231, § 60B (1990 ed.), concluded that the plaintiff’s offer of proof, if substantiated, was not “sufficient to raise a legiti
Neither Baystate nor Dr. Martin applied for further appellate review. On our own we questioned whether we shоuld review the Appeals Court’s conclusions as to them, and permitted each to submit postargument comments on the issue. Our order allowing Dr. Austin’s application for further appellate review says nothing about what issues we would consider. Our general rule is that we shall review all issues that were before the Appeals Court (and not limit our review just to those issues urged as grounds for further appellate review), unless our order allowing further review indicates otherwise. See Commonwealth v. Souza,
The plaintiffs presentation to the malpractice tribunal offered the following general circumstances concerning Bradford’s death. As a result of a meal that he had eaten in a Chicopee restaurant, Bradford contracted salmonella poisoning late in May, 1986. On May 29, he was admitted to Bay-state with severe dehydration. After his June 6 discharge, Bradford was seen in Baystate’s outpatient clinic. On July 2, Bradford was readmitted to Baystate. He had an abdominal aortic aneurysm which had been noted on June 30 as a result of an earlier test. On July 3, an abdominal ultrasound showed a “rather large” aortic aneurysm. On July 5, a CT scan showed an even larger aortic aneurysm. The plaintiffs expert, a gastroenterologist, indicated that acceptеd medical practice required prompt surgical intervention if an aneurysm of the size of Bradford’s were expanding or leaking. At 12:30 a.m. on July 6, the aneurysm, infected with salmonella,
Because a doctor-patient relationship was shown between Bradford and the two defendant physicians, the first question for the tribunal, applying the standard used in deciding a motion for a directed verdict, was whether there was evidence that each physician did not conform his conduct to accepted medical practice. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc.,
We first consider whether there was evidence that Dr. Austin failed to adhere to the “standard of care and skill of the average member of the profession practising the specialty” of radiology. Brune v. Belinkoff,
Nowhere in his reports does the plaintiffs expert state that Dr. Austin failed to adhere to accepted medical practice. The general statement that better communication “as to the pertinent medical details may have resulted in the emergency surgery which was required” does not satisfy the directed verdict standard applicable in cases of this sort. The medical malpractice tribunal’s determination was correct as to Dr. Austin and as to Baystate insofar as its liability could be based on the negligence of Dr. Austin.
As to Dr. Martin, who, as a vascular surgery consultant, saw the patient on July 5, the record provides evidence thаt would warrant the conclusion that he failed to adhere to the standard of care and skill of an average vascular surgeon. Dr. Martin was aware of the aneurysm on July 5. The hospital record indicates that by July 5 the aneurysm had enlarged. Although the patient had complained of back pain, Dr. Martin’s consultation note states that there was no back pain consistent with expansion or leaking of the aneurysm and that there was no evidence of a leak on the CT scan. Dr. Austin, however, stated his impression that the aneurysm could be leaking. The plaintiffs expert stated that emergеncy surgery should have been performed on July 5 to correct the aneurysm, based on its size, its steady expansion, and possible leakage. This evidence was sufficient to meet the directed verdict standard on the issue of Dr. Martin’s negligence.
The traditional rule of tort law is that a plaintiff must show that it is more probable than not that the injury was caused by the defendant’s negligence. See Forlano v. Hughes,
The judgment of dismissal is affirmed with respect to Dr. Austin. The judgment of dismissal, the order for a bond, and the findings and decision of the medical malpractice tribunal are vacated as to Dr. Martin and Baystate Medical Center. A finding and decision shall be entered that the plaintiffs offer of proof, if properly substantiated, is sufficient to raise a legitimate question of liability for further judicial inquiry as to Dr. Martin and, based on Dr. Martin’s alleged negligence, as to Baystate Medical Center.
So ordered.
Notes
In such a situation the successful party may wish to request this court that it so rule in any order allowing further appellate review.
The principle is consistent with our rule that one who does not appeal from a judgment is not entitled to more favorable treatment on appeal than that expressed in the judgment. See Aetna Casualty & Sur. Co. v. Continental Casualty Co.,
Liability of Baystate (and any doctor) cannot be based on generalities in the reports of the plaintiffs expert, such as statements that: certain facts “should have set off a lot of red flags for both the surgeon and the radiologist in this academic teaching facility”; Bradford’s death “could have been prevented with appropriate state-of-the-аrt care known to be present at [Baystate]”; “the medical care that was rendered on July 5, 1986, was less than acceptable and not up to the standards expected of such a sophisticated referral center”; and “[c]learly the patient’s management was not appropriate and the hospital has some responsibility for this whether it be due to poor judgment from the radiologist or the surgeon.”
The gastroenterologist stated that, “[i]f an expanding or leaking aneurysm had been documented, the patient should have been scheduled for surgery [the] evening [of July 5].” This is an оpinion on the course of action that one reasonably exercising the care and skill of an average vascular surgeon should have followed. We must read the record in the light most favorable to the plaintiff because we apply a directed verdict standard. See Little v. Rosenthal,
The expert did not explicitly separate out the chances of persons with mycotic аneurysms who have surgery and those that do not. The inference is that only if an operation were performed did Bradford have even a 40%-50% chance of survival.
Cases on this issue are collected in 1 American Law of Medical Malpractice 2d § 5.3, at 239 (1992), where it is said that “[t]here appears to be a'difference of opinion among courts in distinguishing between a ‘loss of chance’ and a ‘better than 50/50 chance’ concept.” See King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Con
We do not decide nonjurisdictional issues raised solely in a brief presented by an amicus curiae, particularly where the brief was not presented to the Appeals Court. Nor do we decide a new issue (urging greater deference to the tribunal) raised for the first time by a party in a supplemental brief filed after that party’s application for further review has been allowed. We add, however, that it may be too late to persuade this court to abandon the directed verdict standard that we have applied since the medical malpractice tribunal system was adopted. See Little v. Rosenthal,
Concurrence in Part
(concurring in part and dissenting in part, with whom Lynch, J., joins). I agree that the judgment of dismissal with respect to Dr. Austin ought to be affirmed.
No evidence was offered that would show that Dr. Martin failed to adhere to the “standard of care and skill of the average member of the profession practising the specialty” of vascular surgery. Brune v. Belinkoff,
The first letter, dated January 16, 1987, stated in relevant part the following. On July 3, 1986, a sonogram of Earl Bradford’s (patient) abdomen was obtained. “This confirmed the presence of the abdominal aortic aneurysm which was noted to be 6.3 cm by 5.8 cm by 5.7 cm, which is rather large. ... A CT scan was obtained on July 5, 1986, to rule out the possibility of abdominal abscess. The CT scan report describes an aneurysm that had expanded to 9 cm in diameter and which may be leaking as evidenced by increased fluid density tracking around the left kidney. The Radiologist describes the aneurysm to be unmistakably enlarging compared to the sonogram of July 3, 1986. However, there is some confusion as to the accuracy of this report as it was dictated after the patient’s demise. To confuse the issue further, a vascular surgeon [Dr. Martin] who saw the patient on the samе day of the CT scan, (July 5, 1986) claims that the CT scan shows no evidence of leak and that the patient had no
Dr. Saltzberg’s January 16, 1987, letter continues, noting among other things that the patient suffered cardiac arrest at 12:30 a.m., July 6, аnd died the same day at 2:00 p.m. Dr. Saltzberg observed that “[s]everal questions are raised by this case,” and, in answer to the first question he concluded that “the rupture of aorta was clearly due to Salmonella infection.” He answered a second question by stating his belief that the initial treatment of the patient was appropriate. “The third and fourth questions,” he said, “relate to [the patient’s] terminal admission. Was he appropriately managed? Could his life have been saved? I think in retrospect his symptoms necessitating admission were related to expansion of the aneurysm. By the 3rd of July, the physicians knew he had a rather large aneurysm with Salmonella still in his system along with low grade fevers. These signs should have raised the question of an infected aneurysm but did not necessarily warrant emergency surgery. The interpretation of the CT scan, however, which was obtained on [July] 5th is crucial to understanding his management. At the very least there was a lot of confusion. The CT scan report dictated following the patient’s demise described a rapidly enlarging and leaking aneurysm. On the other hand, the vascular surgeon claims there was no evidence of leak. Did the radiologist initially misread the film and mislеad the surgeon (and then after the patient’s death amend the report)? Or, did the surgeon actually not speak with the radiologist or did he not closely scrutinize the CT scan? I’m not sure which is true,
“Could this patient have been saved? [The patient] had a mycotic aneurysm, which has a high mortality rate, estimated to be 50-60%. This was unknown pre-operatively. Thus, the patient may very well have died even if he had surgery that evening prior to the rupture. His only chance would have been for emergency surgery at the latest on July 5, 1986, but preferably after the sonogram on July 3, 1986. His physicians did not provide him with that opportunity due [to] their misjudgment and/or lack of attention to the critical details of [the patient’s] case. Standard practice in the community dictated urgent surgical intervention for rapidly expanding aneurysm regardless of etiology. There was therefore, in my professional opinion significant errors in judgment likely constituting medical malpractice.”
Dr. Saltzberg wrote a second letter, dated August 14, 1990, which was part of the plaintiffs offer of proof before the tribunal. I shall refer to the portions of that letter that are of particular significance to the case against Dr. Martin. The letter mentions the ultrasound (i.e., sonogram) performed on July 3, 1986, and its disclosure of “a large aortic aneurysm of 6.3 x 5.8 x 5.7 cm.” The letter states, “Althоugh an aneurysm of this size should be repaired surgically it is not necessary to do emergency surgery unless it is believed that the aneurysm is leaking or rapidly expanding.” The August 14, 1990, letter also states: “An abdominal CAT scan was performed on July 5. A large aneurysm that was 8 x 9 cm was identified on the CAT scan. Dr. Kevin Martin of Vascular Surgery evaluated the patient on the late afternoon of [July] 5th. He reviewed the CAT scan and noted the aneurysm but stated in a note that there was no
“During the early morning hours of July 6, the aneurysm ruptured. The patient was immediately taken to the Operating Room and was found to have a grossly purulent aorta. At this point there was really nothing that could be done to save the patient, and he expired later in the day. The official abdominal CAT scan report dictated on July 6 indicated that the patient had an expanding leaking aortic aneurysm.”
Dr. Saltzberg’s second letter further stated: “It is apparent that there were problems with the medical care received by [the patient] on July 5. Dr. Martin quotes the aneurysm as
The expert’s letters ask many questions. The letters supply very few answers. For example, there is no evidence that, had he exercised the care and skill of an average vascular surgeon in all the circumstances present between late afternoon on July 5, and the rupture of the aneurysm, Dr. Martin would have known prior to the rupture that the aneurysm was rapidly expanding. Also, although Dr. Austin’s report concerning the July 5 CT scan described an aneurysm that had expanded and could , have been leaking, the report was dictated long after the rupture had occurred. There is no evidence that Dr. Austin was accessible to Dr. Martin between the late afternoon of July 5 and the aneurysm’s rupture, and there is no evidence that, in concluding that the CT scan failed to reveal evidence that the aneurysm was leaking, Dr. Martin failed to meet the standard of care and skill of the average vascular surgeon. Brune v. Belinkoff,
The expert’s letters do not even allude to the standard of care and skill of the average vascular surgeon. The letters demonstrate no attempt to measure Dr. Martin’s conduct by such a standard, and surely, apart from those letters, nothing in the record, under a directed verdict standard, shows negligence (malpractice) on the part of Dr. Martin. The court states, ante at n.6, that “[t]he gastroenterologist stated [in his letter dated August 14, 1990] that ‘[i]f an expanding or leaking aneurysm had been documented, the patient should have been scheduled for surgery [the] evening [of July 5].’ This is an opinion on the course of action that one reasonably exercising the care and skill of an average vascular surgeon should have followed.” As the hospital record indicates and Dr. Saltzberg’s letter dated January 16, 1987, confirms, the final report relative to the CAT scan done on July 5, 1986, was not even dictated by Dr. Austin, the radiologist, until after the patient’s demise and, as I hаve stated in note 2, supra, the report when dictated did not say that there was an expanding, leaking aneurysm. Most importantly, there is no expert opinion in the record that an expanding or leaking aneurysm should have been documented before it was documented, or that Dr. Martin, rather that Dr. Austin, the radiologist, should have documented it and then scheduled the patient for surgery on the evening of July 5. The gastroenter-ologist’s observation that, if an expanding or leaking aneurysm had been documented sooner, the patient should have been scheduled for surgery, does not come close to constituting an expert’s opinion that “one reasonably exercising the care and skill of an average vascular surgeon” would have done anything that, according to the record, Dr. Martin failed to do, or would have refrained from doing anything that Dr. Martin did. For that reason alone, the claim against
I would affirm the judgment below solely on the ground that no legitimate question of malpractice was demonstrated before the medical malpractice tribunal. I speak briefly, however, to the causation question. The court observes that “[t]he traditional rule of tort law is that a plaintiff must show that it is more probable than not that the injury was caused by the defendant’s negligence. See Forlano v. Hughes,
Dr. Martin’s entry in the patient’s hospital рrogress notes says in relevant part, “No back pain/flank pain that would be C/W [consistent with] AAA [abdominal aortic aneurysm] expansion leak & no evidence of leak on CT.”
The final CT scan report does not indicate that there was a large expanding leaking aneurysm. Dr. Austin’s report in relevant part is as follows:
“1. Given the large size of the aorta, the possibilities include leaking along the renal pedicle into the perinephric space with the collection around the kidney representing chronically accumulating blood. The other possibility includes leaking of the aorta or perhaps compression by the aorta accounting for dilatation оf the left collecting system with a density around the kidney being related to extravasated urine.
“2. Large aortic aneurysm with changes as described above. Clearly leak of the aneurysm must be considered particularly in light of changes around the left kidney and increase in size since the prior ultrasound examination as well as position of intimal calcification.” (Emphasis added.)
The following addendum, entered July 14, 1986, appears at the end of the report:
“ADDENDUM: This addendum is to say that the C.T. report was dictated on the day following the C.T. Scan at which point the paperwork necessary for the dictation was available. The report was dictated following and with the knowledge of the patient’s course over the hours subsequent to the C.T. Scan.
“/s/ Robert Austin M.D.”