45 Mass. App. Ct. 63 | Mass. App. Ct. | 1998
This medical malpractice action was initially against both Dr. Robert B. Shepherd and Dr. Samuel Pickens, defendants.
On April 19, 1989, Gail McDaniel, plaintiff, went to the Barre Family Health Center at Barre (a department of Holden Hospital) where she was seen by Dr. Shepherd, a resident in the tenth month of his first year of residency.
A year later, on May 17, 1990, the plaintiff did return. The neck lump had suddenly grown much larger, as Dr. Shepherd observed. At Dr. Shepherd’s request, Dr. Pickens examined the mass. Further exploration was indicated. An ENT specialist made a “needle” biopsy. It was inconclusive, as was a CAT scan. In July, 1990, the plaintiff underwent an excisional lymph node biopsy. This showed that the plaintiff had non-Hodgkins lymphoma. The cancer had invaded the whole lymph system and bone marrow. For six months commencing August, 1990, the plaintiff underwent chemotherapy. In February, 1991, the cancer was in remission and this condition continued through the time of trial in November, 1995.
At trial, it was conceded on the part of the defense that proper medical care in the circumstances would not have consisted merely of leaving the plaintiff’s return for follow-up of the neck lump to the plaintiff’s judgment about whether the lump had changed. Ráther the physician should make sure that the plaintiff was seen within two months or so
The plaintiff charged that Dr. Pickens had behaved negligently in that he had not himself seen to the earlier appearance of the plaintiff for reexamination. Dr. Pickens replied that as an attending physician advising a resident he was not under an independent duty to see to the timely return of the patient; he could and had properly relied on the resident (whom he thought well of) to assure the patient’s attendance.
If Dr. Pickens were found negligent, then the question of
The matter was tried on both issues through the medical records and the testimony of plaintiff, defendants, and medical experts, and passed to the jury on special questions. The jury answered the first question, was Dr. Pickens negligent, in the negative; accordingly, the question of causation was not reached, and judgment entered in Dr. Pickens’ favor. The plaintiff appeals.
1. The plaintiff argues that the trial judge erred in unduly restricting her counsel’s cross-examination of the defendants’ experts to attempt to establish their bias..
The matter of cross-examining experts for bias was discussed in the morning just before trial began in connection with plaintiff’s subpoenas to produce and defendants’ motions to exclude evidence about the selection and compensation of defendants’ medical experts. The upshot was a ruling by the judge, in effect, that cross-examination about malpractice insurance or insurers would not be allowed; to permit such questioning, he said, would be “unfair.” He said, however, that he would not “handcuff” counsel and would allow reasonable cross-examination of experts in other ways on the subject of bias.
The question of cross-examination for bias obtruded again during trial. Dr. David E. Nicklin, an expert on family practice, testifying as plaintiff’s only expert, described on direct the fee he was charging in the present case (this, however, would go to the University of Pennsylvania of which he had become a salaried employee in 1994). In cross-examination, defense counsel elicited that Dr. Nicklin had come into the case through “MedQuest,” an organization which arranged (“brokered”) matches between lawyers and physicians acting as experts. Dr. Nicklin also said that about ninety percent of his fifty retainers as expert since 1990 were on the side of plaintiffs.
The judge was mistaken in his understanding of the law. The legal position is stated briefly in rule 411 of the Federal Rules of Evidence (the same as the proposed Massachusetts rule 411 and reflective of existing practice):
“Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Thus evidence of liability insurance is firmly barred when offered in medical malpractice cases to prove that a defendant physician did or did not act negligently: this is because of the weakness of the inferential connection, see Jamison v. A. M. Byers Co., 330 F.2d 657, 661-662 (3d Cir.), cert. denied, 379 U.S. 839 (1964). On the other hand, there is a clear right of litigants to attempt to prove bias in derogation of witnesses’
It follows that the trial judge in the present case acted incautiously when, as a per se proposition, without apprehending what the situation might turn out to be, he excluded all reference to liability insurance that might be offered in proof of an expert’s bias — the exclusion announced at the threshold of the case and maintained throughout.
2. Granted the judge’s mistake, how significant was it and how might the plaintiff be expected to react to it? Here we look first to the condition of the record about Dr. Pickens’ alleged negligence in failing personally to assure the plaintiff’s recall, the matter on which the action finally turned.
Dr. John Santoro, an expert on family practice, who was Dr. Pickens’ expert on the negligence question, delineated the relative functions of resident and attending physician, referring to his experience at Baystate Medical Center in Springfield, Massachusetts. He concluded that Dr. Pickens’ conduct was unexceptionable. Defendant’s counsel was at pains to anticipate a suggestion that Dr. Santoro was unduly biased: on direct examination Dr. Santoro said he had received the materials (medical records, etc.) in the case from the defendant’s counsel who was then examining him; he had similarly reviewed other cases at the request of attorneys in malpractice cases; had done so three or four times a year, either for plaintiffs’ attorneys or defendants’ attorneys; since 1975 he had testified in court three or four times, and on deposition perhaps ten times; he spoke of the fees he charged.
The plaintiff’s counsel cross-examined Dr. Santoro on the negligence issue with not more than moderate effect. He did not undertake to cross-examine the expert with respect to his possible bias.
The action thus stood as at most a case for the jury on the negligence issue, but quite persuasive in favor of Dr. Pickens; and the bias question was left untouched by the plaintiff.
We add that insistence on the plaintiff’s making a fair showing seems particularly appropriate where, as indicated above, the evidence on the substantive issue of negligence weighed heavily in one direction and witness bias would have to be strongly demonstrated to tip the scale. See Reed v. Wimmer, 195 W. Va. at 209 (where case stands on merits to be considered in handling bias problem). Cf. Mass.R.Civ.P. 61, 365 Mass. 829 (1974) (harmless error); G. L. c. 231, § 119 (same).
Judgment affirmed.
Dr. Shepherd’s three-year family practice residency was at the University of Massachusetts Medical Center, Worcester. He worked one day a week at the Barre Center.
Dr. Pickens mentioned one or two months, Dr. Shepherd three to six months.
On redirect, Dr. Nicklin said his work as expert was but a small fraction of his total active practice and of the four cases, other than the present case, in
In further cross-examination of Dr. Rosenthal, plaintiff’s counsel asked him when he received the records in this case for review, how much time he spent on this case, and what rates he charged. Counsel asked whether the witness had been retained for defendants in other cases; answer, he didn’t make a living doing this; he made about $1,000 to $1,500 a year every couple of years; he received the fees from law firms, either plaintiffs’ or defendants’. Did he generally testify for the defendants; answer, he acted for either the plaintiffs or defendants.
Dr. Robert Shepard (not related to the defendant Shepherd), an oncologist, was also an expert for Dr. Pickens. On direct, after substantive testimony, he said he received the records in this case for review from the defendant’s counsel; he had done the same for others, perhaps twice a year; had testified in court just once; and his fees were thus and so. As with Dr. Santoro, plaintiffs counsel cross-examined on substance, but chose not to examine about bias.