*1 McNamara C. McNamara1 & another vs. David
Luciette
Honeyman & another.2 November 1989. Suffolk. January O’Connor, Greaney, Liacos, C.J., Wilkins, Abrams, Nolan, Lynch, & JJ. Present: University Tort Claims Act. Medical Massachusetts. Massachusetts Doctor, Employment. of care. Malpractice, employee, Public Standard Psychiatrist,
Negligence, malpractice, Comparative. Medical Civil Evidence, Expert opinion, Relevancy Rights, Availability remedy. materiality. and Act, purposes
For not of G. L. c. the Massachusetts Tort Claims it is gross public employee material constitutes whether the conduct of a negligence merely ordinary negligence. [46] negligence jury’s The evidence at the trial of claims warranted the conclu- defendant, psychiatrist employed by sion that the individual the Uni- School, versity public employee of Massachusetts Medical was a purposes of G. L. c. Tort Claims Act. Massachusetts [47-48] negligence judge correctly At the ruled the evi- trial of claims the defendant, finding psychiatrist dence warranted a that the individual hospital, departed accepted practice a mental who, discontinuing schizophrenic patient one-on-one observation of erratic, during hospitalization, her self-destructive behav- had exhibited ior, and, intervals, instead, ordering observation at fifteen-minute cause proximate also a that the defendant’s was the injuries. patient’s death from self-inflicted [49-52] O’Connor, J., JJ., dissenting. joined, with whom Wilkins & Lynch, result of the patient hospital, death of a at a State mental as the give to a alleged negligence hospital, did rise psychiatrist of a at the rights (1982) theory Federal civil claim under 42 on the U.S.C. § constitutionally protected patient’s that the defendants had violated the safety. interest in reasonable care and [52-53] rights argue, Where the a Federal civil did not at the trial of claim, hospi- mental patient’s involuntary that a commitment to a State McNamara, 1 Individually of Karen and as administratrix of the estate They parents. John C. McNamara. are Karen’s 2 TheCommonwealth. Mass. 43 person, of her this contention
tal constituted an unreasonable seizure was not available to them on *2 appeal. [53] support civil did not a contention that The record of the trial of a action the jury were confused the number of issues submitted to them. [54] jury properly instructed as to the The at the of a civil action were trial inferences they were permitted to draw. [54] against was no psychiatrist, At the trial of claims there error expert testimony plaintiff’s the based on his re- admission of the records, stating opinion by qualified view of where he his commenting only he was on the as documented in the medi- treatment cal records. [54-55] arising hospitalized .psychiat- out of a
At the trial an action of the death injuries, judge patient correctly admitted ric from self-inflicted tes- day timony by boyfriend patient’s the patient’s before the sui- patient attempt, cide he had informed a ward attendant herself, just claimed she which was offered tried harm possibility to show that staff to the that she was was alerted suicidal. [55] arising hospitalized patient
In an action from death of a mental injuries, correctly self-inflicted allowed the motion negli- patient’s comparative for a directed verdict on issue of the gence. [55-56] Depart- commenced in the Court Superior
Civil action ment on March Cross, R. Raymond J.
The case was tried before The Court for direct Supreme granted Judicial request review. appellate L.
Harry Miles C. Kuzmeski with him) for the {David plaintiffs.
Robert V. & William Deiana C. Van Nostrand {Richard Jr., S. Rogers, him) Honeyman. with for David DiCianni, Vincent L. General Assistant Special Attorney Kilmartin, General, J. him) with Assistant Attorney {Robert for the Commonwealth. J. old Karen twenty On December year
Nolan, Hospital McNamara herself State hanged Northampton result of months as a She died almost three later (hospital). claimed, things, injuries. among her The other neg- grossly Dr. David Honeyman, psychiatrist, round-the-clock, ligent when he took Karen off one-on-one observation and ordered that a staff member check on her every fifteen minutes.
A jury found found the Com- Honeyman grossly negligent, monwealth liable for and found negligence, the Commonwealth liable for Karen’s conscious pain suffering and for violation of Karen’s Federal rights. civil million, $1.7 damages awarded including $190,000 in punitive damages against Honeyman.
The trial judge, after considering motions for amending the judgment, new trial and judgment notwithstanding verdict, $100,000 entered a judgment3 against the Com- *3 monwealth on the negligence claim. The ruled there judge was insufficient evidence to find Honeyman grossly negligent, and entered judgment the notwithstanding verdict in favor of Honeyman and the Commonwealth the claims that they violated Karen’s Federal civil rights and that Karen suffered conscious before pain her death.4 The left judge undisturbed the jury’s finding, made in response to special question, that Honeyman was a public Both employee. plaintiffs defendants appealed to the Court. We Appeals granted Honeyman’s petition for direct review. appellate We affirm the judgment.
When acting on the defendants’ motions for not- judgment withstanding verdict, the task, the judge’s ac- “taking into count all the evidence in its most aspect favorable to the plaintiff, whether, to determine without the weighing [is] credibility the witnesses or otherwise the considering weight of evidence, the the could return a jury reasonably verdict for Tosti v. plaintiff.” Ayik, 394 Mass. 494 (1985), Buchanan, Rubel quoting v. Hayden, & Harding 3 This judge’s was the trial entry judgment. judge second The vacated judgment verdict, an earlier incorporated except reduced wrongful death recovery. 4 Although ap listed this claim their notice of issues on peal, they did argue upon it in their pass brief. This court need not questions argued or issues not 16(a)(4), in the brief. Mass. as R.A.P. amended, 367 (1975). Mass. 921
46 Inc., 252, 254 The court will con- (1983). Ct. App. evidence, in the from whatever sider whether “anywhere derived, could source combination of circumstances be any be drawn” in found from which a reasonable inference could Plymouth, Poirier non-moving favor of party. Corp., v. Hertz Raunela (1978), Mass. quoting from The inferences to be drawn must be than possibili- evidence based on rather probabilities mere and conjec- ties and cannot the result of speculation Id. ture. Act. In the Massachusetts Tort Claims Application of whether the defendant is immune from
analyzing Honeyman G. L. c. referred to personal liability commonly under Act, as the must determine Massachusetts Tort Claims we 2 of whether was a Section public employee. from personal liability pub- extends chapter immunity their lic who are within the duties. employees acting scope If is a a defendant and his conduct consti- public employee 2 of negligence, chapter tutes simple ordinary § Commonwealth, clearly applies public employer, as liable. is liable for the harm and the is not employee whether G. L. c. 258 immunizes an question employee has not been gross negligence ordinary well as *4 answered our date. Two of c. 258 come by cases to sections 2 renders the under review in this issue. resolving Section “for liable in- but not the public employer public employee caused by or loss of or or death injury property personal 10, which the or or omission.” Section negligent wrongful act 2, among others, for of exemptions operation provides § shall not states in that a pertinent public employee part intentional tort “any arising immune from claim out of an hence, we . is silent and con- gross negligence . .” It as to is immune from arising a claim clude that a public employee such as gross negligence qualifies out of because a claim 2. or Accord- “negligent act or omission” under wrongful § consti- conduct it is not material whether ingly, for pur- tuted gross negligence merely ordinary of G. L. c. 258. poses status,
On agree the issue of we Honeyman’s employment with the trial that there was evidence sup- sufficient the verdict on a port jury’s special question was a the of public employee. Honeyman joined University Massachusetts Medical School staff in 1980 as a psychiatrist, lecturer and assignment assistant of His professor psychiatry. included the under providing psychiatric services at hospital, a contract between his of Massa- employer, the University chusetts, and State of Mental Health. Department contend University Massachu setts School is body Medical an and independent politic 258, public by defined G. L. c. l.5 The employer plain § argue tiffs that if the of Massachusetts is not a University is public employer, Honeyman not a public employee. To be deemed an univer- “independent body politic,” the sity “must constitute entity an itself and must have an existence and distinct apart from that the Common- Justices, 721, wealth.” Opinion An examination G. L. c. 75 makes clear that the univer- sity an agency Commonwealth thus is public employer. Section 8 of c. 75 gives the State au- Comptroller thority to regulate the university’s annual appropriations. The purchasing power of the board of trustees is university’s 75, limited by G. L. c. are Employees university § designated Commonwealth 14. The sale and employees § lease of land the trustees of the in the university are made name of statute, regulated Commonwealth and are 75, 25, G. L. c. 26 and 27. §§
Although Legislature has the trustees of empowered of Massachusetts to University establish a group practice at the medical center and services to collect fees (St. c. 1-7), the primar- medical center is still §§ ily dependent Commonwealth, G. L. c. § *5 258, 1, employer 5 General Laws c. public defines as common “the § town, collaborative, wealth any county, and city, . . educational or district. any office, commission, committee, board, department, council, divi sion, bureau, institution, agency authority direc thereof which exercises tion and public employee.” control over the 75, in G. L. c. 10. The accountable to it financial affairs. § It bonds. cannot sue medical school has no issue authority or be name. All of these factors indicate sued its own State, not separate is an a university agency entity. is a public
The fact that the Massachusetts University all its employ- does not establish that employer automatically v. 395 Mass. Steinberg, ees Smith are public employees. an individual (1985). determining The test for whether is a is the same that used to establish public employee acts a negligent “whether an is a servant for whose agent under the common law doctrine be liable principal may Rossi, Kelley respondeat superior.” a independent judgment, While exercise physicians can still deemed a servant where the principal physician id. at See controls the details of the activities. physician’s 662. could
There was sufficient evidence from which the jury details of conclude that controlled the Honeyman’s employer his hours. He regulated his activities. Honeyman’s superiors work or the no as to the ward in which he would say treat, in Smith physician that he would unlike the patients at did not have any private Steinberg, supra Honeyman number of and his income was not based patients pa- finding tients he left the judge correctly jury’s treated. undisturbed. the Common-
Because was a Honeyman public employee, c. G. L. negligent wealth is liable for his conduct under for law and the claim common plaintiffs’ § If with the against VI) agree fails. we Honeyman (Count trial the evidence supported need examine was we negligent, the Common- against additional basis charging liability we need look Accordingly, only wealth.6 treatment of Karen. allowing pa negligent 6 The claimed that easily to look permitting wall staff
tients to use cubicle without half *6 406 Mass. v. Honeyman.
McNamara 2. The trial ruled that the evidence Negligence. sup- of did ported finding negligence jury’s but not support gross negligence. agree of We with the trial judge’s conclusion. The defendants denial of a judge’s contest the motion for on the find- judgment notwithstanding the verdict of ing The denial negligence. challenge judge’s of their motion to his judgment, amend which asked that jury’s finding gross reinstated.
The defendants contend that was not negligent in Commonwealth, his treatment of The Karen. as a public 2, is liable under G. L. c. if the employer, jury reason- § Karen, found ably that there was a owed to duty that there was a breach of such duty by Honeyman, that resulted injury from the breach and that a causal existed be- connection tween the breach Dinsky and the injury. Framingham, 804 (1982).
The standard of care required is consis- psychiatrist Kantar, tent with that of a practitioner. Stepakoff 393 Mass. psychiatrist The must exercise degree same of skill and care as is exercised the aver- age in qualified practitioner taking that into ac- specialty, count the in profession advances and the resources avail- able Id. at physician.
Karen seventeen, was diagnosed as schizophrenic age when she was admitted to a state first mental for the time. Over the next years three she pattern displayed calm relatively behavior followed violence periods against herself and dis- others. When she became extremely self-destructive, ruptive she would be admitted to hospital, which was most facility restrictive mental health available her area.
Her fifth and final admission the hospital began Thanksgiving after harm her- Day attempted she self by digging a fork into her on a home visit. A wrist while placing ceiling an Karen along electrical conduit cubicle. hanged wedged gap herself with a into a between the bedsheet she pipe ceiling. conduit and the earlier, with a of broken she had slashed her wrist piece
week health center where at the adolescent mental glass. staff care taking concluded could risk living they she had been *7 “suicidally Karen when she was active.” admission, her final Karen continued During this hospital arrival, admitting erratic behavior. her pattern Upon to prevent of Karen doctor ordered one-on-one observation following November day, her from suicide. commiting 28, 1980, to told she did not intend Honeyman after Karen herself, every to staff checks kill he reduced the precautions from a top that she took the day, flip fifteen minutes. Later cut She was returned superficially. can of soda and her neck member of the staff. to one-on-one observation another 2, 1980, level reduced the Honeyman again On December Karen, noting to checks for observation fifteen-minute did harm herself. She Karen had stated she not intend to un- just as the door was day bolted from the ward later that ward and the locked. returned her to the Security employees Karen. staff ordered one-on-one observation for in one-on-one obser- For the next two weeks she remained time, Karen made several vation status. this During period windows, her banging harm herself attempts punching was cut or choke herself. She head on the bed and trying staff, orally and When physically. also abusive to the both control, her in wrist-and- put she became difficult to the staff on happened ankle she down. This restraints until calmed 14, five occasions between December 16, friend visited boy The afternoon December that Karen her and staff member then informed or not Whether day. claimed have suicide that attempted suicide, reasonably had attempted Karen actually again she infer was notice that Honeyman could v. Plymouth, supra. Poirier might suicide. attempt 17, Hill Karen attended morning On of December in the the hospital adolescents. She returned to Program for afternoon, herself, unasked, at staff where she presented anx- she seemed meeting Honeyman. Although attended by hour, distressed, a half Within away. ious and she sent Mass. 43 she was found hang- herself. Sometime after Karen hanged records, ing, Honeyman inserted a notation into her medical which stating, he dated December “No intent for self harm. No recent incidents. Future oriented.” De- changed testified that he Karen’s status on
Honeyman herself, cember before from one-on- day hanged she one observation to fifteen-minute checks. He said based he his decision on the fact rela- that Karen’s behavior been since tively stable December which he stated was the last time that she danger- was restrained concerns about ousness.
Although Karen had twice tried to choke using herself cane and a candy cigarette on December tes- tified he did not them consider to be true suicide at- *8 He tempts. also cited her harm herself and promise her willingness to enter treatment a for adoles- program cents as indications that less restrictive status was appropriate. Nelson,
The Dr. plaintiffs’ Michael that expert, testified behavior, records, as described in the was con- out of trol throughout her at the He stated stay hospital. that he would not consider Karen to be stabilized unless she had two consistent, behavior, three weeks of safe during which she harmed neither herself nor others. Nelson testified be- that control, cause Karen’s behavior was out fifteen-minute checks, ordered, which Honeyman were not sufficient to manage her condition. He stated his opinion, death was if close preventable Karen been on the kept then, could, scrutiny one-on-one A have juror observation. inferred from Dr. negli- Nelson’s that testimony gence in failing to was keep Karen on one-on-one observation the proximate cause of her death.
The judge relied upon Dr. Nelson’s in conclud- ing jury could find that Honeyman negligent. We read, think that Nelson’s when testimony, consid- fairly ered with the other evidence in the favor concern- ing condition, Karen’s behavior and warranted a Honeyman deviated from accepted practice expected 43 406 Mass. removing Karen
of a in these circumstances psychiatrist from one-on-one observation. trial en challenge judge’s The
3. Civil rights.
on their claim
notwithstanding
the verdict
try
judgment
Commonwealth violated Karen’s
and the
1983,7
civil
a claim based on 42 U.S.C.
rights. To establish
§
of was
must show that the conduct
plaintiff
complained
a
law and
acting
a
under color of State
person
committed by
or im
rights,
that the conduct
deprived person
privileges
munities secured
the Constitution or laws
United
Parr
(1986).
v.
398 Mass.
Miga Holyoke,
States.
on other
Taylor,
(1981),
att v.
451 U.S.
overruled
Williams,
“[T]he act negligent causing of an official unintended loss or injury life, to liberty original). property” Appleton (emphasis Hudson, 812, v. (1986), 818-819 Daniels quoting Williams, v. argue 474 U.S. (1986). plaintiffs that negligence is state claim for violation simple enough civil rights Federal when a exists be- relationship special tween the defendant and the victim. The special relationship here is that of physician The United States Su- patient. Court preme already has examined claims in that context and found to be for simple negligence an basis inadequate claim that rights constitutional have been Estelle infringed. Gamble, (1976). U.S. 105-106 The conduct must amount to “deliberate indifference.” Id. at 104. Generally, Federal courts have held even gross negligence that falls short Jones, of “deliberate Shockley indifference.” F.2d (7th 1987). Cir.
On appeal, argue right under the Fourth Amendment to the United States Constitution to be secure against unreasonable seizure of her was vio- person lated because was she involuntarily committed to the hospi- tal. The plaintiffs made brief very during mention the trial were they Fourth, asserting rights under the Fifth Fourteenth Amendments. concede They issue not specifically presented While their jury. pleading listed the Fourth Amendment one con- source of Karen’s rights, stitutional there was no un- being reference Karen’s verdict, “seized” in constitutionally their for motion directed their request instructions or ques- their special jury tions. Some evidence about the nature Karen’s commit- introduced, ment was but because the seizure issue was not argued trial, we Leardi v. shall not consider it appeal. Brown,
4. New trial. The defendants that the trial charge *10 made several in errors in his instructions the and his jury evidentiary rulings. We have of error examined each claim Mass. 43 406 v. his judge prop-
and conclude the did not abuse discretion new trial. denied the motions for a erly First, it issue to the every was not error to send prejudicial is when a trial in jury. economy judge, Judicial promoted the for case in which it is a close whether standard question met, go a matter to the jury. directed verdict allows Co., (1978).8 v. The de- Smith Ariens fendants the number jury by contend the confused issues, the it of delibera- days as evidenced fact took seven by the deliber- length tions to reach a verdict. The of time jury case enough jurors ated is not to show confusion. The in this and their answers to those were assisted by questions9 special questions were not inconsistent. internally in judge
The defendants also claim that the improperly In both structed the on the inferences could draw. jury they instances, *****16andwere qualified the inferences were reasonable10 were to draw those jurors required statements that the Salas, v. The were fair. inferences. instructions Pfeiffer 93, 100 (1971). Mass.
The admitting committed no error in the judge Nelson, and in admitting hearsay the Dr. plaintiffs’ expert, 627-628, Co., pointed supra this v. if a 8 As court out Smith Ariens verdict, notwithstanding jury judge granting judgment errs then can verdict be reinstated. rights improp questions on were 9 Thedefendants contend that the civil allowing judge jury to consider two erly worded erred wrongful Any questions was cor separate error in the claims death. notwithstanding verdict. The judge judgment rected trial in his not, however, questions jury. were so as to mislead the inaccurate it acted judge jury 10The could infer that instructed 17, 1980 liability on or after December out of consciousness of when either (the December day attempt), he inserted a note dated Karen’s suicide recent inci “No intent for self harm. No into Karen’s medical records: can considered dents. statements Future oriented.” False inconsistent Goriansky, indicating liability. Sheehan consciousness See could infer (1944). that it Mass. also instructed entry in for December from the lack of an the “team book” Sales, Inc., 5 Mass. Wilmington meeting team See no occurred. Johnson 803(7) (absence of R. Evid. App. Proposed Ct. 858 See also prove non activity entry regularly into conducted admissible records event). occurrence of *11 55 406 Mass.
McNamara The Com- boy offered the decedent’s friend. founda- argues monwealth that Dr. Nelson’s lacked a opinion tion was on a review of medical solely because it based however, stating records. Dr. Nelson his qualified opinion, that he was as docu- commenting the treatment only case, of the mented in medical records. In this the source admissibility. to its its See expert’s goes weight, not opinion Co., Bernier v. Boston Edison 381 (1980). Commonwealth also the admission testi- challenges 16, 1980, mony that on December Karen’s friend in- boy formed an unnamed ward attendant who let him of the out locked ward that Karen told she tried just him to choke herself with a towel. This statement was admitted to show staff had hospital been alerted to the Karen possibility suicidal, and not to show that Karen tried to actually harm herself. See Harvard Seelig Coop. Soc’y, 355 Mass.
Finally, there is no merit in the defendants’ claim that the judge erred in allowing motion for a directed verdict on the issue of negligence. Men- comparative tally ill who are people capable forming an intent and who actually do intend an act that causes will be held damage liable for that McGuire v. damage. Almy, 297 Mass. 328 (1937). It follows ill can be com- mentally person This paratively negligent id. some circumstances. See court has not before examined the question comparative negligence arising out of conduct which a has been person hospitalized join committed. We number of courts holding there can be no where the comparative negligence defendant’s of care duty includes the self-abusive preventing or self-destructive acts that caused the plaintiff’s injury. Cowan v. Doering, 111 N.J. (1988), and cases cited. Clearly, duty care that the defendants owed to an institutionalized patient such as Karen McNamara in- cluded taking reasonable her suicide when it steps prevent was a known or foreseeable risk. allow To the defense comparative negligence in these would render circumstances meaningless act duty pro- reasonably Cowan, supra
tecting against self-harm. patient did not err in al- Court Accordingly, Superior alleged to Karen’s motions for directed verdict as lowing negligence. comparative
Judgment affirmed. *12 O’Connor, Lynch, with whom Wilkins and (dissenting, J. the JJ., is whether in this case join). question The primary finding negligence evidence was sufficient to warrant or contrib- on the defendant caused Honeyman the part The court uted to cause the suicide of Karen McNamara. Dr. expert, has plaintiffs’ concluded that the read, Nelson, with the other Michael when considered “fairly behavior concerning in Karen’s evidence the favor condition, deviated Honeyman and warranted a finding . . of psychiatrist. accepted practice expected observation,” and that by removing Karen from one-on-one Ante of her death.” that deviation cause “was proximate agree. at 51. I do not conduct on several occa-
The court characterizes Karen’s “self-destructive,” that, at least sions and informs us twice, her on one-on-one members staff placed from Decem- on observation observation. She was one-on-one 2, 1980, status removed her from that ber until Honeyman importance on clear what entirely December It evidence, evidence to the further court attaches to that that, a hospital friend informed boy December have or to (not member shown to have been Honeyman staff that Karen along Honeyman) passed the information Also, it is un- day. claimed to have suicide that attempted the evidence court attributes to clear what significance to a death, herself her .Karen shortly presented before “ and, she [although staff attended meeting Mass. distressed, In seemed anxious and she was sent away.”1 any event, that evidence does not the test for set pass sufficiency v. Belinkoff, out in Brune (1968) its Kantar, See progeny. Stepakoff evidence, Surely, recited ade unsupplemented by quate expert testimony, would not have warranted the finding Honeyman, removing Karen from one-on-one observation, or in failing to Karen’s sui predict prevent cide, failed to degree exercise the skill and care customa rily exercised by average qualified psychiatrist circumstances.
The court’s expressed conclusion that Nelson’s testimony in conjunction with other evidence supports state, if it implies, does not the court’s explicitly recognition that Nelson’s testimony Therefore, was critical. fair review appellate demands careful of Nelson’s analysis *13 testimony, a of I type analysis, that is not in suggest, present the court’s opinion. that,
Nowhere in his did Nelson suggest even Honeyman’s Karen, treatment and supervision of aside from record-keeping, Honeyman deviated from accepted medical practice. Nelson did not either testify, explicitly implicitly, that Honeyman had failed to treat Karen with the skill and care that would have been exercised by average an Rather, competent psychiatrist. as is demonstrated by record, following excerpt Nelson focused on what he perceived to be He Honeyman’s faulty record-keeping. “good testified that medical practice” requires documenta- tion of kinds of many information information including about the of level patient supervision required from time time and about the of su- reasons for changing intensity pervision whenever are also changes deemed He appropriate. testified that fell stan- Honeyman’s documentation below the testimony by 1 The a treatment team was member named Walsh engaged meeting while the team was at east of a nurse’s end station, door, Karen came to opened and that someone the door and asked her to wait. The record saw is bereft of evidence that Karen or was presence. made aware of her good and that the reason “good dard medical practice,” is receives care required patient documentation is different times of the variety working from a people close, is es- communication between them day, accurate examination as follows: sential. Nelson testified on direct did Dr. treatment of Q. Honeyman’s “In your opinion, documented, McNamara, good with comport Karen medical practice?” documented, “As no.”
A. Q. “What basis your opinion?” A. “Examination the record.” treat- “What the record led conclude his Q. you documented, did McNamara, as ment Karen with good practice?” comport Dr. A. “There was no admission history was no treatment Review of her record. There previous was of the treatment There no review plan. regular recorded ob- There was no consistent plan. pattern There was recorded servations in the notes. no progress staff Dr. de- concerning discussions was no cisions to observational status. There as- change rationale in according sessment documented was no cases from one status to another. There many been es- documentation of that should have the steps to the discharge tablished to Karen McNamara’s prior of her documentation Program Hill and there no status on return.” *14 “Now, sir, whether do as to
Q. also have an you opinion, medical good with Honeyman’s Dr. failure to comport death?” to Karen McNamara’s practice contributed A. “Yes.” is
Q. “What that opinion?” as medical good practice, A. “His to comport failure documented, did contribute her death.” to the asked, an as have opinion Nelson also was “Do you prac- good extent Dr. deviation Honeyman’s answered, “As documented'?” tice?” Nelson said, answered, “As counsel documented.” Nelson “Significant.” cross-examination,
On the following questions were asked given: answers fact, Q. “If it not in it were a whether was documented or record, that the team that were held three meetings admission, during times week if it were a fact that her behavior and condition and treatment and plans her treatment in the were discussed at future team those would that tend meetings, change opinion about Dr. Honeyman’s treatment?” A. “That would to change tend with my opinion,
proviso.”
Q. “With a proviso?” “Yes, A. That proviso that documentation is part
good medical practice.” Plaintiffs’ counsel of Nelson carefully inquired about documented,” treatment of Karen “as and Nel- son’s answers were limited in the In- expressly way. same deed, when, occasion, on one counsel asked whether Nelson had an about opinion whether “Dr. Honeyman’s failure to comport good with medical practice contributed to Karen’s death,” answered, and, Nelson when “yes,” asked for that opinion, his answer was that Honeyman’s “failure to comport documented, to good medical did contribute to practice, her death” (emphasis added). Nelson supplied limitation that had been omitted from the question. As court ac- knowledges discussion, in its “New trial” ante at “Dr. Nelson qualified his opinion stating ... that he was com- menting only the treatment as documented in the medical records.”
One point must be Nothing made in Nelson’s crystal clear. testimony remotely suggests there was information in the hospital records that negli- demonstrated Honeyman’s gence. Rather, Nelson’s reasonably can only understood to mean if the ac- treatment supervision tually given were limited to what in the was contained records, and one were failed to conclude that *15 review had failed to prior
to take an admission history, records, had failed had failed to treatment plan, establish discussion and had had no regularly observe the patient, to documented, staff, events were not because those with good did not with performance comport then his because help Such does not practice. testimony there was evidence that Honeyman’s performance no in charts. to was recorded whatever limited inferring would not have been warranted Surely, jury he had not estab- recording from failures that Honeyman’s things. other undocumented lished a treatment or done plan to he had done were Even if as all testimony Honeyman’s only speculated could have jury, disbelieved to respect to had failed with treat- whether only. to record-keeping ment or had failed with respect fairly could the court nor else nor suggests, Neither anyone would have been warranted suggest, that the jury anything had Honeyman’s negligent record-keeping do with Karen McNamara’s suicide. re- its with
The court’s as set forth in reasoning, opinion, to es- sufficiency to the evidence spect question notes, court is brief. The Honeyman’s negligence, tablish that, “as described in testimony ante at Nelson’s records,” throughout her was out of control Karen’s behavior her stabilized that Nelson would not consider hospital stay, safe behav- in the absence of weeks consistent two three ior, manage “not sufficient to that fifteen-minute checks were if condition,” was “preventable” her that Karen’s death The court on observation. Karen had been one-on-one kept concludes, other any expert ante at without reference could, then, Dr. have inferred testimony, juror that “[a] failing Nelson’s the proximate Karen on observation was keep one-on-one it that the jury prop- cause of her is true Certainly, death.” one-on- kept been could have found Karen erly not have status, would the suicide probably one observation flaw, however, in the occurred. The critical case determination, tes- did not is that Nelson and in the court’s *16 Mass. 43 decision to Karen from one-on- tify Honeyman’s remove one average observation fell below the standard set Kantar, 393 Mass. competent psychiatrist. Stepakoff See (1985); Brune v. Belinkoff, focused, treatment, Nelson not but on causation only. Surely, things fact as unhappy out, turned fifteen-minute checks “were not sufficient to condition,” manage is, to her from com keep [Karen’s] suicide, mitting does not the conclusion permit Honeyman’s management of Karen was less ought than expected also, an average competent psychiatrist. Surely, could reasonably have Nelson’s interpreted testi mony measuring conduct the Brune against standard. Belinkoff
The evidence was insufficient to warrant Honeyman’s negligence except, with to rec- perhaps, respect ord-keeping. The evidence was insufficient to show any causal connection between faulty and Karen record-keeping McNamara’s death. No other evidence of adequate negli- gence attributable the defendant demonstrated in the court’s and I am opinion, unaware of any. No other ground for recovery against either defendant has been estab- Therefore, lished. I would reverse the judgment and order judgment for the defendants.