21 Mass. App. Ct. 399 | Mass. App. Ct. | 1986
On September 22, 1978, the plaintiff, Wiik, underwent a retropubic prostatectomy at Nashoba Community Hospital with the defendant Dr. Rathore as surgeon, and the defendant Dr. Espanola as anesthetist. In its main purpose, the operation was successful. Subsequently, however, the plaintiff complained of loss of sensation in the fourth and fifth fingers of his left hand, evidently the manifestation of an ulnar nerve palsy. He brought the present action charging the defendants with having caused the condition by reason of their negligent practice in the conduct of the operation. More specifically, the plaintiff’s claim was that his left arm was improperly positioned while he was under anesthesia on the operating table, with the result that the relevant nerve system was unduly compressed or stretched and thereby damaged.
This medical malpractice action was fully tried in April-May, 1984, with testimony by the parties and by experts on either side. The jury found for the defendants.
After an episode of acute urine retention for which he was treated at. Nashoba Hospital emergency, the plaintiff in early September, 1978, was examined by Dr. Asher, who concluded that he was suffering from an enlarged prostate and advised him to see Dr. Rathore, a urologist. Dr. Rathore recommended the operation that was carried out on September 22. Dr. Asher attended the operation, serving for a fee as an assistant to Dr. Rathore at the latter’s request (the usual arrangement when
1. We now approach Dr. Asher’s testimony about a visit to his office on April 30, 1979. First we note that Dr. Asher, in the course of his testimony, stated that he observed nothing unusual, that he was aware of no problem, during the surgery; that “[independent of Dr. Caprio,” he did not feel he was competent to form an opinion about the cause of the plaintiff’s condition; and that he did not know what caused the condition. However, counsel for the plaintiff sought to get in evidence Dr. Asher’s entry for the April 30 visit which, besides noting the copy of the report received from Dr. Caprio, and stating that the condition was “Ulnar nerve palsy, questionably getting a little better,” went on to say: “Patient is informed that this is an unfortunate complication of his surgery from lying on the table with his arm in the wrong position and should not have happened.” But, responding to the question whether he had told the plaintiff on April 30 how the injury occurred, Dr. Asher answered, “No.” Plaintiff’s counsel then offered Dr. Asher’s quoted entry of April 30 (especially the second quoted part). This was received only as a prior inconsistent statement bearing on Dr. Asher’s credibility, not as proof of the substance of the entry itself.
Finally, counsel suggests, in effect, that it is time to get rid of the traditional confinement of prior inconsistent statements to a role merely as impeaching credibility. This would involve a far-reaching projection of Commonwealth v. Daye, 393 Mass. 55, 65-75 (1984),
2. Counsel offered to show through testimony by the plaintiff himself that, as indicated in Dr. Asher’s entry of April 30, Dr. Asher had told him of the supposed cause of his injury. Intended somehow to enhance the entry and allow its admission
3. A disability claims examiner at the Massachusetts Rehabilitation Commission on November 9, 1979, had a conversation by telephone with Dr. Asher about the plaintiff’s condition and made a record of Dr. Asher’s statement.
4. Criticism of the judge for not giving certain instructions in the form tendered by the plaintiff is unimpressive. The instructions given were adequate and the action as a whole was conducted with care.
Judgment affirmed.
The plaintiff’s right arm was at his side; his left arm was extended on a padded board, palm up, at an angle of about ninety degrees from his body and was not taped down. The table was slightly tilted during the operation with a chance that the arm would shift upward to make a somewhat obtuse angle to the line of the lower body.
On counts for injuries due to malpractice and for reimbursement of medical expenses.
There was testimony that the plaintiff while at the hospital complained to a nurse about pains in both hands.
“Patient is informed” might well be read as —• Patient has already been informed by another. However, the parties seem to have gone on the assumption that the phrase meant that Dr. Asher informed the patient.
In the course of the trial and also in his instructions the judge took pains to advise the jury about the difference between impeachment of credibility and actual proof.
Allowing use of prior inconsistent grand jury statements as probative evidence.
Such information is gathered in connection with social security claims.