Medical Malpractice


Summaries of Massachusetts Supplemental Cases

Aceto v. Dougherty
Alberts v. Devine
Alexandridis v. Jewett
Beeler v. Downey
Blake v. Avedikian
Booth v. Silva
Bradford v. Baystate Medical Center
Bratt v. International Business Machines Corporation
Brune v. Belinkoff
Burke v. Rivo
Carr v. Howard, New England Deaconess Hospital
Clevenger v. Haling
Copithorne v. Framingham Union
Denton v. Beth Israel Hospital
DiGiovanni v. Latimer
Doherty v. Hellman
Forland v. Hughes
Franklin v. Albert
Glicklich v, Spievack
Guell v. Tenney
Hardy v. VerMeulen
Harlow v. Chin
Harnish v. Children's Hospital Medical Center
Harrington v. Cohen
Joy v. Eastern Maine Medical Center
Kapp v. Ballantine
Kelley v. Rossi
Letch v. Daniels
Lindsay v. Romano
Lipman v. Lustig
Little v. Rosenthal
Lubanes v. George
McGuinness v. Cotter
McNulty v. McDowell
Palermo v. Brennan
Polonsky v. Union Hospital
Precourt v. Frederick
Renslow v. Mennonite Hospital
Sacco v. Roupenian
Schwartz v. Goldstein
Shotwell v. Winthrop Community Hospital
Smith v. Steinberg
Tarasoff v. Regents of the University og California
Tower v. Hirschhorn
Viccaro v. Milunsky


 

415 Mass. 654, 615 N.E.2d 188
ACETO v. DOUGHERTY
Supreme Judicial Court of Massachusetts,
Decided June 28, 1993.

Patient, who sustained perforated colon after receiving colonoscopy, brought medical malpractice action against hospital and residents and fellow who performed colonoscopy. The Superior Court, Middlesex County, Gordon L. Doerfer, J., entered judgment in accordance with jury verdict for defendants and denied patient's motion for new trial. Patient appealed. The Supreme Judicial Court, Lynch, J., held that: (1) patient was not entitled to instruction based standard of care of average qualified physician engaged in practice of colonoscopy, and (2) patient was not entitled to requested instruction that failure to inform patient of right to refuse treatment by student was negligent. Affirmed.



395 Mass. 59, 479 N.E.2d 113
ALBERTS v. DEVINE
Supreme Judicial Court of Massachusetts,
Decided June 4, 1985.

Church minister brought action against his psychiatrist and two of his clerical superiors alleging that superiors had induced psychiatrist to disclose confidential information and had used that information to cause minister not to be reappointed. The Superior Court, Norfolk County, Elizabeth J. Dolan, J., reported questions of law to the Appeals Court. The Supreme Judicial Court transferred the case on its own initiative, and O'Connor, J., held that: (1) exception to rule of confidentiality when aspects of employee's health could affect employee's ability effectively to perform job duties is not so broad as to permit physician to disclose to patient's employer whatever information might bear on employee's ability effectively to perform job duties; (2) civil action will lie against anyone who, with requisite state of mind, induces violation of physician's duty of confidentiality and thereby causes injury or loss to patient; (3) even if it were assumed, without inquiry, that book of discipline or other rule of church provided that clerical superiors of minister had right, or even duty, to seek medical information about minister from minister's psychiatrist, First Amendment did not preclude imposition of liability on minister's superiors; and (4) First Amendment did not bar judicial inquiry into church's proceedings culminating in minister's failure to gain reappointment. So ordered.



388 F.2d 829
ALEXANDRIDIS v. JEWETT
United States Court of Appeals First Circuit.
Jan. 24, 1968.

Action against obstetrics specialists, who were partners, and against first year obstetrics resident for injurious result of emergency surgery performed by resident to facilitate birth of a baby in absence of the specialists who had undertaken to perform the delivery. The United States District Court for the District of Massachusetts, Charles Edward Wyzanski, Jr., Chief Judge, rendered judgment for defendants after directing verdict in favor of them on the negligence count, and appeal was taken. The Court of Appeals, Coffin, Circuit Judge, held that evidence raised jury questions whether specialist had acted unreasonably when he did no more than leave instructions with a nurse to call partner after patient, who would deliver soon after onset of labor, was evaluated or, if pre-partum order sheet were deemed accurate, when patient needed further medication. Judgment for defendants on counts one and two vacated and case remanded for new trial; judgment for defendant first year resident on count three affirmed



387 Mass. 609, 442 N.E.2d 19
BEELER v.DOWNEY
Supreme Judicial Court of Massachusetts,
Decided Nov. 12, 1982.

Administratrix of estate of deceased infant brought medical malpractice action. Prior to trial, defendants submitted motion in limine which sought exclusion of finding of the medical malpractice tribunal from jury consideration. The Superior Court, Bristol County, Byron, J., granted motion and entered judgment on jury verdict in favor of the defendants, and the plaintiff appealed. The Supreme Judicial Court, Liacos, J., held that determination of medical malpractice tribunal, which screens potentially meritorious claims from those that merely involve an unfortunate medical result, is a ruling not to be admitted before the jury. Affirmed.



412 Mass. 481, 590 N.E.2d 183
BLAKE v. AVEDIKIAN
Supreme Judicial Court of Massachusetts,
Decided April 16, 1992.

Patient brought dental malpractice action. After malpractice tribunal determined that there was not sufficient evidence to raise legitimate question of liability appropriate for judicial inquiry, the Superior Court, Middlesex County, Catherine A. White and Robert J. Hallisey, JJ., denied motions for reconsideration and dismissed complaint. Patient appealed. The Appeals Court, 31 Mass.App.Ct. 1103, 575 N.E.2d 783, affirmed. Patient applied for further appellate review. The Supreme Judicial Court, Lynch, J., held that: (1) letterhead showing expert to be "DMD" satisfied extremely lenient standards set for qualification of experts before medical malpractice tribunal; (2) offer of proof was sufficient to proceed against dentist who extracted tooth; and (3) patient failed to establish doctor-patient relationship with second dentist who allegedly assisted in surgery. Affirmed in part and reversed in part.



36 Mass.App.Ct. 16, 626 N.E.2d 903
BOOTH v. SILVA
Appeals Court of Massachusetts,
Decided Feb. 3, 1994.

Medical malpractice tribunal determined that patient's offer of proof against physician, hospital and nurse's association was insufficient, and the Superior Court, Worcester County, James P. Donohue, J., entered judgments of dismissal. Patient appealed. The Appeals Court, Jacobs, J., held that: (1) evidence in offer of proof extrinsic to and supportive of opinion of expert is not required to make acceptable offer of proof before medical malpractice tribunal but, rather, factually based statement by qualified expert, without more, is sufficient to meet tribunal standard, and (2) when medical malpractice tribunal, at defendants' request, received in evidence records of two clinic visits by patient between surgeries, it acted within its statutory authority to summon or subpoena admissible evidence or experts to substantiate or clarify evidence presented before it. Vacated and complaint reinstated.



415 Mass. 202, 613 N.E.2d 82
BRADFORD v. BAYSTATE MEDICAL CENTER
Supreme Judicial Court of Massachusetts,
Decided May 11, 1993.

Administratrix of patient's estate commenced medical malpractice action arising from patient's death due to ruptured aortic aneurysm against hospital and two physicians. Medical malpractice tribunal concluded that plaintiff's offer of proof was not sufficient to raise legitimate question of liability. The Superior Court, Hampden County, John F. Moriarty and Lawrence B. Urbano, JJ., dismissed defendants after plaintiff failed to file bond, and plaintiff appealed. The Appeals Court, 32 Mass.App.Ct. 1117, 593 N.E.2d 1326, vacated judgments and tribunal's decision. One physician applied for further appellate review, which was granted. The Supreme Judicial Court, Wilkins, J., held that: (1) although, in the future, the Court will not consider arguments of wholly unsuccessful party who did not seek further appellate review, it would allow unopposed motions of hospital and other physician to join in proceeding; (2) plaintiff's offer of proof to medical malpractice tribunal was insufficient on issue of radiologist's alleged negligence in making report on computerized tomography (CT) scan; (3) offer of proof was sufficient on issue of vascular surgery consultant's alleged negligence in failing to perform emergency surgery; and (4) offer of proof was sufficient as to issue of causal relationship between consultant's alleged negligence and patient's death. Affirmed in part and vacated in part with instructions



392 Mass. 508, 467 N.E.2d 126
BRATT v. INTERNATIONAL BUSINESS MACHINES CORPORATION
Supreme Judicial Court of Massachusetts,
Decided July 16, 1984.

Employee brought action against employer, its agent, and another employee alleging libel and invasion of privacy. The United States District Court, District of Massachusetts, granted defendants' motion for summary judgment on all counts of employee's amended complaint, and employee appealed. Following oral argument, the United States Court of Appeals for the First Circuit certified questions of law. The Supreme Judicial Court, Liacos, J., held that: (1) loss of a defendant's conditional privileges to defamatory materials through "unnecessary, unreasonable or excessive publication" requires proof that defendant acted recklessly; (2) employer can lose privilege as to disclosure of defamatory medical information only if employee proves that disclosure resulted from an expressly malicious motive, was recklessly disseminated, or involved reckless disregard for truth or falsity of information; (3) disclosure of private facts about an employee among other employees in same corporation can constitute sufficient publication under right of privacy statute; (4) although no conditional privilege for legitimate business communications exists under right of privacy statute, employer's obtaining and disclosing personal information concerning an employee may not amount to an unreasonable inference with employee's statutory right of privacy; and (5) when medical information is necessary reasonably to serve substantial and valid interest of employee, it is not an invasion of employee's statutory right of privacy for physician to disclose such information to employer. Questions answered.



354 Mass. 102, 235 N.E.2d 793
BRUNE v. BELINKOFF
Supreme Judicial Court of Massachusetts, Bristol.
Decided April 3, 1968.

Malpractice action against anesthesiology specialist. The Superior Court, Good, J., entered judgment on verdicts for defendant on each count, and plaintiffs excepted. The Supreme Judicial Court, Spalding, J., held that conduct of specialist, practising in city of 100,000 slightly more than 50 miles from one of the medical centers of the nation, in administering spinal anesthetic containing eight milligrams of pontocaine to patient during delivery of her baby was measurable not by the skill and ability of physicians in that city but by skill of the average member of the profession practising the specialty, taking into account the advances in the profession and medical facilities available, and instruction to the contrary was reversibly erroneous. Exceptions sustained.



406 Mass. 764, 551 N.E.2d 1
BURKE v. RIVO
Supreme Judicial Court of Massachusetts,
Decided March 1, 1990.

Parents of child born following unsuccessful sterilization procedure brought medical malpractice action against physician who performed procedure. The Superior Court, Middlesex County, Hiller B. Zobel, J., reported question concerning proper measure of damages to the Appeals Court, and case was transferred. The Supreme Judicial Court, Wilkins, J., held that parents of normal, healthy child born after physician unsuccessfully performed sterilization procedure on mother could recover cost of raising child to adulthood. Question answered.



426 Mass. 514, 689 N.E.2d 1304
CARR v. HOWARD, New England Deaconess Hospital
Supreme Judicial Court of Massachusetts, Suffolk.
Decided Jan. 22, 1998.

Pedestrian sued psychiatric patient's estate for injuries sustained when patient jumped off hospital parking garage and landed on pedestrian, and estate filed third party claim against hospital seeking contribution, and for wrongful death. Pedestrian filed motion to compel hospital to produce incident reports regarding patient's death. The Superior Court Department, Suffolk County, Thomas E. Connolly, J., ordered incident reports produced for in cameral review. Hospital filed interlocutory appeal. Single justice of Appeals Court denied hospital's petition, and hospital sought review. Single justice, O'Connor, J., reported matter to full Supreme Judicial Court. The Supreme Judicial Court, Fried, J., held that hospital produced sufficient evidence to show that incident reports were protected by medical peer review committee privilege, such that in cameral inspection was not warranted. Superior Court order vacated, and remanded.



379 Mass. 154, 394 N.E.2d 1119
CLEVENGER v. HALING
Supreme Judicial Court of Massachusetts, Berkshire.
Decided Sept. 25, 1979.

Patient brought medical malpractice action against doctor alleging that doctor negligently performed a tubal ligation. The Superior Court, Berkshire County, Alberti, J., entered judgment for doctor, and after review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review. The Supreme Judicial Court, Wilkins, J., held that doctor's statements to patient to the effect that a tubal ligation was a "permanent thing" and "you are not going to have any more children after this operation" did not create a contract between parties calling for a result that patient would not have children in the future, since doctor's words were designed to make sure that patient knew the operation was nonreversible in character, the parties did not focus on the question of a promise, and words used by doctor were not promissory in nature. Affirmed.



401 Mass. 860, 520 N.E.2d 139
COPITHORNE v. FRAMINGHAM UNION HOSPITAL.
Supreme Judicial Court of Massachusetts,
Decided March 14, 1988.

Victim raped by visiting staff physician at hospital sued physician and hospital for injuries suffered during rape. The Superior Court, Middlesex County, Hiller B. Zobel, J., entered summary judgment in favor of hospital, and appeal followed. The Supreme Judicial Court, Hennessey, C.J., held that: (1) material issue of fact existed as to whether hospital's negligence in continuing physician's staff privileges, after receiving actual notice of prior incidents in which physician had sexually assaulted patients, proximately caused victim's injuries, thereby precluding summary judgment, and (2) material issue of fact existed as to whether withdrawal of physician's staff privileges would have prevented his drugging and raping victim, thereby precluding summary judgment. Reversed and remanded.



392 Mass. 277, 465 N.E.2d 779
DENTON v. BETH ISRAEL HOSPITAL.
Supreme Judicial Court of Massachusetts,
Decided June 21, 1984.

Plaintiffs in medical malpractice action moved for reduction of bond provided for under medical malpractice tribunal statute on ground of indigency. The Superior Court, Suffolk County, Linscott, J., excused plaintiffs from posting a bond, and a single justice of the Appeals Court allowed defendant hospital's request for leave to take interlocutory appeal. On allowance of defendant hospital's application for direct appellate review, the Supreme Judicial Court, Hennessey, C.J., held that: (1) plaintiffs' "waiver" of medical malpractice tribunal hearing and plaintiffs' failure to present offer of proof to the tribunal did not require dismissal of case, and (2) in medical malpractice cases involving indigent plaintiffs, judge should not reduce statutory bond below $2,000 unless plaintiff has made good faith effort to present offer of proof sufficient to meet directed verdict standard. Vacated and remanded.


390 Mass. 265, 454 N.E.2d 483
DiGIOVANNI v. LATIMER.
Supreme Judicial Court of Massachusetts,
Decided Sept. 29, 1983.

Patient brought medical malpractice action against physician. The Superior Court, Middlesex County, Alberti, J., dismissed the complaint, and patient appealed. The Supreme Judicial Court, Hennessey, C.J., held that patient who alleged that defendant doctor's negligent failure to inform her that he had removed her fallopian tube caused her to forgo pursuing other steps to help her conception, severe emotional distress and anxiety because she could not become pregnant, and severe emotional distress after she was informed that the fallopian tube had been removed failed to demonstrate legally compensable injury resulting from the alleged negligence, because there was no evidence that patient could have taken other steps to improve her chances of conception, patient did not establish a causal relationship between her emotional distress and the aggravation of her epileptic condition, and, because plaintiff presented no evidence that the failure to inform caused her any physical harm, her claim for emotional distress did not present a question of liability. Affirmed.



406 Mass. 330, 547 N.E.2d 931
DOHERTY v. HELLMAN
Supreme Judicial Court of Massachusetts,
Decided Dec. 18, 1989.

Medical malpractice plaintiff appealed from an order of the Superior Court Department, Middlesex County, John P. Forte, J., which entered judgment for director of radiation therapy center where patient received the allegedly negligent care. The Supreme Judicial Court, Abrams, J., held that: (1) plaintiff failed to establish that there was any consensual doctor-patient relationship between her and defendant, and (2) fact that defendant pioneered new therapy did not render him vicariously liable when plaintiff underwent new therapy with her own physician. Affirmed.



393 Mass. 502, 471 N.E.2d 1315
FORLANO v. HUGHES
Supreme Judicial Court of Massachusetts,
Decided Dec. 13, 1984.

Patient brought action against physicians and clinic alleging negligence, deceit, breach of contract, and battery in connection with performance of diagnostic procedure known as myelography. The Superior Court, Suffolk County, Paul G. Garrity, J., entered judgment in favor of patient, and appeal was taken. The Appeals Court reversed. After granting patient's application for further appellate review, the Supreme Judicial Court, Liacos, J., held that: (1) patient could not recover on negligence claims against physicians and clinic in absence of sufficient evidence on when, during procedure or after procedure, dye entered his skull and sufficient evidence for jury to conclude that if the dye entered during the procedure, it did so as a result of physicians' negligence, and (2) while there might have been sufficient evidence for jury to find that patient did not initially consent to physicians' performance of myelography, that evidence alone would not support a claim of battery, in view of patient's testimony that he knew about the risks of myelography and that he had consented to a myelography. Judgments of the Superior Court reversed.



381 Mass. 611, 411 N.E.2d 458
FRANKLIN v. ALBERT
Supreme Judicial Court of Massachusetts, Norfolk.
Decided Oct. 9, 1980.

Patient and spouse brought medical malpractice action against physician and employing hospital for failure to report correctly and to evaluate further X-ray finding of "left superior mediastinal widening," which allegedly was early manifestation of Hodgkin's disease. The Superior Court, Norfolk County, Rutledge, J., entered summary judgment in favor of physician and hospital, and patient and his wife appealed. The Supreme Judicial Court, Hennessey, C. J., held that cause of action for medical malpractice does not "accrue" under statute of limitations until patient learns, or reasonably should have learned, that he has been harmed as result of physician's conduct. Reversed and remanded.



16 Mass.App.Ct. 488, 452 N.E.2d 287
GLICKLICH v. SPIEVACK
Appeals Court of Massachusetts,
Decided Aug. 8, 1983.
Further Appellate Review Denied Sept. 30, 1983.

Patient and her minor son brought medical malpractice action against doctors. The Superior Court, Middlesex Couny, Morse, J., granted doctors' motions for judgment n.o.v. and reported its rulings to Appeals Court. The Appeals Court, Hale, C.J., held that: (1) evidence was sufficient to establish a causal connection between the negligence of defendant doctors and patient's injuries; (2) evidence sustained finding that patient's nine-year-old son was economically dependent upon patient, and therefore, jury could properly award damages to patient's son for the loss of parental society and guidance he suffered as result of doctors' negligence; and (3) evidence sustained jury's verdict apportioning damages based on disparate liability assessed against the doctor who first treated patient and another doctor who subsequently treated patient. Judgment to enter for plaintiff on jury verdicts.



262 Mass. 54, 159 N.E. 451
GUELL v. TENNEY
Supreme Judicial Court of Massachusetts, Suffolk.
Jan. 5, 1928.

Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.
Action by Winifred V. Guell against Benjamin Tenney. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled. Surgeon performing operation, with hospital nurses present, held not negligent in not keeping count of sponges used. Surgeon held not responsible for failure of nurse, not his employee, in not keeping count of sponges inserted and removed in operation. In absence of evidence that, in exercise of reasonable care and skill, surgeon performing operation could have discovered sponge in wound, held, inference of negligence could not be drawn from its not being removed.



32 Ohio St.3d 45, 512 N.E.2d 626
HARDY v. VerMEULEN
Supreme Court of Ohio.
Aug. 12, 1987.

Patient brought medical malpractice action. The trial court dismissed the action. The Court of Appeals for Franklin County affirmed. A motion was made to certify the record. The Supreme Court, Herbert R. Brown, J., held that statute barring medical malpractice claims brought more than four years after act or omission constituting alleged malpractice occurred, as applied to bar claims of medical malpractice plaintiffs who did not know or could not reasonably have known of their injuries, violates constitutional right to remedy provision. Reversed and remanded.



405 Mass. 697, 545 N.E.2d 602
HARLOW v. CHIN
Supreme Judicial Court of Massachusetts,
Decided Oct. 19, 1989.

Patient sued doctor and hospital for medical malpractice. The Superior Court, Suffolk County, Ernest S. Hayeck, J., entered judgment on jury verdicts for patient and Supreme Judicial Court granted request for a direct appellate review. The Supreme Judicial Court, Abrams, J., held that: (1) evidence supported conclusion that physician was negligent in not warning fall victim to return in two or three days if pain did not subside; (2) evidence supported conclusion that return of patient within that period, instead of 18-day period that actually elapsed, would have prevented patient becoming a quadriplegic; (3) improper remarks by patient's counsel in closing argument were cured by trial court instructions; (4) evidence supported comparative negligence determination of jury; (5) Medicaid benefits received by patient could not be deducted from damage award under state collateral source statute; (6) further proceedings were required to determine whether social security benefits were deductible under that statute; (7) jury instruction did not require jury to find doctor had duty to warn patient to return if pain did not subside; (8) damages were not improperly based on life expectancy derived from actuarial tables; and (9) hospital was entitled to invoke limitation of liability available to charities. Affirmed in part, remanded in part.


387 Mass. 152, 439 N.E.2d 240
HARNISH v. CHILDREN'S HOSPITAL MEDICAL CENTER
Supreme Judicial Court of Massachusetts
Decided Aug. 13, 1982.

Medical malpractice action was commenced in the Superior Court Department. After consideration of the case by a medical malpractice tribunal, a motion to dismiss was allowed by Zobel, J., and plaintiff appealed. The Supreme Judicial Court, O'Connor, J., held that: (1) plaintiff's offer of proof to the effect that had she known of the risk that her hypoglossal nerve would be severed she would not have undergone the operation to remove the tumor in her neck was sufficient to raise a question for judicial inquiry as to the admitting physician and the surgeon in charge of the operation; (2) the physician, who merely assisted at the operation, could not be held liable; and (3) the hospital could not be held vicariously liable. Judgment reversed in part and affirmed in part.



6 Mass.App.Ct. 205, 374 N.E.2d 344
HARRINGTON v. COHEN
Appeals Court of Massachusetts, Suffolk.
Decided March 31, 1978.

Minor and her mother brought suit for medical malpractice against three physicians, one physician who performed initial unsuccessful procedure on minor and two other physicians who performed subsequent unsuccessful procedure on minor. The Superior Court, Suffolk County, Connolly, J., ruled that if the jury should find negligence on the part of the physician who performed the initial procedure, damages assessed against him were to be confined to the first hospitalization and its attendant damages and were not to include the second hospitalization and damage stemming therefrom. Jury returned verdict for plaintiffs and they appealed. The Appeals Court, Armstrong, J., held that damages a plaintiff may recover as a result of a failure of an operation are grounded on the concept of restoring plaintiff to position he was in before operation was performed; thus, a physician who negligently performs an operation is only liable for damages resulting from that operation and is not liable for damages caused by a subsequent operation which was not necessitated by his failure in initial operation but which seeks to cure same affliction as initial operation. Order denying motion for new trial affirmed; judgment affirmed.



529 A.2d 1364
JOY v. EASTERN MAINE MEDICAL CENTER
Supreme Judicial Court of Maine.
Argued May 8, 1987.

Decided Aug. 25, 1987.

Suit was brought against emergency room physician and medical center for injuries received by motorcyclist in collision with vehicle driven by patient, based on allegation that physician had duty to warn patient that his driving would be affected by placing of eye patch on patient's eye. The Superior Court, Penobscot County, entered summary judgment in favor of physician and medical center. On appeal, the Supreme Judicial Court, Wathen, J., held that doctor who knows or reasonably should know that patient's ability to drive has been affected has duty to driving public as well as to patient to warn patient of such fact. Vacated and remanded.



380 Mass. 186, 402 N.E.2d 463
KAPP v. BALLANTINE
Supreme Judicial Court of Massachusetts, Suffolk.
Decided March 20, 1980.

Medical malpractice action was brought against hospital and four physicians on theories that use of shock therapy on plaintiff, who had suffered from severe mental depression, had been unnecessary or excessive and that performing stereotactic cingulotomy operation on her was unjustifiable. The Superior Court, Suffolk County, Nolan, J., dismissed the action following plaintiff's failure to provide bond in amount of $2,000 as to each defendant, as ordered by medical malpractice tribunal, and plaintiff appealed. The Supreme Judicial Court, Hennessey, C. J., held that: (1) plaintiffs had right to appeal from such judgment; (2) professional facts referred to in summary stating that medical practitioners, whose reports and opinions were submitted to tribunal by plaintiff, were a neurosurgeon, psychologist, and two psychiatrists were sufficient to require tribunal to consider such reports and opinions; (3) plaintiff's offer of proof, which was presented before tribunal and in which plaintiff's experts stated in effect that the diagnosis was incorrect and that surgery had been unwarranted, sufficiently raised question of liability on part of a physician, and, thus, plaintiff should not have been required to file bond with respect to such physician; (4) offer of proof was sufficient in regard to a physician who ordered that plaintiff receive 30 electric shock treatments; (5) offer of proof was sufficient in regard to a physician who diagnosed plaintiff as suffering from "severe endogenous depression"; (6) offer of proof did not sufficiently raise question of liability on part of physician, who would not recommend the surgical procedure but failed to prevent it, and, thus, requiring plaintiff to file bond with respect to such physician was proper; and (7) bond was properly ordered by tribunal in regard to case against hospital. Ordered accordingly.



395 Mass. 659, 481 N.E.2d 1340
KELLEY v. ROSSI
Supreme Judicial Court of Massachusetts,
Decided Aug. 15, 1985.

Medical malpractice action was brought against physician and private hospital. The Superior Court, Suffolk County, George W. Cashman, J., entered summary judgment for physician, and plaintiff's request for direct appellate review was granted. The Supreme Judicial Court, Wilkins, J., held that there was disputed issue of material fact as to whether physician was servant of city hospital while on rotation and working in emergency room at another hospital, precluding summary judgment in favor of physician on grounds that physician was public employee immune from tort liability. Judgment reversed.



401 Mass. 65, 514 N.E.2d 675
LETCH v. DANIELS
Supreme Judicial Court of Massachusetts, Middlesex.
Decided Nov. 4, 1987.

Action was brought for dental malpractice. The Superior Court Department, Middlesex County, Joseph S. Mitchell, Jr., J., entered directed verdict for defendant, and appeal was taken. The Appeals Court, 23 Mass.App. 1107, 503 N.E.2d 479, reversed, and defendant applied for further appellate review. The Supreme Judicial Court, Liacos, J., held that orthodontist's expert testimony regarding appropriate standard of care of pedodontist engaging in specified interceptive orthodontic treatment was admissible. Reversed and remanded.



427 Mass. 771, 696 N.E.2d 520
LINDSAY v. ROMANO
Supreme Judicial Court of Massachusetts
Decided July 9, 1998.

Patient brought medical malpractice claim against physician who performed surgical procedures. The Superior Court Department, Plymouth County, Robert L. Steadman, J., granted summary judgment for physician on statute of limitations grounds. Patient appealed. The Appeals Court affirmed, and patient appealed. The Supreme Judicial Court, Abrams, J., held that genuine issue of fact existed as to when patient knew or should have known that physician may have caused harm. Reversed and remanded.



346 Mass. 182, 190 N.E.2d 675
LIPMAN v. LUSTIG.
Supreme Judicial Court of Massachusetts, Middlesex.
Decided June 3, 1963.

Action on contract and in tort by patient against dentist for negligence in permitting one and one-half inch reamer to fall into patient's throat during treatment. The Superior Court, Gourdin, J., allowed dentist's motion for directed verdicts, and the patient brought exceptions. The Supreme Judicial Court, Kirk, J., held that expert opinion testimony was not necessary on issue of negligence, but that jurors were competent from their own common knowledge and experience to pass upon question of negligence, and that evidence was sufficient to establish that dentist was negligent and that an operation was reasonable measure to remedy damage caused by the negligence. Exceptions sustained.



376 Mass. 573, 382 N.E.2d 1037
LITTLE v. ROSENTHAL
Supreme Judicial Court of Massachusetts, Norfolk.
Decided Nov. 9, 1978.

Patient brought actions to recover against nursing home and doctor on theories that they were liable for medical malpractice in failing to provide medical plan and proper nursing care and that such defendants had violated Consumer Protection Act by engaging in unfair trade practices. After malpractice screening tribunals determined that patient failed to raise legitimate question of liability appropriate for judicial inquiry, the Superior Court, Norfolk County, Dimond and Brown, JJ., denied patient's motions to reduce $2,000 statutory bond, denied patient's motion for waiver, substitution or county payment of bond premium, and dismissed complaints when patient failed to furnish bond, and patient appealed. After transfer of appeal, the Supreme Judicial Court, Hennessey, C. J., held that: (1) unfair trade practices claims were not exempt from medical malpractice screening procedure; (2) malpractice screening tribunal's task is comparable to trial judge's function in ruling on a defendant's motion for directed verdict; (3) panels did not err in failing to accept patient's allegations as sufficient offer of proof to justify further judicial inquiry; (4) patient's offer of proof was insufficient to warrant conclusion that legitimate question of liability had been raised, and (5) judges did not abuse their discretion in failing to grant motion to reduce bond. Judgments affirmed.



386 Mass. 320, 435 N.E.2d 1031
LUBANES v. GEORGE.
Supreme Judicial Court of Massachusetts, Worcester.
Decided May 25, 1982.

Patient brought action against physician seeking to recover for damages arising out of surgical procedure. The Supreme Judicial Court, Worcester County, Meagher, J., entered judgment. Appeal was taken. The Supreme Judicial Court, Hennessey, C. J., held that: (1) appeal could be taken although Superior Court proceedings resulted in dismissal of only a portion of plaintiff's case; (2) claim against physician alleging that he performed surgical procedure on plaintiff without plaintiff's consent was subject to medical malpractice tribunal statute; and (3) plaintiff could proceed on battery claim without posting bond. Ordered accordingly.



412 Mass. 617, 591 N.E.2d 659
McGUINNESS v. COTTER
Supreme Judicial Court of Massachusetts,
Decided May 11, 1992.

Mother and her minor son filed medical malpractice action against obstetrician and professional corporation, seeking to recover damages allegedly stemming from their negligence in failing to recognize signs of fetal distress during mother's labor. The Norfolk Superior Court, Roger J. Donahue, J., granted defendants' motion for summary judgment. After transferring appeals sua sponte from the Appeals Court, the Supreme Judicial Court, Liacos, C.J., held that: (1) statute requiring minor's medical malpractice action to be commenced within three years from date cause of action accrued, but giving minors under age six until their ninth birthday to commence action, was statute of limitations rather than statute of repose and ninth birthday limitation applied only where minor's cause of action accrued prior to sixth birthday; (2) even if minor's cause of action accrued on date he was diagnosed with cerebral palsy, genuine issue of material fact as to whether he was suffering from mental disabilities at that time so as to be entitled to protections of tolling statute, precluded summary judgment on his claims; and (3) genuine issue of material fact, as to whether mother had knowledge or sufficient notice more than three years before commencing action that obstetrical care she received from defendants might have caused her child's disabilities, precluded summary judgment on her claims. Reversed and remanded.



415 Mass. 369, 613 N.E.2d 904
McNULTY v. McDOWELL.
Supreme Judicial Court of Massachusetts,
Decided June 3, 1993.

Child born with birth defects resulting from mother contracting rubella during pregnancy sued physician for malpractice. The Superior Court, Essex County, John T. Ronan, J., entered judgment for physician. Petition for direct appellate review was granted. The Supreme Judicial Court, Liacos, C.J., held that specific nature of physician-patient relationship, occurring before conception and dealing with birth control matters, did not create duty on part of physician to have mother immunized against rubella. Affirmed.



41 Mass.App.Ct. 503, 672 N.E.2d 540
PALERMO v. BRENNAN.
Appeals Court of Massachusetts,
Decided Oct. 21, 1996.
Further Appellate Review Denied Dec. 31, 1996.

Patient brought action against psychiatrist for mistreatment by maintaining sexual relationship during professional relationship. The Superior Court Department, Suffolk County, Gordon L. Doerfer, J., 1994 WL 879707, granted psychiatrist's motion for summary judgment on limitations grounds, and patient appealed. The Appeals Court, Jacobs, J., held that fact issue existed as to when patient knew or should have known that she was harmed by psychiatrist's professional treatment. Reversed and remanded.



11 Mass.App.Ct. 622, 418 N.E.2d 620
POLONSKY v. UNION HOSPITAL.
Appeals Court of Massachusetts, Essex.
Decided March 27, 1981.

Plaintiff, who, while patient in hospital, suffered fall and fractured her hip, brought malpractice action against hospital. The Superior Court, Essex County, McNaught, J., awarded damages in amount of statutory limit of $20,000, and hospital appealed. The Appeals Court, Armstrong, J., held that from warning on drug administered plaintiff and from hospital regulation, without additional medical opinion testimony, jury could draw inference that hospital's nurse had failed to exercise due care when she failed to raise lower bed rails after administering drug to plaintiff. Affirmed.



395 Mass. 689, 481 N.E.2d 1144
PRECOURT v. FREDERICK
Supreme Judicial Court of Massachusetts,
Decided Aug. 19, 1985.

Patient who suffered severe damage to bones of both his hips as a result of taking a steroid drug brought malpractice action against physician. Patient's wife sought damages for loss of consortium. The Superior Court, Suffolk County, Herbert F. Travers, Jr., J., entered judgment on jury verdict in favor of patient and wife, and physician's request for direct appellate review was granted. The Supreme Judicial Court, O'Connor, J., held that patient, who presented no evidence of likelihood that person would develop aseptic necrosis after taking steroid drug or that physician knew or should have known that likelihood of developing aseptic necrosis was other than negligible, failed to show that physician recognized or reasonably should have recognized that undisclosed risk was material to patient's decision whether to take drug, and thus, physician's failure to disclose alleged risk to patient did not violate any duty to patient. Reversed.




67 Ill.2d 348, 367 N.E.2d 1250, 10 Ill.Dec. 484
RENSLOW v. MENNONITE HOSPITAL
Supreme Court of Illinois.
Aug. 8, 1977.
Rehearing Denied Oct. 3, 1977.

A mother brought an action against a hospital and physician on her own behalf and on behalf of her minor daughter seeking damages for personal injuries sustained by both her and her child as the result of allegedly negligent conduct and willful and wanton misconduct in giving the mother a blood transfusion. The action was dismissed by the Circuit Court, McLean County, Luther H. Dearborn, J., but the dismissal was reversed, and the case was remanded by the Appellate Court, Fourth District, 40 Ill.App.3d 234, 351 N.E.2d 870. Having granted a certificate of importance, the Supreme Court, George J. Moran, J., held that the infant could maintain action against the hospital and physician for any injuries sustained as a result of negligent transfusion of RH-negative blood into mother who had RH-positive blood, even though the transfusion occurred several years prior to infant's conception. Affirmed and remanded.



409 Mass. 25, 564 N.E.2d 386
SACCO v. ROUPENIAN
Supreme Judicial Court of Massachusetts,
Decided Dec. 26, 1990.

Patient brought medical malpractice suit against surgeon for negligently failing to diagnose breast cancer at time of biopsy, and for failure to provide adequate follow-up and diagnostic care in succeeding months. After plaintiff died, executor and executrix of estate were substituted as plaintiffs. The Superior Court, Plymouth County, Allan M. Hale, J., entered judgment on jury verdict for defendant, and plaintiffs appealed. The Appeals Court affirmed, 28 Mass.App.Ct. 1108, 549 N.E.2d 450. After granting leave to take further appellate review, the Supreme Judicial Court, Abrams, J., held that it was prejudicial error to exclude opinion of plaintiffs' expert as to whether decedent's breast cancer was diagnosable by defendant at time of biopsy. Reversed and remanded.



400 Mass. 152, 508 N.E.2d 97
SCHWARTZ v. GOLDSTEIN.
Supreme Judicial Court of Massachusetts,
Decided June 2, 1987.

Patient brought medical malpractice action against specialist in obstetrics and gynecology, arising out of hysterectomy in which suture was placed near patient's right ureter, causing obstruction of ureter which required subsequent corrective surgeries by treating physician. The Superior Court, Norfolk County, Paul G. Garrity, J., entered judgment on jury verdict for specialist, and patient appealed. The Supreme Judicial Court, Hennessey, C.J., held that: (1) treating physician's prior conversations with specialist's claims adjuster were admissible to impeach treating physician's testimony; (2) failure to request limiting instruction precluded patient from claiming absence of limiting instruction as error on appeal; and (3) trial judge who reversed names of parties during his instructions and then stated that his slip of the tongue, while a mistake, was probably not negligence, did not mislead jury as to applicable standard of negligence. Affirmed.



26 Mass.App.Ct. 1014, 531 N.E.2d 269
SHOTWELL v. WINTHROP COMMUNITY HOSPITAL
Appeals Court of Massachusetts,
Decided Dec. 9, 1988.

Hospital visitor filed personal injury action after she collided with a fixed glass panel of an automatic sliding door. The Superior Court, Middlesex County, denied discovery of reports of incidents in which other persons had struck glass hospital doors. Appeal was taken. The Appeals Court held that: (1) the reports were prepared in the ordinary course of the hospital's business and, thus, were discoverable, despite a claim that they were work product prepared in anticipation of litigation; (2) the error in denying discovery could not be held immaterial; and (3) the visitor should have been permitted to add the hospital maintenance director as a party defendant. Judgment reversed.



395 Mass. 666, 481 N.E.2d 1344
SMITH v. STEINBERG.
Supreme Judicial Court of Massachusetts,
Decided Aug. 15, 1985.

Medical malpractice action was brought against physician who was member of state university medical school group practice. The Superior Court, Middlesex County, William G. Young, J., denied physician's motion for summary judgment and direct appellate review was granted. The Supreme Judicial Court, Wilkins, J., held that: (1) statutes concerning state university medical school group practice plan do not mandate that physicians in medical school group practice are automatically deemed "public employees" for the purposes of Tort Claims Act, and (2) there was material issue of disputed fact as to whether physician was undisputedly subject to direction and control of the Commonwealth acting through its agents, thus precluding summary judgment for physician on grounds that physician was immune from tort liability. Order affirmed.



17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14
TARASOFF v. REGENTS OF the UNIVERSITY OF CALIFORNIA
Supreme Court of California,
July 1, 1976.

Action was brought against university regents, psychotherapists employed by university hospital and campus police to recover for murder of plaintiffs' daughter by psychiatric patient. The Superior Court, Alameda County, Robert L. Bostick, J., sustained demurrers without leave to amend, and plaintiffs appealed. The Supreme Court, Tobriner, J., held that when a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim against such danger, that discharge of such duty may require the therapist to take one or more of various steps, depending on the nature of the case, that complaint could be amended to state cause of action against the therapists, to whom patient confided his intentions to kill plaintiffs' daughter, on theory of failure to warn, that therapists were entitled to statutory immunity from liability for failure to bring about patient's confinement but that plaintiffs pled no special relationship between the patient and the police defendants which would impose on them any duty to warn the daughter or other appropriate individuals and that the police were also entitled to statutory immunity for failure to confine the patient. Affirmed in part and reversed and remanded in part for further proceedings.



397 Mass. 581, 492 N.E.2d 728
TOWER v. HIRSCHHORN
Supreme Judicial Court of Massachusetts,
Decided May 15, 1986.

Patient brought consolidated suits against neurologist, alleging breach of confidentiality, invasion of privacy, unfair and deceptive acts, negligent testimony and negligent diagnosis. The Superior Court Department, Hampden County, Raymond R. Cross, J., dismissed counts for breach of confidentiality or invasion of privacy, but evidence on such counts was permitted at trial. Patient moved for new trial on several special verdicts and for treble damages, on deceptive act count. Neurologist moved for judgment notwithstanding the verdict with respect to several special verdicts. The Court, John F. Moriarty, J., denied patient's motions, granted neurologist's motion and entered judgment on all counts for neurologist, and patient appealed. The Appeals Court, 19 Mass.App. 1102, 471 N.E.2d 1371, affirmed by order of summary disposition, and application for further appellate review was granted. The Supreme Judicial Court, Liacos, J., held that: (1) evidence was sufficient to support jury's finding of invasion of privacy; (2) patient was not entitled to recover treble damages, attorney's fees and interest; and (3) trial court's refusal to reword special verdict question was not clearly erroneous. Affirmed in part; reversed and remanded in part.



406 Mass. 777
VICCARO v. MILUNSKY
Supreme Judicial Court of Massachusetts
Decided March 1, 1990

Second child, who was born severely afflicted with anhidrotic ectodermal dysplasia, brought wrongful life action against physician, who allegedly gave negligent preconception genetic counseling that induced parents to conceive and give birth to children, and parents brought action against physician for wrongful birth. The United States District Court for the District of Massachusetts certified questions. The Supreme Judicial Court, Suffolk County, Wilkins, J., held that: (1) Massachusetts recognizes cause of action for wrongful birth, where parents of minor child afflicted with genetic defect allege that negligent preconception genetic counseling by geneticist induced parents to conceive and give birth to child; (2) parents could recover the extraordinary medical and educational expenses and other extraordinary costs associated with caring for second child; (3) emotional distress sustained by parents as result of physician's negligence and any physical harm caused by that emotional distress would be recoverable offset by whatever emotional benefits parents might derive from the existence of first child, who was healthy and who did not have any manifestations of the genetic disorder, and offset by any benefits that might be derived from the existence of the second child; and (4) Massachusetts does not recognize cause of action for wrongful life where minor child, afflicted with genetic defect, alleges that negligent preconception genetic counseling of his parents by geneticist induced his parents to conceive and give birth to the child. Questions answered.