COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH

NO. S J C - 10051

ANTHONY RENZI, ADMINISTRATOR OF ESTATE OF MaRY JANE RENZI ,

Plaintiff-Appellee

vs .

SANTIAGO PAREDES, M.D., LAVONNE VEATCH, M.D.,

and ASSOCIATED RADIOLOGISTS OF BOSTON, INC. Defendants-Appellants.

ON APPEAL FROM JUDGMENT OF THE ESSEX SUPERIOR COURT

B R I E F O F DEFENDANT-APPELLANTS, SANTIAGO PAREDES, M.D. and

ASSOCIATED RADIOLOGISTS OF BOSTON, INC.

FOR SANTIAGO PAREDES, M.D. AND ASSOCIATED RADIOLOGISTS OF BOSTON, INC.

Peter C. Knight, BBO # 2 7 6 0 0 0 Tory A. Weigand, BBO # 5 4 8 5 5 3 MORRISON MAHONEY LLP 250 Summer Street Boston, MA 02210 (617) 439-7500

William J, Davenport, BBO #114880 GERVAIS & DAVENPORT, P.C. 125 Cambridge Park Drive Cambridge, MA 02140 617-520-2105

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................ iii

STATEMENT OF THE ISSUES .............................. 1

STATEMENT OF THE CASE ............................... 3

STATEMENT OF FACTS ................................... 6

SUMMARY OF ARGUMENT................................. 22

AMXJMENT ........................................... 25

1. THE TRIAL COURT ERRED IN FAILING TO ENTER JUDGMENT FOR THE DEFENDANTS ........................ 25

a. Loss Of Chance Is Not A C l a i m Or Item Of Damage Included Or Permitted Under The Wrongful Death S t a t u t e .............................. 2 6

b. The Evidence Did N o t Support The Jury's Verdict As A Matter of Law . . . . . . . . . . . . . . . . . . . 39

11. THE COURT ERRED IN ITS INSTRUCTIONS AND SPECIAL VERDICT QUESTIONS AS TO LOSS OF CHANCE AND THE JURY VERDICT AND AWARD IS UNSUPPORTABLE MANDATING A NEW TRIAL ..................... 44

111. THE $1.4 MILLION ECONOMIC DAMAGE AWARD CANNOT STAND AS A MATTER OF LAW..................51

1072943~ 1

a. The Purported Economic D a m a g e Award Was An Improper Tally Of The Jury's Damages On The Jury S l i p ...................... 51

i

b. The Economic Damages Were Based On Death Not Loss Of Chance .................... 52

IV. THE COURT PREJUDICIALLY ERRED IN ITS INSTRUCTIONS, ADMISSION, RPJD RULINGS RELATIVE TO DIGITAL IMAGES OF THE MAMMOGRAMS ........................ 53

V.

VI.

THE COURT ERRED IN INSTRUCTING THE JURY TO DISREGARD THE EVIDENCE AND TESTIMONY AS TO GENETICS/BIOLOGY OF CANCER . . . . . . . . . . . . . . . 68 THE COURT ERRED IN INSTRUCTING THE J U R Y ABOUT DR. PAREDES ESTATE . . . . . . . . . . . . . . . . . 69

VII. THE COURT ERRED IN NOT ABIDING BY THE JURY'S FINDING OF AN 80%/20% APPORTIONMENT OF DAMAGES BETWEEN DR. PAREDES AND DR. VEATCH . . . . . . . 72

ADDENDUM...............,..............Add. 1 - Add. 12

ii 1072943~1

TABLE OF AUTHORITIES

Cases

Birbeck v. Central Brooklyn Medical Group, 2001 N . Y . Misc. LEXIS 368 (2001) . . . . . . . . . . 47 n.28

Boodv v. United States. 706 F. Supp. 1458(Kan. 1989) . . . . . . . . . . . . . 47 n. 28

Bradford v. Baystate Medical Center 415 Mass. 202 (1993) ..................... 30 n. 18

B r a t c h e r v . Galusha, 417 Mass. 28 (1994) ......................... 28,30

C a h o o n v. Cumminus. 734 N . E . 2d 535 (Ind. 2000) . . . . . . . . . . 46, 4 7 n. 2 8

C a s e of Canavan, 422 Mass. 304 (2000) ..................... 3 7 n. 23

C h o i c e n e r v . Walters Amusement Aqency, Inc., 269 Mass. 341(1929) ...................... 40 n. 24

Commercial Union v. Boston Edison Co., 412 Mass. 545 (1992) ....................... 54, 58

Commonwealth v. Beausoliel, 397 Mass. 206 (1986) ...................... 37 n.23

Commonwealth v. Callahan, 4 4 0 Mass. 436 (2003) ..................... 3 0 n. 18

Commonwealth v. Colturi. 4 4 8 Mass. 809 (2007) ..................... 3 0 n. 18

Commonwealth v. Ocasio, 434 Mass. (2001) ............................... 56

Commonwealth v. Sargent, 4 4 9 Mass. 576 ( 2 0 0 7 ) ..................... 30 n . 18

iii

Commonwealth v. Welchell, 390 Mass. 62 (1983) . . . . . . . . . . . . . . . . . . 56, 56 n. 18

Correia v. Firestone Tire & Rubber Co. 388 Mass. 342 (1983) ........................... 31

Crass v. Catamount DeveloDment CorD., 390 M a s s . 551 (1893) ........................... 28

Cusher v. Turner, 22 Mass. App. Ct. 491 (1986) . . . . . . . . . . . . . . . . . . . 43

Daniels v. Iowa City, 183 N.W. 415 (1921) ............................ 56

Daubert v. Merrill Dow P h a r m . , Inc., 5 0 9 U.S. 579 (1993) ...................... 3 7 n. 23

Donning v. Ouianno, 810 P. 2d 1163 (Kan. App. 1991) . . . . . . . . . . 36 n. 21

Daniels v. Iowa C i t y , 183 N.W. 415 (1921) ............................ 56

Falcon v. Memorial Hosp., 462 N.W. Mich. 1990) ........................... 32

Fennel1 v. Southern Mary. Hosp. Ctr., 580 A . 2d 206 (1990) . . 29, 31 n. 19, 3 3 n. 20, 40 n. 24

Gallant IT. Worcester, 383 Mass. 707 (1981) ........................... 28

Gaudette v. Webb, 362 Mass. 60 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7

Gooding v. Univ. Hosp. B d l . , 4 4 5 SO. 2d 1015 (Fla. 1984) . . . . . . . . . . . . . . 31 n. 19

Goldstein v. Gontarz. 364 Mass. 8 0 0 1 9 7 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 0

Grant v. Lewis/Boyle, Inc., 4 0 8 Mass. 2 6 9 ( 1 9 9 0 ) ........................... 6 8

iv

G r a y v. Gieger, 27 Mass. App. Ct. 583(1989) .................... 46

Green v. Richmond, 369 Mass. 47(1975) ............................. 54

Guzman v. MRM/Elgin, Willcox & Gibbs, Inc., 409 Mass. 563 (1971) ........................... 31

Hallett v. Wrentham, 398 Mass. 550 (1986) ........................... 27

Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480 (2004) . . . . . . . . . . . . . . . 54, 56

Hernandez v . Pino, 482 So. 2d 450 ( F l a . Ap. 1986) . . . . . . . . . . . . . . . . . 56

Holy Cross Inc. v. Marrone, 816 So. 2d 1113 (Fla. App. 2001) . . . . . . . . . . . . . . . 43

Hurlev v. United States. 923 F. 2d 1091 (4tn Cir. 1991) . . . . . . . . . . . . 31 n. 1 9

In re Grand J u r y Subpoena, 414 Mass. 104 (1993) ........................... 45

Joshi v. Providence Health Sys. Of Oregon, 149 P. 3d 1164 ( O r e . 2006) ..................... 2 9

Joslvn v. Chancre. 445 Mass. 344 (2005) ........................... 30

King v. Viscoloid Co., 219 Mass. 420 (1914) ....................... 28, 30

Kollrnorgan v. Scott, 447 S.W. 2d 236 (1969) ......................... 57

Kordanskv v. Andurst. 368 N.Y.S. 2d 117 (1991) ....................... 28

Krarner v. Lewisville M e m l Hosp., 858 S.W. 2d 397 (Tex. 1993) . . . . . . . . . . 29, 31 n. 19

V

Kromhout v. Commonwealth. 398 Mass. 687, 690 (1986) ...................... 28

Lawson v. Laferriere, 78 D.L.R. (4‘”) 109 ( 1 9 9 1 ) ...................... 35

Leannis v. Cincinnati, Inc . , 565 F.2d 437(7th Cir. 1972) ..................... 31

L i o t t a v. Rainev. 2000 Ohio App. Lexis 5475 (2000) ......... 36 n. 2 1

Lorraine v. Markel American Insurance Co. 2 4 1 F.R.D. 534, 561 (D. Mary. 2007) . . . . . . . . . . . . 58

Marco v. Green, 415 Mass. 732 (1993) ........................... 28

Matsuvama v. Birnbaum. NO. SJC-099 . . . . . . . . . . . . . . . . . . 26, 30, 3 2 , 37 n. 2 3

McCleod’ s Case, 389 Mass 431 (1983) ............................ 45

McDaniel v. Pickens, 45 Mass. A p p . Ct. 63 (1998) .................... 7 1

Mellor v. Berman. 390 Mass. 275 (1983) ........................... 28

Murphy v, I.J.K. Co. of N . E . Xnc., 409 Mass. 842 (1991) ........................... 7 2

O’Leary v. U . S . L i n e s Inc., 111 F. Supp. 745 (D. Mass 1953) . . . . . . . . . . 40 n. 24

Pine v. Rust. 404 Mass. 411 (1989) ..................... 40 n. 2 4

Pobieglo v . Monsanto Co., 402 Mass, 112 (1998) ........................... 2 7

Rodd v. Raritan Radiologic Associates, P.A., 860 A . 2d 1003 (N.J. App. 2004) . . . . . . . . . . 54, 5 8 , 5 9 , 6 0 , 61, 66

vi

Schozer v. William Penn Life Ins. Co., 644 N.E. 2d 1353 (N.Y. App. 1994) . . . . . . . . . . . . . . 56

Schultz v. Grojean, 4 0 6 Mass. 364 (1990) ........................... 30

Service Publications v. Governman, 396 Mass. 567 (1986) ..................... 36 n. 22

Sirico v. Cotto, 324 N.Y.S. 2d 483 (1971) . . . . . . . . . . . . . . . . . . . 30, 56

Smith v. Parrot, 833 A. 2d 843 (Vt. 2 0 0 3 ) . . . . . . . . . . . . . . . . . 31 n. 19

Soper v. Bopp, 990 S.W. 2d 147 (Mo. 1999) ..................... 47

State v. Swinton, 847 A. 2d 921 (2004) . . . . . . . . . . . . . . . . . . . 54, 58, 59

Timmons v. MBTA, 412 Mass. 646 (1992) ........................... 68

United States v. Crosby, 49 F. Sup. 2d 294 (D. Ala. 1990) . . . . . . . . . 31 n. 19

United States v. Cumberbatch, 647 A.2d 1098 (Del. 1994) ...................... 29

Wagman v. Bradshaw, 739 N.Y.S. 2d 421 (2002) ....................... 57

Weimer v. Hetrich, 525 A.2d 643 (Md. 1987) ........................ 29

Wilson v. Brown, 2004 Ohio App. LEXIS 6711 (2004) . . . . . . . . . . 36 n.21

Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) ........................... 45

vii

Sta tu tes

G.L. c . 228, s . ................................ n. 2 4

G . L . c. 229, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 et seq.

G.L. c. 229, §6 ...............................26 n. 17

G.L. c. 231, § 60F ............................ 52 n. 32

Mass. Prop. R. Evid. 901 (b) (9) ...................... 59

Restatement (Second) of T o r t s § 433A (1965) .................................. 72

Article 30 of Declaration of Rights of Massachusetts Constitution . . . . . . . . . . . . . . 30, 31

Publications

Bianchini, . A Paradigm for t h e Authentication

of Photographic Evidence in t he Digital Age 20 T. Jeff L. Rev. 303 (1998) . . . . . . . . . . . . . . . . . . 59

Campbell, Evidentiary Requirements for the Admission of Enhanced Digital Photographs, 74 D e f . Counsel J., No. 1 12 (2007) . . . . . . . . . . . . 54

Irnwinkelweid, Edward Can This Photo Be Trusted? Trial October 2005 at 48 ....................... 59

viii

K i n g , Joseph Reduction of Likelihood; Reformulation and Other Retrofitting of the Loss of Chance Doctrine, 28 U. Mem. L. Rev. 491, 550, 546-63 (1998) . . . . . . . . . . . . . . . I . . 38 n. 23

Kolata, Early Detection of Cancer: Nothing is Black and White, N.Y. T i m e s Dec. 24, 2002 at F1 . . . . . . . . . . . 38 n. 23

Kolata, Cancer “Prevention” Is a Big Seller, but Medical Experts Are Divided, N.Y. Times, Jan. 11, 2004, s.1 at 1 . . . . . . 3 8 n. 23

Liacos, P. J. Massachusetts Evidence 746 (7th ed. 1999) .............................. 56

Tribe, T r i a l by Mathematics: Precision and Ritual in the Legal Process, 84 H a m . L. Rev. 1329 (1971) . . . . . . . . . . . . . 3 7 n. 23

J. Witkowski, Can Juries Really Believe What They See? New Foundational Requirements f o r t he Authentication of Digital Images 10 Wash. V . J . L . & Policy 269 (2002) . . . . . . . . . . . . 5 9

ix

STATEMENT OF THE ISSUES

1. Whether ”loss of chance” is a cognizable

theory of recovery or item of damage under the

Massachusetts wrongful death statute in a medical

malpractice action.

2. Whether any recognition of “loss of chance”

implicates substantial and broad based policy concerns

and constitutes a substantial departure from

traditional Massachusetts causation, burden of proof

and damage principles such that it is f o r the

Legislature to decide whether to amend the statutory

scheme and recognize such an action or item of “ h a r m ; ”

3 . Whether the t r i a l court erred in allowing a

jury to award damages for \\loss of chance” where the

claim was based on a statistical decrease in 10 year

chance of disease free survival from above to below 50

percent; the jury justifiably rejected the wrongful

death claim based on the same proffer; and/or there

was no showing that the generic statistical chances of

survival applied to decedent’s circumstances.

4. Whether allowing the jury‘s award of $2.8

million for ”loss of chance” would result in manifest

injustice where no appellate court has provided any

meaningful guidance as to ”loss of chance” including

1

the appropriate measure of damages and where the t r i a l

court erred in its instructions and special questions,

including its failure to limit damages t o any palpable

harm resulting from the purported negligence or to

have damages measured by a proportion of the total

death damages equal to the purported percentage

diminution in the loss chance of survival.

5. Whether the jury's award of damages is without

evidentiary basis and is otherwise speculative and

duplicative.

6. Whether the trial court erred in refusing,

despite counsel's requests, to have the j u r y clarify,

prior to its discharge, whether the $1.4 award f o r

"total" economic damages was intended as a total f o r

the overall damage award where the $1.4 million

equaled the t o t a l sum of a11 preceding damage awards

set f o r t h on the jury verdict slip.

7 . Whether the economic damage award based on

the death of the decedent is recoverable under a loss

of chance claim where the j u r y specifically faund no

wrongful death.

in 8 . Whether t he trial court erred

disregarding the jury's express findings of damage

apportionment between defendants ( 8 0 % as t o D r . Veatch

and 20% to Dr. Paredes) and finding Dr. Paredes liable

f o r all damages.

9. Whether the t r i a l court erred in (a)

admitting computerized d i g i t a l images of the

mammograms; (b) instructing the j u r y that the computer

generated images were the "substantial likeness [ I of

t h e mammograms following defense counsel's closing

argument wherein counsel challenged the reliability of

the images based, inter a l i a , on the images and the

testimony of plaintiff's expert and; (c) refusing to

allow defense counsel to call a computer expert w h o

had reviewed the scanned images to testify that the

contrast in the images of the mammograms shown to the

jury had been enhanced.

10. Whether the trial erred in instructing the

jury to disregard expert testimony concerning the

biology of cancer; and.

11. Whether the trial court erred in instructing

the jury that they should not be concerned about any

judgment against Dr. Paredes' estate since the e s t a t e

would not have to pay any judgment.

STATEMENT OF THE CASE

Plaintiff , Anthony Renzi, as Administrator of the

Estate of Mary Jane Renzi ("Renzi"), initiated this

3 I

medical malpractice action on May 3, 2001 with an

amended complaint being filed on October 17, 2001. RA

5;13;19;23. 1 The gravamen of the complaint was the

claim for wrongful death premised on c the alleged

negligent failure to diagnose decedent's breast

cancer. R h 19;ll. Defendants' Santiago Paredes, M.D.,

a radiologist, Lavonne Veatch, a primary care

physician, and Associated Radiologists of Boston, Inc.

(\'A"") a l l answered the complaint. RA 2 3 - 2 8 . Dr.

Paredes died on November 9, 1999. RA 442.

A jury trial was held in Lawrence Superior Court

before Judge P a t r i c k Riley. The trial commenced on

March 9, 2005 through March 25, 2005. €?A 4. Prior to

the verdict, Dr. Veatch settled f o r $1,500,000. RA

406. On special questions, the j u r y found Dr. Veatch

and Dr. Paredes negligent but that any negligence was

not a substantial factor in decedent's death. R7l 286-

8 8 . Over objection, the j u ry was instructed and

provided special questions as to a "claim" f o r "loss

Citations to RA i s to the Record Appendix (one volume); Tr is to the t r i a l transcripts (nine vo1umes);Tr E h . is to the paqe number (not exhibit number) of the Trial Exhibit Volumes (three volumes); and Or. Tr. Exh. is to the Original Trial Exhibit Binder consisting of mammograms, scanned images; CD, and photographs marked as exhibits or f o r identification submitted to this Cour t in one separate binder as instructed by clerk's office.

-

4

of a substantial chance of survival." RA 2 8 5 - 8 6 . As to

that claim, the jury determined t h a t the defendants'

negligence w a s a substantial contributing factor in

causing decedent the \\loss of a substantial chance t o

survive." RA 287-88.

The j u ry awarded a total of $150,000 for ' to ta l

damages ... for personal injuries and conscious pain and

suffering"; $ 5 0 0 , 0 0 0 f o r "the value of the reduction

of the chance of survival" as to Dr. Veatch and

$100,000 as to Dr. Paredes; $650,000 f o r *total loss

of consortium damages;lf apportioned damages 8 0 % to Dr.

Veatch and 20% to Dr. Paredes, and awarded $1,400,000

'in total economic damages." RA 291-94.

Prior to the jury being discharged, defense

counsel requested that the ju ry be questioned as to

whether the 'total" economic damage award of $1.4

million w a s a total of the prior damages a s the $1.4

equaled the total sum of all of the prior damage

awards entered on the slip. Tr 2592-95. The trial

court refused the request and discharged the jury over

objection. Id. -

Judgment entered against Dr. Paredes and ARB in

the amount of $2.8 million plus interest. RA 331;405.

After deducting a credit f o r the settlement payment

made on behalf of Dr. Veatch, final judgment entered

against Dr. Paredes in the amount of $2,622,838.97

plus interest. RA 405. Post-trial motions f o r

remitter, jnov and/or new trial were denied by the

court. RA 403-04. The denial followed a telephone

hearing on the motions with a memorandum of decision

issuing on August 23, 2 0 0 5 . RA 407.

A notice of appeal was filed on July 1, 2005, and

docketed on or about July 7, 2007. RA 416. Defendants’

Petition for Direct Appellate Review was allowed on or

about September 20, 2007.

STATEMENT OF THE FACTS

Renzi began following with Dr. Veatch as her

primary care physician i n December, 1993. Tr. 2 6 8 . She

saw Dr. Veatch for the first time on December 7, 1993

and underwent a full breast examination where Dr.

Veatch noted t h a t both breasts were ”multi-nodular.”

Tr 480; Tr Exh.06. A routine and annual mammogram was

done in January 1994 and was read as normal. Tr Exh.

09;05; T r 511-12; 514.

On December 5, 1994, Renzi was seen again by Dr.

6

Veatch and was diagnosed as having bilateral

hidradenitis' and an antibiotic was provided. Tr Exh.

010;Tr 533;560;608-09. On December 15, 1994, Dr.

Veatch saw Ms. Renzi in follow-up and it was noted

that the hidradenitis had improved. Tr 619; Tr E x h .

010. It was disputed whether Renzi complained of or

had a dominant mass at that time. Tr 771;774-75;560.

Renzi underwent a mammogram on January 5, 1995 at

the East Boston Neighborhood Health Center ('EBNHC") . 3

Tr Exh. 014;Tr 622. Dr. Paredes interpreted the

mammogram and issued a report indicating no changes

compared with the study done in January of 1994, with

no suspicious lesions. I Id.

On July 20, 1995, Dr. Veatch saw Renzi f o r

hidradenitis of the left axilla with large nodes

draining the area, right side lesser. Tr E x h .

015;772;1070. Renzi was diagnosed as having bilateral

hidradenitis. Id. Antibiotics were ordered. Id. Dr. - -

Hidradenitis is inflammation of the sweat glands under the arm pits.

A noted history included no family or personal history of breast cancer, a lump in the breast that had been purportedly felt by the patient or a physician; and a breast exam within the last seven months. Tr Exh. 014; Tr 5 5 7 . In t h e clinical history of the radiological consultation form, it was noted "larget Lt. Breast tissue 12:OO as opposed to right."

~ Id. It was disputed whether Dr. Paredes actually ever saw this form or history at the time he read the mammogram. Tr 456-57 ;1807-08 .

7

Veatch next saw Renzi on July 28, 1995 and her noted

impression was that the hidradenitis had improved, the

nodes persisted, and there was breast tenderness on

the left. Renzi was told to return in three weeks. Tr

Exh. 015.

On August 14, 1995, Dr. Veatch saw Renzi and

noted that the left axilla had improved, but t h e nodes

persisted, the breast had not improved, and it was

worrisome. Tr Exh. 015;Tr 1072-74. Renzi was referred

to a surgeon and a mammogram was scheduled for the

next day, August 15, 1995. 1d;Tr 1075. The mammogram

was consistent with extensive mastitis and/or

inflammatory carcinoma of the left with it noted that

”rapid appearance in clinical history favor

infection.’’ Tr Exh . 0195-96;Tr 440-41. The mammogram

was interpreted by Dr. Ferris Hall who compared it to

t h e films taken in January 1995 which had been

in te rpre ted by Dr. Paredes. Id.

I_

- A needle biopsy was performed and in August, 1995

Renzi was diagnosed with Stage IIIB infiltrating

ductal carcinoma with lymph node involvement. Tr Exh.

061;064;0349; Tr 1123. Renzi underwent chemotherapy,

bone m a r r o w transplant, l e f t modified radical

mastectomy and radiation therapy as well as adjuvant

hormonal therapy with Tamoxifen. Tr 1165. Despite

treatment, Renzi developed further metastatic disease

to the bone and brain.

Renzi died on November 11, 1999, at age 54. RA

441. Three days earlier, Dr. Paredes, then retired,

also passed away. RA 442.

Liability. As to Dr. Veatch4, it was asserted that

she deviated from the accepted standard of care by,

inter alia, failing to: have Renzi undergo a follow-up

within six months of the 12/93 examination and "multi-

nodular" f inding5; sufficiently document the breast

exam in 12/93 (Tr 656;668); follow-up in five or six

months and have revaluation and/or referral in June

At trial Dr. Yvonne Adler, a radiologist from Chicago, Dr. John DiOrio a ob/gyn from Rhode Island, and Dr. John Glick a medical oncologist from Pennsylvania testified f o r t he plaintiff. Dr. Michael Stone, a surgi'cal oncologist at Beth Israel and Dr. Ferris Hall, a radiologist testified on behalf of Dr. Paredes.

4

Dr. Veatch's record for December 7, 1993, includes a diagram of both breasts with two areas of multi- nodular tissue identified; one in the left and one in the right. Tr E x h 06. In a portion of her pretrial deposition, which was introduced at t r i a l , Dr. Veatch testified that that she "drew two breast pointing out where the more dominant nodules were, but they were nodules that I - I know were not nodules that I described as a problem. (Tr 487-90). Plaintiff's experts t reated this testimony and t h e diagram as a finding of dominant nodules r equ i r ing work-up. Tr

5

6 5 8 ; 6 7 2 - 7 3 .

1994 (Tr 671;735;681;684); properly document and

examine in December, 1994 (Tr 682;690) ; further

evaluate and conduct workup in December, 1994

including biopsy which would have disclosed cancer (Tr

691-92;697-99) ; request more than just a screening

mammogram in January, 1995 (Tr 718-19); conduct a

follow-up in January, 1995 even with the negative

report from radiologist (Dr. Paredes) (Tr 721-

22;660;673-74) ; and appreciate the presence of breast

cancer in the July, 1995 visits. Tr 728-29. Just prior

to the jury verdict, a settlement was reached f o r $1.5

million.

It was asserted that Dr. Parades deviated from

the accepted standard of care in failing to properly

interpret the January 5 , 1995 mammogram. Plaintiff's

expert, Dr. Adler, opined that in comparing the 1994

and 1995 images "there is a marked difference between

the left and right breast on the MLO viewJf6 and that

the latter (1995 MLO view) was "considerably denser"

on the left (Tr. 3 5 9 ) ; that a comparison of the 1994

and 1995 images showed t h a t they were not

\'symmetrical" and had "marked asymmetry" (Tr 360;362-

There are two standard views, medial lateral oblique 6

(MLO) and cranial caudal (CC) . Tr 352-53.

10

63;371); that the differential diagnosis for the 1995

images w a s mastitis or cancer and that an ultrasound

and/or further workup was required; (Tr 366;368-

6 9 ; 3 7 7 - 7 8 ) ; and that the 1995 images ‘seem[edl” t o

s h o w an increase i n trabecular pattern. 7 (Tr 370-

71;448).

Dr. Adler confirmed that Renzi had inflammatory

breast cancer and that such cancer is difficult to

diagnose on mammogram due to the way it grows (Tr.

440) and t h a t it is ”bad news from the beginning.” Tr

449. She agreed that asymmetric breast tissue with no

associated architectural distortion, no

calcifications, no central density or focal mass is

not abnormal. Tr 445. She agreed that Renzi had more

density in the left breast than the right based on the

prior 1994 films which were normal. Tr 4 5 7 - 5 8 .

Dr. Hall testified on behalf of Dr. Parades. He

disagreed with Dr. Adler. He .testified that Dr.

Paredes had properly interpreted the January, 1995

Trabecular pattern was defined as an increase in the fibrous tissue of the breast- ”the supporting tissue that keeps t h e breast structure in place.” Tr 370-71. It w a s noted to be a ”vague term” referring to little strands that: hold the breast together. Tr 1860.

11

8 mammogram. Tr 1837. There were no masses or micro-

calcifications present. Tr 1858-59. The trabeculation

was normal, Tr a t 1860, and there was no significant

change between the January 1995 and January 1994

mammograms, Tr 1866. D r . Hall opined that neither an

ultrasound nor additional studies were needed in

January 1995 (Tr 1 8 7 2 - 7 3 ) , and that Dr. Parades was

not required to make any referral to a surgeon. Tr

1873. Although the left MLO view contained an

increased density it was not suspicious f o r cancer and

was well within normal limits. Tr 1874. Dr. Hall

confirmed that he was the interpreting radiologist f o r

the August 1995 mammogram and that he Formed a

differential diagnosis of cancer or mastitis

(infection). Tr 1984 ;2001 . He confirmed his finding at

that time of ‘all new” ( O r . Tr Exh, 14) and ‘rapid

appearance and clinical history favor infection” (Tr

1984 ; 1988) and that Renzi’s inflammatory breast cancer

was not diagnosable by either mammogram or ultrasound

in January, 1995. Tr 1997-98.

At the time Dr. Hall had been retained to look at t h e January 1995 mammogram films by defense counsel, he did not know that he had previously been involved in the care of decedent by his reading of the August 1995 mammogram while at Beth Israel Hospital. Tr 1838.

1 2

Digitized/Computer Images. Dr. Adler's testimony

was made with specific and repeated reference to

computerized images of the mammograms which were

enlarged and projected to the jury. Tr 346-48 et seq.;

314-24. A substantial par t of her testimony was based

on and otherwise utilized a Power Point presentation

created by a computer technician in which scanned and

computerized images of the mammograms were projected

to the j u r y on a large screen. I Id. Not only were the

images of the mammograms projected before the jury,

but, over objection, hard copies of certain images

were admitted as substantive exhibits as well as

placed in each of the juror's notebooks. Id.; Tr.

348;408-415; Or. Tr. Exh 12A;13At13B.

9

10

The Power Point presentation and computer digitized images projected to and/or printed ou t and given to the jury included images purporting to be t h e right and left MLO view of the breast in 1994, right and left MLO view of the breast in 1995, and an image containing both t he 1994 and 1995 MLO views in the same depiction. Tr 328; Or. Tr Exh. 12A;13A;13B. I t a l so included an enlarged projected scanned image of the August 1995 film. Tr 373.

The images were marked at trial as Exhibits 1 2 A ; 1 3 A & 13B. Each juror was provided a scanned image purportedly identical to Exhibits 1 2 A ; 1 3 A ; 1 3 B which were placed in each of their notebooks (RA 417-441). These original scanned images have been provided to the Court in the single Original Exhibit Binder which are identical as those contained in t h e jury notebooks. While a copy of the j u r y notebook w a s reproduced in t h e RA ( 4 1 7 - 4 4 1 ) , the images a t 4 3 4 - 3 6

10

Dr. A d l e r testified before the ju ry that she was

asked by plaintiff's counsel, pre-trial, whether she

could digitize the mammograms. Tr 346. Dr. Adler

s ta ted she then had a technician in her department

scan the mammogram films into a computer and put them

on a CD. Id. When asked by plaintiff's counsel

"whether or not the scanned images were the

substantial equivalent of the original mammogram

films" she stated ''they were the kind - the quality

that [she] use[d] ... in a scientific presentation

anywhere." Tr 347.

-

On cross-examination, Dr. Adler admitted she

neither performed nor watched t h e scanning process. Tr

430-31. She did not know the particular computer

programs or processes used. Id. Dr. Alder also

testified that the technician is able t o change the

contrast of the digitized images and that "you can do

anything you want with a computer these days." Tr 431-

32; 1846;1859. When asked to compare the mammogram

with the digitized images, Dr. Adler agreed that there

was "a substantial difference. No question in the

amount of white contrast in the t w o depictions." Tr

1

are photocopies of the images not the actual images which are at Or. Tr. Ex. 12A, 13A and 13B.

14

435. Dr. Adler agreed that the contrast was more

"startlingly" on the projected and digitized image and

that there was "a tremendous increase in difference"

between the mammogram and digitized images." Id. I

Immediately following Dr. Adler's testimony and

the admission of the digital images, the CD

purportedly containing the digitalized version of the

mammograms was marked for Identification 'C." Tr 472.

Defense counsel then had it analyzed by a forensic

expert as permitted by the court. 11 Tr. 584-85. The

expert's findings were reported to the court prior to

l2 Id. The court deferred the resumption of trial. I

Neither the CD upon which the scanned images w e r e transferred nor the computer process or program including the Power Point presentation was ever produced or identified prior to trial. At trial, the court ordered that the original CD be given to defense counsel to be reviewed by defense expert. Tr 3 2 2 ; 5 8 8 . Plaintiff's counsel agreed to provide it. Tr 319. Following receipt of the expert's opinion that certain of the images on the CD, including the January 1995 MLO image and the comparison image of 1994/1995 MLO image, had been enhanced or altered, defense counsel filed a motion to strike/fraud on the court. RA 113, l2 The court was informed that the disk contained two Power Point presentations, one labelled "low contrast" and the other "high contrast', indicating the images had been altered. Tr 2256-68. Defense counsel asserted that what had been depicted on the screen with the use of the computer and Power Point presentation was thus not fair and accurate, as contrast had been used to alter certain digitized depictions of the mammograms. Id. It was contended t h a t the testimony was erroneous and misleading and that t h e digitized images should

11

-

15

ruling stating that a hearing would have to be held

and that defense counsel could "present a witness who

has examined them and who can testify to whatever he

or she said t h a t has been done." Tr 322;588.

Defense counsel subsequently called John

Harrington as a witness. Tr 307. An abbreviated voir

d i r e cut short by the court was held.13 - Id. Harrington,

never have been admitted. Tr 584-85 . Defense counsel requested that Dr. Adler's testimony with respect to the screen demonstration utilizing the digitized version of the mammogram be stricken and that the digitized images of the mammogram of January 1995 contained in t he jury notebook likewise be stricken. Id. -

In response to defendant's motion to strike and for fraud on the court, plaintiff submitted the affidavit of a computer technician, David Botos, who was asserted t o have prepared the computer images. RA 130- 31. Botos was not called by p laintiff as a live witness and could not be cross-examined as he was an out-of-s ta te resident and could not be subpoenaed. In the affidavit, Botos generally described the computer and scanning process including the use of a "Kodak Digitizer as part of a GE PACs secure data network;" the creation of a "DICOM file" indicating it is \\a format" which is of "high resolution;" that Adobe Photo shop was utilized; that the images were 'cropped" to take out the patient name information and placed i n 'a TIFF file." Id. The computer images were imported into Microsoft Power Point. The affidavit further provided that there were three sets of images one in the "DICOM" file and the other two labeled "high contrast" and \'low contrast." Id. It was asserted that the "high contrast" file images were altered and the 'low contrast" file had been mislabeled and should have been called 'unaltered." RA 130-31. None of this information, program or CD were provided to defense counsel pr ior to t r i a l . Further,

13

-

I

16

a visual communications expert, testified that he had

reviewed the scanned CD used to project the

digitalized images of the 1995 mammogram. Id. The CD

contained two Power Point files containing images and

that the January 1995 MLO image as well as the

1994/1995 comparison image had been altered and

enhanced from the original Tr. 2263-64;2266-67. The

court, nonetheless cut short the voir d i r e stating

that the contrast change evident an the CD and which

was shown through projection to the jury during Dr.

Adler's testimony was not prejudicial to the defendant

because the jury was purportedly forty (40) feet away

from the projections when they were shown. Tr

2265;2267. As to the fact that the scanned images were

printed out in hard copy form and given to the jury as

exhibits including in their juror notebook, t he court

said it would give a limiting instruction as to the

usefulness of the exhibits. Tr 2266. The court would

not permit any further testimony from Harrington and

the 1995 images and the 1994/1995 comparison image in the CD provided to defense counsel and which were in the "low contrast'' or the purported 'unaltered" file were, in fact, altered as t he contrast was enhanced on the 1995 mammogram images. Tr 2256-2268 . Based on expert review of the CD provided to defense counsel by plaintiff's counsel, it was only those images shown to the j u r y which were altered out of the images contained in the "low contrast" file.

17

he was not allowed to testify before t h e jury or to

address Botos, affidavit. Tr 2267.

Causat ion. Dr. Glick and Dr. Stone were the

parties‘ respective experts on causation. Dr. Glick,

for plaintiff, testified t h a t the prognosis of breast

cancer is ’very complex” turning on a number of

factors - invasive or non-invasive; tumor size; lymph node involvement; skin or nipple involvement; tumor

hormone dependency or independency and gene expression

among other factors. Tr 843-44. The earlier breast

cancer is detected the more chance you have for it

being in early Stage I, where you have a much higher

chance of cure. Tr 8 4 5 . He testified that Renzi had

palpable breast cancer in December, 1993 and June,

1994. Tr 851-52. Dr. Glick opined that the failure to

diagnose the cancer in June 1994 resulted in ‘an

increased probability of [decedent] dying of her

breast cancer in June of 1994.” T r 858.14

l4 As to June 1994, Dr. Glick opined that Ren,zi could have been treated with a lumpectomy and not needed a mastectomy or a bone marrow transplant. Tr 853-54 . When asked whether he had an opinion as to whether the negligence of Dr. Veatch in June, 1994 “ r e s u l t e d i n a substantial loss of a chance of survival”, he said he had an opinion further stating that Renzi would be alive today. Tr 854 ,

Dr. Glick agreed that Renzi had Stage IIIB

inflammatory breast cancer in August 1995. Tr 858. As

of August 1995, Renzi had ”pear d‘orange” indicating

there was infiltration of the breast cancer into the

skin. Tr 863-64. He asserted that while classis

inflammatory breast cancer occurs overnight, this

inflammatory breast cancer g r e w over time. Tr 867. He

opined the cancer grew between December 1993 and

August 1995 when diagnosed Tr 868. 15

D r . Glick testified that the cancer was either

Stage I or IIA in June 1994 with a corresponding

8 8 / 9 0 % to 73% statistical chance of ten year survival.

Tr 8 7 0 ; 8 7 2 . As to December 1994 and/or January 1995,

t h e cancer was either Stage 2 8 or 3A. Tr 898. Stage 2B

is where the tumor s i z e is between 2 and 5 cm with

positive nodes, while Stage 3A the tumor is 5 cm or

more with positive nodes. Id. He agreed nodes would -

have been involved at that time and that for Stage

IIIA the ten year disease free survival is 58%. Tr

898;914. As of August 1995, Renzi was Stage IIIB and

had a 30% statistical chance of disease free survival

for ten years. Tr 902. Dr. Glick testified that, as a

l5 Dr. A d l e r testified that the cancer was inflammatory breast cancer and involved the s k i n in January, 1995. Tr 4 3 8 - 3 9 .

19

result, whether viewed from June 1994 or December

1994/January 1995, Renzi had a greater than 50% chance

of being alive and disease free f o r ten years and, as

such, it was more likely than not the delay in

diagnosis led to her death. Tr 899;913-14;1037.16

D r . Glick agreed that 1 to 3% of all breast

cancers are inflammatory (Tr 932); t ha t of t h e three

different cancer grades, Renzi was grade I11 - t h e

worst which is not a favorable prognostic indicator

(Tr 969-70); and that lymphatic vessel invasion and

failure to respond to chemotherapy (both of which

Renzi had) are also not good prognosticators. Tr 971-

72;1002,

Dr. Glick could not say when the cancer

metastasized but that there would have been nodal

involvement in December 1994/January 1995. Tr 975. H e

agreed inflammatory breast cancer is an aggressive

form of breast cancer and has the highest degree of

micro-metastasis. Tr 988. The tumor was just under or

j u s t over 5 centimeters (5 cm) in January 1995. Tr

1012. He agreed that genetics play a role in outcome

(Tr 993) and that the staging statistics he relied

l6 Dr. Glick did not give any opinion that the treatment if given in January, 1995 would have been any different then what was given in Auqust, 1995.

20

upon are used f o r treatment and determining prognosis

at the time of treatment and not f o r determining

whether the patient, if diagnosed at an earlier time,

would have had a better out come. Tr 1013.

Dr. Stone, a surgical oncologist, testified that

Renzi had inflammatory breast cancer which is

extremely aggressive and fast growing. Tr

1365;1378;1421-22. It is considered metastatic at the

time it starts and at the time of diagnosis. Tr 1577.

He testified that no cancer was evident in January,

1995 and that any cancer that she did have was of such

"bad biology" it was fatal. Tr 1496-97. He testified

that earlier diagnosis i n either June, 1994 or January

1995 did not cause any harm and would not have changed

Renzi's outcome. Tr 1433;1435. He opined that the

biology and characteristics of Renzi's particular

cancer dictated her outcome. Tr 1448. Dr. Stone

testified that while staging is used to group patients

together to t r y to determine treatment it is never

used to evaluate a patient retrospectively in order to

determine a chance of cure at any earlier time. Tr

1 3 7 8 .

While staging is a predictor, outcome is largely

determined by genetic makeup and other factors. Tr

21

1412-13. He opined that Renzi had explosive and rapid

growth of her inflammatory cancer and t h a t such

rapidly growing cancers are particularly bad. Tr 1421-

22.

In addition to various family members, plaintiff

called an economist who opined that there was $1.019

million in lost earnings as a result of Renzi's death.

Tr 1263;1228-29;Tr Exh. 2097. No evidence or opinion

was provided as to any economic damages caused by the

alleged delay in diagnosis between January and August

1995 . Tr 1192.

SUMMARY OF ARGUMENT

Dr. Parades and ARB are entitled to judgment or a

new trial in order to prevent a miscarriage of

justice. The court's entry of a $ 2 . 8 million judgment

based on a claim f o r "loss of chance'' and a purported

28% generic statistical change in chance of survival

where the j u r y otherwise found no wrongful death is

unsupportable under the evidence and applicable law.

(pp. 26-44). Not only was the action pled and pursued

as a wrongful death claim, but the \\claim" for \\loss

of a substantial chance of survival" should not have

been presented to the jury as it is not cognizable

under the wrongful death statute. A n y change in the

2 2

statutory scheme is f o r t he Legislature. Loss of

chance is inconsistent with longstanding principles of

causation and damages under Massachusetts law and

would constitute a radical departure and unwarranted

expansion of liability. Loss of chance involves

substantial social and public policy interests

dictating that it is fo r the Legislature to determine

whether to make such a drastic change in the law and

statutory scheme. (pp. 2 6 - 3 9 ) .

Even if cognizable, defendants are entitled to

judgment as the evidence does not support such a

c l a i m . Not only did plaintiffs rely on a purported

change from above 509; to below 509; chance of 10 year

survival-which proffer is inconsistent with the

asserted rationale for l o s s of chance but,

additionally, there was no evidence that the generic

statistics relied upon were applicable to decedent.

(pp. 39-44).

Assuming a claim for loss of chance is

cognizable, this Court must provide guidance to trial

courts and litigants as to quantum of proof,

instructions and damages. The j u r y instructions and

special questions were inadequate and erroneous

indicative of the complexities of the doctrine and the

23

lack of appellate guidance. The trial court

erroneously failed to apply a proportional rule for

damages. The damage award was without any evidentiary

basis and was based on raw speculation. (pp. 44-50).

The award of $1.4 million in total economic

damages likewise cannot stand as it is based on

decedent's death not on any possible loss of chance

and as the court refused to have the jury clarify the

award prior to discharge even though the award may

well have been a tally of the prior items of damages

listed on the slip. The economic loss could not have

been a proportional calculation of the loss of chance

applicable to Dr. Paredes. (pp.50-53). The trial court

erred in disregarding the jury's express apportionment

of damages between Dr. Veatch and Dr. Parades (80% to

20%) and holding Dr. Parades liable for all damages

even though there was a reasonable basis for such

apportionment. (pp. 72-75) ,

Substantial and prejudicial errors f u r t h e r

underlie the jury's verdict. The court erred in t h e

introduction and use of digital images of certain

mammograms where there was evidence that the contrast

had been enhanced; where their admission violated the

best evidence rule; and where no proper authentication

2 4

or foundation fo r admittance was provided. The court

likewise erred in instructing the jury, following

defense counsel's closing in which counsel challenged

the reliability of the scanned images, that the images

were the "substantial likeness'' of the mammograms.

This constituted impermissible judicial comment on the

evidence and undercut the defense in light of the

evidence that the images had been enhanced. (pp. 5 3 -

68).

The trial court's instruction that the jury (a)

could disregard expert testimony concerning biology of

cancer even though it was relevant and competent to

t h e issue of causation and (b) should not be concerned

about any judgment against Dr. Parades' estate since

the e s t a t e would not have to pay judgment w e r e

independent prejudicial errors requiring a new trial.

(pp. 68-72).

ARGUMENT

I . THE T R I A L COURT ERRED I N FAILING TO ENTER JUDGMENT FOR THE DEFENDANTS

Plaintiff initiated and pursued this medical

rnalpractice/negligence action based on wrongful death.

Nonetheless, the jury, over objection, was allowed to

find liability on a \\claim" of "loss chance of

25

survival.”17 This was error. Loss of chance is not

cognizable under the wrongful death s t a t u t e or

Massachusetts law. Even assuming it is, the evidence

did not support the verdict.

a. Loss Of Chance Is Not A Claim Or Item Of Damage Included Or Permitted Under The Wrongful Death Statute

The issue of whether loss of chance is cognizable

in Massachusetts is presently before this court in

Matsuyama v. Birnbaum, No. SJC-09964. The issue has

been fully briefed and defendants would refer and

incorporate by reference the arguments and briefing

therein. Reduced t o essentials, Massachusetts has

never expressly recognized loss of chance and should

not recognize such a theory of recovery. Whether

viewed as a cause of action or item of damage, ”loss

of chance” is not cognizable under the Massachusetts

wrongful death statute and is otherwise inconsistent

with long standing burden of proof, causation, and

damage principles. Any recognition would constitute an

impermissible judicial amendment to t h e wrongful death

statutory scheme and an unwarranted expansion of

l7 Other than including claims for wrongful death and conscious pain and suffering authorized under C . L . c. 229, S 6 , no o the r claim was ever pled in either the initial or First Amended Complaints. RA13-28.

26

liability. The theory likewise directly implicates

substantial social and public policy interests

rendering the Legislature the appropriate governmental

body to determine whether to make such a drastic

change in t he law.

The terms of the wrongful death statute are plain

and clear. The statute unequivocally imposes liability

s o l e l y and exclusively where a "person who by h i s

negligence causes the death of a person." G.L. c.

229, § 2. Damages are, in turn, to equate to the "fair

monetary value of the decedent'' to the statutory

beneficiaries. The statute likewise sets f o r t h

specific legislatively itemized damages which include

\\loss of reasonably expected net income, services,

protection, care, assistance, society, companionship,

comfort, guidance, counsel, and advice of the decedent

to the persons entitled to the damages recovered."

While the right to recover for wrongful death is of

common law origin, (Gaudette v. Webb, 362 Mass. 60, 71

(1972) ) , the statute "specifies the procedures and

recovery" applicable to t o r t recovery for death.

Pobieglo v. Monsanto Co., 402 Mass. 112 (1998) citing

Hallett v. Wrentham, 398 Mass. 550, 555 (1986). The

statutory elements are "exclusive" and cannot be

'disregarded." - Id. Courts are not \\to intrude on the

Legislature's function or disregard the plain meaning

of the wrongful death statute." - - See, e . g . , Bratcher v.

Galusha, 417 Mass. 28, 30-31 (1994); Marco v. Green,

415 Mass. 732, 739 (1993); Mellor v. Berman, 390 Mass.

275, 283 (1983); see also Kinq v. Viscoloid Co., 219

Mass. 420, 425 (1914); Kordansky v. Andurst, 368

N.Y.S. 2d 117, 119 (1991).

The statute and particularly the phrase "causes

the death" is unequivocal. It dates back to 1840 and

has remained unchanged despite several legislative

changes. The statute does not include any other harm

or injury other than 'death." - See Kromhout v.

Commonwealth, 398 Mass. 687, 690 (1986)(separate

statutory provisions are applicable to cases involving

'injury" and cases involving 'wrongful death") ; Crass

v. Catamount Development Corp . , 390 Mass. 551, 554

(1983); Gallant v. Worcester, 383 Mass. 707 (1981).

The "loss of chance" theory upon which the

verdict is based is not only inconsistent with the

wrongful death statutory language but i t s scheme as

well. The statutory scheme set up by t h e Legislature

provides f o r specific death benefits to heirs at law

of the decedent. The itemized damages do not include

2 8

loss of chance, loss of years of survival, loss of a

statistical chance of 10 year survival, or even the

decedent's j o y or expectation of living. Loss of

chance is a purported ' \harmff personal to the claimant.

The recovery under wrongful death, in turn, is limited

to certain benefits expected or enjoyed only by the

heirs at law.

In sum, there is no latitude in the statute f o r

shifting the basis from conduct causing death to

conduct lessening the prospects of statistical

survival. Loss of chance of a better outcome, however

conceptualized, is separate and distinct from actual

"death," is not a specified damage under the statute,

and is certainly not a damage sustained by the

s t a t u t o r y beneficiaries. See e . g . , K r a m e r v.

Lewisville M e m l Hosp., 858 S.W. 2d 3 9 7 , 398 (Tex,

-

1993); Fennel1 v. Southern Mary. Hosp. Ctr., 580 A. 2d

206 (1990); United Sta tes v. Cumberbatch, 647 A.2d

1098, 1099 (Del. 1994); Weimer v. Hetrich, 525 A.2d

643 (Md. 1987); Joshi v. Providence Health Sys. Of

Oregon, 149 P. 3d 1164, 1170 ( O r e . 2006). It is simply

not permitted as an element of the wrongful death

statute, the statutory basis f o r the medical

malpractice action brought by the plaintiff.

2 9

As in Matsuyama, resort to any public policy

arguments for enlarging t he wrongful death statute to

include loss of chance must be rejected. "Arguments

concerning the propriety of the public Policy

surrounding the wrongful death statute is best left

f o r the Legislature. Bratcher, 417 Mass. at 331

citing Schultz v. Grojean, 406 Mass. 364, 368 (1990).

To interpret the statute as recognizing such a vast

and sweeping new tort or harm as loss of chance would

equate to a legislative public policy determination

and act. See King, 219 Mass. at 425; Schultz v. -

Grojean, 406 Mass. at 368; see also Joslyn v. Change, - _ _ _

445 Mass. 344, 351-52 (2005) (Article 30 of

Declaratory Rights of Massachusetts Constitution

"recognizes t he inability and the undesirability of

Notably, this court in Bradford (415 Mass. 202) remarked that "there is reason to question a rule of law that would totally exonerate a negligent physician from tort liability when the patient had a fair, but less than even chance of survival if the physician had not been negligent." It reserved decision on the issue. At no time since Bradford, has the Legislature sought to amend the wrongful death statute to include recovery for loss of chance. The Legislature \\is presumed to know t he decisions of this court'' and i ts decision not to change or amend the statute to include loss of chance in light of Bradford further supports the fact that loss of chance is not cognizable under the statute. Commonwealth v. Colturi, 4 4 8 Mass. 809, 812 (2007); Commonwealth v, Callahan, 440 Mass. 436, 441-42 (2003); Commonwealth v. Sargent, 449 Mass. 576, 581 ( 2 0 0 7 ) .

3 0

the judiciary substituting its notions of correct

policy fo r that of a popularly elected legislature").

The various "public policy arguments" surrounding

loss of chance demonstrate that not only should it not

be grafted into the statutory scheme through the guise

of statutory construction but given the competing

policies surrounding the doctrine it must be for the

Legislature to address. See Guzman v. MRM/Elqin,

Willcox & Gibba, Inc . , 409 Mass. 563-570 (1971);

Correia, 3 8 8 Mass. at 356; see also Leannis v.

Cincinnati, Tnc., 565 F.2d 437, 441 (7th Cir. 1972) .19

I_

- -

The justifications commonly given for recognizing

"loss of chance" are that any loss of a chance of a

better outcome deserves compensation; that acts of

negligence as to patients with poor prognosis should

not go un-redressed; t h a t healthcare providers should

not benefit from uncertainty they created; that

healthcare providers may otherwise be less inclined to

treat ill-patients; and/or that it is unfair to deny

For cases finding that loss of chance is for the Legislature see Smith v. Parrot, 833 A . 2d 843 (Vt. 2003); Fennell, 5 8 0 P. at 215; K r a m e r , 858 S.W. 2d 397; Gooding v. Univ. Hosp. B d l . , 445 SO. 2d 1015,

19

1020-21 (Fla. 1984); Hurley v. United States, 923 F. 2d 1091, 1099 (4t" Cir. 1991); United States v. Crosby, 49 F. Sup. 2d 294 (D. Ala. 1990).

31

or permit recovery based on whether the claimant has a

50% or greater chance of a better outcome.

These public policy arguments have been addressed

in detail in Matsuyama. Without repeating in detail

those arguments, suffice that these \\justifications”

implicate substantial public policy concerns.

Moreover, there are substantial counter veiling

interests which strongly militate against such a

radical change in the law. To the extent there can

even be a viable debate, it remains fo r the

Legislature to resolve given the ramifications

adoption of such a doctrine would present.

As set fo r th in Matsuyama, it is unfounded to

assume that without loss of chance recovery in medical

malpractice actions, physicians will not provide

proper treatment to critically ill patients. Fennell,

580 A.2d at 215. In failure to diagnosis cases, the

physician does not even know the patient is ill. While

deterrence and accountability are an aspect of tort

law, they do not require abandonment of established

causation and damage principles otherwise damages

could be awarded on t h e basis of liability alone.

Falcon, 462 N.W. 2d at 67-68 (”The loss chance of

recovery theory presumes to know t he unknowable”) *

3 2

Adoption of l o s s of chance would result in a

radical change in established law. Among other things,

it would mean that Massachusetts would, in ter alia,

allow, f o r the first time, recovery of less than even

chances or possibilities; open the door to actions in

all areas of tort seeking damages not only for the

asserted outcomes but, alternatively, for the l o s s of

a statistical chance of a better outcome; physicians

and defendants will bare the burden of not only

demonstrating that their conduct or delay in diagnosis

did not cause the outcome but that they did not cause

the loss of a chance of a better outcome; recovery

will be far risks and chances as opposed to outcomes;

litigation will center on statistical chances;

recovery will be available regardless of whether the

outcome materializes or not; and litigation will

center on whether the loss chance was substantial as

virtually any loss of chance can be argued to be

substantial. 2o

2o From a corrective justice standpoint loss of chance either provides over compensation or under Compensation. See e . g . , Fennell, 580 A. 2d at 208-213. Compensation tu rns not on whether the defendant caused the harm but on the percentage likelihood t h a t he caused the harm.

3 3

The fact that plaintiff's causation evidence was

premised on a purported change from a 58% to 30%

change in statistical chance of 10 year survival based

on staging (i.e. above to below 50%) does not diminish

the theory's infirmities. First, as discussed supra,

even assuming the reliability of such statistics, they

were presented and pursued to establish wrongful death

which claim was rejected by the jury. By finding no

wrongful death, the jury rejected the plaintiffs'

statistical proffer. The jury was likewise never asked

nor did it ever find any percentage change in chance

of survival. Secondly, even assuming plaintiffs'

causation expert's proffer of a change from 58% to 30%

in statistical chances of 10 year survival can be a

basis f o r a "loss of chance" claim separate and

distinct from death, recognizing such a claim would

constitute a re-conceptualization of harm transforming

the tort scheme from one of harm based to r i s k based.

It would implicate a tremendous swath of tortious

conduct in which there is uncertainty about factual

cause and whenever causation and liability is couched

in terms of statistical chance.

The asserted 28% reduction in statistical chance

of 10 year survival is j u s t that a statistical chance.

3 4

To accept it as a compensable harm would mean that a

generic statistical change from 90% to 62% or 48% to

20%- would be compensable separate and distinct from

the i n j u r y and regardless if the injury ever occurs.

Indeed, proponents of loss of chance contend that it

is t h e statistical chance that is compensable, not the

ultimate outcome and is akin to the lo s s of a lottery

ticket. See Lawson v. Laferriere, 78 D.L.R. (4th) 109

(1991) (”not prepared to conclude that particular

medical conditions should be treated for purposes of

causation as the equivalent of diffuse elements of

pure chance, analogous to the non-specific factors of

fate o r fortune which influence the outcome of a

lottery”). This is simply not the t ype of “harm” that

is or should be recognized as it is metaphysical,

speculative and inchoate.

Moreover, t h e loss of chance theory is premised

on t h e perception (albeit misplaced) t h a t the but f o r ,

more probable than not standard is unfair t o those

claimants who claim they were deprived of a less than

even chance of survival at the time of the negligence.

It is intended to allow partial recovery in not better

than even instances. Here, where plaintiff’s proffer

w a s that the statistical chance went from above 5 0 % to

35

below 50% loss of chance, t he perceived justification

of the theory has no applicability. 21

Additionally, where, like here, death has

occurred there is no logical basis to recognize a loss

of chance as the factors that may have been bound up

in t h a t earlier chance have played out. Calling loss

of chance the i n j u r y and not the death is thus

semantical. It would be incongruous to allow recovery

f o r loss of chance until and unless the death thus

rendering the true injury death. Having found no

wrongful death, there can be no liability. 22

If lass of chance is recognized either above or

below the more probable than not standard, there is no

principled basis to deny its application to virtually

a l l t o r t cases ox: to otherwise limit a tortfeasor's

traditional liability. For instance, where a physician

is found to be 51% negligent he or she would only be

21 See Wilson v. Brown, 2004 O h i o App. LEXIS 6711 (2004) (directed verdict for defendant on loss of chance claim as lost chance of survival does not apply where decedent had a greater than 50% chance of survival" Liotta v. Rainey, 2000 Ohio App. Lexis 5475 (2000) ; Donninq v. Ouianno, 810 P. 2d 1163, 1168 ( K a r t .

App. 1991). To t h e extent plaintiff relies on this rationale to

assert that t he verdict is inconsistent, it fails as inter a l i a plaintiff took no exception to the verdict when it was returned and has taken no action - post-trial or on appeal. Service Publications v. Goverman, 396 Mass. 567, 5 7 3 (1986).

2 2

3 6

liable f o r 51% of the harm. If claimants in wrongful

death actions can be compensated fo r a 28% reduction

in chances of 10 year survival by 28% of total death

damages, then there is no reason not to limit a

defendant physician's negligence similarly. Every case

would thus require quantification and apportionment of

harm under a proportional liability rule. This is a

drastic change in existing tort law.

Here, t he infirmity of the theory becomes even

m o r e apparent as the court allowed an award of $2.8

million in damages to stand under the auspices of

"loss of chance" based on a 28% generic statistical

change in chance of survival for 10 years where the

j u r y found no wrongful death. There in no reason or

logic for such a r e s u l t . 23

23 A further infirmity is that loss of chance renders medical malpractice actions (any other tort claims against professionals) dependent upon statistics. This is fraught with difficulties. See e.g., Commonwealth v. Beausoliel, 397 Mass. 206, 217 n. 15 (1986); Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 H a m . L. Rev. 1329 (1971). Substantial issues under Daubert/Lanigan/Canavan will result. Further, there are a number of statistical biases. As set f o r t h in Matsuyama, survival statistics

- are measured from the time of diagnosis and at no other time. The statistics do not account f o r the timing of the diagnosis or "lead time' bias. That is, if cancer is diagnosed at an earlier stage than it would have been in the natural course of t h e disease, when this group is included in the statistical pool,

3 7

To allow the verdict to stand would be to permit

nearly any case to be reformulated as a claim for loss

of a chance of the particular outcome. It will almost

always be claimed that the physician's negligence

caused the adverse outcome and, if not, in the

alternative, the negligence caused the statistical

loss of a better outcome. Such a posture may

virtually ensure tha t claimants will always get

something as it is tempting to conclude that the

the time between diagnosis and death is lengthened making survival appear longer when it is not. The resulting impression is that \\early diagnosis leads to better prognosis" which is not universally true. Cancers that disseminate before they can be discovered have no early stage in the world of clinical, biological and outcome reality; cancers do not necessarily progress from one stage to another, and what may be thought as early diagnosis is in fact biologically late. Kolata, Cancer "Prevention" Is a Big Seller, but Medical Experts A r e Divided, N.Y. Times, Jan. 11, 2004, s.1 a t 1 ("not all cancers will spread and kill, and sometimes the outcome is the same whether a cancer is found earlier or later"); Kolata, Early Detection of Cancer: Nothing is Black and White, N.Y. Times Dec. 24, 2002 at F1; Feinstein, The Will Rogers Phenomenon: Stage Migration and New Diagnostic Techniques as a Source of Misleading Statistics f o r Survival in Cancer, 312 New. Eng. J. Med. 1604, 1605 (1985). Even Professor King, the major proponent of loss of chance, recognizes the significance of statistical bias. Joseph King, Reduction of Likelihood; Reformulation and Other Retrofitting of the Loss of Chance Doctrine, 28 U. Mem. L. Rev. 491, 550, 546-63 (1998) ("One must avoid the temptation to merely compare the outcomes of those diagnosed ' e a r ly ' with those diagnosed \late' without making appropriate adjustment that measures survival from a common stage in the natural progression of the disease").

3 8

alleged negligence and delay affected the "chances" to

some degree. Indeed, t h e trial court improperly

allowed plaintiff to do j u s t that; claim death and

then in the alternative loss of chance based on the

very same causation proffer. Under this scenario, a

defendant physician, in order to prevail, will have

the burden to prove to the jury that he or she caused

- no l o s s of chance of survival. In the end, expert

testimony becomes more complex, trials center on

statistics and their vagaries, statistical and

theoretical chances become compensable harm, and

recovery is less predictable. In sum, 'loss of chance"

is rife with theoretical and practical complexities

and problems further buttressing that any such change

in the statutory scheme and existing law is for the

Legislature.

b. The Evidence Did Not Support The Jury's Verdict As A Matter of Law

Even assuming loss of chance is cognizable (which

it is not) the evidence was insufficient to support

any such finding. Not only did plaintiff's plead a

wrongful death claim based on medical negligence but,

at trial, asserted that the purported negligence

3 9

caused the death of the decedent. 2 4 Specifically,

plaintiff's causation expert Dr. Glick testified that

the purported delay of diagnosis in December 1994 and

January, 1995 led to decedent's death. Tr 899;1037.

Dr. Glick was never asked and gave no opinion as t o

whether decedent suffered a loss of a substantial

chance of survival. 25 Rather, he stated t h a t the

Plaintiff did not and could not plead G.L. c. 228, § 1, the survivorship statute. As with the wrongful death statute, loss of chance is incompatible with this provision absent legislative amendment. Loss of chance did not exist at common law and is not an enumerated damage. Decrease in statistical chances of survival for a period of time is simply too inchoate and "ephemeral" to be encompassed. Pine v. Rust, 404 Mass. 411, 417-18 (1989) (survivorship did not apply t o privacy interests as "its very nature is lacking in clear definition and difficult to quantify'' and is 'ephemeral"). Also, there can be no recovery fo r the loss, joy, expectation or shortening of life and any damages cannot be based on death. See O'Leary v. U.S. Lines I n c . , 111 F. Supp. 745, 747 (D. Mass 1953)

24

citing Choicener v. Walters Amusement Agency, Inc., 269 Mass. 341, 343 (1929); Fennell, 580 A . 2d at 214. Causally established damages such as pain and suffering, medical expenses, and l o s s of earnings prior to death are recoverable. However, where a claimant has died, like here, and is seeking loss of chance based on a statistical reduction in chances of survival which valuatian is measured, at least, proportionately upon death, it is not within the statutory scheme or purpose.

The only opinion question that referenced "loss of a substantial chance of survival" was as follows:

Q. Do you have an opinion whether or not ... the failure to diagnose at that point, December '94/January '95 was a substantial contributing cause of the reduced chances of survival-substantial contributing cause of the death of Mary Jane Renzi?

25

4 0

purported negligence of Dr. Parades caused decedent's

death because her chances of 10 year disease free

survival went from 5 8 % to 30% chance. He, in fact,

equated this to cure (TK. 872), and emphasized that

death resulted as the generic statistical chances of

survival went from above 50% to below 5 0 % . Tr 899;913-

14.26 Accordingly, the opinion and assertion at trial-

consistent with the claim set forth in the complaint-

was that the alleged negligence caused the death, not

a substantial loss chance of survival. The jury, in

turn, rejected the wrongful death claim. There was

substantial evidence supporting the j u r y ' s finding

including their right to reject the opinion of Dr.

Glick and his proffered statistics and accepting the

substantial evidence that decedent, even with earlier

diagnosis (January, 1995), would not have had any

different outcome. Having rejected plaintiff's proffer

there was no independent evidentiary basis for the

A. I have an opinion. Q. What is it? (Objection) A. My opinion is if the breast cancer

had been diagnosed in January or 1995 the patient would have been treated at t h a t time, would have had Stage 2B or 3A disease and would have had a 58% chance of ten year disease free survival. Tr 913-14. It is clear that the opinion sought and given was as to death. 2 6 Plaintiff's counsel so argued he her closing argument. Tr 216;2471;2481;2460-63;2468.

41

jury to consider a separate or alternative claim for

loss chance of survival.

In addition, t h e loss of chance claim f a i l s as a

matter of law as the proffered generic staging

statistics do not support the finding that decedent

lost a substantial chance of survival. As even

plaintiff's causation expert (Dr. Glick) confirmed,

"staging" is a means by which physicians determine

what treatment to provide to patients. Tr 1013.

Staging does not identify when the cancer developed,

when it spread or metastasized, whether it is invasive

or aggressive or whether any earlier diagnosis would

have altered the outcome. Both causation experts

agreed that the generic staging statistics are used

f o r treatments and determining prognosis a t the time

of treatment (Tr 1013; 1378-79) and not for

determining whether the patient diagnosed at an

earlier time would have had a better outcome. - Id. The

reason that the statistics can not be used to proffer

argument as to chances or prognosis at an earlier time

is that staging statistics are used to compare

outcomes of common populations of patients, Patients

who are diagnosed at a l a t e r time are not illustrative

of earlier diagnosed cancer. Common populations

42

therefore reflect the aggressiveness of t h e cancer

which is the result of genetic and biologic factors.

Dr. Glick agreed that the cancer had already spread to

multiple lymph nodes and was either under or over 5

centimeters in January, 1995. Tr 1012. He did not and

could not provide any reliable basis or methodology

for asserting that the cancer was either Stage 2B or

3A in January, 1995. See Holy Cross Inc. v. Marrone,

816 So. 2d 1113, 1118 (Fla. App. 2001) (proposed

opinion relying on staging studies to go back in time

to determine when cancer metastasized was not

admissible absent screening by court for reliability

and methodology). Cancer simply does not necessarily

progress from one stage to another.

There was likewise no showing that the generic

statistics were applicable to decedent. There was no

proffer as to the age of the statistics, the number of

studies or patients or the treatments used. The

evidence was that decedent had inflammatory breast

cancer, one of the 'most aggressive f o r m s of breast

cancer," (Tr 9 8 8 ) ; that decedent's cancer had a higher

likelihood of micro-metastasis (id) ; and that

decedent's particular cancer had a number of

characteristics indicating poor prognosis including a

-

43

poor response to chemotherapy (Tr 971-72;995) ;

residual disease after chemotherapy; (Tr 1002);

histiological Grade 3 ; (Tr 171-72) ; and lymphatic

vessel invasion (Tr 969-70). Accordingly, given the

absence of proof that the proffered statistics were

applicable to decedent‘s particular circumstances and

cancer, the verdict based on “loss of chance” cannot

stand.

Additionally, there was evidence at trial that

the purported Stage 2B or 3A cancer in January, 1995

was metastatic in that it already involved multiple

lymph nodes. Tr Exh 0782; Tr 970. With such lymph node

metastasis there can be no finding of a loss of a

substantial chance of survival. See Cusher v. Turner,

22 Mass. App. C t . 491, 497 (1986) (evidence sufficient

as it included expert testimony that there would have

been no metastasis to the lymph nodes absent the

negl igence) .

11. THE COURT ERRED IN ITS INSTRUCTIONS AND SPECIAL VERDICT QUESTIONS AS TO LOSS OF CHANCE AND THE JURY VERDICT AND AWARD IS UNSUPPORTABLE MANDATING A NEW TRIAL

Any adoption or recognition of loss of chance

requires that this Court provide proper guidance to

the trial courts and litigants as to how the issue is

4 4

to be presented and instructed upon including the

appropriate measure of damages. See e . g . , In re Grand

Ju ry Subpoena, 414 Mass. 104, 111 (1993); McCleod's

Case, 389 Mass 431, 434 (1983); Worcester State Hosp.

v. Hagberg, 374 Mass. 271, 274 (1978). Here, over

objection, the jury was instructed as to loss of

chance and provided various special questions as to

the purported claim. 27 The instructions were inadequate

and erroneous resulting in a jury verdict that has no

basis in t h e evidence, law or substantial justice.

"Loss of a substantial chance of survival" was

never defined by the trial court and has, in fact,

never been defined by any Massachusetts appellate

decision. There was no explanation as to what

'substantial" means or how 'loss of substantial chance

of survival" is separate and distinct from death and

Defense counsel filed a trial brief objecting to any loss of chance claim. RA 103. Included in the brief was the position that proper instructions had to be given, that it had to be separate and distinct from the death, that the only damages were either the palpable harms separate and distinct from the cancer and the death and otherwise caused by the delay and/or that any award had to be based on the percentage loss chance of survival. RA 110. Defense counsel also submitted proposed j u ry instructions and objected again ,at the time of the charge wherein the court acknowledged t h a t all rights as to the loss of chance claim, instructions and special verdict questions were preserved. RA 106-08; Tr 2563 ;2544-45 .

27

45

the underlying cancer. The jury’s confusion was

evident as it specifically asked f o r an explanation as

to the difference between substantial contributing

cause of death and substantial contributing cause of a

loss of a substantial chance of survival. The court‘s

repeat of its earlier instruction was inadequate.

As to damages, t he jury‘s award was entirely

speculative and has no basis in law or the evidence.

While the court instructed as to the damages for

wrongful death, it did not provide any meaningful

direction as to damages for loss of chance. Any

possible recoverable damages must be limited to the

actual negligence and be unrelated to the death. Such

items as any additional surgery, treatment, medical

costs, and emotional harm causally related to the

delay in diagnosis in January, 1995 would be proper.

See e . g . , Gray v. Gieger, 27 Mass. App. Ct. 583

(1989). If this Court determines that the ”loss of

chance” itself is also entitled to valuation, then it

must determine the appropriate measure of damages. The

most common approach is the proportionate rule

limiting any monetary award to the purported decrease

in percentage chance of survival between the time of

the negligence and diagnosis. See e . g . , Cahoon v.

4 6

Cummings, 734 N.E. 2d 535, 540 (Ind. 2000); Soper v.

Bopp, 990 S.W. 2 d 147, '150-51 (Mo. 1999). While

methods of discount vary, 28 the j u ry , despite defense

counsel's request, was never asked to specify the

percentage chances of survival at the time of

diagnosis and alleged negligence and no

proportionality was ever applied. As a result,

although the jury found no wrongful death, they

effectively awarded either death or otherwise

speculative damages under the guise of loss of chance.

These failings are indicative of the complexities and

inchoate nature of loss of chance and the l a c k of any

appellate guidance.

The award was not only not based on

proportionality but was otherwise without evidentiary

basis. The j u ry was instructed to determine damages

for loss of a substantial chance of survival and

particularly for "conscious pain and suffering" (RA

47

Birbeck v. Central Brooklyn Medical Group, 2001 N.Y. Misc. LEXIS 368 (2001) (value harm for l o s s of chance

28

by multiplying full damages by claimant's chances of survival at time of misdiagnosis)" Cahoon, 734 .N.E. 2d a t 540 (multiply full damages by difference in chance of survival at time of misdiagnosis and diagnosis); Boody v. United States, 7 0 6 F. Supp. 1458, 1467 (Kan. 1989) (number of years upon which survival probability is based divided by life expectancy multiplied by full damages).

survival at the time of the negligent treatment by

[specific defendant] versus the chance of survival at

the time of actual diagnosis” (RA 291-92); the

”total ... determined to be the value of the reduction of

the chance of survival at the time of misdiagnosis

of consortium damages suffered by the individual

family members as a result of delay in diagnosis ...

from the date of diagnosis in August, 1 9 9 5 and the

date of death” (€?A 293) and “the total economic

damages suffered by the Estate ... as a result of the

loss of a substantial chance of survival.” (RA 2 9 2 ) .

The j u r y awarded $150,000 f o r \\conscious pain and

suffering” (RA 291) apportioning damages 8 0 / 2 0 between

Dr. Veatch and D r . Parades. Not only was t h i s part of

t h e wrongful death portion of the jury slip, but there

was no evidence to support this amount as to Dr.

Parades. There was no evidence t h a t decedent would not

have undergone the same treatment if diaqnosed and

treated in January, 1995 instead of August, 1 9 9 5 . 2 9 The

Plaintiff’s counsel stated in closing that Dr. Glick testified that if cancer had been diagnosed in January Renzi would not have needed t h e bone marrow transplant

2 9

4 8

undisputed evidence was that the treatment would have

There was also no evidence that I

been the same.

decedent incurred any additional medical expenses or

suffered more due to this alleged delay then she

otherwise suffered due to the cancer. as to

"emotional anguish, there was no evidence that

decedent suffered such anguish due to the alleged

negligence of Dr. Paredes. Indeed, there was no

evidence of when or if decedent ever learned that Dr.

Parades purportedly did not properly interpret the

January 1995 mammogram. While there was evidence as

to decedent being upset with Dr. Veatch (Tr 1724-

25;1740), this purported anguish is not transferable

to Dr. Parades. There is no evidentiary support for

the award.

The jury's award of $100,000 as to Dr. Parades

and $500,000 for Dr. Veatch for "the value of the

reduction of the chance of survival at the time of

misdiagnosis [by defendant] versus the chance of

survival at the time of actual diagnosis'' is a l so

without basis. There was no guidance on how to derive

such damages. The jury could not award death damages

(Tr 2 4 8 4 ) ' Dr. Glick never so testified as to January 1995.

4 9

as they had already found no wrongful death. The jury

was not asked, despite request, to specify the

percentage change in chance of survival b e t w e e n time

of the alleged negligence and time of diagnosis so

that the difference could be multiplied against full

damages. As such, no proportional award could or was

made. Instead, the jury w a s left with no basis or

instruction as how to value the purported loss chance

of survival .30 The jury‘s award was thus simply raw and

impermissible speculation.

The award of $650,000 f o r ’loss of consortium,”

is equally without basis. There was no evidence that

any of the family members suffered loss of consortium

due to the delay in diagnosis from January to August,

1995. The j u ry could not award damages fo r loss of

consortium due to the cancer but only due to the

alleged delay. There w a s no evidence t h a t the decedent

underwent different treatment or suffered more due to

the failure to diagnose in January as opposed t o

August, 1995 which caused any loss of consortium for

any of the beneficiaries. Absent evidence that the

loss of consortium resulted from the delay as opposed

30 The jury‘s award of damages under both Q. 14 and Q. 16 and 17 are duplicative.

5 0

to t he cancer, t h e $650,000 award cannot stand and is

entirely unsupportable.

111. THE $1.4 MILLION ECONOMIC DAMAGE AWARD CANNOT STAND AS A MATTER OF LAW

The j u r y awarded an additional $1.4 million in

“total economic damages.” There can be no such award

’ for a “loss of substantial chance of survival” and is

otherwise unsupportable.

a.The Purported Economic Damage Award Was An Improper T a l l y Of The Jury’s Damages On The Jury Slip

The court’s failure to question or poll the jury

as to its economic damage a w a r d was clear error. U p o n

return of the verdict, defense counsel timely raised

the objection and concern that the economic damage

award contained in Question 20 was a tally of t h e

prior damage awards contained on the slip. The $1*4

million did, in fact, equal the total sum of the prior

awards and was substantially greater than the $1.019

million presented by plaintiff‘s o w n expert . 31 A simple

polling or instruction to the j u r y could have

51

31 Counsel f o r plaintiff specifically s t a t e d in closing that the loss of earnings resulting from Renzi’s death was $1.019 million, not any amount greater or $1.4 million. Tr 2485.

addressed this substantial question but the court

refused to do so. This was clear error. 3 2

b. The Economic Damages Were Based On Death Not Loss Of Chance

The jury's economic damage award was based on

wrongful death not loss of chance. This is a fatal

flaw. It derives from the failure to apply the

proportional rule as to damages. T h e fact that

Question 20 asks "what are the total economic damages

suffered by the Estate ... as a result of the

substantial chance of survival" does not a l t e r the

underlying fundamental defects.33 The award was based

entirely on the assertion that the alleged negligence

caused Renzi's death not any loss of a statistical

chance of survival. Plaintiff's counsel so argued in

her closing. T r 2 4 8 4 - 8 5 . It included the assertions of

a life expectancy of 82.4 years (Tr 1208), continuing

to work as a public school teacher and "money she

would have made after she retired from the public

school system" I her purported continued work in a

private school a f t e r retirement from the public school

G.L. c. 231, §60F mandates ("shall") t h a t the jury t o t a l a l l damages.

The court gave no instruction of how t o award l o s s of chance economic damages as opposed t o wrongful death based economic damages.

32

33

5 2

as well as the lifelong value of her ”household

services.” Tr 1208-09;1217;1228-12229;1242;1250; Tr.

Exh 2097. There could be no award for death based

damages as the jury found that the defendants did not

cause decedent ’ s death. Assuming loss of chance is

cognizable (which it is not), any recoverable damages

must be limited to the loss of chance not death. The

award of $1.4 million in economic damages based on

death cannot stand as a matter of law.

IV. THE COURT PREJUDICIALLY ERRED I N ITS INSTRUCTIONS, ADMISSION, AND RULINGS RELATIVE TO DIGITAL IMAGES OF THE MIIME90GRAMS

Computer digitized generated images were

projected before the jury during a substantial part of

Dr. Adler’s testimony using a computer program and

presentation. 34 Hard copy printouts of the computer

images were also introduced and submitted to the j u r y

both as substantive exhibits and as documents in each

of the juror’s own notebooks. Despite evidence that

the January, 1995 computer projected and scanned

images had been enhanced through alteration of the

contrast, the images were admitted, the jury

34 The computer generated digital images were the subject of defendants’ motion to preclude, objections at trial, a mid-trial motion for fraud on t he c o u r t , and post-trial motions. RA 113;337; Tr 5 8 4 - 8 8 ; 4 0 8 - 0 9 .

5 3

instructed that they were the "substantial likeness"

of the original mammograms, and defense counsel was

precluded f r o m calling an expert to testify that the

images were altered.

To be admissible, evidence m u s t be relevant and

reliable and its probative value must not be

outweighed by its prejudicial effect. Harris-Lewis v. -

Mudge, 60 Mass. App. Ct. 480, 485 (2004); Green v.

Richmond, 369 Mass. 47, 5 9 - 6 0 (1975). It is equally

axiomatic that advance notice of the intended use of

particular evidence be provided and that the

applicable evidentiary foundation be laid. See e , g . ,

Commercial Union v. Boston Edison Co., 412 Mass. 545,

549 (1992) (requiring advance production of computer

generated evidence as part of evidentiary foundation

at trial); Rodd v. Raritan Radioloqic Associates,

P.A., 860 A. 2d 1003, 1011 (N.J. App. 2004) (reversing

jury verdict in breast cancer case where digital

mammograms created for trial w e r e not provided in

advance of t r i a l and where inadequate foundation

provided); S t a t e v. Swinton, 847 A. 2d 921, (2004):

Campbell , Evidentiary R e q u i r e m e n t s for the Admission

of Enhanced D i g i t a l Photographs, 74 Def. Counsel J.,

No. 1 12 ( 2 0 0 7 ) .

54

At no time prior to trial did plaintiff indicate

t h a t he intended to mark and use computer generated

and Power Point presentation of digital images of the

mammograms. Neither the computer generated digital

images of the mammograms nor the CD, program, or Power

Point presentation were provided to defense counsel in

advance of trial. The technician who created the

images and power point presentation was likewise not

identified or disclosed.36 Providing advance pre-trial

production of the computer program and images is

absolutely necessary to afford apposing counsel t h e

opportunity to have the programmed process evaluated

to ensure accuracy and reliability. This is

especially true where the conversion of the original

f i l m s w a s done via computer programs such as Adobe

35

3f The court noted that counsel was required to identify a11 exhibits pr ior to trial Tr 77 -79. 36 The assertion that the digital images w e r e referenced at the deposition of Ferris Hall, M.D. thus providing advance notice is without merit. Dr. Hall’s deposition took place less then 3 0 days prior to trial. While plaintiff briefly showed digital images of the mammograms to Dr. Hall, the deposition centered on the review of the original mammograms. Moreover, plaintiff did not indicate the intent to introduce digitalized images or utilize a Power Point presentation at trial, provide the actual images (as opposed to a paper photocopy), provide the CD or Power Point used to generate the images or identify the technician who created the images prior t o t r i a l

5 5

Photoshop and Power Point which provide a ready means

37 to change and alter the depictions.

In addition, the digital images were both

irrelevant and barred by the best evidence rule. To

be relevant, the evidence must have some tendency to

prove a particular fact and must be material to an

issue in the case. See Harris-Lewis, 60 Mass. A p p . Ct.

at 485 (citations omitted). The best evidence rule, in

turn, provides that where the contents of a document

are to be proved, the party must either produce the

original or show a sufficient excuse for its non-

production. Commonwealth v. Ocasio, 434 Mass. 1, 1 0

(2001) ; P.J. Liacos, Massachusetts Evidence 746 (7th

ed. 1999). While photographs have been held not to be

subject to the best evidence rule (see Commonwealth v.

Welchell, 390 Mass. 62, 77 (1983))38 x-rays and, by

logical extension, mammograms films are subject to the

rule. Hernandez v. Pino, 482 So. 2d 4 5 0 (Fla. Ap.

1986); Schozer v. William Penn Life Ins . Co., 644 N.E.

2d 1353, 1356 (N.Y. App. 1994); Daniels v. Iowa City,

183 N.W. 415, 416 (1921); Sirico v. Cotto, 324 N.Y.S.

Alterations through scanning and computerization can occur accidently or intentionally. 3 8 In Welchell, this Court noted that, unlike here, there was no issue of any alteration in the photograph. ~ Id. at 7 7 , n . 11.

37

56

2d 483 (1971); Kollmorgan v. Scott,447 S.W. 2d 236

(1969).See Waqman v. Bradshaw, 739 N.Y.S. 2d 421

(2002) (MRI subject to best evidence rule); See

Advisory Notes to Fed. R. Evid. 1002.

The liability issue as to Dr. Paredes turned on

the propriety of his interpretation of the January,

1995 mammogram. It was the original mammogram and the

interpretation of the original mammogram that was

relevant not computer generated digitized images of

t h e mammograms presented via Power Point. Leaving

aside the testimony and evidence that certain of the

digital versions provided to defense counsel during

trial had been enhanced with contrast, the digital

computerized version was simply irrelevant to the

i s sue before the j u ry . Dr. Paredes did not read a

digital image of the mammogram and did not ever see

the images or Power Point presentation created for

purposes f o r trial. The original mammograms w e r e

available and introduced. There was no need or

evidentiary purpose to use and/or admit the digital

images,

57

Further , no proper evidentiary foundation and

authentication was provided. While this court has yet

to definitively address the standard f o r admission of

digitized computer images of mammogram films, it has

set forth foundational requirements f o r computer

generated evidence. See Commercial Union, 412 Mass. at

549. Digital images of mammograms are not simply

photographs but are computer generated images

requiring a computer and computer program and process

for their creation. See, e .g . Swinton, 847 A.2d 921

(2004) (holding digital photographs or i m a g e s are

-

-

equivalent to computer generated evidence) ; Redd, 8 6 0

A . 2d at 1011-12. The affidavit submitted by plaintiff

of the technician (Botos), who created the images,

confirmed the various computer processes involved

including use of "a Kodak Film Digitizer as part of a

GE PACs secure network" and use of a "DICOM file

format", "Adobe Photoshop", "Power Point" and "TIFF

f i l e s " . The computer process easily provides and

affords the opportunity to manipulate and alter the

images including contrast. See Lorraine v. Markel

American Insurance Co., 241 F . R . D . 534, 561 (D. Mary.

2007)(digital images "present unique authentication

problems because they are form of electronically

produced evidence that may be manipulated and

altered"). There must be live testimony by a person

knowledgeable as to the computer process who can be

5 8

appropriately examined and cross-examined as to both

the accuracv of the imaaes, and the reliabilitv of the

computer process producing the images. Rodd, 860 A. 2d

at 1011-12; Swinton, 847 A . 2d at 941-44; -- see also

Mass. Prop. R. Evid. 901(b) (9); -- see also J. Witkowski,

"Can Juries R e a l l y Believe What They See? New

Foundat ional Requirements f o r the A u t h e n t i c a t i o n of

D i g i t a l Images," 10 Wash. V . J . L . & Policy 269 ( 2 0 0 2 ) ;

Edward Imwinkelweid, Can This Photo B e Trusted?, Trial

October 2 0 0 5 at

Authentication of

Age, 20 T. Jeff L

48; Bianchini, A Paradigm f o r the

Photographic Evidence in the D i g i t a l

R e v . 303 (1998). This is especially

59

so in this case where the technician who created the

images admitted to altering certain images in certain

f i l e s and where plaintiff's liability expert agreed

that the contrast was different and increased compared

to the mammogram films.

Not surprisingly, courts have held that due to

t he potential that digital images can be changed,

altered or enhanced through computer programs, such

images, including digital mammography images, require

a more detailed foundation than that required for

simple photographs or enlargements. See Rodd, 860 A.2d

at 1011-12; Swinton, 847 A.2d 921. In Rodd, for

instance, the court held that the use of digital

mammogram images even for just demonstrative purposes

required advance notice, a showing that the images’

probative value outweighed its prejudicial effect, and

testimony by a knowledgeable person as to the computer

process who can be examined and cross-examined.

Here, no proper foundation and authentication was

provided. Dr. Adler was not an expert in digital

imaging or computer programming. Notwithstanding her

conclusory agreement with plaintiff‘s counsel that the

images were the “substantial equivalent” of the

mammogram films, she offered no account of how the

films were scanned i n t o the computer, or how the

computer operated. H e r testimony that she commonly

uses digitized mammograms for teaching purposes and

presentations was not a sufficient evidentiary

foundation for admission and use of the images at

trial. Dr. Adler testified that the digital images

w e r e taken not by her but by a technician in her

office. She never saw or even understands the computer

process. The technician, Botos, in turn, never

te~tified.~’ While plaintiff , during trial, offered the

3 9 He was out of state and not subject to subpoena by defendant and not called by plaintiff.

60

affidavit of Botos in response to defendant’s motion

to strike/fraud on the court, he never testified and

was never subjected to cross-examination. No such

examination was permitted even though he stated in the

affidavit that the images w e r e created using a ”high

resolution program, I’ for \\ an educational

presentation,” and that various images had been

altered by ”adjust [ing] the highlight, mid-tone and

shadow levels ... to increase contrast.” €?A 130. Not

only did Botos via affidavit confirm that certain

images had been altered but Dr. Adler did as well. Dr.

Adler testified that the technician is able to change

t he contrast of digitized photographs; “that you can

do whatever you want with computers;” and that in

comparing the prints outs of the scanned images with

the original mammograms there was a ”substantial

difference ... no question in t h e amount of white

contrast” and t h a t the contrast was made more

“startlingly” with ”a tremendous increase in

difference”. between the images and the mammograms. The

need for proper foundation was all the more necessary

given that the images w e r e not used simply as an

illustrative aid but actually admitted into evidence.

61

In addition, defense counsel was precluded from

presenting to the jury his own expert who had reviewed

the scanned images and determined that they were

altered with contrast. After Dr. Adler's testimony,

the use of the images over objection, and being

provided, for the first time, the CD purportedly

containing the computer images, defense counsel was

able to have the images reviewed by a computer expert

(Harrington) . At a voir d i r e , Harrington testified

that certain digital images had been enhanced and had,

in fact, been converted for use in Power Point

presentations in files labeled "high contrast" and

"low contrast." According to Harrington, the January

1995 images (which had been projected and enlarged fo r

the ju ry as well as contained in the j u r o r s notebooks)

contained on t h e CD and program had been "altered

specifically highlighted and contrast has been

adjusted. r141 Tr 2263-4;2266-7 *

4 0

The court had previously told defense counsel that due to Dr. Adler's testimony, counsel could "present a witness who has examined them [digital images; program] and who can testify to whatever he or she said t h a t has been done." Tr 584-85;322. 41 At the voir d i r e , it was questioned whether the images on the CD reviewed by Harrington was what was shown and given to the j u r y . Plaintiff's counsel cryptically stated that it w a s a ltcolossaltl waste of time and "can't we just find out whether that [CD] is

4 0

6 2

Despite this testimony, the court abruptly cut

shor t the voir d i r e and refused to allow Mr.

Harrington to testify further or before the jury. It

the dated one. Because if it isn't, there's no way Your Honor could even rule, we didn't use that one." Tr 2257. This was a perplexing statement as noted by defense counsel at the time. Tr 2262. The court earlier ordered that plaintiff provide the original CD to the defense so its expert could review. TR 322;584- 8 5 . The CD was provided by plaintiff's counsel and then marked for Identification as l IC1l directly following Dr. Adler's testimony. Tr 431,472. Harrington later came to the cour t house and copied the CD which he reviewed and attempted to testify to at the voir d i r e . Plaintiff's counsel never before said that, despite the court order to make available for examination the CD images in question, the actual CD/images had been withheld. No other CD or Power Point presentation was ever provided to the defense. Further, Botos, in his affidavit, stated that in the computer process he created, inter alia, two files with the same images in each file. -130. One labelled "low contrastv1 and t h e other "high contrast.I1 H e claimed that the "low contrastI1 was misnamed as it should have been labelled "unaltered. I' Id. He asserted that certain images in the "high contrast" file were altered and the contrast enhanced. Botos provided both of these files to plaintiff's counsel prior to trial. While the affidavit states another file of images ("DICOM") was later provided to plaintiff s counsel prior to t r i a l , this file was purportedly the same as the 'low contrast" file (allegedly llunalteredll) with the only difference being that the images contained the original name markers. Although Harrington's testimony was cut-off by the court at voir dire, his opinion was that the January, 1995 images and the 1994/1995 comparison images in the "low contrast" f i l e provided to defense counsel and purportedly I1unalteredt1 clearly showed increased contrast (i .e. "high contrast" although labeled 'low contrast"). As such, the l l l o w contrast" version of these images with the name markers shown to the jury were, in fact, altered.

6 3

did so effectively agreeing that the images had been

changed from the original mammograms. It nonetheless,

without asking for any argument or discussion on the

issue, stated there was no "prejudice" because the

projections were a number of feet away from the j u r y

when shown.42 Tr 2265;2267.

The issue was further compounded by the court

impermissibly commenting on the images during

instructions. 43 Tr 2503-04 ;2537-38 . Defense counsel

centered closing argument on the reliability of the

enhanced digital images. It was argued, in ter alia,

that t he digital image of the January, 1995 mammogram

had been enhanced in contrast to bolster plaintiff's

4 2 As to the fact that the images were printed out and given to the j u ry as exhibits (including the j u r o r notebook), the court stated it would give a limiting instruction as to the usefulness of the exhibits. Tr 2266. As set forth above, the "limiting instruction" included informing the jury that the court admitted the digital images as they were the substantial likeness of the originals. T r 2503-04 . 43 The court instructed: "In addition to the original mammograms, photographs have been placed in evidence and you were shown several screen projections of those mammograms. The photographs and screen projections are not a substitute for the originals, but were allowed into evidence to assist you in viewing and comparing the mammograms in question. The court ruled that they were admissible as substantial likenesses of the originals. You will have the originals and the view boxes with you in the jury room. Although the court ru led they were admissible, it is up to you to determine t he i r usefulness to you and what weight, if any, you attribute to them." Tr 2503-04.

6 4

theory of liability. Defense counsel relied on what he

could namely the evidence as to alteration of the

images through change in contrast as shown by the

images themselves and Dr. Adler's testimony on cross-

examination. No objection was made by plaintiff.

At the time of instruction and following the

closing, however, the court, sua sponte, proceeded to

,instruct the jury that it had found the images "were

admissible as the substantial likenesses of the

original." T r 2503. The court stated that it gave the

instruction because it felt that counsel's argument

was "improper" as "there was no evidence of

manipulation of doctoring of those views." Tr 2537-38.

This statement was inconsistent with Dr. Adler' s

testimony, Warrington's voir d i r e testimony, Botos'

affidavit and the court's own statements at the

Harrington voir d i r e where it acknowledged that the

contrast has been changed.

The fact t ha t the court also told the jury that

it was free to give whatever weight to the images it

wanted, did not remedy the court's clear imprimatur.

The "instruction" constituted an improper judicial

comment on the evidence as well as a clear judicial

statement to the jury intended to lessen the impact of

6 5

defense counsel’s closing argument. Defense counsel

was certainly free (and obligated), even after the

Court erroneously allowed the images‘ use and

admission, to challenge the reliability and

evidentiary weight of the images. The lack of proper

advance notice and proper foundation and

authentication, the wrongful refusal to allow

Harrington to testify as to the contrast change to the

digital images as well as the judicial instruction

constituted error.

The error was not harmless. The entire theory of

liability centered on what the or ig ina l mammogram,

read by Dr. Paredes, showed or did not show. -- See Rodd,

860 A.2d at 1010 (use of digitized mammogram

reversible error as \’the very essence of the

malpractice claim was error in visual observation”).

It centered on the amount of whiteness representing

tissue and increase in trabecular pattern in the

breast which is affected by any change in contrast

subtle or not. Tr 353;359;371; 445. Testifying

directly from the scanned projected images, Dr. Adler

called the change “spectacular.ff Tr 359-60. She made

references to “darkness”, “light portions, ” ’change in

density,” and ’\white spot” in her testimony that Dr.

66

Paredes misread the mammogram. Tr 352;

359;371;373;458. In plaintiff's closing argument,

counsel argued to the jury that the scanned images

w e r e a 'road map;" that with them "you could see

eas i ly what the differences were; and that "you can

see yourself on those photographs, you see yourself

there, there's something wrong." Tr 2477; 2479.

The digitally computer generated images were not

the medically accepted tool at issue yet they were a

substantial part of D r . Adler's testimony. The digital

creation was projected via computer on an enlarged

screen in front of the jury during a substantial part

of her testimony. These images, as enhanced with

contrast adjustment, were included in the jury

notebook and marked and admitted as an exhibit and

taken into deliberations by the jury.44 Beyond a doubt

44 Dr. Adler's testimony that her opinions were also based on her review of the mammograms does not save the prejudicial nature of the images and rulings. A substantial portion of Dr. Adler's testimony and opinions were made based on the images and projection of the images put before the jury. The reference during direct that her opinions remained the same based on her review of t h e original mammograms could not reasonably deflect the fact that the projected images were the centerpiece to the testimony or that defense counsel was unfairly restricted from challenging t h e reliability and "substantial equivalency" of the images.

67

these images may well have influenced the jury. Grant

V. Lewis/Boyle, Inc., 408 Mass. 269 (1990); Timmons v.

MBTA, 412 Mass. 646, 652-53 (1992). A new trial is

mandated .

V. THE COURT ERRED IN INSTRUCTING THE JURY TO DISREGARD THE EVIDENCE AND TESTIMONY AS TO GENETICS/BIOLOGY OF CANCER

The Court instructed the jury that they were to

disregard any testimony regarding the biology or

genetics of breast cancer, since they were purportedly

only to be concerned w i t h the standard of care in

1995. This instruction was clear error.

The biology and genetics of breast cancer,

especially as to the rare inflammatory breast cancer

of decedent was a fundamental tenet to the defense in

this action. Plaintiff's own expert, Dr. Glick,

admitted that genetics play a role in t he statistical

survival from breast cancer. Tr 993. D r . Glick agreed

that the biology of t h e cancer plays an "important"

role in outcome, particularly where it is chemotherapy

resistant. The defense experts including Dr. Stone

concurred testifying that decedent's response to

Chemotherapy demonstrated that the biology of this

very aggressive breast cancer was such that earlier

diagnosis would not have made a difference.

6 8

The evidence as to cancer biology and genetics

was highly relevant and admissible as to the issue of

whether plaintiff could make a claim for a lost chance

of survival by reference to staging. For example, even

assuming a stage I cancer, and a 10% fatality rate

versus a 9 0 % statistical survivability, according to

both plaintiff's and defendants' experts - genetics

and the biology of the cancer play a material role in

outcome. There was substantial evidence that the

biology of this particular cancer was very vicious and

aggressive based on t h e total failure to respond to

chemotherapy. The Court's instruction to have the jury

- after the evidence was in and presented and relied

upon in closing - to disregard such evidence

undermined this proper and viable defense specific to

loss of chance mandating a new trial.

VI. THE COURT ERRED IN INSTRUCTING THE JURY ABOUT DR. PAREDES ESTATE

In instruction to the jury, t he court stated:

If you find that the defendant Santiago Paredes, was negligent and by his negligence caused harm to Mary Jane Renzi, any award of damages is not recoverable from his estate. By statutory provisions of probate law in Massachusetts the estate of D r . Paredes is not responsible f o r any award of damages that you should consider and you should not consider that issue. Tr 2528.

6 9

The unannounced unilateral foray by the court in

its instruction was perilous and prejudicial requiring

a new trial. Goldstein v. Gontarz, 364 Mass. 800, 812,

814 (1974). The instruction as to the defendant's

resources for bearing loss or footing liability is

exactly the type of statement, reference or evidence

that the courts have sought to repel. "Summing up,

the courts have sought to repel reference to or

evidence of the parties' resources for bearing losses

or footing liabilities, and have exhorted juries

simply t o find the facts , including damages,

impartially, without wondering or speculating about

extraneous supposed equities." - Id. at 810. Here, the

court's statement is not only irrelevant but

prejudicial in that the j u ry was instructed that any

award against Dr. Paredes will not be paid by his

estate. "Exposing juries to such information is

condemned because it is not itself probative of any

relevant proposition and is taken to lead to

undeserved verdicts f o r plaintiffs and exaggerated

awards which j u ro r s will readily load on faceless

insurance companies supposedly paid f o r taking the

risk." - Id. at 808 . The instruction was the equivalent

to advising the jury that they should not be concerned

7 0

about a financial impact on the defendant I because

there is insurance. The fact the term of insurance was

not expressly stated is of no moment as the inference

is clear. The court had previously been provided the

defendants' motion i n l i m i n e seeking to preclude any

reference to insurance. With no advance conference or

notice to counsel, the court issued the instruction

despite the motion which had been allowed. The

instruction sewed no beneficial purpose and only

encouraged the jury to award damages and to assume the

availability of insurance.

The court's proffered reason in i t s post-trial

ruling that "the instruction was necessary ... given the

frequent references to the fact of Dr. Paredes' death

and in order to ensure the jury w o u l d correctly base

any d e c i s i o n concerning D r . Paredes' liability on the

e v i d e n c e " (emphasis added) is further reason why such

instruction was prejudicial error. The apparent intent

of the instruction was to assist the jury in their

deliberations as to the issue of negligence. In

McDaniel v. Pickens, 45 Mass. App. Ct. 63, 66 (1998)'

the court ruled that "evidence of liability insurance

is firmly barred when offered in medical malpractice

cases to prove that a defendant physician did or did

7 1

not ac t negligently: this is because of the weakness

of t h e inferential connection."

The instruction exposed the jury to inadmissible

information that, at minimum, improperly commented on

the bearing of any loss or footing of liabilities to

the substantial prejudice of t he defendant. The

instruction was error and f a r from harmless.

VII. THE COURT ERRED IN NOT ABIDING BY THE JURY'S FINDING OF AN 8 0 % / 2 0 % APPORTIONMENT OF DAMAGES BETWEEN DR. PAREDES AND DR. VEATCH

The jury apportioned damages between Dr. Veatch

(80%) and Dr. Paredes (20%). Despite this finding,

the trial court, post trial, held t h a t Dr. Paredes was

liable f o r all damages and that liability was joint

and several not subject to apportionment. The court

found there was no basis for the jury's apportionment

because the negligent acts of Dr. Veatch took place in

December, 1994 and Dr. Paredes' act in January, 1995.

Damages may be apportioned among two or more

causes if there is a reasonable basis for doing so.

Murphy v. I.J.K. Co. of N . E . I n c . , 409 Mass. 842, 865;

Restatement (Second) of Tort's § 433A (1965).

It w a s reasonably likely that the j u ry

apportioned damages, finding Dr. Veatch 8 0 %

responsible, based upon Dr. Veatch's role as the

7 2

patient/decedent's primary care physician, the

patient's multiple visits to Dr. veatch within a

relatively short period of time, and Dr. Veatch's

apparent failure to appreciate the presence of breast

cancer. Renzi sought out Dr. Veatch's professional

medical care and relied upon her professional opinions

and recommendations twice in December of 1994, once in

January of 1995, and twice in July of 1995. It was not

until a fifth office visit in August of 1995, and

evidence was presented that it was only at the

patient's request and insistence, that Dr. Veatch

referred Renzi to a specialist which led to her

diagnosis of Stage IIIB, inflammatory breast cancer.

In addition to evidence of multiple visits over a

relatively short period of time, plaintiff presented

evidence that Renzi was very concerned about the lump

in her armpit and that she questioned Dr. Veatch

whether she may have cancer. The evidence was that in

response to Renzi's concern of cancer, D r . Veatch

advised the patient that she simply had lumpy breasts

and an infection in her armpits. In stark contrast,

the claim against Dr. Paredes was limited to an

interpretation and recommendation of a single

mammogram performed on January 5, 1995. In fact, it

7 3

was plaintiff's theory of liability that even when Dr.

Veatch received t he negative mammogram report of Dr.

Parades she had the obligation to follow-up on the

purported clinical findings.

Notably, unlike as to Dr. Veatch, there was no

evidence that Renzi was upset as to Dr. Parades'

interpretation. There was no evidence that she was

even aware that Dr . Parades' purportedly

misinterpreted the mammogram. This fully accounts for

the jury's apportionment as to mental anguish damages

as well as loss of consortium damages.

Also, there was a 3-4 week period of time between

Dr. Veatch's negligence and Dr. Paredes' reading of

the mammogram. Assuming, as alleged by plaintiff, that

the loss of chance was progressive, the jury could

infer that the chances significantly diminished during

that time period. Dr. Adler testified that the cancer

was inflammatory breast cancer and involved the skin

in January, 1995. Tr 438-39. Further, while t he

evidence w a s disputed, there was evidence that a

patient history given at t h e time of the mammogram

indicated '\a large increase in left tissue at 12:OO."

Dr. Hall also noted a "rapid" and "a l l new" onset in

his notes concerning t he August, 1995 mammogram. Tr

74

421;427-28;772-73;1984; Or. Tr Exh 14. The j u r y could

infer that this was a recent development from the

visit with Dr. Veatch in December where Dr. Veatch

noted that decedent's infection had 'improved" and

t h a t decedent did not have a dominant mass indicating

the chance of survival proffered for December were

much less than January. The evidence supported the

jury finding of a 8 0 / 2 0 apportionment of harm which

must be applied to any award absent entry of judgment

for the defendants or an order for new trial.

CONCLUSION

Based on the foregoing, defendants Santiago

Paredes, M.D. and Associated Radiologist of Boston,

Inc. respectfully requests that this Court enter

judgment for the defendants or otherwise order a new

t r i a l or remit damages.

ASSOCIATED RADIOLOGISTS OF FOR SANTIAGO PAREDES, M.D. BOSTON, INC.

William J. Ddvenhort . (Knigv, BBO #276000 BBO #114880 Weigand, BBO #548553 GERVAIS & DAVENPORT, P.C. MORRISON MAHONEY LLP 125 Cambridge Park Drive 250 Summer Stree t Cambridge, MA 02140 Boston, MA 02210 617-520-2105 (617) 439-7500

7 5