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New Massachusetts Case Addresses Immunity, Expert Witnesses, and Reduction in Damages

In a recent medical malpractice case, the Massachusetts Appeals Court addressed several important issues, including charitable immunity for defendants, admissibility of expert testimony, and reduction of a jury’s verdict as to damages.

In Larkin v. Dedham Medical Associates, Inc., a husband brought suit on behalf of his wife Andrea and his daughter against the wife’s primary care physicians. The wife complained of persistent dizziness beginning in 2004. An MRI conducted at Massachusetts General Hospital revealed that she had a venous varix in her brain, though that was found not to be the cause of her dizziness. The finding was communicated to the wife’s primary care physician at Dedham Medical Associates (DMA) but the physician failed to add it to the wife’s “problem list,” which is designed to alert a patient's various treating physicians to her medical conditions.

As a result of that failure, the wife’s obstetricians were not informed of the venous varix at the time that she became pregnant, in 2007. This resulted in the wife not being informed that there was a particular risk of the venous varix rupturing during vaginal labor, nor that an elective Caesarian section would avoid placing additional stress on the veins in her head and neck. About twenty hours after giving birth, the wife experienced a rupture of the venous varix in her brain. As a result, she suffered permanent injuries, including paralysis, impaired muscles, and being in a coma for a month.

After the husband filed suit, a two-week trial ensued. The jury found for the plaintiff and awarded damages in the amount of $35.4 million. That amount was later reduced by the judge, who held that there was an inaccurate representation of the plaintiff’s past medical bills. None of the defendant’s other motions were granted by the trial judge, however, and the defendant appealed.

First, the defendant argued that it should have been protected under the charitable immunity cap prescribed to non-profit entities in Massachusetts. Under Massachusetts General Laws chapter 231, section 85k, the liability of certain charitable organizations in a negligence claim is limited to $20,000. However, the defendant failed to raise this issue in its Answer, the first responsive pleading to the plaintiff’s Complaint. Because of that, the Appeals Court held that the defendant waived its right to bring the charitable immunity cap as an affirmative defense, which the Court held is how the cap is typically treated.

The defendant then argued against the admissibility of testimony by the plaintiff’s expert witness, a doctor. In medical malpractice cases, medical professionals routinely testify as to their expert opinions on factual and medical questions in the case.

According to the parties’ joint pretrial memorandum, the expert witness in this case was expected to testify as to two statements:

1. "the size of a venous varix can change substantially and that the rupture rate increases substantially during pregnancy."

2. "had a Cesarean Section and/or other alternative treatment . . . been performed or offered to Ms. Larkin that to a reasonable degree of medical certainty she would not have suffered an intracranial bleed and the ensuing catastrophic brain injuries."

At trial, the doctor testified that the "venous aneurysm itself may not have ruptured, but [it] was the back-pressure within it from occlusion that caused this rupture. And that rupture is this hemorrhage that's in the brain." On appeal, the defendant claimed that this testimony went beyond the permissible boundaries of expert testimony, as the expert here was making impermissible conclusions about causation and legal liability.

The Appeals Court disagreed with the defendant, holding: “DMA was on notice as to Larkin's theory of causation. DMA knew of [the expert's] anticipated testimony and specifically retained multiple experts, including rebuttal testimony that the process of labor did not cause Andrea's hemorrhage. Thus, DMA understood Larkin's causation theory from the disclosure, and the trial judge, who had broad discretion to decide the matter, understood as well.”

Next, the defendant argued on appeal that the amount of damages was improperly reduced by the judge—that is, it should have been reduced further, not only as applied to the past medical bills but generally on the full amount. The defendant argued that the plaintiff’s misrepresentation of past medical bills had an “anchoring effect,” influencing the entire jury award, which should now be vacated.

The Court again disagreed with the defendant, noting that reduction of the jury award is entirely in the trial judge’s discretion and that there was not a clear abuse of discretion in this case. “The jury's reasonable calculation, grounded in the evidence at trial, could have been made without any reference to Larkin's misrepresentation,” the Court held. “It is not disproportionate to Andrea's injuries, as it is based in Andrea's current costs, which are likely to continue in the future. Nor does it indicate the jury were ‘influenced by passion, partiality, prejudice or corruption.’”

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