Larkin v. Dedham Medical Associates, Inc.

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17-P-960 Appeals Court
TIMOTHY LARKIN1 vs. DEDHAM MEDICAL ASSOCIATES, INC.2
No. 17-P-960.
Norfolk. May 4, 2018. - July 31, 2018.
Present: Meade, Maldonado, & Shin, JJ.
Medical Malpractice, Damages, Expert opinion, Relief from
judgment. Negligence, Medical malpractice, Limitation of
liability. Practice, Civil, Motion to amend, Affirmative
defense, Waiver, Damages. Evidence, Expert opinion.
Witness, Expert. Damages, Future damages.
Civil action commenced in the Superior Court Department on
June 17, 2011.
The case was tried before Thomas A. Connors, J., and
posttrial motions were heard by him.
Douglas Howard-Driemeier (Joshua E. Goldstein also present)
for the defendant.
Adam R. Satin (Benjamin R. Novotny also present) for the
plaintiff.
1 Individually and as guardian and next friend of Andrea M.
Larkin, and as father and next friend of Alexa Larkin.
2 Jehane Johnston was also a defendant in the case.
Johnston settled with the plaintiffs, and is not a party to this
appeal.
2
John J. Barter, for Professional Liability Foundation,
Ltd., amicus curiae, submitted a brief.
MEADE, J. Following a trial, a jury returned a verdict for
Timothy Larkin, who brought this medical malpractice suit
individually and on behalf of his wife, Andrea Larkin,3 and his
daughter, Alexa Larkin (collectively, plaintiffs, or Larkin).
The jury awarded damages in the sum of $35.4 million, which a
judge of the Superior Court later reduced to approximately $32.5
million on the motion of the defendant, Dedham Medical
Associates (DMA). On appeal, DMA claims the judge made
erroneous rulings on its posttrial motions. We affirm.4
Background. The unfortunate facts of this case are not
disputed in this appeal. Andrea, a former elementary school
teacher, exercise class instructor, and marathon runner,
complained of persistent dizziness beginning in 2004. She
underwent a magnetic resonance imaging procedure at
Massachusetts General Hospital (MGH), which revealed a venous
varix5 in her brain that was determined not to be a cause of her
3 Because the parties share a surname, we refer to Andrea by
her first name.
4 We acknowledge the amicus brief filed by the Professional
Liability Foundation, Ltd.
5 Larkin's expert witness, Dr. Ram V.S. Chavali, testified
that a "venous varix is essentially an aneurysm but on the
venous side," an aneurysm being "[a] weakening and an
3
dizziness symptoms. Her primary care doctor, Jehane Johnston,
an employee of DMA, was copied on the MGH report, but failed to
note the venous varix on Andrea's "problem list," which is
designed to alert a patient's various treating physicians to her
medical conditions. As a result, when Andrea became pregnant in
2007, her obstetricians were not informed about her venous
abnormality. Andrea was not informed that this condition posed
a particular risk of the venous varix rupturing during vaginal
labor using the Valsalva maneuver or that an elective Caesarian
section would avoid placing additional stress on the veins in
her head and neck.6 Andrea delivered her daughter vaginally
using the Valsalva maneuver in June of 2008.
Twelve hours after Andrea delivered her baby, she
experienced a sudden, very painful headache, which accompanied a
rupture of the venous varix in her brain. After having
emergency surgery to remove a part of her skull and falling into
a month-long coma, Andrea awoke to find that her legs and left
hand were paralyzed, her trunk muscles were impaired, and that
she had difficulty chewing, swallowing, and speaking. Despite
having physical therapy twice per week, the occasional
enlargement." He further explained that a "[v]arix is a
dilation . . . of a blood vessel."
6 At trial, Dr. Chavali defined the Valsalva maneuver as
"holding your breath and pushing against that held breath."
4
occupational, water, and speech therapies, and a "battery" of
daily medications, Andrea's injuries are permanent. She
requires care around the clock and likely will for the duration
of her lifetime.
Larkin filed this suit against DMA and Dr. Johnston. A
two-week long trial commenced on April 27, 2015. The jury
rendered a verdict in favor of Larkin and awarded $35.4 million.7
DMA filed a series of posttrial motions for judgment
notwithstanding the verdict, for a new trial and/or remittitur,
to amend the pleadings to conform to the evidence, and to alter
or amend the judgment, challenging the verdict and the jury
award, alleging, among other things, (1) that it was entitled to
the benefit of the statutory limitation on tort liability
afforded to certain charitable organizations pursuant to G. L.
c. 231, § 85K, as then in effect, (2) that testimony provided by
Larkin's expert improperly exceeded the bounds of the parties'
joint pretrial memorandum, (3) that Larkin entered into an
impermissible contingent fee arrangement for consulting
services, and (4) that Larkin's counsel misrepresented the
amount of Andrea's past medical bills, causing an "anchoring"
effect that inflated the jury award. The judge denied the
7 Later, Dr. Johnston and the plaintiffs settled for
$4,768,553.50, to which DMA was not a party.
5
majority of these motions, but reduced the jury's award in part
to adjust for an error in the calculation of Andrea's past
medical bills.
Discussion. 1. General Laws c. 231, § 85K. DMA first
argues that the judge erred in denying its motion to amend the
pleadings to conform to evidence of its charitable status
pursuant to Mass.R.Civ.P. 15(a) and (b), 365 Mass. 761 (1974).
It also alleges error in the judge's denial of its motion to
alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365
Mass. 827 (1974), to conform to the statutory cap on liability
as provided in G. L. c. 231, § 85K, as then in effect, which
limited the liability of certain charitable organizations to
$20,000.8 For substantially the same reasons listed in the
judge's thoughtful and comprehensive memorandum and order
denying DMA's motions, we disagree.
a. Statutory limitation on liability. The statutory limit
set forth in § 85K is an affirmative defense that must be
8 General Laws c. 231, § 85K, was amended by St. 2012,
c. 224, § 222, effective November 4, 2012, to increase the cap
for medical malpractice claims against nonprofit organizations
providing health care from $20,000 to $100,000. The $20,000 cap
for other tort claims against charitable organizations that do
not provide health care remained unchanged. Because the 2012
amendment occurred after the plaintiffs filed their 2011
complaint, the relevant potential limit for DMA's liability is
$20,000, which was in effect for all charitable organizations at
that time. See St. 1971, c. 785, § 1. Except as otherwise
noted, we refer to the earlier version as § 85K.
6
pleaded and proved by the entity seeking to utilize it. See
Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 238-239
(2003). "Although technically a limitation on liability, the
charitable cap set forth in § 85K has been treated as an
affirmative defense that must be pleaded under Mass.R.Civ.P. 8
(c), 365 Mass. 749 (1974) (listing specific affirmative
defenses, and concluding with the residuary clause 'any other
matter constituting an avoidance or affirmative defense')."
Ibid., citing Harlow v. Chin, 405 Mass. 697, 715 (1989). It is
undisputed that DMA did not plead the statutory cap as an
affirmative defense in its answer. Therefore, as is the case
with other affirmative defenses, see Anthony's Pier Four, Inc.
v. HBC Assocs., 411 Mass. 451, 471 (1991), DMA waived the
statutory limitation on liability.
b. Motion to amend. Rule 15(a) of the Massachusetts Rules
of Civil Procedure permits a party to amend the pleadings "by
leave of court" "when justice so requires." Rule 15(b) allows a
party to amend the pleadings to conform to the evidence "[w]hen
issues not raised by the pleadings are tried by express or
implied consent of the parties[.]" A judge enjoys considerable
discretion in deciding whether to allow or deny a motion to
amend a complaint. Murphy v. I.S.K.Con. of New England, Inc.,
409 Mass. 842, 864 (1991). Here, the judge denied DMA's motion
on both rule 15(a) and (b) grounds.
7
With regard to rule 15(a), as the judge stated in his
memorandum and order, DMA "moved to amend its Answer to add the
charitable cap as an affirmative defense after more than four
years of litigation and two weeks of trial." DMA did not
suggest that "this defense was unavailable to it when the Answer
was filed in 2011, and, aside from inadvertence, [gave no]
reason for the delay." Such a prolonged delay, the judge found,
caused "manifest" prejudice to the plaintiffs and made amendment
pursuant to rule 15(a) inappropriate. We agree. See DiVenuti
v. Reardon, 37 Mass. App. Ct. 73, 77 (1994) ("Among the good
reasons . . . for which a motion to amend may be denied are that
no justification for the lateness of the motion is apparent
[beyond counsel for the moving party having had a late dawning
idea] and that one or more of the nonmoving parties would be
caught off balance by the proffered amendment").9 There was no
abuse of discretion.
With regard to DMA's rule 15(b) motion to amend the
pleadings to conform to the evidence, the judge found that the
parties did not try the issue of DMA's charitable status by
9 The prejudice to Larkin included the loss of opportunity
to take pretrial discovery relating to the charitable cap.
Furthermore, had DMA raised the charitable cap in a timely
manner in its answer, Larkin might have decided to settle with
DMA early in the proceeding, rather than incur the costs of
trial.
8
either express or implied consent. Although DMA points to its
pretrial efforts to have Larkin stipulate to its charitable
status, Larkin refused to do so. Furthermore, Larkin objected
when, on the last day of trial, DMA sought to introduce its
State certificate to prove its charitable status, which was
marked for identification to be kept apart from the jury. The
plaintiffs objected and reserved their right to argue about
DMA's status. The plaintiffs' actions reveal that they did not
consent, but rather, that they expressly declined to consent to
try the issue of DMA's status. Absent such consent, the judge
acted within his discretion to deny DMA's 15(b) motion.
Additionally, DMA claims that the introduction of its State
certificate constituted prima facie evidence of its charitable
status such that the judge erred in denying its motion. We
disagree. The documents DMA sought to introduce were marked for
identification and were not intended for the jury. "Absent
circumstances or an agreement revealing a different
approach, . . . 'documents marked for identification are not
evidence.'" Lingis v. Waisbren, 75 Mass. App. Ct. 464, 470
(2009), quoting from Commonwealth v. O'Neil, 51 Mass. App. Ct.
170, 177 n.7 (2001). Here, the judge did not indicate that he
intended to take a different approach, as was taken in Goldberg
v. Northeastern Univ., 60 Mass. App. Ct. 707, 711-713 (2004), in
which the judge explicitly bifurcated the trial to resolve,
9
separately from the jury, whether the statutory cap applied and,
in doing so, marked the university's certificate of
incorporation and articles of organization for identification.
Instead, here, the judge reassured the plaintiffs that they had
reserved their rights as to DMA's (unpleaded) limitation on
liability, and indicated that "[i]f it comes to an issue,
ultimately that's for post-trial jousting." It was within the
judge's discretion to determine that the issue did not arise
during the course of the proceedings, making any posttrial
"jousting" unnecessary, and to deny DMA's motion.10
2. Larkin's expert witness. DMA next claims that a new
trial is warranted because Larkin's expert, Dr. Chavali,
testified beyond the anticipated testimony contained within the
joint pretrial memorandum. We disagree.
Our rules of civil procedure direct parties to disclose the
identity of expert witnesses they plan to call and the "subject
matter on which the expert is expected to testify, and to state
the substance of the facts and opinions to which the expert is
10Contrary to DMA's assertion, § 85K does not mandate that
the cap be applied whenever a defendant proves its status.
Rather, "[T]he directive refers to the requirement that a
charitable corporation must be engaged in its charitable purpose
to enjoy the benefit of the cap." Keene v. Brigham & Women's
Hosp., Inc., 439 Mass. at 239. Because the judge never
addressed DMA's charitable status, he did not need to reach the
second question, concerning engagement in its charitable
purpose.
10
expected to testify and a summary of the grounds for each
opinion." Mass.R.Civ.P. 26(b)(4)(A)(i), 365 Mass. 772 (1974).
Such disclosures provide notice to the other parties about the
intended use of a party's experts, who are considered key
factual witnesses in medical malpractice cases. See Kace v.
Liang, 472 Mass. 630, 636-640 (2015). It is within a judge's
broad discretion to admit or exclude properly disclosed expert
testimony, and, absent prejudicial error, we will not disturb a
judge's exercise of that discretion. Id. at 637.
The parties' joint pretrial memorandum indicates that Dr.
Chavali was expected to testify that "the size of a venous varix
can change substantially and that the rupture rate increases
substantially during pregnancy." The parties also anticipated
Dr. Chavali would testify that "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." In his trial testimony, Dr.
Chavali described his basis for stating that pushing using the
Valsalva maneuver was a cause of Andrea's injuries: increased
intracranial pressure while pushing prevents blood from exiting,
leading to a rupture of the venous varix. Later, he stated that
the "venous aneurysm itself may not have ruptured, but [it] was
the back-pressure within it from occlusion that caused this
11
rupture. And that rupture is this hemorrhage that's in the
brain."
DMA contends that Dr. Chavali testified about causation
theories that went beyond the barebones pretrial disclosure.
Although the pretrial memorandum did not entail the full range
of explanation to which Dr. Chavali testified, what was
disclosed was consistent with and not qualitatively different
from his trial testimony. In other words, the disclosure was
sufficient to provide DMA with notice that the plaintiffs would
proffer testimony from Dr. Chavali regarding the nature and
causes of the risk of undertaking the Valsalva maneuver in light
of the venous varix in Andrea's brain. Dr. Chavali's testimony
then provided the jury with a detailed explanation of how such a
risk unfolded in this case, namely, the manner in which
increased pressure from the Valsalva maneuver built up and
caused the venous varix in Andrea's brain to rupture.11
Furthermore, the pretrial memorandum, dated June 2, 2014,
supplied DMA with information regarding Dr. Chavali's intended
testimony at trial almost one year prior to its commencement,
11Although it does not affect our analysis, we note that,
despite being raised in the pretrial disclosure and discussed at
a sidebar conference, Dr. Chavali did not explain that a
Cesarean section is recommended for women with venous varices.
12
ample time during which DMA could have further explored the
matter.
No prejudice resulted, since the pretrial memorandum
satisfied the goal of the disclosure rule: "to facilitate the
fair exchange of information about critical witnesses and to
prevent unfair surprise." Kace v. Liang, 472 Mass. at 636-637.12
Indeed, DMA's own pretrial expert disclosures demonstrate that
DMA was on notice as to Larkin's theory of causation. DMA knew
of Dr. Chavali'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. DMA was prepared to and did rebut Dr.
Chavali's testimony at trial.
3. Contingency fee arrangement. DMA also claims that it
is entitled to a new trial because the judge improperly denied
12 DMA additionally claims that the earlier statements in
Dr. Chavali's testimony contradicted his later statements. The
judge found that DMA, arguing in support of its motion for
judgment notwithstanding the verdict, stripped Dr. Chavali's
later statements from their context within the surrounding
testimony and were not, as DMA contends, contradictory to his
earlier statements regarding causation. We agree. However,
even if Dr. Chavali's statements were contradictory, it is
within the province of the jury to discount or credit an
expert's opinion. See Leibovich v. Antonellis, 410 Mass. 568,
573 (1991), citing Banaghan v. Dewey, 340 Mass. 73, 79 (1959).
13
its motion for posttrial discovery regarding the plaintiffs'
expert witness compensation. It alleges that the plaintiffs
paid a contingency fee to New England Medical Legal Consultants,
Inc. (NEMLC), and that such an arrangement undermines the
integrity of the judicial process. We disagree.
While payment of a contingency fee to an expert witness is
prohibited in Massachusetts,13 see New England Tel. & Tel. Co. v.
Board of Assessors of Boston, 392 Mass. 865, 871-872 (1984), no
Massachusetts authority has held the same is true of payments
made to compensate a consulting service, such as the one
retained by the plaintiffs here. Although not binding on us,
DMA relies on cases from outside our jurisdiction holding that
similar contracts are void as contrary to the established public
policy of those States. See, e.g., First Natl. Bank of
Springfield v. Malpractice Research, Inc., 179 Ill. 2d 353(1997). In contrast, however, such contracts have been upheld
in other jurisdictions. See, e.g., Schackow v. Medical-Legal
Consulting Serv., Inc., 46 Md. App. 179, 197 (1980) ("All the
experts were to be paid a flat fee by the client. [The
consultant]'s role was limited to locating potential experts and
13The judge found that the contract between the plaintiffs
and NEMLC expressly provided that "no payment to any Expert
Witness will be directly or indirectly contingent upon the
outcome of the Client's case."
14
then educating them about the case . . . . That arrangement
does not violate the public policy of Maryland"). No consistent
treatment of consulting contracts emerges from a survey of these
extrajurisdictional cases.
The rule that expert witnesses may not collect contingent
fees relates to a concern that contingent fees will improperly
induce expert witnesses to provide outcome-oriented testimony.
See Rule 3.4 of the ABA Model Rules of Professional Conduct
(1983) ("A lawyer shall not . . . [b] . . . offer an inducement
to a witness that is prohibited by law"), and comment [3] ("The
common law rule in most jurisdictions is that . . . it is
improper to pay an expert witness a contingent fee"). See also
Mass.R.Prof.C. 3.4(b), (g) & comments 3, 5, 426 Mass. 1389(1998) (adopting American Bar Association model rule). Those
same concerns are not directly implicated by the payment of
contingency fees to consulting services to locate medical
experts, where the medical experts are themselves paid flat fees
pro rata based on their time spent preparing for and providing
testimony. Where no case or rule (in this jurisdiction)
prohibits the practice, we will not upset the judgment on the
basis of how these consultants were paid. Moreover, DMA points
to nothing in the record that suggests the payment made to NEMLC
had any effect on the independence of the expert witnesses who
testified for the plaintiffs. Accordingly, we find no abuse of
15
discretion in the judge's denial of DMA's motion for new trial
and/or remittitur.
4. Past medical expenses. Finally, DMA claims error in
the judge's reduction of the jury award. Although the judge
reduced the award for past medical bills upon DMA's motion, DMA
now argues that the plaintiffs' misrepresentation of Andrea's
past medical bills had an "anchoring" effect -- especially in
light of a lack of evidence to support the $11 million award for
future medical expenses -- that influenced the entire jury
award, which the judge should have vacated. We disagree.
"Questions concerning inadequate or excessive damages are
initially within the discretion of the trial judge." Pridgen v.
Boston Hous. Authy., 364 Mass. 696, 715 (1974), citing Bartley
v. Phillips, 317 Mass. 35, 41-44 (1944). "[A]n award of damages
must stand unless . . . to permit it to stand was an abuse of
discretion on the part of the court below, amounting to an error
of law." Reckis v. Johnson & Johnson, 471 Mass. 272, 299
(2015), quoting from Labonte v. Hutchins & Wheeler, 424 Mass.
813, 824 (1997). An error of law occurs "if 'the damages
awarded were greatly disproportionate to the injury proven or
represented a miscarriage of justice.'" Reckis v. Johnson &
Johnson, supra, quoting from Labonte v. Hutchins & Wheeler,
supra. Furthermore, damages are considered excessive "when they
are 'so great . . . that it may be reasonably presumed that the
16
jury, in assessing them, did not exercise a sound discretion,
but were influenced by passion, partiality, prejudice or
corruption.'" Reckis v. Johnson & Johnson, supra, quoting from
Bartley v. Phillips, supra at 41.
Here, the misrepresentation, the occurrence of which is not
in dispute, arose as follows. Larkin's counsel, in his closing
argument, stated that, considering the $4,000 per week Andrea
paid for her care, a potential award of $8 million would not
"include her four million dollars in medical bills." DMA did
not object to this statement at the time it was made. The judge
instructed the jury that attorneys' closing arguments do not
constitute evidence. After entering their deliberations, the
jury returned with a question that indicated the jury may have
been influenced by the misrepresentation: "Out of the four
million dollars of medical bills, how much was paid out of
pocket by the Larkin Family?" In answering the jury's question,
the judge instructed the jury that Larkin is "entitled to be
. . . compensated for those expenses which were reasonable in
amount and which were reasonably necessary." To make that
determination, the judge explained that "[i]temized medical
hospital bills were admitted as evidence of the fair and
reasonable charges for such services." Again, neither party
corrected the misrepresentation and DMA did not object to it.
17
The judge determined there was no dispute that, in light of
the evidence introduced, Andrea's past medical bills amounted to
$1,272,013.70, rather than $4 million, the amount referenced in
Larkin's closing argument.14 The award for past medical bills,
as the judge found, "likely resulted from mistaken
representations to the jury by the plaintiffs at trial and, in
any event, . . . lacked a sufficient evidentiary foundation to
avoid reduction." Accordingly, the judge reduced the award for
past medical expenses to the baseline amount reflected in the
record.15 DMA does not allege that this reduction was an abuse
of discretion.
DMA claims that, because the plaintiffs introduced limited
evidence as to future medical expenses, the jury may have relied
on the misrepresentation to reach its $11 million award for
anticipated future medical costs. In arguing a lack of evidence
related to future medical costs, DMA cites to (1) Dr. Chavali's
14The judge noted in his memorandum and order that Larkin
"attributed the discrepancy to a 'decimal point error,' which
[Larkin] assert[s] was made in good faith."
15The judge also adjusted the past damages award to include
$14,902.24 of medical expenses that were not submitted at trial.
After adjusting for the misrepresentation and the additional
expense, the judge then reduced the award for past medical
expenses to $401,517.19, accounting for the amount the
plaintiffs had received from private health insurance, pursuant
to G. L. c. 231, § 60G. No argument has been made that this was
improper.
18
statement that Andrea's injuries were permanent; (2) Andrea's
father's testimony that her medical costs at the time "roughly"
totaled $4,000 per week; and (3) evidence that Andrea's life
expectancy was another forty-seven years from the time of trial.
DMA claims that this was insufficient evidence on which to base
an award for future damages, and, therefore, that the
misrepresentation "anchored" the jury, leading to an improper
award. We disagree.
Although the plaintiffs did not introduce expert witnesses
to prove future medical expenses, DMA points to no case holding
that such evidence is required, and it raises no independent
argument that the damages award should be vacated on this basis.
Cf. Simon v. Solomon, 385 Mass. 91, 105 (1982). Based on the
testimony that Andrea's medical care costs "roughly $4,000 a
week" and that her injury is permanent -- testimony that the
jury were free to credit -- and that her life expectancy is
another forty-seven years, the jury could have reasonably
calculated that the plaintiffs were entitled to $11 million for
future medical expenses. This figure could represent an
estimated weekly cost of $4,500,16 totaling $234,000 per year,
16Although this figure differs from the amount testified to
at trial, a reasonable jury could conclude that $4,500 per week
is an amount "roughly" in the range of $4,000. The jury had
access to the plaintiffs' past medical bills, which they could
have referenced to support their calculations.
19
spread over forty-seven years.17 The jury's reasonable
calculation, grounded in the evidence at trial, could have been
made without any reference to Larkin's misrepresentation. 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." Reckis v.
Johnson & Johnson, 471 Mass. at 299, quoting from Bartley v.
Phillips, 317 Mass. at 41. Therefore, the judge neither erred
nor abused his discretion in reducing only the award for past
medical bills. See Ramos v. Storlazzi, 10 Mass. App. Ct. 876,
877-878 (1980) (finding no abuse of discretion where judge
denied motion for new trial based on misrepresentations that
were admitted into evidence without objection).
Judgment affirmed.
Orders denying postjudgment
motions affirmed.
17This results in an exact figure of $10,998,000, which the
jury could have rounded up by $2,000, to reach its $11 million
award.