Bradford v. Baystate Medical Center , 415 Mass. 202 ( 1993 )

Wilkins, J.

Earl Bradford died on July 6, 1986, at Bay-state Medical Center (Baystate) in Springfield after his my-cotic (i.e., infected) aortic aneurysm ruptured. The plaintiff commenced this action alleging medical malpractice against Baystate, Robert Austin, Kevin Martin, and several other physicians.

A medical malpractice panel, convened pursuant to G. L. c. 231, § 60B (1990 ed.), concluded that the plaintiff’s offer of proof, if substantiated, was not “sufficient to raise a legitimate question of liability appropriate for judicial inquiry.” G. L. c. 231, § 60B. A judge dismissed the action as to all defendants when the plaintiff did not file a bond as to any defendant. The plaintiff appealed to the Appeals Court from the judgments of dismissal entered as to Dr. Austin, Dr. Martin, and Baystate. In an unpublished memorandum and order, the Appeals Court vacated the judgments and the tribunal’s decisions and ordered that, as to these three defendants, decisions be entered that the evidence, if substantiated, was sufficient to raise a legitimate question for further judicial inquiry. 32 Mass. App. Ct. 1117, 1117-1118 (1992). We granted Dr. Austin’s application for further appellate review.

Neither Baystate nor Dr. Martin applied for further appellate review. On our own we questioned whether we should review the Appeals Court’s conclusions as to them, and permitted each to submit postargument comments on the issue. Our order allowing Dr. Austin’s application for further appellate review says nothing about what issues we would consider. Our general rule is that we shall review all issues that were before the Appeals Court (and not limit our review just to those issues urged as grounds for further appellate review), unless our order allowing further review indicates otherwise. See Commonwealth v. Souza, 390 Mass. 813, 815 n.1 (1984); Ballantine v. Falmouth, 363 Mass. 760, 762 n.2 (1973). Those cases involved the right of a party who lost in the Appeals Court and then applied successfully for further appellate review to argue issues it pressed to the Appeals Court but not in its application for further appellate review. We said that such a party could do so. We have said, as to a multiple party, multiple issue case, that a party successful in the Appeals Court as to whom an application for further appellate review does not seek relief need not be concerned with the proceedings before us involving other parties. See Ford v. Flaherty, 364 Mass. 382, 386-387 (1973).³

We have not previously dealt with the question of the right of a party, who was entirely unsuccessful in the Appeals Court and who did not seek further appellate review, to appear and request that we grant it more favorable treatment than it received in the Appeals Court as a part of our consideration of the case on further appellate review obtained by another unsuccessful party. We adopt the rule, as to applications for further appellate review filed on and after the date of this opinion, that we will not consider the arguments of a wholly unsuccessful party who did not seek further appellate review. ⁴ In such a multiple party case, the party who is successful before the Appeals Court is entitled to know forthwith, on the allowance of an application for further review, what issues and parties are to be before this court. The question is a novel one and raised by this court on our own initiative. We have allowed the unopposed motions of Baystate and Dr. Martin to join in the proceeding on further appellate review.

The plaintiffs presentation to the malpractice tribunal offered the following general circumstances concerning Bradford’s death. As a result of a meal that he had eaten in a Chicopee restaurant, Bradford contracted salmonella poisoning late in May, 1986. On May 29, he was admitted to Bay-state with severe dehydration. After his June 6 discharge, Bradford was seen in Baystate’s outpatient clinic. On July 2, Bradford was readmitted to Baystate. He had an abdominal aortic aneurysm which had been noted on June 30 as a result of an earlier test. On July 3, an abdominal ultrasound showed a “rather large” aortic aneurysm. On July 5, a CT scan showed an even larger aortic aneurysm. The plaintiffs expert, a gastroenterologist, indicated that accepted medical practice required prompt surgical intervention if an aneurysm of the size of Bradford’s were expanding or leaking. At 12:30 a.m. on July 6, the aneurysm, infected with salmonella, ruptured, and Bradford had cardiac arrest. Attempts to save him by repair of the aneurysm failed, and Bradford died at 2:45 p.m.

Because a doctor-patient relationship was shown between Bradford and the two defendant physicians, the first question for the tribunal, applying the standard used in deciding a motion for a directed verdict, was whether there was evidence that each physician did not conform his conduct to accepted medical practice. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 676 (1992); Blood v. Lea, 403 Mass. 430, 433 (1988); Kapp v. Ballantine, 380 Mass. 186, 193 (1980). The second question, if there was evidence of negligence by a physician, was whether that negligence caused harm to Bradford. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., supra; Blood v. Lea, supra; Kapp v. Ballantine, supra. The liability of Baystate in this case solely depends on proof of its vicarious responsibility for the negligence of either or both physicians.⁵

We first consider whether there was evidence that Dr. Austin failed to adhere to the “standard of care and skill of the average member of the profession practising the specialty” of radiology. Brune v. Belinkoff, 354 Mass. 102, 109 (1968). On July 6, Dr. Austin made a report on a July 5 CT scan of Bradford’s abdomen in which he noted a “large abdominal aortic aneurysm . . . approximately [nine centimeters] in diameter,” compared to a diameter of about six centimeters “on the most recent ultrasound.” He stated his impression that the aneurysm could be leaking. We do not know when Dr. Austin first read the CT scan nor what his professional duty was to read the CT scan at any time prior to the rupture of Bradford’s aneurysm. There is no evidence that Dr. Austin misread the CT scan on July 5, or that in some way he misled Dr. Martin, the vascular surgeon.

Nowhere in his reports does the plaintiffs expert state that Dr. Austin failed to adhere to accepted medical practice. The general statement that better communication “as to the pertinent medical details may have resulted in the emergency surgery which was required” does not satisfy the directed verdict standard applicable in cases of this sort. The medical malpractice tribunal’s determination was correct as to Dr. Austin and as to Baystate insofar as its liability could be based on the negligence of Dr. Austin.

As to Dr. Martin, who, as a vascular surgery consultant, saw the patient on July 5, the record provides evidence that would warrant the conclusion that he failed to adhere to the standard of care and skill of an average vascular surgeon. Dr. Martin was aware of the aneurysm on July 5. The hospital record indicates that by July 5 the aneurysm had enlarged. Although the patient had complained of back pain, Dr. Martin’s consultation note states that there was no back pain consistent with expansion or leaking of the aneurysm and that there was no evidence of a leak on the CT scan. Dr. Austin, however, stated his impression that the aneurysm could be leaking. The plaintiffs expert stated that emergency surgery should have been performed on July 5 to correct the aneurysm, based on its size, its steady expansion, and possible leakage. This evidence was sufficient to meet the directed verdict standard on the issue of Dr. Martin’s negligence.⁶

There remains the question whether the plaintiff met the directed verdict standard concerning causation, by showing an adequate causal relationship between Dr. Martin’s alleged negligence and any harm Bradford sustained. This issue is complicated by the opinion of the plaintiff’s expert that, if surgery had been scheduled the evening before the aorta ruptured, the patient “might have survived.” Once the aorta ruptured, “any chance for survival was removed.” A mycotic aneurysm has a high mortality rate, “estimated to be 50-60 % ,”⁷ “Thus, [Bradford] may very well have died even if he had had surgery that evening prior to the rupture. His only chance would have been for emergency surgery at the latest on July 5.”

The traditional rule of tort law is that a plaintiff must show that it is more probable than not that the injury was caused by the defendant’s negligence. See Forlano v. Hughes, 393 Mass. 502, 507-508 (1984). If one were to apply that rule strictly in this case, the plaintiff’s evidence has not passed the test. Bradford’s chances of survival were no greater than even because of his mycotic aneurysm. At least as likely as not, therefore, Bradford would have died anyway due to the aneurysm. On the other hand, 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. This question of law was not for the tribunal to decide and is one on which this court has not taken a position. No party has made any appellate argument on the point, and it does not appear that the medical malpractice tribunal considered it.⁸

Until the question of law is resolved, medical malpractice tribunals can best deal with this causation question by deciding whether or not the alleged negligence of a defendant was more probably than not a cause of the loss of a substantial chance to survive. The plaintiffs evidence met that causation standard. Accordingly the medical malpractice tribunal erred in deciding that there was no basis on the evidence for proceeding against Dr. Martin (and Baystate insofar as its liability would be based on Dr. Martin’s conduct).

The judgment of dismissal is affirmed with respect to Dr. Austin. The judgment of dismissal, the order for a bond, and the findings and decision of the medical malpractice tribunal are vacated as to Dr. Martin and Baystate Medical Center. A finding and decision shall be entered that the plaintiffs offer of proof, if properly substantiated, is sufficient to raise a legitimate question of liability for further judicial inquiry as to Dr. Martin and, based on Dr. Martin’s alleged negligence, as to Baystate Medical Center.⁹

So ordered.

3 In such a situation the successful party may wish to request this court that it so rule in any order allowing further appellate review.

4 The principle is consistent with our rule that one who does not appeal from a judgment is not entitled to more favorable treatment on appeal than that expressed in the judgment. See Aetna Casualty & Sur. Co. v. Continental Casualty Co., 413 Mass. 730, 734 (1992).

5 Liability of Baystate (and any doctor) cannot be based on generalities in the reports of the plaintiffs expert, such as statements that: certain facts “should have set off a lot of red flags for both the surgeon and the radiologist in this academic teaching facility”; Bradford’s death “could have been prevented with appropriate state-of-the-art care known to be present at [Baystate]”; “the medical care that was rendered on July 5, 1986, was less than acceptable and not up to the standards expected of such a sophisticated referral center”; and “[c]learly the patient’s management was not appropriate and the hospital has some responsibility for this whether it be due to poor judgment from the radiologist or the surgeon.”

6 The gastroenterologist stated that, “[i]f an expanding or leaking aneurysm had been documented, the patient should have been scheduled for surgery [the] evening [of July 5].” This is an opinion on the course of action that one reasonably exercising the care and skill of an average vascular surgeon should have followed. We must read the record in the light most favorable to the plaintiff because we apply a directed verdict standard. See Little v. Rosenthal, 376 Mass. 573, 578 (1978). At the least, the record read favorably to the plaintiff shows that an expanding aneurysm had been documented in the hospital record and that Dr. Martin should have scheduled the patient for surgery on July 5.

7 The expert did not explicitly separate out the chances of persons with mycotic aneurysms who have surgery and those that do not. The inference is that only if an operation were performed did Bradford have even a 40%-50% chance of survival.

8 Cases on this issue are collected in 1 American Law of Medical Malpractice 2d § 5.3, at 239 (1992), where it is said that “[t]here appears to be a'difference of opinion among courts in distinguishing between a ‘loss of chance’ and a ‘better than 50/50 chance’ concept.” See King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981); Note, Causation in Medical Malpractice: A Modified Valuation Approach, 50 Ohio St. L.J. 469 (1989).

9 We do not decide nonjurisdictional issues raised solely in a brief presented by an amicus curiae, particularly where the brief was not presented to the Appeals Court. Nor do we decide a new issue (urging greater deference to the tribunal) raised for the first time by a party in a supplemental brief filed after that party’s application for further review has been allowed. We add, however, that it may be too late to persuade this court to abandon the directed verdict standard that we have applied since the medical malpractice tribunal system was adopted. See Little v. Rosenthal, 376 Mass. 573, 578 (1978). Nor would we be inclined to change our practice and permit review of a tribunal’s decision favorable to a provider of health care only after a bond had been filed and the case tried. See McMahon v. Glixman, 379 Mass. 60, 63-64 (1979).