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Robert D. COOK v. Vincent IACONO & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns an orthopedic injection. The plaintiff, Robert Cook, was suffering from significant pain in his back and hip. To help identify the source of the pain, the defendant, Dr. Vincent Iacono, injected Lidocaine, Marcaine, and a steroid into Cook's groin area. Cook claims that the needle struck his femoral nerve, causing him to suffer from lasting pain and paresthesia in his hip and leg. Representing himself, Cook pursued a range of claims implicating the adequacy of his informed consent, and possible malpractice or misconduct in both the administration of the injection and in Iacono's post-injection conduct. A Superior Court judge dismissed most of these claims at summary judgment, but allowed Cook to proceed to a jury trial on an informed consent claim. He lost at trial. Now, his appeal focuses mainly on the summary judgment decision, but Cook touches on the trial verdict as well. We conclude that the motion judge erroneously dismissed Cook's malpractice claims but otherwise affirm the judgments.3
Background.4 Cook arrived at Caritas Good Samaritan Hospital (Caritas) in the late fall of 2007, complaining of severe lower-back pain. Believing that Cook's pain might be originating in either or both of his lower spine or left hip, the doctors treating Cook decided to administer an injection of Lidocaine, Marcaine, and a steroid called Depo-Medrol into his left groin. The injection was expected to give him relief if his hip was in fact the source of his pain.5
Iacono explained the procedure and its purpose to Cook, but did not warn him of any risk of a femoral nerve strike during the injection. Instead, Iacono informed Cook that he would use a particular technique called the “three-finger technique” to ensure that the injection would avoid the nerve. Cook also maintains that he was not told that the injection would contain a steroid. Cook verbally consented to the injection.
Iacono injected Cook's groin on December 2, 2007. Cook later reported to other treatment providers that he felt a sharp pain immediately upon the needle entering his hip, and that the injection did not give him meaningful pain relief. However, according to notes from the team involved in administering the injection, the injection was performed without incident, and provided Cook substantial pain relief. Those notes also reflect that the pain began returning a few hours later, and that Cook was feeling some numbness near his left knee.
Ever since the injection, Cook claims to have had various problems with his left leg and hip area, such as pain, paresthesia, and numbness. He sought further treatment from providers outside Caritas, at least some of whom believed that his reported symptoms indicated a needle had struck Cook's femoral nerve. In May of 2008, Cook had an electromyography (EMG) study performed to assess his nerve function, and it appears that he reported on that study at a follow up appointment with Iacono in the spring of 2008. Cook and Iacono had a dispute over payment around that time, and Cook met with Iacono for the last time in May or June of 2008.
On November 29, 2010, Cook filed suit pro se. His complaint included battery, informed consent, and negligence claims, among others. We need not fully detail the ensuing decade of litigation; describing a few key junctures suffices.
In 2014, Cook's malpractice claim against Iacono went before a tribunal pursuant to G. L. c. 231, § 60B. Cook's offer of proof included an expert letter from Dr. Jonathan Hirsch (2013 Hirsch Letter) that, in relevant part, stated that in the absence of adequate documentation of the injection, “it is reasonable to conclude that Dr. Iacono severely deviated from the accepted standards of medical care regarding his treatment of” Cook. The tribunal concluded that Cook had raised a legitimate question of liability as to Iacono.
In 2015, both Iacono and Caritas moved for summary judgment. Cook's oppositions included another letter from Hirsch (2015 Hirsch Letter), concluding that the evidence suggested that the injection had “directly caus[ed] a permanent nerve injury to the patient.” The 2015 Hirsch letter also explained that Iacono appeared to have been negligent in numerous ways, such as having used improper fluoroscopic techniques and having kept inadequate records.
The motion judge dismissed almost all of Cook's claims, but allowed one -- an informed consent claim -- to proceed to trial. After a six-day trial, the jury returned a special verdict that Iacono did not “fail to disclose to Robert Cook in a reasonable manner sufficient information to enable him to make an informed judgment in order to give or to withhold consent to a medical procedure or a particular course of care and treatment.” The special verdict did not include any findings on whether Iacono had in fact struck Cook's femoral nerve.
Discussion. “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ ” Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015), quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012).
Cook waived a number of the arguments he presents on appeal by failing to present them during the summary judgment proceedings. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). His appellate theory as to why his battery claim should have survived summary judgment is waived, as that theory was not raised in summary judgment proceedings in the trial court.6 He similarly waived his theory as to why his misrepresentation claim and breach of contract claims should survive.
That leaves Cook's patient abandonment, fraud/fraudulent concealment, and negligence claims. We take these in turn.
a. Patient abandonment. Cook claims that Iacono harmed him by abandoning him at an important moment in his care. The motion judge dismissed this claim, finding that “Cook has not provided [the necessary] expert testimony to establish the applicable standard of care that should be imposed on Iacono or Caritas.” We agree.
As the motion judge recognized, while there is limited case law in Massachusetts based on patient abandonment, the available cases indicate that negligent abandonment of a patient is a species of malpractice. See Matter of Spring, 380 Mass. 629, 638-639 (1980) (“A physician who has undertaken to render medical services violates his duty of care if he abandons his patient or fails to take steps called for by good medical practice”). As such, such cases generally require expert testimony.7 See Berardi v. Menicks, 340 Mass. 396, 401 (1960) (where dentist knew of patient's condition, but “took no steps” towards treatment, “jury could determine [causation] only with the aid of expert opinion”).
Between Cook's discharge from Caritas and his May 2008 visit to Iacono, Cook had allowed nearly half a year to elapse without seeing Iacono while Cook worked with numerous other care providers. In other words, Iacono had a limited role in Cook's medical care at the time of the alleged abandonment. Especially in light of that fact, whether any such abandonment caused Cook harm did not “lie[ ] within ‘general human knowledge and experience’ [such that] expert testimony is not required.” Pitts v. Wingate at Brighton, Inc., 82 Mass. App. Ct. 285, 289 (2012), quoting Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 236 n.6 (2005). Contrast id. at 290 (“No expert testimony is necessary for lay jurors to appreciate that allowing a nursing home patient to fall to the floor could cause a broken bone”). However, Cook did not offer any pertinent expert testimony at summary judgment. The 2013 and 2015 Hirsch letters do not address follow up care. Instead, they are focused on Iacono's alleged breaches of the standard of care in obtaining Cook's consent for the injection, administering the same, and keeping records of the same. Cook, therefore, failed to create a genuine dispute of material fact as to whether Iacono caused him harm by abandoning him. The motion judge correctly dismissed this claim.
b. Fraud/fraudulent concealment. Cook also argues that Iacono and Caritas committed fraud or fraudulent concealment against him. His claim seems to be based on Iacono's or Caritas's alleged failure to keep or maintain certain records relating to the injection.8
“In a deceit action, the plaintiff must prove ‘that the defendant made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.’ ” Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982), quoting Barrett Assocs. v. Aronson, 346 Mass. 150, 152 (1963). Even accepting arguendo that Cook has provided sufficient evidence that the alleged recordkeeping failure existed, he has not explained how he acted upon the absence of records to his detriment.9 The motion judge also correctly dismissed these claims.
c. Negligence. Cook claimed that Iacono committed medical malpractice, and that Caritas was vicariously liable.10 Notably, the motion judge concluded that the 2015 Hirsch letter “indicates that genuine issues of material fact exist as to whether Iacono's administration of the injection comported with the degree of care and skill expected of the average qualified physician in his area of expertise.” He nevertheless dismissed the negligence claim based on his conclusion that “Cook has failed to present evidence establishing causation ․ beyond conclusory statements that Cook's injury was a direct result of the injection.” We respectfully disagree with the motion judge's conclusion that Cook's showing as to causation was inadequate to survive summary judgment.
“A plaintiff in a medical malpractice action has the burden of proving that the physician's negligence was the proximate cause of the plaintiff's injuries.” Harlow v. Chin, 405 Mass. 697, 702 (1989). The required showing at the summary judgment stage is not an onerous one. See Joudrey v. Nashoba Community Hosp., 32 Mass. App. Ct. 974, 976 (1992), quoting Held v. Bail, 28 Mass. App. Ct. 919, 921 (1989) (to overcome argument that causation showing fails as a matter of law, “[n]ot a great deal is required”). For our purposes, splitting the question of the adequacy of Cook's evidence on causation into two parts is helpful. First, we ask whether Cook supplied adequate evidence that Iacono injured him by placing the injection into his femoral nerve. Second, we assess the adequacy of Cook's evidence that the placement of the injection into the nerve was caused by some breach of the applicable standard of care.
Viewing the evidence in the light most favorable to Cook, and drawing all reasonable inferences in his favor, a reasonable fact finder could have concluded, based on the summary judgment record, that the injection struck Cook's nerve, thereby injuring him. The 2015 Hirsch letter reflects that Cook “complained of severe pain and paresthesias immediately upon the needle entering the left groin which would indicate a direct needle placement into the nerve,” and that this and other evidence was consistent with the injection having “directly caused a permanent nerve injury to the patient” (emphasis omitted). The letter relied on Cook's reports to Hirsch of his own symptoms, as well as medical records from Cook's other providers. One of those providers concluded that Cook's symptoms were “suggestive of a potential injury to his femoral nerve”; another “fe[lt] there was no question that the patient's symptoms [were] due to an injury to the medial femoral cutaneous nerve.” For purposes of summary judgment, such evidence created a genuine issue of fact concerning whether the injection caused Cook's alleged injuries.
In response, the defendants argue that the Hirsch letters are both implausible and rebutted by other record evidence. In evaluating the propriety of summary judgment, however, we must of course view the record in the light most favorable to the nonmoving party, including taking all reasonable inferences in his favor. Pinti, 472 Mass. at 231, quoting Juliano, 461 Mass. at 529-530. The defendants’ reliance on causation evidence in the summary judgment record that conflicts with the Hirsch letters only highlights the inappropriateness of summary judgment. A dispute about the weight and credibility of the evidence is to be resolved by a fact finder at trial, not by a motion judge at summary judgment. See, e.g., Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007).
Next, we turn to the question of whether some breach of the standard of care could have proximately caused the alleged nerve strike. Here, we conclude that Cook supplied adequate evidence of at least one causative breach. Read in the light most favorable to Cook, the 2015 Hirsch letter says that failing to use “appropriate fluoroscopic techniques that are recommended to avoid nerve structures” would constitute a breach of the duty of care, and then explains that Iacono “cannot demonstrate [that he used] those [appropriate] techniques because he has no record of the fluoroscopic injection.” A reasonable jury, drawing all inferences in Cook's favor, and already having concluded that Iacono in fact struck the nerve, could permissibly infer based on this evidence that Iacono struck the nerve because he did not use appropriate fluoroscopic techniques.11 Thus, Cook made the necessary showing to survive summary judgment.
The defendants argue -- with scant support from case law -- that even if the motion judge erred in dismissing the negligence claim, such error was “harmless” because the trial evidence definitively demonstrated that the injection did not strike Cook's femoral nerve. Accepting this argument requires some speculation as to how the parties would have framed their cases at trial had the negligence claims survived summary judgment. Especially in a complex case like this one, such speculation seems unwise.
In any event, assuming arguendo that we may affirm a grant of summary judgment as to some counts based on the strength of the evidence adduced at trial on other counts, we would not do so based on the trial record in this case. Nothing in that record resolves the factual dispute as to causation as definitively in Iacono's favor as he claims.12 Cf. Held, 28 Mass. App. Ct. at 921 (“Not a great deal is required to fend off a directed verdict on the issue of causation”). As noted, the jury made no findings on causation. The trial judge not only denied the defendants a directed verdict on causation (albeit without prejudice), but in fact stated during a subsequent discussion on jury instructions that Cook had supplied “enough information to get to the jury on the issue of causation.” We decline the defendants’ invitation to conclude, as a matter of law, that no reasonable jury could have found that some negligence by Iacono caused Cook's alleged injuries. Cf. Kiely v. Teradyne, 85 Mass. App. Ct. 431, 448 (2014) (declining “to engage in impermissible appellate fact-finding by looking beyond the jury verdict to speculate” as to damages).
Thus, on the record before us, we conclude that genuinely disputed issues of material fact precluded summary judgment on Cook's malpractice claims as to both Iacono and Caritas. We leave to the judge's sound discretion whether after remand the appropriate next step should be renewed motions for summary judgment or trial.
Conclusion. The judgment on jury verdict entered June 27, 2018, is affirmed. For the foregoing reasons, we vacate so much of the summary judgment entered June 28, 2018, as dismissed counts V and VII of Cook's amended complaint. In all other respects, the summary judgment is affirmed. The case is remanded to the Superior Court for further proceedings consistent with this memorandum and order. The orders of the single justice as to docket nos. nine and ten are affirmed. To the extent Iacono has requested an award of his appellate attorney's fees, the request is denied.13
Affirmed in part; vacated in part and remanded.
3. No abuse of discretion or other error appearing, we also affirm the single justice orders concerning docket nos. nine and ten.
4. The following facts are drawn from the summary judgment record and trial testimony, with relevant disputes of fact noted.
5. As Cook has framed the case on appeal, a major issue is whether the injection was to be “diagnostic” or “therapeutic.” The distinction appears to be somewhat illusory. The record indicates that whether the injection proved therapeutic would help diagnose him. In any event, Cook did not raise this theory in the summary judgment proceedings, and so it is waived.
6. He also challenges the jury verdict on the ground that he would have had better odds at trial if his battery claim had survived summary judgment and been tried. Because his arguments as to why his battery claim should have survived summary judgment are waived, we do not consider the point. We also note that Cook makes no argument that the jury were improperly instructed on the law or that the evidence was insufficient to support the verdict. Nonetheless, we have reviewed the record before us in detail and, based on that review, conclude that no instructional error appears and that the trial evidence adequately supported the jury's verdict.
7. To the extent that Cook intends for his patient abandonment claim to be taken as a breach of contract claim, it still fails because his appellate briefing does not seriously suggest the existence of a contract for continuing treatment.
8. Cook also argues on appeal that Iacono fraudulently induced him to accept the injection by misleading him as to the nature of the injection. This argument, not made during summary judgment proceedings in the trial court, was waived. Carey, 446 Mass. at 285.
9. Cook also argues that he is entitled to proceed on his fraud claim because the absence of these records wrongfully prejudiced him in this litigation. However, Massachusetts does not recognize an independent cause of action for spoliation. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 553 (2002). Any remedy for the claimed spoliation would have been through Cook's pursuing evidentiary or other sanctions, which he did not do. See Gath v. M/A-COM, Inc., 440 Mass. 482, 488 (2003) (discussing remedies for spoliation).
10. At oral argument, Caritas argued for the first time that there was no evidence at the summary judgment stage to show that Caritas could be held vicariously liable. It cited only one piece of evidence: Iacono's response to a 2011 interrogatory identifying his then-present employer as an entity other than Caritas. We are unpersuaded. Cook was a Caritas inpatient, and the injection took place at Caritas. These facts provide at least some evidence that Caritas had “the right to control the physical conduct of [Iacono] in the performance of the service,” which is “the guiding principle used in deciding cases involving an assertion of vicarious liability.” Hohenleitner v. Quorum Health Resources, Inc., 435 Mass. 424, 436 (2001). We express no opinion on the strength of this evidence. It is enough to say that knowing the identity of Iacono's employer circa 2011 does not conclusively rebut it.
11. However, we agree with the defendants insofar as they argue that the failure to keep records, whether or not a breach of the duty of care, did not itself cause Cook's alleged injury.
12. Iacono focuses especially on one particular piece of trial evidence, the EMG study. That study itself was not included in the record appendix or supplemental appendices, although testimony from Iacono's expert, and certain other evidence about the study, was. In any event, Iacono's theory that the EMG study is conclusive on causation “seems to be grounded in part on an assumption that the jury were required to accept the testimony of the [defendant's] expert witness[ ] (an assumption we do not accept).” Lippoldt v. Hartford Chem. Corp., 22 Mass. App. Ct. 993, 993 (1986). See Pitts, 82 Mass. App. Ct. at 291 (in medical malpractice case, “it would have been up to the jury to decide how much to credit [defense expert]’s anticipated testimony”). In the face of other trial evidence that Cook's experience was consistent with a femoral nerve strike, we are not prepared to conclude that no rational jury could have rejected the defense expert's testimony.It bears noting that the only reference to the EMG study included in the summary judgment record was Cook's own account of it. This plainly was insufficient to establish that Cook could not prove causation as a matter of law.
13. The defendants’ arguments concerning Cook's compliance with the Massachusetts Rules of Appellate Procedure have not been explicitly addressed, but “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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