Campbell v. Cape & Islands Healthcare Services, Inc.
Campbell v. Cape & Islands Healthcare Services, Inc.
Opinion of the Court
The plaintiffs, husband William N. Campbell (Campbell) and wife, Deborah A. Campbell, sued Cape and Island Health Care Services (clinic), Cape Cod Pathology Consultants, P.C. (professional corporation), and various individual defendants alleging medical malpractice, seeking to enforce their liability for damages suffered by Campbell in an ensuing automobile accident moments following a blood draw. After two medical malpractice tribunals concluded that there was insufficient evidence with respect to some defendants, settlements and dismissals ensued; trial then proceeded against the remaining defendants, namely the clinic, Dr. Arthur Aaronson, and the professional corporation. The jury returned a special verdict in favor of those defendants, finding no negligence.
The plaintiffs claim error by the judge in the admission of testimony by a defense witness characterized as an expert, the lack of a jury instruction related to the defendants’ compliance with 105 Code Mass. Regs. § 180.042 (1994), improper closing argument by defense counsel, and the denial of plaintiffs’ motions for a directed verdict. As we discern prejudicial error in the omission by the judge of a jury instruction concerning the admitted regulation, we must reverse.
Background. The jury could have found the following. Campbell, who has a history of an unsteady gait, weakness, and muscle inflammation, presented at the clinic on Saturday, December 2, 2000, approximately between 8:00 and 8:30 a.m., to have his blood drawn for a three-hour glucose tolerance test. This involved five blood draws consisting of a “fasting” blood draw, followed by ingestion of a glucose drink at 8:45 a.m., and then additional draws at thirty minutes, one hour, two hours, and three hours intervals following his consumption of the glucose drink. He was observed on arrival at the clinic to have an unsteady gait and a pale visage, and proclaimed himself to be “tired.” As time progressed he also exhibited lack of coordination and sweating. Between the thirty-minute and one-hour draws, he became sufficiently weak and unsteady so that the staff brought him to a recliner and gave him water to drink. He remained in the recliner for the balance of the test. After leaving the clinic, Campbell was involved in a serious single car accident in which he stmck a util
Discussion. Jury instruction/Code of Massachusetts Regulations. After a lengthy mid-trial hearing, the judge admitted 105 Code Mass. Regs. § 180.042(A)(3) (1994) in evidence.
a. Opinion evidence in regard to violations of regulations. First, to the extent that, as a condition for the instruction, the judge required a witness to testify that the Code of Massachusetts Regulations was violated, this was error.
It is well established that “[a] violation of a statute, ordinance or regulation, although not conclusive, is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.” Follansbee v. Ohse, 293 Mass. 48, 52 (1935), quoting from Guinan v. Famous
While it is true that a “judge need not instruct the jury on every spin that a party can put on the facts,” and will not provide an “instruction that is not relevant to the facts of the case,” Boothby v Texon, Inc., 414 Mass. 468, 483, 484 (1993), that is not the case here.
b. Relevance of regulation to protocols and procedures. Through five separate witnesses called at trial, the plaintiffs introduced ample evidence to show the relevance of the regulation pertaining to blood laboratories to the defendants’ alleged negligence and the manner in which the defendants failed to comply with this regulation.
Deborah Hobill, a phlebotomist employed at the clinic, identi
Testimony also revealed that the manual included specific instructions for clinic phlebotomists in the event a patient exhibited one of the following symptoms: fainting, nausea and vomiting, hyperventilation, convulsions, hematoma, or cardiac or respiratory difficulties. The manual listed no additional signs or symptoms. Hobill admitted that, at the time of Campbell’s glucose tolerance test, she did not know the signs and symptoms of hypoglycemia, and had no knowledge relating to cognitive changes that a hypoglycemic patient may experience.
Dr. David Rosenthal testified that at 12:00 p.m. on December 12, 2000, Campbell was hypoglycemic. In testifying that the protocol at the clinic relating to glucose tolerance tests were deficient and did not meet the standard of care, Rosenthal specifically opined that the protocols at the clinic did not adequately address hypoglycemia as the principal, most dangerous, and most common problem that can arise during a glucose tolerance test. Rosenthal testified that the clinic provided inadequate information to phlebotomists to deal with hypoglycemia, and that the symptoms outlined in the clinic protocol did not adequately describe the common symptoms of hypoglycemia. That failure left untrained phlebotomists without guidance as to how treat patients.
The plaintiffs also elicited testimony from Aaronson raising the issue of adequate supervision, bearing on the requirements
A myriad of evidence presented at trial implicated 105 Code Mass. Regs. § 180.042(A)(3), thereby making it clear that there was a potential violation of the regulation relevant to the underlying negligence claim to be decided by the jury.
The judge, however, did not instruct the jury on how to weigh the evidence in its deliberations. “Although a judge enjoys significant latitude in framing the language of his jury instructions, ... an objection does lie if a significant matter is not dealt with at all.” Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275-276 (1990). Cf. Haggerty v. McCarthy, 344 Mass. 136, 139 (1962), quoting from Bouffard v. Canby, 292 Mass. 305, 309 (1935) (“It is only exceptional cases that a jury instructed by common knowledge and experience may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes . . .”). “It is the duty of the judge ... to give full, fair, correct and clear instructions as to the principles of law governing all the essential issues presented, so that the jury may understand their duty and be enabled to perform it intelligently.” Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 611 (2000), quoting from Fein v. Kahan, 36 Mass. App. Ct. 967, 968 (1994). Where “[substantial evidence was presented at trial to warrant instructions concerning [proper consideration of the regulations] ... the judge should not have left the jury uninformed as to the law concerning the duty owed to a [plaintiff].” Hopkins v. Mederios, supra. Since the judge had a duty to inform the jury as to the legal significance of the regulation, his refusal to instruct on this evidence was error.
Having determined error, the next step in our analysis is to determine “whether the [plaintiff] has made a ‘plausible showing that the trier of fact might have reached a different result.’ ” Grant v. Lewis/Boyle, Inc., 408 Mass, at 275, quoting from DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989). See Mass.
As noted, the jury specifically found, by special verdict, that there was no negligence. Given the weight that a jury may attach to a finding, if any, that a safety regulation was violated, we are unable to say with substantial confidence that an instruction from the judge on the relevance of such a violation would not have made a material difference to its determination of negligence; the substantial rights of the plaintiff were prejudiced. Reversal is required.
Expert witness qualification. The plaintiff asserts error in the judge’s refusal to rule on his objection to the qualifications of James Nichols, proffered as an expert by the defendants, and in what he characterizes as delegation by the judge of his role of gatekeeper to the jury. See Commonwealth v. Lanigan, 419 Mass. 15, 25-26 (1994) (adopting requirement, from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 [1993], that judge must serve as gatekeeper in qualifying an expert witness). The panel is divided on whether, and to what extent, the judge erred in his rulings on this issue, but is in agreement that the words by which the judge chose to communicate his ruling on the issue created confusion. We do not address the claim of error because we do not anticipate a recurrence of the issue on remand. Given the avoidable nature of this appellate issue, however, we provide the following guidance.
The trial judge, as gatekeeper, should make a clear ruling on the record outside the presence of the jury whether the expert is qualified in accordance with sections 104(a) and 702 of the
Conclusion. We do not address the plaintiffs’ remaining assertions of error as we anticipate they will not be pertinent if the matter is retried. The judgment is reversed.
So ordered.
As the clinic was a collection laboratory, clinic staff did not perform the chemical analysis of the blood drawn but instead sent the blood to the laboratory at the Cape Cod Hospital. Later that afternoon, the analysis showed the plaintiff to have a glucose level from the last blood draw, taken at 11:45 a.m., of 35, an abnormally low level.
This section provides, in pertinent part, as follows:
“The director of the laboratory of which the approved blood collection station is a part shall be responsible for all aspects of the blood collection station, including without limitation, the physical plant, personnel, processing and transport of specimens. The director of the laboratory of which the approved blood collection station is a part (or his/her designee) shall be available to blood collection station personnel at all times during the operation of the station for personal or telephone consultation and shall make periodic personal inspections of the station to insure suitable handling of patients and specimens and to instruct the employees in such matters and in the most recent improvements in technique. The director of the laboratory of which the approved blood collection station is a part (or his/her designee) shall establish protocol for action in cases of emergency which must include, without limitation, the immediate availability of a physician or emergency medical service. Any technical employee of a blood collection station must be proficient in venipuncture, specimen processing as limited by 105 Code Mass. Regs. [§] 180.000, and emergency procedures required to aid a distressed patient.”
We note that, notwithstanding the judge’s erroneous conclusion that a witness must testify to a law’s violation, the plaintiffs’ witness, Dr. David Rosenthal, met this incorrect standard when he stated that the protocols in the lab were “inadequate” relative to 105 Code Mass. Regs. § 180.042(A)(3). Thus, even if the standard stated by the judge were correct, it was error to rule that there was no testimony which satisfied it.
The judge also admitted an investigative report composed by Abdelahad that noted several symptoms the plaintiff exhibited during his testing at the clinic, including paleness, loss of coordination and motor skills, swaying, and tiredness, noting that none of these symptoms were noted in the manual or other protocols at the clinic. When questioned about the fact that the clinic nevertheless carried a certification by the Department of Public Health, Abdelahad admitted that in her role as inspector, she only verified that a facility had a policy in place and did not review the content of the specific policy.
As to the issue of negligence, specifically whether Aaronson breached the standard of medical care owed to the plaintiff, the judge instructed the jury as follows: “A doctor’s conduct is not tested by standards of perfection or excellence, or even by current standards, but they are bound by the standards of care and skill and advancement of the profession in or around the time frame of this case, December 2nd, 2000, amongst average qualified physicians serving as medical directors of a similar blood collection facility. . . . [T]he fact that in retrospect a doctor’s judgment was incorrect is not, in and of itself, enough to prove medical negligence.”
The centrality of the regulation to the trial could not have been increased by additional testimony speculating on compliance therewith, nor would the testimony of an expert offer any more conclusive evidence for the jury; negligence is solely a factual determination made by the jury. See discussion part a., supra.
Rule 61 states: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.