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Masters v. Khuri11/18/2004
Suffolk.
June 4, 2004.
Evidence, Cross-examination, Bias, Expert opinion, Medical report. Medical Malpractice.
Civil action commenced in the Superior Court Department on August 8, 1996.
The case was tried before Catherine A. White, J.
The plaintiff, suffering an acute asthma attack, called 911 on June 13, 1995 and was taken by ambulance to the emergency room at MetroWest Medical Center in Natick. He arrived at approximately 10:53 (some evidence indicates 10:56) P.M. The defendant, Dr. Fadlo Raja Khuri, was the physician in charge. The plaintiff was intubated, but immediately went into respiratory arrest and into electromechanical dissociation (EMD), a form of circulatory arrest. Because of severe brain damage the plaintiff, a former active chiropractor, became at age thirty-seven unable to perform the activities of daily living. He is incontinent and needs full-time care.
He brought this action claiming medical malpractice on the part of Dr. Khuri for delaying the intubation. All parties agree that the plaintiff had to be intubated as soon as safely possible after his arrival at the emergency room, and they also agree that the intubation was properly performed. The critical issue at trial was the time at which he was intubated. If, as certain hospital records indicated, he was intubated at 11:00 P.M., the plaintiff concedes there was no negligence. If, however, he was intubated ten to fifteen minutes thereafter, as supported by other hospital records, the delay was, he claims, a substantial contributing cause of his injuries. The plaintiff's two experts, Dr. Anthony T. White and Dr. Selim Suner, emergency room physicians, each with an exemplary curriculum vitae, were of the opinion that the plaintiff was not intubated at 11:00 P.M. in time to prevent cardiorespiratory arrest. They based their opinions on the times the plaintiff was given high doses of epinephrine, 11:15 P.M. and 11:20 P.M. This indicated that 11:15 P.M. was the time of the EMD, which occurred immediately after intubation.
The defendant's experts, Dr. Joseph Zibrak and Dr. Ron M. Walls, also with exemplary credentials, were of the opinion that intubation took place at 11:00 P.M. because of the "clinical course" of the plaintiff's condition and because he received different EMD drugs by 11:05 P.M., prior to the epinephrine doses referred to by the plaintiff's experts.
After an eight-day trial, during which the jury were presented with evidence that included the plaintiff's extensive disabilities, a videotape of his condition before and after the June, 1995 hospitalization, and figures of lost earnings and costs of care running into several million dollars, the jury found the defendant not negligent. In his appeal, the plaintiff claims that pursuant to McDaniel v. Pickens, 45 Mass. App. Ct. 63 (1998), it was error to preclude him from cross-examining the defendant's experts about the compensation they had received from the defendant's insurer during prior years. In his view the plaintiff had "a clear right . . . to attempt to prove bias." Id. at 66. He also argued that the judge committed prejudicial error in allowing the defendant's experts to testify that the records of blood gases referred to the time the results were received, not when the blood was drawn.
1. Cross-examination as to bias. Prior to trial, during discovery, the plaintiff received a letter from counsel for the defendant's insurer listing experts the insurer, Massachusetts Medical Professional Insurance Association (ProMutual), had retained during the previous ten years. The defendant's two experts, Dr. Zibrak and Dr. Walls, were on the list. Dr. Walls had been co
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