Keene v. Brigham and Women's Hospital9/19/2002
Norfolk.
February 12, 2002
Medical Malpractice, Damages, Hospital, Immunity. Charity. Hospital. Practice, Civil, Discovery, Default. Evidence, Hospital record. Due Process of Law, Right to trial. Damages, Conscious pain and suffering.
Both the plaintiff and the defendant appeal from a judgment of the Superior Court awarding the plaintiff $4,108,311.66 in damages against the defendant on his amended complaint for medical malpractice. The defendant contends that the entry of a default against it by a Superior Court judge as a sanction for its failure to produce lost hospital records under Mass.R.Civ.P. 37(b)(2)(C), as amended, 390 Mass. 1209 (1984), was not warranted by the circumstances of this case and that the judge lacked the power to strike, as an additional sanction, the statutory $20,000 cap on damages recoverable from a charitable corporation for a tort committed in the course of the performance of its charitable purposes under G.áL. c.á231, á85K. The plaintiff claims that the Superior Court judge who presided at the hearing on the assessment of damages erred in failing to award damages to him for his loss of enjoyment of life now and in the future and, thus, that the damages awarded him are inadequate. We affirm.
We summarize the pertinent factual and procedural background as a backdrop for the analysis of the issues raised. The plaintiff was born on May 15, 1986, at 1:07 A.M. at the defendant hospital. At 6:30 A.M. on that date, he was discharged from the defendant's neonatal intensive care unit to the regular nursery with a one-page discharge note which states, in pertinent part, "watch for [signs and symptoms] of sepsisá.á.á. hold antibiotics pending CBC [complete blood count] results & cultures." The records for the next twenty hours of the plaintiff's care are missing. The records resume on May 16, 1986, at 2:30 A.M., and they indicate that the plaintiff went into septic shock and shortly thereafter began having seizures. Subsequent testing revealed that the plaintiff had contracted neonatal sepsis and meningitis which resulted in profound brain damage. The plaintiff was discharged from the hospital on June 18, 1986.
On May 12, 1995, (almost nine years after his birth), the plaintiff, through his parents, commenced this action for medical malpractice on the ground that the defendant had failed properly to diagnose or treat the plaintiff for the sepsis and meningitis, resulting in serious injury to him. In its answer to the complaint, the defendant asserted, as affirmative defenses, charitable immunity and the cap on damages against charitable corporations set forth in G.áL. c.á231, á85K.
On October 18, 1995, the plaintiff served the defendant with a notice under Mass.R.Civ.P. 30(b)(6), 365 Mass. 782 (1974), to take its deposition on November 2, 1995. The plaintiff sought, among other information, the names, addresses, licenses held by, and board certifications of any doctor, nurse, or other person involved in the treatment and care of the plaintiff on May 14, May 15, and May 16, 1986, including the names of those doctors and nurses involved in the decision whether or not to give the plaintiff antibiotics on those dates. Although the defendant agreed to furnish other information requested in the notice to take its deposition, the defendant by letter objected to this specific request. The deposition did not go forward on November 2, 1995.
The plaintiff then served two notices to take the deposition of the defendant on January 16, 1996, seeking the identity, location, and production of the hospital records for the plaintiff and his mother for the period from May 15, 1986, at 6:35 A.M. to May 16, 1986, at 2:30 A
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