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Zucco v. Kane6/6/2002
Hampshire.
December 4, 2001.
Workers' Compensation Act, Settlement agreement, Lump-sum settlement. Evidence, Prior inconsistent statement. Negligence, Doctor, Independent contractor, Vicarious Liability. Agency, Independent contractor. Medical Malpractice, Vicarious liability.
Civil action commenced in the Superior Court Department on October 17, 1991.
The case was tried before Mary-Lou Rup, J.
This negligence action was brought by the plaintiff against an orthopedic surgeon, Dr. Richard Kane, and IME, Inc. (IME), a company providing medical examinations for insurance companies and others. At trial, the judge admitted, over objection, portions of the plaintiff's settlement agreement with her employer's workers' compensation insurer as evidence of prior inconsistent statements or admissions by the plaintiff. A jury found the physician not negligent. The plaintiff appeals, claiming the judge erred in permitting questioning of the plaintiff about the agreement and in admitting it into evidence. She also appeals from the judge's denial of her motion for a new trial on the same ground. We hold that there was error in the admission of the agreement and reverse the judgment as to Dr. Kane. In view of our action we reach the cross appeal of IME, which claims that its motion for a directed verdict should have been granted as Dr. Kane was an independent contractor over whose medical judgment IME exercised no control. We agree.
On April 4, 1990, while working as a charge nurse at the Loomis House Nursing Home, the plaintiff twisted her left foot as she was walking up a flight of stairs. She was unable to return to work for some time, and at the request of her employer's workers' compensation insurer, she was examined by Dr. Kane in October, 1990. She claims that Dr. Kane used excessive force in examining her foot, and that as a result of such excess she suffered serious injury , a condition diagnosed as reflex sympathetic dystrophy syndrome (RSD).
1. Evidence at trial. Before turning to the settlement agreement and its introduction into evidence, we first summarize the evidence at trial, quoting for the most part the judge's memorandum denying the plaintiff's motion for a new trial.
"The jury heard contradictory evidence as to the treatment rendered to the plaintiff by Dr. Kane. The plaintiff testified that during an October, 1990 independent medical examination performed at IME's offices at the request of her workers' compensation provider, Dr. Kane manipulated her foot with force and without regard to her complaints of pain. Dr. Kane testified that he applied moderate pressure in examining the plaintiff's foot in order to diagnose its condition; he denied he was negligent."
Similarly, the jury heard conflicting testimony from the experts. The expert medical opinions of the plaintiff's treating physician and of her treating podiatrist were that Dr. Kane's examination of the plaintiff's foot deviated from the standard of care for physical examination of an injured fourth metatarsal and that his negligent examination proximately caused the plaintiff to develop RSD.
"The defendants introduced the testimony of three expert medical witnesses. Dr. Mark Lewis offered his opinion that the plaintiff suffered from RSD before Dr. Kane examined her. Dr. Paul Gross [a neurologist] testified that Dr. Kane's examination of the plaintiff complied with the appropriate standard of medical care. While Dr. Gross could not testify with certainty whether the plaintiff actually suffers from RSD, he testified that if she does have the condition, she suffered from it before Dr. Kane's examination. Dr. Kuhrt Wienek
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