Bailey v. Cataldo Ambulance Service8/10/2005
Middlesex.
April 5, 2005.
Present: Laurence, Kafker, & Mills, JJ.
Negligence, Medical malpractice, Proximate cause, Expert opinion. Evidence, Expert opinion, Medical record. Medical Malpractice, Expert opinion. Witness, Expert. Proximate Cause. Statute, Construction.
Civil action commenced in the Superior Court Department on October 24, 2000.
The case was tried before R. Malcolm Graham, J., and a motion for a new trial was considered by him.
On December 10, 1997, an ambulance owned by the defendant, Cataldo Ambulance Service, Inc., and driven by the defendant, Jeffrey Betterini, struck a stopped vehicle in which the plaintiffs, James and Dorothy Bailey, were seated. At the eventual trial on their personal injury complaint, the Baileys submitted medical bills and records certified pursuant to G. L. c. 233, ยง 79G, and each testified to the circumstances of the incident, the course of Mrs. Bailey's medical treatment, her resulting pain and discomfort, and the losses they both sustained during the approximately four years since the accident. They did not present a medical expert witness to testify that the injuries claimed by Mrs. Bailey were, "with a reasonable degree of medical certainty," a consequence of the defendants' negligence. The judge ruled that the plaintiffs' evidence was sufficient, notwithstanding the lack of a live expert witness. The defendants appeal, and we affirm.
1. The Evidence
Mr. Bailey was driving and had stopped at a red light. The ambulance struck the Bailey vehicle and pushed it into a truck that was in front of them. Upon impact, Mrs. Bailey went forward and backward, striking her head twice on the headrest.
On the day of the accident, Mrs. Bailey sought medical treatment at Harvard Vanguard Medical Associates (Harvard Vanguard), her principal healthcare provider. X-rays were taken, and she was diagnosed with a "whiplash injury with left-sided muscle spasm in her neck" and provided with a neck collar brace, as well as the prescription medications Flexeril and Motrin. She sought further care on December 13, 1997, and was examined for musculoskeletal and low back pain. A magnetic resonance image (MRI) was performed. On December 22, 1997, complaining of considerable pain, as well as pain and paresthesias down her arm and into her thumb, she was seen by her own physician, Dr. Lee Younger, who concluded that she suffered from low back pain and sciatic pain. Mrs. Bailey had a further appointment with Dr. Younger on January 28, 1998, where he noted that there was "still back and neck pain following MVA [motor vehicle accident] 12/10." Dr. Younger referred her to physical therapy, which she undertook, but her symptoms remained, and she further consulted with Dr. Younger on March 4, 1998. Dr. Younger explained to the Baileys that "it was not unusual after whiplash injuries of rather minor nature to have very prolonged symptoms [that] can go on for months or longer." Dr. Younger referred Mrs. Bailey to the neurology department where she was seen on March 11, 1998, by Dr. Andrew Herzog, a neurologist, who diagnosed Mrs. Bailey with "left-sided C-6 and L-5 radiculopathies[,] secondary to whiplash injury sustained on 12/10/97." Dr. Herzog prescribed further conservative treatment. He saw Mrs. Bailey again on May 13, 1998, when he noted an improvement of her symptoms and prescribed further medication for the "burning dysesthesia in the scapular region." On July 8, 1998, Dr. Herzog reported that her left shoulder and neck were burning, and prescribed additional medication. Mrs. Bailey continued treatment with Dr. Herzog in October, 1998, and January, 1999. Despite various medicati
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