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Larkin v. Dedham Medical Associates, Inc.

Appeals Court of Massachusetts, Norfolk

July 31, 2018


          Heard: May 4, 2018.

         Civil action commenced in the Superior Court Department on June 17, 2011.

         The case was tried before Thomas A. Connors, J., and posttrial motions were heard by him.

          Douglas Howard-Driemeier (Joshua E. Goldstein also present) for the defendant.

          Adam R. Satin (Benjamin R. Novotny also present) for the plaintiff.

          John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.

          Present: Meade, Maldonado, & Shin, JJ.

          MEADE, J.

         Following a trial, a jury returned a verdict for Timothy Larkin, who brought this medical malpractice suit individually and on behalf of his wife, Andrea Larkin, [3] and his daughter, Alexa Larkin (collectively, plaintiffs, or Larkin). The jury awarded damages in the sum of $35.4 million, which a judge of the Superior Court later reduced to approximately $32.5 million on the motion of the defendant, Dedham Medical Associates (DMA). On appeal, DMA claims the judge made erroneous rulings on its posttrial motions. We affirm.[4]


         The unfortunate facts of this case are not disputed in this appeal. Andrea, a former elementary school teacher, exercise class instructor, and marathon runner, complained of persistent dizziness beginning in 2004. She underwent a magnetic resonance imaging procedure at Massachusetts General Hospital (MGH), which revealed a venous varix[5] in her brain that was determined not to be a cause of her dizziness symptoms. Her primary care doctor, Jehane Johnston, an employee of DMA, was copied on the MGH report, but failed to note the venous varix on Andrea's "problem list," which is designed to alert a patient's various treating physicians to her medical conditions. As a result, when Andrea became pregnant in 2007, her obstetricians were not informed about her venous abnormality. Andrea was not informed that this condition posed a particular risk of the venous varix rupturing during vaginal labor using the Valsalva maneuver or that an elective Caesarian section would avoid placing additional stress on the veins in her head and neck.[6] Andrea delivered her daughter vaginally using the Valsalva maneuver in June of 2008.

         Twelve hours after Andrea delivered her baby, she experienced a sudden, very painful headache, which accompanied a rupture of the venous varix in her brain. After having emergency surgery to remove a part of her skull and falling into a month-long coma, Andrea awoke to find that her legs and left hand were paralyzed, her trunk muscles were impaired, and that she had difficulty chewing, swallowing, and speaking. Despite having physical therapy twice per week, the occasional occupational, water, and speech therapies, and a "battery" of daily medications, Andrea's injuries are permanent. She requires care around the clock and likely will for the duration of her lifetime.

         Larkin filed this suit against DMA and Dr. Johnston. A two-week long trial commenced on April 27, 2015. The jury rendered a verdict in favor of Larkin and awarded $35.4 million.[7]DMA filed a series of posttrial motions for judgment notwithstanding the verdict, for a new trial and/or remittitur, to amend the pleadings to conform to the evidence, and to alter or amend the judgment, challenging the verdict and the jury award, alleging, among other things, (1) that it was entitled to the benefit of the statutory limitation on tort liability afforded to certain charitable organizations pursuant to G. L. c. 231, § 85K, as then in effect, (2) that testimony provided by Larkin's expert improperly exceeded the bounds of the parties' joint pretrial memorandum, (3) that Larkin entered into an impermissible contingent fee arrangement for consulting services, and (4) that Larkin's counsel misrepresented the amount of Andrea's past medical bills, causing an "anchoring" effect that inflated the jury award. The judge denied the majority of these motions, but reduced the jury's award in part to adjust for an error in the calculation of Andrea's past medical bills.


         1. General Laws c. 231, § 85K.

         DMA first argues that the judge erred in denying its motion to amend the pleadings to conform to evidence of its charitable status pursuant to Mass.R.Civ.P. 15(a) and (b), 365 Mass. 761 (1974). It also alleges error in the judge's denial of its motion to alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), to conform to the statutory cap on liability as provided in G. L. c. 231, § 85K, as then in effect, which limited the liability of certain charitable organizations to $20, 000.[8] For substantially the same reasons listed in the judge's thoughtful and comprehensive memorandum and order denying DMA's motions, we disagree.

         a. Statutory limitation on liability.

         The statutory limit set forth in § 85K is an affirmative defense that must be pleaded and proved by the entity seeking to utilize it. See Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 238-239 (2003). "Although technically a limitation on liability, the charitable cap set forth in § 85K has been treated as an affirmative defense that must be pleaded under Mass.R.Civ.P. 8 (c), 365 Mass. 749 (1974) (listing specific affirmative defenses, and concluding with the residuary clause 'any other matter constituting an avoidance or affirmative defense')." Ibid., citing Harlow v. Chin, 405 Mass. 697, 715 (1989). It is undisputed that DMA did not plead the statutory cap as an affirmative defense in its answer. ...

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