Keene v. BRIGHAM AND WOMEN'S HOSPITAL, INC

439 Mass. 223

786 NE 2d 824

DYLAN KEENE¹ v. BRIGHAM AND WOMEN'S HOSPITAL, INC.

Supreme Judicial Court of Massachusetts, Norfolk.

January 9, 2003.

April 22, 2003.

Present: GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Kenneth W. Salinger (Steven L. Schreckinger with him) for defendant.

Chris A. Milne (Marc G. Perlin with him) for the plaintiff.

The following submitted briefs for amici curiae:

Colin J. Zick & Anne Sterman for Massachusetts Hospital Association.

Carl Valvo for Professional Liability Foundation, Ltd., & another.

Ben Robbins for Associated Industries of Massachusetts.

Valerie A. Yarashus, J. Michael Conley & Kristen A. Barnes for Massachusetts Academy of Trial Attorneys.

GREANEY, J.

This is a malpractice case in which a baby suffered catastrophic harm within hours of his birth at the defendant hospital. We are asked to decide whether (1) a default judgment on liability was properly entered as a sanction for the defendant's failure to produce in discovery relevant hospital records that it admittedly had lost; (2) damages assessed against the defendant are limited by the $20,000 cap imposed by G. L. c. 231, § 85K, on damages recoverable from a charitable corporation for a tort committed in the course of the performance of its charitable purpose; and (3) general damages may be awarded for loss of enjoyment of life when an injured plaintiff lacks cognitive awareness of that loss. A judge in the Superior Court imposed the sanction of default as to liability on the defendant and, as an additional sanction, struck the statutory $20,000 cap on damages (which the parties agree would have applied). A different judge presided at the hearing on the assessment of damages. She awarded the plaintiff specific and general damages totaling $4,108,311 (plus interest), but she did not award, as an item of general damages, compensation for loss of enjoyment of life. Both parties appealed, and the Appeals Court affirmed the judgment in all respects. See Keene v. Brigham & Women's Hosp., Inc., 56 Mass. App. Ct. 10 (2002). We granted the defendant's application for further appellate review and now conclude that judgment properly was entered against the defendant on liability, but that the damages assessed are limited by the cap set forth in G. L. c. 231, § 85K. In view of the latter conclusion, we need not consider the plaintiff's claim of entitlement to damages for loss of enjoyment of life. Accordingly, we affirm so much of the judgment as imposes liability, vacate the portion of the judgment that assesses damages, and direct that damages be assessed against the defendant in the amount of $20,000 (plus interest and costs).

The known facts relevant to the alleged malpractice are as follows. The plaintiff was born at 1:07 A.M. on May 15, 1986, at the defendant hospital. Within the first five hours of life, he experienced some degree of respiratory distress and was sent from the regular care nursery to the special care nursery (also known as the neonatal intensive care unit or NICU) because he was "cyanotic."² At 6:25 A.M., blood tests, including a complete blood count and a blood culture, were performed and, immediately thereafter, the plaintiff was sent back to the regular care nursery with a discharge note stating: "[r]outine care in regular nursery"; "watch for [signs and symptoms] of sepsis"; and "[h]old antibiotics pending CBC results and cultures in 24 [hours], 48 [hours], [and] 72 [hours]." It is not known who received the results of the initial complete blood count (which indicated the presence of Beta-Hemolytic Streptococci Group B) or what actions were, or were not taken, with respect to the plaintiff's condition, because all of the defendant hospital records³ with respect to his treatment and care between the hours of 6:30 A.M. on May 15, 1986, and 12 A.M. on May 16, 1986, (missing records period) have vanished.⁴ The plaintiff's medical records immediately following the missing records period indicate that, by 2:30 A.M., he was suffering septic shock and began having seizures. It was not until this time that antibiotics were ordered and administered. Later testing revealed that the plaintiff had contracted neonatal sepsis and meningitis, resulting in the tragic injuries and situation set forth below.⁵

The plaintiff was discharged from the defendant on June 17, 1986. Existing hospital records for the plaintiff's seven-week hospital stay exceed 470 pages. The only records that cannot be located are those pertinent to the missing record period. Neither party has presented any evidence with respect to who is responsible for this loss or whether the records were intentionally destroyed or negligently or accidentally misplaced.⁶

The timing of the loss, however, is somewhat more certain. On May 1, 1987, following a request by the plaintiff's family for the plaintiff's medical records, the defendant filed a notice of a potential claim with its insurer, Risk Management Foundation (RMF).⁷ In response, RMF promptly initiated an investigation into the circumstances of the plaintiff's injury while in the care of the defendant. The plaintiff's medical records, which were requested and received by RMF in the course of its investigation, appear to have been complete at that time.⁸ RMF's investigative report, dated August 12, 1987, identified three physicians responsible for the plaintiff's care and stated that "it is questionable whether or not antibiotics should have been initiated sooner in view of a shift to the left by the complete blood count which would indicate an infection was going on." The report indicated that the plaintiff's mother had received a complete copy of the medical records. It is undisputed, however, that the records received by the plaintiff's family in response to the request that triggered RMF's investigation, did not include the missing records.⁹

On May 12, 1995, the plaintiff, through his parents, commenced this action for medical malpractice, claiming that the defendant had failed properly to diagnose or treat him for the sepsis and meningitis, resulting in serious injury.¹⁰ The defendant asserted, as an affirmative defense, the statutory limitation of damages on a charitable corporation under G. L. c. 231, § 85K.¹¹ The defendant subsequently provided the plaintiff a set of hospital medical records certified as "a true and complete copy of this hospital's medical record concerning [the plaintiff]."

The parties are not in complete agreement with respect to the events leading to the challenged sanctions. What follows is a summary of the relevant findings of the judge who imposed the sanctions, supplemented, in part, with facts documented in the record, and inferences drawn therefrom. On October 18, 1995, the plaintiff served the defendant with notice pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974), of a deposition. The notice sought the identities of doctors, nurses, and other hospital personnel responsible for the care and treatment of the plaintiff for the time period reflected by the missing records. The defendant objected to this request on the ground that it was overly burdensome, and the deposition did not go forward. On December 15, 1995, the plaintiff again gave notice of the defendant's deposition, this time seeking a complete copy of the plaintiff's medical records and the identity of the doctors and nurses responsible for his care during the missing record period. The defendant moved for a protective order, on the ground that the discovery sought by the plaintiff was "unduly burdensome insofar as [the defendant] already ha[d] provided all of the information that it [was] reasonably able to provide."¹² On February 27, 1996, the defendant's motion for a protective order was denied in its entirety by a judge in the Superior Court.

At a subsequent deposition, the defendant (through testimony of two medical records department employees) conceded that the plaintiff's medical records with respect to the eighteen-hour period at issue were missing, and admitted that no attempt had been made to identify those doctors and nurses who had treated the plaintiff during the period reflected by the missing records. The deposition was continued (ostensibly to afford the defendant time to make further efforts to locate the missing records). Testimony taken on the continuance date, however, revealed that the records were still missing, and no effort had been made by the defendant to identify further the doctors or nurses who had treated the plaintiff.

On April 12, 1996, plaintiff filed a motion requesting that, as a sanction pursuant to rule 37 (b) (2), the defendant be precluded from introducing in evidence any testimony regarding the treatment provided to the plaintiff during the hours covered by the missing records. The judge (the same judge who had denied the defendant's motion for a protective order) entered a preliminary order for the appearance, in addition to trial counsel, of the chief medical record librarian of the defendant hospital, together with any other medical record librarians who had been involved in the defendant's search for the missing records, at a hearing on the plaintiff's motion on May 3, 1996.¹³ On April 30, 1996, the plaintiff filed a supplemental motion for sanctions, seeking entry of default judgment on liability against the defendant and the striking of its affirmative defense asserting the cap set forth in G. L. c. 231, § 85K. The plaintiff also filed an amended complaint, alleging that the defendant's negligent failure to administer antibiotics during the time period covered by the missing records caused the plaintiff to suffer brain damage.¹⁴ The defendant once again asserted, as an affirmative defense, the $20,000 statutory cap on damages.

At the May 3 hearing, the defendant suggested that lost hospital records often were discovered misfiled in records of another patient, and described its efforts to locate the missing...