# Harlow v. Chin > Massachusetts Supreme Judicial Court · October 19, 1989 · 405 Mass. 697 URL: https://www.frixlaw.com/law-library/cases/9709267 ## Case - **Full name:** William Harlow vs. Danny Chin & Another - **Court:** Massachusetts Supreme Judicial Court - **Decided:** October 19, 1989 - **Citations:** 405 Mass. 697; 545 N.E.2d 602 - **Precedential status:** Published - **Opinion:** Dissent by O'Connor - **Judges:** Liacos, Wilkins, Abrams, Nolan, Lynch, O'Connor, Greaney - **Cited by:** 82 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9709267 ## How later opinions describe it (automated extraction) - finding that although trial court did not make specific finding, it was on notice that hospital was charitable organization; trial court should have entered judgment against hospital limited by statutory cap - stating that an activity is “commercial” rather than “charitable” only if its objective “is merely to generate revenue” - finding expert testimony is admissible when it relates to matters within the witness’s field of expertise ## Opinion text O’Connor, J. (dissenting, with whom Nolan and Lynch, JJ., join). I agree that the jury would have been warranted in finding that Dr. Chin failed to advise Harlow to return to Chelsea Memorial Health Care Center in seventy-two hours if his pain persisted and that that failure constituted negligence. I do not agree, however, despite the sympathetic appeal of the plaintiff’s situation, that the jury were warranted in finding that that negligence caused Harlow’s quadriplegia. Harlow had the burden of proving causation. The jury reasonably could have found that, had Harlow been properly advised, he would have returned to the health care center in seventy-two hours. The critical question on appeal bearing on causation is whether there was evidence to support a finding within the realm of probability that, had Harlow returned in seventy-two hours, his condition would have been diagnosed and treated and quadriplegia prevented. The court says, ante at 703, that “[o]ne of the plaintiff’s experts . . . stated that once the plaintiff returned to the emer *721 gency room, proper medical procedure would have required that medical practitioners treat the plaintiff” by, among other things, subjecting him to a CAT scan, which would have shown “a bulge or herniated disc,” which, in turn, would have led to early and successful surgery. In his argument on appeal, Harlow relies exclusively on the testimony of Dr. Gary Korenman, a New York City neurologist, as to the causation issue. That Harlow would have been subjected to a CAT scan is critical to his case because there is no evidence that, in the absence of a CAT scan, the seriousness of Harlow’s condition would have been recognized or that surgery would have been performed. Only Dr. Korenman testified about a CAT scan. Therefore, if the court is to be true to its responsibility to decide whether the plaintiff produced sufficient evidence, and to explain its decision, mere characterization of the critical testimony or paraphrasing of it is not enough. Close scrutiny of the relevant questions and answers as they appear in the record is necessary. The relevant questions put to Dr. Korenman and his answers are as follows: Q.: “Doctor, do you have an opinion based on reasonable medical certainty as to what medical care would have been required for Mr. Harlow if he had returned within seventy-two hours of having been discharged from Chelsea Memorial Health Care Clinic consistent with the Door Sheet, Plaintiff’s Exhibit No. 1, on 2-15-82?” A.: “Yes, I do.” Q.: “What is that opinion, Doctor?” A.: “The appropriate medical care at that point, seventy-two hours subsequent to 2-15 -82, with the persistence of symptoms, would have been a re-taking of the history, a thorough neurologic and general physical examination, and ordering cervical spine X-rays, with a wet reading — that is, wet reading means that the X-rays are read immediately, or as an emergent procedure. Depending upon what the results of those X-rays were at that point, assuming that there was no fracture, no dislocation, no tumor, that the X-rays were within normal limits *722 with his symptoms persisting, I would have ordered a CAT scan at that point.” There was no evidence that, in the circumstances of this case, it was routine procedure at Chelsea Memorial Health Care Center to order or perform a CAT scan. I would agree, though, that had evidence been introduced that physicians of average competence would have ordered a CAT scan in the circumstances of this case, such evidence would have been adequate to support a finding that a CAT scan would have been ordered upon Harlow’s prompt return to the center. See Brune v. Belinkoff, 354 Mass. 102, 109 (1968). But, no such evidence was introduced. Harlow’s counsel asked Dr. Korenman his opinion “as to what medical care would have been required for Mr. Harlow if he had returned within seventy-two hours of having been discharged from Chelsea Memorial Health Care Clinic?” The witness answered that “appropriate medical care” would have involved certain specified procedures following which he, Dr. Korenman, would have ordered a CAT scan. The court asserts, ante at 703 n.4, that, when the witness said, “I would have ordered a CAT scan,” he was really saying that appropriate medical care required a CAT scan. I do not agree that the court can now know, or that the jury could have known, that that is what the witness meant. Nevertheless, for purposes of discussion, let us assume that the jury properly could have understood Dr. Korenman’s testimony about what he would have done as meaning that “appropriate medical care” would have required a CAT scan. Even so, that testimony was not enough to permit a finding of causation unless the jury also would have been warranted in concluding that the term, “appropriate medical care,” as used by the witness, referred to the care to be expected of physicians of average competence. Nowhere in the evidence is there any indication that Dr. Korenman understood and used the expression “appropriate medical care,” to mean the care or treatment that averagely competent physicians would render in the circumstances. For all that appears, Dr. Korenman’s concept of “appropriate medical care,” undefined throughout his testimony, and his concept *723 of the level of care to be expected of physicians of average competence are two very different matters. Indeed, the doctor’s statement, “I would have ordered a CAT scan,” in response to a question about the requirement of appropriate medical care strongly suggests that the doctor understood appropriate medical care to be the treatment that he, as distinguished from an averagely competent physician, would have rendered. There is certainly nothing in the evidence to suggest that Dr. Korenman considered himself averagely competent. Surely, also, it cannot fairly be said that, by common usage of lay people, the term “appropriate medical care" has come to mean the care that would be given by physicians of average competence. For all that appears in the evidence, the expression, “appropriate medical care,” as the witness understood and used it, referred not to a standard set by physicians of average competence but to a much higher standard. There is no basis in the evidence for the jury reasonably to have understood the evidence differently. Therefore, there was absolutely no justification in the evidence for the jury to conclude that, had Harlow returned to Chelsea Memorial Health Care Center in timely fashion, a CAT scan leading to successful surgery would have been performed. Viewed as favorably to the plaintiff as can be justified, the evidence does not support a finding of causation. Therefore, I would reverse the judgment for the plaintiff. I would order judgment for the defendants. Because I conclude that the defendants are entitled to a judgment in their favor, I need not reach the “egregious argument” issue discussed by Justice Lynch in his dissenting opinion. Were I to do so, I would agree with Justice Lynch, for the reasons he gives, that a new trial should be required. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9709267. Public record. Not legal advice.