# Johnson v. Summers > Massachusetts Supreme Judicial Court · September 4, 1991 · 411 Mass. 82 URL: https://www.frixlaw.com/law-library/cases/9722530 ## Case - **Full name:** Willie Johnson vs. Robert Summers & Another - **Court:** Massachusetts Supreme Judicial Court - **Decided:** September 4, 1991 - **Citations:** 411 Mass. 82; 577 N.E.2d 301; 1991 Mass. LEXIS 443 - **Precedential status:** Published - **Opinion:** Dissent by Lynch - **Judges:** Liacos, Wilkins, Abrams, Nolan, Lynch, O'Connor, Greaney - **Cited by:** 13 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/9722530 ## Opinion text Lynch, J. (dissenting, with whom Nolan and O’Connor, JJ., join). There is not a trace of evidence in the record sug *91 gesting that delay in providing medical care to the plaintiff caused him to be crippled. The evidence indicates only that by 3:18 a.m., when he finally arrived at the hospital, his condition was such that his orthopedic injuries could not be treated until much later which resulted in loss of function to his knee. Would the plaintiff’s leg have healed more successfully if he had been taken to the hospital at 2 a.m.? At 1:30? Or was the medically significant delay the half hour between 12:30, when the defendants arrested the plaintiff, and 1 a.m., when the defendants went off duty and ceased to be responsible for the plaintiff’s care? Or, indeed, would the result have been the same if the plaintiff had arrived at the hospital one minute after he was injured? The jury’s answer amounts to a guess because the record contains no hint. Given the plaintiff’s absolute failure to introduce any evidence establishing a causal link between the defendants’ conduct and the plaintiff’s worsened condition, the defendants were entitled to a directed verdict or judgment notwithstanding the verdict. It is fundamental that the plaintiff bears the burden of establishing causation by a preponderance of the evidence. “If on all the evidence it is just as reasonable to suppose that the cause [of the plaintiff’s injuries] is one for which no liability would attach to the defendant as one for which the defendant is liable, then a plaintiff fails to make out his case.” Alholm v. Wareham, 371 Mass. 621, 627 (1976), quoting Bigwood v. Boston & N. St. Ry., 209 Mass. 345, 348 (1911). The plaintiff cannot escape a directed verdict or judgment notwithstanding the verdict if no view of the evidence supports a verdict in his favor. See Stapleton v. Macchi, 401 Mass. 725, 728 (1988). 1 Although we indulge every inference to his advantage, Wilson v. Honeywell, Inc., 409 Mass. 803, 804 (1991), the plaintiff is nonetheless required to establish the essential elements of his claim “either by direct evidence or rational inference of probabilities from established facts.” *92 Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 329 (1973), quoting Bigwood, supra. Inferences drawn from the evidence must be based on probabilities, not possibilities. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 664 (1981). Alholm, supra. That is, inferences may not be drawn “from the realm of mere speculation and conjecture.” Id. Contrary to this standard, today’s ruling endorses an attenuated inference lacking an essential factual predicate. The court states that “[a]n expert witness testified at length about the complications created by that delay,” that is, “the delay in bringing [the plaintiff] to the hospital.” Ante at 88. The expert explained that the defendant suffered fractured and dislocated bones in and near his knee and a severed artery when he fell down the two sets of stairs. He testified that the necessity of treating the severed artery immediately and complications in treating the plaintiffs open wounds led the doctors to postpone addressing the orthopedic damage in his knee. 2 According to the expert, by August 25, 1981, one month after the incident, the bones had fused in a “malunion,” which prevented the doctors from restoring the knee surgically. 3 On October 19, 1981, doctors operated on *93 the knee, joining the femur (thigh bone) and tibia (a shin bone) in a fixed position, essentially eliminating the knee joint. In sum, the expert opined only that at 3:18 a.m. it was necessary to delay treatment of the plaintiff’s fractured bones. The hospital records admitted in evidence add nothing more. 4 Nowhere in the expert’s testimony is there a statement, either express or implied, that the procedure followed at the hospital, or the result, would have been different had the plaintiff been brought to the hospital immediately after he sustained his injuries. Although one may infer that the plaintiff would have obtained medical care sooner if the defendants had taken him directly to the hospital, there was no evidence to suggest that the treatment rendered at that unknown earlier time would have been any more effective. Surely the testimony that complications arose from the fact that his blood supply had not been restored for at least eight hours does not imply that lack of blood flow for five or six hours would not have led to the same conditions. Furthermore, even if we assume, for purposes of analysis, that the three hours before the plaintiff’s arrival at the hospital were medically significant, the evidence still is critically lacking. The plaintiff failed to offer any evidence suggesting that the period of delay for which the defendants were arguably responsible, from 12:30 to 1 A.M., caused the plaintiff’s condition to worsen. Remarkably, this reduces to irrele *94 vanee the question whether the delay that occurred while the plaintiff remained in the defendants’ custody was medically costly. With due respect, I, therefore, dissent. The standards governing motions for directed verdict and judgment notwithstanding the verdict are the same. Stapleton v. Macchi, 401 Mass. 725 , 728 n.5 (1988). The expert testimony on which the plaintiff and presumably the court relies recounted the treatment the plaintiff received on the day of the incident. He noted that the popliteal artery, the major artery carrying blood to the lower leg, had been severed. He continued, “[0]n an emergency basis, [the plaintiff] was immediately taken to the operating room to have [the artery] repaired.” When asked how the doctors treated a broken bone at this point, the expert responded, “Well, there are several things wrong that were emergencies, even over and above the broken tibia. Once the artery is repaired, blood flow is restored to the leg.” Once the doctors treated swelling that resulted from the restoration of blood flow to the leg, the expert said, “the vascular surgeons, in consultation with the orthopedic surgeon . . . decided that any further operative repair or attempt to repair of the tibia bone would seriously affect the artery, and, in fact, might disrupt the flow of the artery. So, at that point, they did something which is also standard practice in orthopedics. They placed a pin through the upper tibia. So, we take a pin and put it through the bone, and we put the person in traction. . . . [T]hey had restored blood flow to the leg. Essentially, nothing had been done with his fractures at that point, other than traction.” The doctor testified, “At that point [August 25, 1981], the bones are fused together enough that we consider it a malunion. What that means is *93 the bones have healed in an abnormal position, and open reduction and internal fixation is no longer a viable option.” The hospital records contain two relevant notations, both dated July 21, 1981. First, the chief resident noted, “ORIF [open reduction and internal fixation, i.e., orthopedic surgery] would give best result but ischemic time makes vascular repair urgent.” A second doctor stated, in a postoperative report: “Because of the previous 8 hour ischemic time to the leg, it was felt that an additional 3 hour procedure to reconstruct the tibial plateaus in this patient was not indicated at this time.” These notations do not address the decisive issue: Would doctors have achieved a better result if the ischemic time had been briefer? Furthermore it should be noted that the plaintiffs expert attached no significance to these notes. Nothing suggests that this medical expert construed those notes in the way the court says the inexpert jury fairly could have construed them. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722530. Public record. Not legal advice.