New Trial in Massachusetts Malpractice Case

A Massachusetts appellate court ordered a new trial after the trial court had granted a doctor’s motion for directed verdict in a medical malpractice case.

Classic malpractice case. Patient goes to an ear, nose and throat (ENT) specialist who diagnoses a voice disturbance and reflux esophagitis. Patient gets speech therapy. Critical time passes. He gets a second opinion and finds out he has cancer, metastatic non-small-cell lung carcinoma. Tragically, he dies.

The trial judge found that Plaintiff’s medical expert witness, a radiation oncologist, had failed to provide testimony specifically staging Plaintiff’s loss of chance claim submitted to the jury. As I have written in the past, Massachusetts has more liberal lost chance loss than Maryland does.


In this case, Plaintiff’s expert, a radiation oncologist, could not tell exactly what stage the decedent’s case had progressed to at the time of the malpractice. But he could testify to a reasonable degree of medical certainty that it was Stage I or Stage 2. The trial judge got hung up on the “possibly Stage I” testimony from the expert and ignored that the expert was saying “it could be Stage I or Stage 2” which should have been enough to get the case to a jury.

So Plaintiff wins. Sort of. This directed verdict came on the fourth day of trial. Which means Plaintiff put on a lot of evidence and paid a lot of money to medical experts to get the case where they did. Now they start all over from scratch.

You can read the full opinion in Curreri v. Isihara here.