Medina v. Hochberg (Lawyers Weekly No. 10-079-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11178 RICHARD MEDINA vs. FRED H. HOCHBERG. Suffolk. January 8, 2013. ‑ May 13, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Negligence, Doctor, Duty to warn. Doctor, Doctor‑patient relationship. Civil action commenced in the Superior Court Department on January 23, 2004. The case was heard by Maureen B. Hogan, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Dante G. Mummolo (Brendan C. Murphy with him) for the plaintiff. Michael J. Kerrigan (William J. Dailey, Jr., with him) for the defendant. The following submitted briefs for amici curiae: Gregory Broderick & Katie Konz, of California, & Donald R. Pinto, Jr., for Pacific Legal Foundation. John J. Barter for Professional Liability Foundation, Ltd. Chad P. Brouillard for Massachusetts Defense Lawyers Association. CORDY, J. On December 10, 2001, Robert D. Riskind suffered a grand mal seizure while driving home from work, causing him to lose control of his vehicle and strike the plaintiff, Richard Medina, as he was exiting his motor vehicle (accident). Riskind’s seizure was triggered by an inoperable brain tumor, a condition for which he had been receiving treatment from the defendant Dr. Fred H. Hochberg since its diagnosis in September, 2000. As a result of the accident, Medina sustained serious injuries including a broken right arm that required multiple surgeries. Riskind died in June, 2002, as a result of his brain tumor. Medina instituted this action in January, 2004, against Francine Pillemer, Riskind’s wife, as executrix of his estate.[1] In March, 2005, Medina moved to amend his complaint in order to assert a negligence claim against Hochberg, alleging that he breached a duty owed to Medina to control Riskind’s behavior arising from a special relationship between Hochberg and Riskind or, alternatively, that he breached a duty owed to Medina by failing to warn Riskind not to drive.[2] A Superior Court judge concluded that Medina’s amended complaint stated a viable negligence claim against Hochberg and allowed the motion to amend. In September, 2009, Hochberg moved for summary judgment arguing that, as a matter of law, he owed Medina neither a duty to control Riskind nor a duty to warn Riskind against driving. A different Superior Court judge (motion judge) granted Hochberg’s summary judgment motion. Thereafter, Medina […]