By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Between October of 2003 and April of 2004, Mary Callahan (Mary) was treated by the defendant—Dr. Jellinek, a board certified psychiatrist, who prescribed various antidepressant medications to her. On April 25, 2003, Mary committed suicide.
Between September and November of 2002, Mary was treated for depression by a licensed psychologist.
In the wrongful death count of his complaint, the plaintiff alleged, among other things, that Dr. Jellinek negligently treated Mary by continuing to prescribe antidepressants notwithstanding her poor reactions to the medications; by failing to prescribe anti-anxiety medication to counteract the side effects of antidepressants; and by failing to diagnose Mary's risk of suicide. In the lack of informed consent count, the plaintiff alleged that Dr. Jellinek failed to inform Mary of the side effects and risks associated with the use of antidepressant medications, including the risk of suicide. Following a five-day trial, the jury found Dr. Jellinek negligent in his treatment of Mary, but that his negligence was not the proximate cause of her death. The plaintiff appealed the judgment and the order denying his motion for a new trial. We affirm.
On appeal, the plaintiff raised no separate argument with respect to the denial of his motion for a new trial.
1. Dismissal of informed consent count. On the first day of trial, the judge heard counsel's arguments on Dr. Jellinek's motion in limine to strike/dismiss the plaintiff's informed consent claim and took the motion under advisement. On the second day of trial, during the testimony of the plaintiff's expert, defense counsel requested a voir dire of the expert. Following a voir dire, the judge heard arguments of counsel and concluded that the plaintiff could not proceed with a separate informed consent count. The plaintiff challenges this determination on appeal.
During the voir dire on the issue, the plaintiff's expert testified that suicide was a possible result of the failure to properly treat depression, anxiety, and insomnia. He opined that Dr. Jellinek's failure to treat Mary for depression, anxiety, and insomnia by prescribing the right combination of drugs resulted in her death. The expert also testified that there was no consensus in 2003 on whether the antidepressants themselves could make a person suicidal, that he was not saying that the risk of suicide should have been the subject of informed consent in this case, and that the need to warn was an integral part of the standard of care. The judge ruled that the underlying facts, including failure to warn, were germane to the claim of medical malpractice, and the plaintiff could pursue the issues raised by him under that claim. The judge also ruled that, based on Roukounakis v. Messer, 63 Mass.App.Ct. 482 (2005), and related cases, he was dismissing the plaintiff's informed consent count.
The judge also cited to Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 156 (1982); Precourt v. Frederick, 395 Mass. 689 (1985); and Feeley v. Baer, 424 Mass. 875 (1997).
Because the plaintiff's expert testified that there was no consensus in 2003 that antidepressants carry a risk of suicide, the informed consent claim came to rest on an allegation that Dr. Jellinek failed to inform Mary that his failure to properly treat her depression, insomnia, and anxiety might result in her suicide. In allowing Dr. Jellinek's motion, the judge reasoned that informed consent is not an independent claim where it rests substantially on the same facts that underlie the claim of negligence. We agree with the judge's analysis and his reliance on Roukounakis v. Messer, 63 Mass.App.Ct. at 484, a case in which the court ruled that “the question of informed consent cannot be separated from the question of negligence.” Even if we were to assume that the ruling was in error, where the plaintiff does not argue that it prevented him from introducing any relevant evidence, such an error was harmless.
The plaintiff's procedural challenge to the ruling was not raised below and we do not consider it.
2. Evidentiary ruling. Prior to trial, Dr. Jellinek filed a motion in limine to preclude the introduction of Mary's suicide note or to redact the part of the note that was not based on her personal knowledge. The challenged part of the note read: “Please promise me you will do everything to get the SSRIs off the market or at least warn people of their potential danger.” Following arguments by counsel, the judge ruled that the prejudicial effect of the challenged sentence outweighed its probative value, the note needed to be redacted if the plaintiff wanted to introduce it in evidence, and the plaintiff could introduce evidence about the dangers of antidepressants through his expert witness. The plaintiff chose to introduce the redacted note in evidence.
The note read: “Dear Charlie, I can no longer be a burden to you and the girls. I love you too much. Please promise me you will do everything to get the SSRIs off the market or at least warn people of their potential danger. Please tell the girls I love them more then [ sic ] anything. Love, Mary.”
A trial judge has broad discretion regarding admission or exclusion of evidence. R.D. v. A.H., 454 Mass. 706, 719 (2009). Here, it was not an abuse of discretion for the judge to redact Mary's statement about the potential dangers of antidepressants. See Commonwealth v. Bianchi, 435 Mass. 316, 327 (2001). As the judge indicated, this was a proper subject for expert testimony.
The plaintiff claims that “by submitting the suicide note to the jury in a redacted form, the judge created a substantial likelihood of prejudice to the plaintiff.” However, this claim is without merit as the judge gave the plaintiff's counsel a choice about whether to introduce the redacted note in evidence, and counsel chose to do so.
Judgment affirmed.
Order denying motion for new trial affirmed.
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