1 Mass. App. Ct. 822

May 7, 1973

This is an action of tort brought by the minor plaintiff (the plaintiff) against a general surgeon for malpractice; the plaintiff's father seeks consequential damages. There was no error in directing verdicts for the defendant. The only point argued is that the defendant was negligent in making his original diagnosis. There was nothing to suggest that the defendant did not use his best judgment in making that diagnosis. See Riggs v. Christie, 342 Mass. 402, 405-406; Barrette v. Hight, 353 Mass. 268, 275-276. Whether the X-rays taken prior to the removal of the plaintiff's cast (when viewed in the light of the defendant's clinical observations) were adequate to permit a proper diagnosis was not within the field of common knowledge possessed by a jury. See Haggerty v. McCarthy, 344 Mass. 136, 139-142. Cf. Toy v. Mackintosh, 222 Mass. 430, 431-432; Guell v. Tenney, 262 Mass. 54, 55; Ernen v. Crofwell, 272 Mass. 172, 175; Marangian v. Apelian, 286 Mass. 429, 436-437; Gabrunas v. Miniter, 289 Mass. 20, 21-23; Malone v. Bianchi, 318 Mass. 179, 181-182; Delaney v. Rosenthall, 347 Mass. 143, 147. The fact that the plaintiff's expert and the defendant differed in their evaluations of those X-rays did not establish that the defendant was negligent. Possible disbelief of the defendant's testimony as to good medical practice (Brune v. Belinkoff, 354 Mass. 102, 109) could not fill the void left by the absence of expert evidence of bad medical practice. O'Connell v. Esso Standard Oil Co. 337 Mass. 639, 642, and cases cited.

Exceptions overruled.


1 Mass. App. Ct. 822

May 8, 1973

On March 25, 1970, an interlocutory decree was entered in the Probate Court appointing a commissioner and ordering partition by sale of land owned, according to the decree, by a father (then under conservatorship) and his daughter as tenants in common. No appeal was taken from that decree.

Page 823

Pursuant to the decree a warrant was issued to the commissioner on April 8, 1970. The father died on June 8, 1970. This is an appeal by the daughter from the dismissal of her petition to vacate the interlocutory decree and to enjoin the commissioner from selling the land. Her petition alleges (and the parties agree) that she and her father held the land not as tenants in common but as joint tenants. In his report of material facts the judge made no finding on the daughter's further allegation (which was waived in oral argument before this court) that she had received no notice of the interlocutory decree. That decree conclusively determined the rights of the parties; and following its entry no question remained open concerning either ownership or title. Brown v. Bulkley, 11 Cush. 168, 160-170. Savery v. Taylor, 102 Mass. 509, 511. The death of the father following the entry of the interlocutory decree ordering partition did not change the result. Cf. Minnehan v. Minnehan, 336 Mass. 668, where no decree ordering partition had been entered prior to the death of the ward.

Decree affirmed.