NANCY ANN MATLEY [Note 1] vs. KENNETH MINKOFF.

VUONO, J. This appeal concerns the validity of a judge's action in allowing a motion for judgment notwithstanding the verdict (judgment n.o.v.) in a medical malpractice case. The undisputed evidence is that Nancy Matley (Nancy) was treated by the defendant, Kenneth Minkoff, for mental illness over a four-year period from May, 1984, through February, 1988.

Page 49

Although Nancy was an adult at the time she commenced treatment, she suffered from mental retardation and had the conceptual level of an eight year old. As a result, Nancy's parents, with whom Nancy lives, made all treatment decisions for her. [Note 2] During the course of Nancy's treatment, the defendant prescribed neuroleptic medications, including Thorazine. Her parents allege that the medication caused Nancy to develop a serious side effect known as tardive dystonia. This condition is marked by involuntary muscle movements. Nancy's symptoms included twitching movements, smacking of the mouth, and a gait disturbance which became so severe that she needed to use a wheelchair.

In 1991, Nancy brought this action in the Superior Court through her parents, as co-guardians, alleging that the defendant negligently prescribed the medication and negligently failed to obtain the plaintiff's informed consent for the use of the medication. The complaint also alleged breach of contract, and, in separate counts, the parents made claims for loss of consortium and emotional distress. [Note 3] The defendant moved for a directed verdict on all counts following the plaintiff's opening statement. The judge allowed the motion as to the breach of contract and emotional distress claims and reserved his ruling on the remaining claims of negligence and informed consent.

After the plaintiff's closing argument, the defendant renewed his motion for a directed verdict on the claim of failure to obtain informed consent. The motion was prompted by statements made by plaintiff's counsel during his summation. In his closing, counsel argued that the defendant could not have obtained Nancy's informed consent because Nancy was incompetent during the time of treatment with the defendant and that the defendant had stipulated to Nancy's incompetency. Counsel further argued that since her parents did not become Nancy's legal guardians until after Nancy's treatment with the

Page 50

defendant had ended, the defendant could not have obtained their informed consent.

The defendant objected to counsel's remarks, which were partially incorrect (there was no such stipulation) [Note 4] and argued that if her parents were not Nancy's legal guardians during the time that he was treating Nancy, then he had no duty to obtain the Matleys' informed consent. He further argued that since her parents had failed to present any evidence that Nancy was incompetent while she was under the care of the defendant, or that the defendant failed to obtain Nancy's informed consent for the recommended treatment, judgment should enter in his favor.

The judge sustained the objection to plaintiff's counsel's misstatements and subsequently instructed the jury that there was no stipulation concerning Nancy's incompetence during 1984 and 1985, and that the jury should disregard the argument of counsel that the parents were not Nancy's guardians and could not have provided informed consent. In denying the defendant's motion for a directed verdict, the judge ruled that throughout the trial, the parties had assumed that her parents were Nancy's guardians during the period of her treatment and it was their informed consent that had to be obtained. The judge further noted that the jury instructions and special verdict form had been prepared in a manner consistent with this theory with no objection from either party. The case was then submitted to the jury in accordance with the way it had been pleaded and tried.

The jury returned a verdict in favor of the defendant on the claims of negligence and loss of consortium and in favor of Nancy on the claim of failure to obtain informed consent. [Note 5] Damages were awarded to Nancy in the amount of $200,000.

Thereafter, the defendant moved pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 402 (1998), for a judgment n.o.v., or, in the alternative, for a new trial. He asserted three grounds in support of the motions. The first two grounds, that the record was devoid of evidence that Nancy was incompetent at the time of treatment and devoid of evidence that the defendant failed to obtain Nancy's consent, had been raised in

Page 51

the motion for a directed verdict. The third ground was based on the Supreme Judicial Court's ruling in Guardianship of Roe, 383 Mass. 415, 434-435 (1981), where the court ruled that if an incompetent individual requires treatment with antipsychotic drugs, "those charged with [her] protection must seek a judicial determination of substituted judgment." Therefore, before a patient may be treated with neuroleptic medications, a judge must first determine whether the patient is incompetent and, if so, what the patient would choose to do if she were competent. Although the judge raised, sua sponte, the applicability of the rule of substituted judgment during the hearing on the motion for directed verdict, the defendant did not adopt this argument at that time. [Note 6] Only later, in support of his motion for judgment n.o.v., did the defendant rely on this rule and argue that, even assuming Nancy was incompetent and that her parents were her legal guardians, it is the court's responsibility, and not the guardians', to exercise Nancy's substituted judgment concerning consent to treatment with neuroleptic medications.

The judge allowed the motion for judgment n.o.v. and denied the motion for a new trial. [Note 7] In ruling on the request for judgment n.o.v., the judge rejected the first two grounds asserted by the defendant and accepted the third ground. The trial judge determined that the rule of substituted judgment only required the defendant to ensure that a determination by a judge had been obtained regarding Nancy's incompetency and that that judge had then weighed the factors for a substituted judgment before treatment with neuroleptic medications. The trial judge concluded that a judgment n.o.v. was required because, although the record was clear that the defendant had "failed to seek any such determination," his failure to obtain Nancy's substituted judgment for an informed consent was never pleaded or presented to the jury.

The plaintiff appeals the judge's decision to grant judgment n.o.v. We conclude that the judge erred because the trial was

Page 52

conducted on the assumption that the parents were Nancy's legal guardians and the evidence was directed to the question of whether they had consented. The defendant's motion for a directed verdict, however, failed to specify the grounds upon which judgment n.o.v. was granted, namely that the defendant had no duty to obtain either Nancy's or the Matleys' informed consent because there was no judicial determination of Nancy's substituted judgment. These grounds are waived; therefore, the judgment n.o.v. must be reversed and the jury's verdict reinstated.

Judgment notwithstanding the verdict is to be granted cautiously and sparingly. Phelan v. May Dept. Stores Co., 60 Mass. App. Ct. 843, 844 (2004), rev'd on other grounds, 443 Mass. 52 (2004). A party may not raise an issue in a motion for judgment n.o.v. that was not raised in a motion for directed verdict. Shafir v. Steele, 431 Mass. 365, 370 (2000); Smith & Zobel, Rules Practice § 50.14 (1977). [Note 8] Motions for judgments n.o.v. are governed by rule 50(b), which states in relevant part that a motion for judgment n.o.v. must request "judgment in accordance with [the moving party's] motion for a directed verdict." Furthermore, a motion for a directed verdict according to Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), must "state the specific grounds therefor." "The requirement that a litigant state specific grounds in support of a motion for directed verdict is an important one. It allows the judge knowingly to rule on the question before him, and it allows the opposing party an opportunity to rectify any deficiencies in its case -- or, more precisely, an opportunity to seek leave from the court to do so." Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 35 (1991).

As stated above, the basis upon which the defendant's motion for a judgment n.o.v. was allowed was not asserted in the motion for a directed verdict. That motion focused on the sufficiency

Page 53

of the evidence as to Nancy's incompetency and the defendant's failure to obtain Nancy's informed consent. [Note 9] Moreover, even though the judge directed the parties' attention to the rule of substituted judgment, we believe, at least under the circumstances of this case, that the plaintiff did not receive "an opportunity to rectify [the] deficienc[y] in [the] case." Ibid. The judge wisely decided to submit the case to the jury as it had been pleaded and tried with no objection. After the jury's verdict was returned, the plaintiff was "ambushed" by the defendant's contention that the rule of substituted judgment precluded recovery. See Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841, 846-848 (1995), quoting from Quinn v. Southwest Wood Prod., Inc., 597 F.2d 1018, 1025 (5th Cir. 1979). In Varadian, the court pointed out that "rule [50(b)] is one of fairness, and the interest of fairness is met by construing the requirement of rule 50(b) that a motion for directed verdict be made 'at the close of all the evidence' as meaning that the motion must be made before the jury begins deliberations and, therefore, at a time when the trial judge may still permit the opponent to present further evidence." Id. at 847. We note, for example, that the complaint could properly have been amended under Mass.R.Civ.P. 15(b), 365 Mass. 761 -762 (1974), to allege and prove a breach of the duty to obtain a judicial determination of Nancy's substituted judgment for an informed consent. Although the theory of recovery would have been different, most of the evidence would have been the same. Moreover, in

Page 54

the view of the judge, the verdict would have been unchanged. The judge reasoned:

"Given that the jury found that the risks which were undisclosed to the Matleys were the legal cause of Nancy's injuries, it is reasonable to conclude that the same jury would have found for the plaintiff on the question of causation if it were a court rather than the Matleys to whom the defendant had failed to disclose risks and obtain consent for treatment. There is also no basis to conclude that the jury would have answered the question of the proper level of damages any differently."

Having decided that the judgment n.o.v. should not have been granted, we now address the jury's verdict in favor of Nancy and conclude that the verdict should be reinstated. In reaching this conclusion, we consider the applicable principles of waiver that are also reflected in Mass.R.Civ.P. 50(a) and (b).

The nature of the plaintiff's complaint was that the defendant was liable for failing to inform Nancy's parents of the risks associated with the proposed treatment. [Note 10] This case has been pending since 1991 and involved treatment between 1984 and 1988. The defendant never once objected to the plaintiff's theory of liability until after closing arguments. [Note 11] "An issue which is open on the pleadings may be expressly waived during trial or impliedly waived by the manner in which the trial is conducted. 'There is nothing to prevent a party defendant from waiving a defence. Such waiver by conduct at the time when it ought to

Page 55

have been pressed does not enable a defendant as of right to set up such defence at a later stage, no matter how perfect that defence might have been if it had been seasonably put forward.' " Dalton v. Post Publishing Co., 328 Mass. 595, 599 (1952), quoting from Lonergan v. American Ry. Express Co., 250 Mass. 30, 40 (1924). See Mirageas v. Massachusetts Bay Transp. Authy., 391 Mass. 815, 818 (1984).

The result is that the defendant waived any rights to argue that he had no duty to obtain the Matleys' informed consent before prescribing neuroleptic medications for Nancy. After examining the record with care, we are satisfied, as was the judge below, that there was sufficient evidence to warrant a verdict for Nancy. [Note 12] Accordingly, the judge's order granting judgment n.o.v. is reversed, and the jury's verdict awarding damages to Nancy is reinstated. Judgment is to enter for the plaintiff consistent with the jury verdict.

So ordered.