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18-P-1373                                              Appeals Court

 JOHN E. PARSONS, THIRD, personal representative,1         vs.   DARIUS
                        AMERI & others.2


                              No. 18-P-1373.

           Middlesex.    October 8, 2019. - February 26, 2020.

                  Present:   Massing, Sacks, & Hand, JJ.


Practice, Civil, New trial, Instructions to jury. Negligence,
     Medical malpractice, Gross negligence, Causation. Medical
     Malpractice.


     Civil action commenced in the Superior Court Department on
July 16, 2015.

     The case was tried before Edward P. Leibensperger, J., and
a motion for a new trial or for judgment notwithstanding the
verdict was heard by him.


     Tory A. Weigand (David M. Gould also present) for the
defendants.
     Adam R. Satin (Julie A. Gielowski also present) for the
plaintiff.




       1   Of the estate of Laura Parsons.

       2   Louise Pothier and North Suburban Surgical Associates,
P.C.
                                                                     2


     MASSING, J.    The plaintiff brought this medical malpractice

wrongful death action on behalf of the estate of his late wife,

Laura Parsons (Parsons), against a physician, a nurse, and the

professional corporation that employed them.     A jury determined

that the physician's negligence in performing a surgical

procedure resulted in Parsons's death and that the nurse's

negligence contributed to Parsons's pain and suffering.     The

primary issue in this appeal is whether the evidence supported

the jury's finding that the physician's actions amounted to

gross negligence, for which the jury awarded punitive damages of

$2.5 million.    We affirm.

     Background.3   1.   The surgery.   Parsons was referred to

defendant Dr. Darius Ameri for treatment of a hiatal hernia in

her diaphragm.   The diaphragm separates the chest cavity from

the abdomen; the hiatus is an opening in the diaphragm that

permits the esophagus to travel down through the chest into the

stomach.   A hiatal hernia is an abnormality in which the stomach

protrudes up through the hiatus into the chest.     Ameri

determined that hiatal hernia repair surgery was necessary to

restore Parsons's stomach to its proper anatomical position.      He

informed Parsons that she needed to lose weight prior to the




     3 We recite the evidence as the jury could have found it,
reserving certain evidence for the discussion section.
                                                                    3


surgery.   A few months later, Parsons was admitted to Winchester

Hospital for laparoscopic surgery.4

     Ameri performed the surgery, assisted by defendant

registered nurse first assistant Louise Pothier.   Ameri chose to

repair the hiatal hernia by attaching a mesh closure to

Parsons's diaphragm with a medical device called the Ethicon

Securestrap, which is used during hernia repair surgery to

attach prosthetic materials to soft tissue.   Commonly referred

to as a "tacker," the device attaches absorbable "tacks" (also

called "straps" or "fasteners") through mesh into tissue.5    On

their own, the tacks are approximately five millimeters in

length, but at the time of insertion, the tacker presses them as

much as 6.7 millimeters into the tissue.

     The manufacturer's instructions for the tacker included

several cautions.   A minimum tissue thickness was required, and

use of the device was contraindicated if the total distance from

the surface of the tissue to any underlying bone, vessel, or

organ was less than 6.7 millimeters.   Moreover, it should not be




     4 Laparoscopic surgery is performed by making small
incisions on the body and inserting long tools to make internal
repairs. Surgeons rely on small surgical cameras during these
procedures to see inside body cavities. Photographs taken by
these cameras during the course of Parsons's surgery were
admitted in evidence and discussed by the expert witnesses.

     5 We refer hereafter to the Ethicon Securestrap as the
tacker.
                                                                        4


used to insert tacks "in the diaphragm in the vicinity of the

pericardium, aorta, or inferior vena cava during diaphragmatic

hernia repair."       The pericardium is a membrane containing fluid

surrounding the heart; the inferior vena cava and the aorta are

the major blood vessels that carry blood to and from the heart.6




     6 The relevant portions of the instructions appeared as
follows:

     "CONTRAINDICATIONS

            The device is not intended for use when prosthetic
             material fixation is contraindicated.

            Do not use the system on tissue that cannot be inspected
             visually for hemostasis.

            A minimum tissue thickness is required when applying the
             fastener over underlying bone, vessels, or viscera. If
             the total distance from the surface of the tissue to the
             underlying structure is less than the minimum tissue
             thickness, or may be comprised to a total distance less
             than the minimum tissue thickness, use of the device is
             contraindicated.

            This device should not be used in tissues that have a
             direct anatomic relationship to major vascular
             structures. This would include the deployment of
             fasteners in the diaphragm in the vicinity of the
             pericardium, aorta, or inferior vena cava during
             diaphragmatic hernia repair." (Emphasis added.)

     "WARNINGS

             ". . .

            The total distance from the surface of the tissue to the
             underlying bone, vessels, or viscera should be evaluated
             prior to application and should be a minimum of 6.7 mm."
                                                                    5


    Ameri testified that he had used the tacker in many hernia

repair surgeries.   He preferred to fasten mesh with the tacker

because the tacks were less likely than sutures to tear, which

could potentially raise the risk of hernia recurrence.   Ameri

used the tacker to affix mesh to Parsons's diaphragm crura, that

is, the muscular edge of the diaphragm closest to the esophagus.

Although he understood the contraindications associated with the

tacker, Ameri stated that the tacker was nonetheless "almost

always" used to fix the mesh to the edge of the diaphragm

because the crura is so thick that the tacks were "not going to

get anywhere beyond this thickness."   Used in this way, the

tacker was "nowhere close to," "does not have any relationship

whatsoever, or a proximity or getting close," and was "far away

from any major vessel or heart or any part of the pericardium."

He admitted that he did not measure the thickness of Parsons's

diaphragm crura at the time of the surgery, but he

"ballpark[ed]" its thickness to be ten millimeters, thick enough

to withstand the five millimeter tacks without allowing them to

pierce through the diaphragm.   He agreed that puncturing the

pericardium or the myocardium, the heart muscle itself, during

hiatal hernia repair surgery would be below the standard of care

expected of the average qualified general surgeon.

    2.   Postoperative complications and cause of death.    After

the surgery, Parsons's vital signs were stable.   Two days after
                                                                   6


the surgery, however, she complained that her heart was racing

and that she had abdominal pain.    An echocardiogram showed the

presence of excess fluid in Parsons's pericardium near where the

tacks were placed; her heart rate was very elevated and

irregular.   She was administered blood-thinning medication and

morphine.    Approximately one hour later, Parsons went into

cardiac arrest.   She made "raspy, guttural sounds," her

breathing became labored, and she was unresponsive except for

moaning.    Cardiopulmonary resuscitation (CPR) was performed, but

efforts to resuscitate her were unsuccessful.

     The provisional autopsy report stated that Parsons's cause

of death was "cardiac in nature," caused by blood in the

pericardial sac resulting in tamponade -- or compression of the

heart due to excess fluid in the pericardium -- likely occurring

from prolonged CPR.    The medical examiner produced the

provisional autopsy report based on external and internal

examinations of Parsons's body.

     The final autopsy report, produced after microscopic

evaluation of Parsons's heart, noted "puncture marks on the

posterior aspect of the heart with hemorrhage just below the

level of the cardiac valves," and the presence of 250 cubic

centimeters (about eight ounces) of blood in the pericardium.7


     7 The autopsy report also described the puncture marks as a
"superficial cleft like defect in the epicardial fat and
                                                                     7


The report noted both "acute and chronic" pericarditis, or

inflammation of the pericardium, with "the acute inflammation

and hemorrhage likely occurring at the time of hiatal hernia

repair."   "Although trauma was considered as a potential cause

of the pericarditis, unequivocal evidence of surgical trauma

. . . could not be demonstrated."   Parsons did not have a

pulmonary embolism, or blood clot, in her lungs, the presence of

which could have contributed to irregular heartbeat.    The report

concluded, "The final cause of death is ascribed to a

combination of pericarditis, myocarditis and hemopericardium" --

that is, inflammation of the pericardium, inflammation of the

heart muscle, and bleeding within the pericardial sac -- "with

tamponade leading to cardiac arrest."

    3.     Plaintiff's expert testimony.   At trial, the plaintiff

presented the expert testimony of Dr. Brian Carmine, a general

surgeon who had performed nearly 1,000 hiatal hernia surgeries.

Carmine testified to a reasonable degree of medical certainty

that Ameri and Pothier's treatment of Parsons was below the

standard of care expected from the average qualified surgeon and

registered nurse first assistant and was a substantial

contributing factor to Parsons's death.    Specifically, based on



subepicardium," that is, the muscle of the heart. The report
further stated, "The focal defect on the epicardial surface of
the posterior left ventricle was superficial with only minimal
extension into the [heart muscle]."
                                                                    8


his review of the final autopsy report and the photographs from

the surgery, Carmine opined that it was more likely than not

that Ameri pierced Parson's pericardium and punctured her heart

with the tacker, resulting in her cardiac arrest and death.

    Carmine was familiar with the tacker Ameri used in the

laparoscopic procedure performed on Parsons as well as other

techniques for hiatal hernia repair.    Injury to the pericardium

or any part of the heart muscle should not have occurred if

proper surgical techniques were used, and causing such injury

during hiatal hernia surgery would violate the applicable

standard of care.   The average qualified surgeon would have been

aware of the risks of using a tacker:   "the concern is that when

you fire one of these pressure-loaded fasteners, that it can

penetrate through and hit structures on the other side of the

diaphragm that you can't see, and cause life-threatening

injury."   Once the stomach was moved down into its correct

anatomical position and the hernia was closed or reduced, the

back of the heart was just "the thickness of a diaphragm away"

from where the tacks were placed; this distance could be as

little as three to five millimeters.    When asked whether Ameri

used the tacker to place tacks on Parsons's diaphragm "in the

vicinity of the pericardium," Carmine answered, "Yes.    There

were some that were concerningly anterior," that is, too close

to the front of the chest, near the back of the heart.     In
                                                                    9


Carmine's opinion, Ameri's choice to use the tacker directly on

the diaphragm, when it was very close to the pericardium, was

below the standard of care.

    Moreover, Carmine testified that Ameri's use of the tacker

was directly contraindicated by the manufacturer's instructions,

which stated that the tacker should not be used in a

"diaphragmatic hernia repair" where tacks are inserted "in the

diaphragm in the vicinity of the pericardium."   The average

qualified surgeon would know or should have known this

information, and Ameri's use of the tacker in Parsons's surgery

violated the standard of care.

    Carmine further testified that it was the surgical tacks

that caused the puncture marks on Parson's heart, not CPR as the

defendants contended.   The puncture marks in the autopsy reports

were not consistent with an injury related to CPR but, rather,

were consistent with an injury occurring during the surgery.

Carmine also noted that Parsons went into cardiac arrest before

CPR was performed.

    4.   Defense's expert testimony.   The defendants' theory of

the case was that Parsons died of longstanding damage to her

heart caused by the hiatal hernia, aggravated by prolonged CPR.

Ameri emphatically denied "enter[ing]" Parsons's heart with the

tacks during the performance of the surgery.   The defense's

expert witness, Dr. David Brooks, a general and gastrointestinal
                                                                    10


surgeon, opined that Ameri's actions and conduct were

appropriate and in accord with the accepted practice of the

average qualified general surgeon.    He believed that Parsons's

death was caused not by an injury during the hiatal hernia

repair surgery but rather by the use of blood-thinning

medication and attempts to resuscitate her through CPR.

    Brooks testified that the tacks did not enter Parsons's

heart.   He believed it highly unlikely that the tacks could have

injured Parsons's pericardium because the puncture marks were

"miles away" from where the tacks were placed.   Like Ameri,

Brooks estimated the thickness of the crura to be approximately

ten millimeters.   He stated that the location of the

hemorrhaging, the location of the tacks, and the technique used

to close the hernia and move the stomach back to its proper

position all indicated that Parsons's pericardium was not

injured during surgery.   He also pointed to a sentence in the

provisional autopsy report stating that "no surgical penetration

of the pericardium was identified."    He suggested that Parsons's

initially stable postoperative condition was not consistent with

someone who suffered a pericardium injury during surgery.      He

believed that the echocardiogram performed on the second day

after surgery would have revealed more fluid in the pericardium

if it had been injured during surgery.    He also pointed to the

autopsy findings of chronic pericarditis and stated that he
                                                                    11


believed that Parsons's hiatal hernia was responsible for that

condition.    In his opinion, the prolonged CPR caused an injury

"that led to bleeding into the pericardial sac."     He stated that

the evidence that the CPR broke Parsons's second rib supported

his conclusion that it also injured the heart.

    Brooks too was familiar with the tacker and the

contraindications for its use.     He stated that despite the

warnings, he used it routinely in laparoscopic hiatal hernia

surgery.     Based on his personal experience and review of the

medical records, he opined that Ameri's use of the tacker was

appropriate for Parsons's procedure "if used wisely and safely."

In his opinion, "the warnings that are on the package insert are

largely a defensive maneuver" by the manufacturer so "it would

not be involved in litigation."     He added, "[I]f you look at the

package insert next time you buy [ibuprofen], you'll be

horrified of the number of complications that could possibly

occur."

    5.     Verdict and posttrial motion.   After a six-day trial,

the jury found that Ameri and Pothier were negligent in their

treatment and care of Parsons, that Ameri was grossly negligent,

that Ameri's negligence was a substantial contributing factor in

causing Parsons's conscious pain and suffering and death, and

that Pothier's negligence was a substantial contributing factor

in causing Parsons's pain and suffering but not her death.        The
                                                                  12


jury awarded $100,000 to the estate for Parsons's conscious pain

and suffering; $1.5 million to the plaintiff in his individual

capacity and $500,000 each to Parsons's son and daughter, to

compensate them for past and future loss of consortium; and $2.5

million punitive damages against Ameri for his gross negligence.8

After judgment entered, the defendants filed a motion seeking a

new trial or judgment notwithstanding the verdict; in the event

neither of those requests was granted, the defendants sought

exclusion of prejudgment interest on the damages awarded on the

gross negligence claim and remittitur of the damages awarded.

The judge denied the requests for a new trial or judgment

notwithstanding the verdict, but he allowed Ameri's request to

amend the judgment to exclude any prejudgment interest on the

punitive damages award.   The request for remittitur was also

denied.   An amended judgment then entered.9




     8 The parties stipulated, before the case was submitted to
the jury, that Ameri and Pothier were at all relevant times
employees of defendant North Suburban Surgical Associates, P.C.,
and that the corporation would be vicariously liable for the
negligence of its employees.

     9 The amended judgment entered on June 28, 2018. The
defendants' notice of appeal, dated June 29, 2018, states that
they appeal from the judgment entered on June 1, 2018 (not the
amended judgment dated June 28), and from the order on their
motion entered on June 27, 2018. As nothing turns on this
oversight, we treat the defendants' appeal from the judgment as
one from the amended judgment.
                                                                   13


    Discussion.   1.   Causation.   The defendants contend that

the trial judge erred in denying their request for a new trial

because the verdict, particularly as to causation, was against

the weight of the evidence.   "The judge should only set aside a

verdict as against the weight of the evidence when it is

determined that the jury 'failed to exercise an honest and

reasonable judgment in accordance with the controlling

principles of law.'"   O'Brien v. Pearson, 449 Mass. 377, 384

(2007), quoting Robertson v. Gaston Snow & Ely Bartlett, 404

Mass. 515, 520, cert. denied, 493 U.S. 894 (1989).   See W.

Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.

744, 748 (1993) (to conclude that new trial is warranted, judge

must find "the verdict is so markedly against the weight of the

evidence as to suggest that the jurors allowed themselves to be

misled, were swept away by bias or prejudice, or for a

combination of reasons, including misunderstanding of applicable

law, failed to come to a reasonable conclusion").    We review the

denial of the defendants' motion for new trial for abuse of

discretion, see O'Brien, supra, extending "considerable

deference" where the trial judge and motion judge were the same.

Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003).

    "To prevail on a claim of medical malpractice, a plaintiff

must establish the applicable standard of care and demonstrate

both that a defendant physician breached that standard, and that
                                                                    14


this breach caused the patient's harm."     Palandjian v. Foster,

446 Mass. 100, 104 (2006).     To establish causation, the

plaintiff must demonstrate a causal connection between a

defendant's negligent actions and the injuries suffered.     See

Glicklich v. Spievack, 16 Mass. App. Ct. 488, 492 (1983).

"Testimony that such a relation is possible, conceivable, or

reasonable, without more, is insufficient to meet this burden."

Id. at 492-493.     The jury had to determine, based on a

preponderance of the evidence, that if Ameri and Pothier had

provided proper care, Parsons "would not have been injured to

the same extent."     Id. at 493.

    The judge found that "[t]here was credible evidence . . .

to allow a jury reasonably to conclude that defendants'

negligence caused the injuries and death," and "there is nothing

to suggest that the jury in this case [were] biased or

prejudiced or that they misunderstood the facts or law presented

to them."    We agree.

    The jury heard testimony from expert witnesses and the

defendants; they viewed photographs from Parsons's surgery and

were led through the preliminary and final autopsy reports in

detail.     The plaintiff's expert witness, Carmine, offered his

opinion that Ameri caused Parsons's death by puncturing her

heart with the surgical tacker, causing her pericardium to fill

with fluid and constrict her heart, and that Parsons would not
                                                                  15


have died if Ameri had provided the standard of care of the

average qualified surgeon.10   His opinion was consistent with the

final autopsy report, which found "puncture marks on the

posterior aspect of the heart" and "acute inflammation and

hemorrhage likely occurring at the time of hiatal hernia

repair," and concluded that the cause of death was "a

combination of pericarditis, myocarditis, and hemopericardium

with tamponade, leading to cardiac arrest."

     The jury also had a substantial basis on which to reject

the defense theory of the case.   Both experts agreed that

injuries to the pericardium may not result in abnormal vital

signs until days after the injury occurs.     Carmine explained why

he concluded that Parsons's death was not caused by preexisting




     10Carmine also testified that Pothier departed from the
standard of care of the average qualified registered nurse first
assistant because she either was ignorant of the relevant
anatomy and risks of the surgery, or failed to inform Ameri that
he was operating too close to a vital organ, and if she had met
the standard of care, it is more likely than not that Parsons
would have lived. Although there was thus evidence that
Pothier's negligence caused Parsons's death, Pothier argues on
appeal that there was no independent evidence that her
negligence caused Parsons's conscious pain and suffering. The
evidence, however, allowed the jury to draw that inference.
They heard evidence that Parsons suffered abdominal pain and
rapid heartbeat, and that she had difficulty breathing before
she succumbed. It was reasonable for the jury to infer that the
same conduct that caused Parsons's death also caused her pain
and suffering immediately before she died. The verdict against
Pother is not inconsistent with the verdict against Ameri; if
anything, it indicates that the jury found Pothier less culpable
than Ameri.
                                                                    16


heart defects or prolonged CPR.    He believed that CPR did not

cause the puncture marks because there was no other damage to

the structures surrounding the heart.    Rather, Carmine believed

that Parsons's pericardium was injured at the time of the

surgery because there were signs that it had begun to heal.

    The jury's conclusion that in the course of the surgery

Ameri punctured Parsons's pericardium, leading to internal

bleeding and ultimately causing her death, was reasonable and

supported by the evidence.    The judge did not abuse his

discretion in denying a new trial on the issues of negligence

and causation.

    2.    Gross negligence.   Ameri contends that the trial judge

erred by denying his motion for directed verdict and request for

judgment notwithstanding the verdict on the question of gross

negligence, and that the judge also erred by denying a new trial

on the issue.    When reviewing the denial of a motion for

directed verdict or judgment notwithstanding the verdict, we

apply the same standard as the trial judge.    O'Brien, 449 Mass.

at 383.   "Review of these motions requires us to construe the

evidence in the light most favorable to the nonmoving party and

disregard that favorable to the moving party."    Id.   "Our duty

in this regard is to evaluate whether 'anywhere in the evidence,

from whatever source derived, any combination of circumstances

could be found from which a reasonable inference could be made
                                                                  17


in favor of the [nonmovant].'"   Id., quoting Turnpike Motors,

Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992).

    a.    Instruction on gross negligence.   The judge instructed

the jury in the language of the "classic," Christopher v.

Father's Huddle Cafe, Inc., 57 Mass. App. Ct. 217, 230 (2003),

and "long-standing definition of gross negligence in

Massachusetts," Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410

(2013), derived from Altman v. Aronson, 231 Mass. 588, 591-592

(1919).   For the first time on appeal, Ameri contends that the

Altman language is "confusing, unhelpful, and ill-suited to

medical malpractice claims" because it does not provide guidance

concerning how far from the degree of care and skill of the

average qualified practitioner a defendant must deviate to

amount to gross, as opposed to ordinary, negligence.   See

Johnson v. Omondi, 294 Ga. 74, 84 (2013) (Blackwell, J.,

concurring) (suggesting "that we articulate the 'gross

negligence' standard in a different way in medical malpractice

cases, so as to focus more explicitly upon the accepted

standards of medical care against which 'gross negligence' must

be measured in such cases").

    We decline to address this claim.   While Ameri opposed the

issue of gross negligence being submitted to the jury, he did

not object to the Altman instruction.   To the contrary, when the

judge specifically asked defense counsel about the proposed
                                                                      18


language for the instruction, counsel replied that it was

"fine."     Indeed, the defendants cited Altman as the governing

standard in arguing that the gross negligence verdict was

against the weight of the evidence.    Because they never brought

this argument to the trial judge's attention, it is waived.        See

Aleo, 466 Mass. at 403 n.11; Jarry v. Corsaro, 40 Mass. App. Ct.

601, 603-607 (1996); Mass. R. Civ. P. 51 (b), 365 Mass. 816

(1974).11

     b.     Evidence of gross negligence.   Under Altman, 231 Mass.

at 591-592, "[g]ross negligence is substantially and appreciably

higher in magnitude than ordinary negligence. . . .     It is an

act or omission respecting legal duty of an aggravated character

as distinguished from a mere failure to exercise ordinary

care. . . .    It is a heedless and palpable violation of legal

duty respecting the rights of others. . . .     Gross negligence is

a manifestly smaller amount of watchfulness and circumspection

than the circumstances require of a person of ordinary

prudence."    The "voluntary incurring of obvious risk" and




     11We are not persuaded by the defendants' contention that
we should overlook the waiver because any objection to the time-
honored Altman instruction would necessarily have been futile.
See, e.g., Commonwealth v. Russell, 470 Mass. 464, 474 (2015)
(trial judge did not err in departing from instruction in
Commonwealth v. Webster, 5 Cush. 295, 320 [1850], on proof
beyond reasonable doubt). In any event, we think it unlikely
that a more targeted instruction on gross negligence would have
affected the verdict.
                                                                    19


"persistence in a palpably negligent course of conduct over an

appreciable period of time" are among "the more common indicia

of gross negligence."    Lynch v. Springfield Safe Deposit & Trust

Co., 294 Mass. 170, 172 (1936).    Moreover, "when the injury

likely to ensue from a failure to do that which ought to be done

is a fatal or very serious one, what otherwise would be a lack

of ordinary care may be found to be gross negligence."    Renaud

v. New York, New Haven, & Hartford R.R. Co., 206 Mass. 557, 560

(1910).   See Williamson-Greene v. Equipment 4 Rent, Inc., 89

Mass. App. Ct. 153, 157-158 (2016).    "The judge's instructions

to the jury were consistent with these principles, and we accept

the conclusion of a properly instructed jury on a question

within their province."    Christopher, 57 Mass. App. Ct. at 231.

    Few published appellate cases have discussed the

application of the gross negligence standard in the medical

malpractice setting.    In Matsuyama v. Birnbaum, 452 Mass. 1, 37

(2008), the court, citing Altman, 231 Mass. at 291-292,

summarily stated that the issue of gross negligence was properly

submitted to the jury based on evidence that the decedent's

doctor had "missed or ignored [the decedent's] known risk

factors for gastric cancer for a period of almost four years,"

and on the doctor's admission that the payment structure of his

practice made it difficult for him to provide patients such as

the decedent with optimum medical care.    In that case, however,
                                                                   20


the jury found for the defendant on the question of gross

malpractice; his objection was based on the premise that by

instructing the jury on gross negligence, the jury would be more

likely to find him liable in negligence.   Id. at 36-37.    As

"[e]ach [gross negligence] case must be decided upon its own

peculiar facts," Peace v. Gabourel, 302 Mass. 313, 316 (1939),

we turn to the evidence before the jury.

    The jury could reasonably conclude that Ameri's decision to

use the tacker in close proximity to Parsons's pericardium

exhibited the hallmarks of gross negligence:   he voluntarily

incurred an obvious risk, in circumstances where the failure to

exercise reasonable care could be fatal.   The plaintiff's

expert, Carmine, testified that given Parsons's anatomy and the

tacker's contraindications, use of the tacker constituted an

obvious risk.   In the photographs taken during surgery, Carmine

noted that Ameri had placed some tacks "concerningly" close to

the pericardium.   The point where Ameri inserted the tacks,

which extend 6.7 millimeters when employed, was "the thickness

of a diaphragm" away from the heart, which could be as little as

three to five millimeters.   Carmine explained that the risk is

obvious to surgeons performing this procedure "because you can

actually see the heart beating through the diaphragm right where

you're working."   In these circumstances, the jury could take

Ameri's admission that he did not measure the thickness of
                                                                    21


Parsons's diaphragm crura at the time of the surgery, instead

estimating it to be approximately ten millimeters, as indicative

of gross negligence.

    Moreover, the dangers associated with using the tacker were

well known to the average qualified surgeon, even without the

manufacturer's warning:    "the concern is that when you fire one

of these pressure-loaded fasteners, that it can penetrate

through and hit structures on the other side of the diaphragm

. . . and cause life-threatening injury."    Witnesses for both

parties agreed that alternative methods were available.

Exacerbating Ameri's negligence was the fact the manufacturer's

contraindications warned against using the tacker exactly where

he used it:    "in the vicinity of the pericardium, aorta, or

inferior vena cava during diaphragmatic hernia repair."     The

judge, in denying the defendants' posttrial motion, cited this

fact as the reason he submitted the question of gross negligence

to the jury:   "Dr. Ameri ignored the specific direction given

for use of the instrument."

    Ameri argues in his brief that because the manufacturer's

use of the phrase "in the vicinity" is inexact, the

contraindication leaves it to the judgment of the surgeon to

determine whether and where the tacker can be used safely; he

maintains that he reasonably exercised such judgment here.

This, however, was not the approach that he took at trial.
                                                                   22


Rather, Ameri testified that the use of the tacker on the

diaphragm crura is always acceptable.   In closing argument, his

attorney referred to the defense expert's testimony that "the

tacker is absolutely safe to use in these circumstances, and

that [the expert] uses it in every case."   Counsel further

asserted that the manufacturer's contraindication "is really a

self-serving document to prevent the manufacturer from getting

sued."    The jury could have accepted the defense theory that the

manufacturer's warnings could be dismissed and that Ameri did

not injure Parsons in any way.   However, the evidence also

permitted the jury to find, as they did, that Ameri heedlessly

ignored the manufacture's warnings, with catastrophic results.

See Altman, 231 Mass. at 591 (equating gross negligence with

"heedless and palpable violation of legal duty").12

     While drawing the line between ordinary negligence and

gross negligence can be difficult, see Williamson-Greene, 89

Mass. App. Ct. at 158, "the distinction [between them] is well

established and must be observed, lest all negligence be

gradually absorbed into the classification of gross negligence."

Quinlivan v. Taylor, 298 Mass. 138, 140 (1937).   Conceding that


     12Ameri similarly argues that the judge erred by failing to
give the jury any instruction on whether or how the
manufacturer's warnings could be considered as evidence of gross
negligence. This argument, never raised at trial and asserted
for the first time in the defendants' reply brief, is waived.
See Truong v. Wong, 55 Mass. App. Ct. 868, 878 (2002).
                                                                    23


the plaintiff's expert would not have been permitted to opine

that his conduct amounted to "gross negligence," see Puopolo v.

Honda Motor Co., 41 Mass. App. Ct. 96, 98 (1996), Ameri

nonetheless contends that the jury could not permissibly reach a

verdict on the issue without expert testimony, based on "factual

and medical consensus," that Ameri's conduct was not just below

the applicable standard of care, but also was "a flagrant and

egregious departure."   We disagree.   The evidence, including the

plaintiff's expert's testimony, provided the jury with a

reasonable basis to distinguish ordinary negligence from gross

negligence in this case.     It was uncontested that injuring the

patient's pericardium or heart muscle during hiatal hernia

repair surgery would violate the standard of care for the

average qualified surgeon.    The evidence as a whole permitted

the jury to find that Ameri's use of the tacker in Parsons's

surgery manifested many of the common indicia of gross

negligence.   See Rosario v. Vasconcellos, 330 Mass. 170, 172

(1953), quoting Lynch, 294 Mass. at 172 ("some of the more

common indicia of gross negligence are set forth as 'deliberate

inattention,' 'voluntary incurring of obvious risk,' 'impatience

of reasonable restraint,' or 'persistence in a palpably

negligent course of conduct over an appreciable period of

time'").
                                                                     24


    To be sure, in determining whether a finding of gross

negligence is warranted, the defendant's conduct must "be

considered as a whole."     Duval v. Duval, 307 Mass. 524, 528

(1940).     See Williamson-Greene, 89 Mass. App. Ct. at 157.   In

this regard, Ameri contends that he provided considerable and

attentive care to Parsons over the course of her treatment.         But

even if Ameri's "inattention was only momentary, a jury has been

allowed to find gross negligence where the inattention occurred

in a place of great and immediate danger."     Zavras v. Capeway

Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 22 (1997),

quoting Dinardi v. Herook, 328 Mass. 572, 574 (1952).     Such is

the case here.

    In denying the defendants' request for new trial or

judgment notwithstanding the verdict, the judge found that the

jury's verdict of gross negligence "was reasonably justified by

the evidence that Dr. Ameri proceeded to use the tacker in this

surgery despite the explicit contraindication.    It could

reasonably be found that he voluntarily subjected Laura Parsons

to an obvious risk when there were alternatives to the use of

the tacker."    For this reason, he declined to disturb the jury's

finding of gross negligence.    We discern no error in submitting

the question to the jury, and no abuse of discretion in the

determination that the verdict was not against the weight of the

evidence.
                             25


Amended judgment affirmed.
