Zaleskas v. Brigham & Women's Hosp.

Decision Date11 February 2020
Docket NumberNo. 18-P-1076,18-P-1076
Citation97 Mass.App.Ct. 55,141 N.E.3d 927
CourtAppeals Court of Massachusetts
Parties Margaret V. ZALESKAS & another v. BRIGHAM AND WOMEN'S HOSPITAL & others.

Kara M. Zaleskas for the plaintiffs.

Brian H. Sullivan & Amy E. Goganian, Needham (Rebecca A. Cobbs & Kara A. Bettigole, Boston, also present) for the defendants.

Present: Rubin, Henry, & Wendlandt, JJ.


This case arises out of an X-ray exam conducted on a terminally ill cancer patient. The plaintiffs' second amended complaint stated twelve counts against the defendants, including battery and intentional infliction of emotional distress. On cross motions for summary judgment, a judge of the Superior Court entered judgment in favor of the defendants.

We are required in this case to consider whether there is a viable cause of action for battery, in the medical context, based on withdrawal of consent. We conclude that there is. In a case such as this, which involves a claim that the patient asked X-ray technologists to stop amidst the taking of X-rays, we also conclude that expert testimony about the feasibility of stopping is not required. Because there are factual disputes as to whether the patient withdrew her consent during the X-ray exam, the judgment is reversed as to the claim of battery under a theory of withdrawal of consent. Because the same facts also support claims for intentional infliction of emotional distress, violation of G. L. c. 111, § 70E, and breach of warranty, the judgment on those claims is also reversed. In all other respects, the judgment is affirmed, as are the orders on appeal.

Background.3 On August 4, 2011, Donna Zaleskas, a terminal cancer patient receiving care at Brigham and Women's Hospital (hospital), was experiencing severe pain in her left leg and knee. Her doctor ordered X-rays. Several radiology technologists -- James Connors, Yingbo Zhang, Carlo Valentin, Rade Boskovic, and Ahmed Mohammed (collectively, the technologists) -- participated in the X-ray exam. Connors, the lead technologist, told Donna's sister, Kara, and her mother, Margaret, that if Donna experienced too much pain, he would stop.4 Connors denied Kara's request to remain in the X-ray room during the exam, but Kara and Margaret remained just outside.

It is undisputed that Connors informed Kara and Margaret that he had ended the exam early -- after five X-ray images, instead of the six the doctor ordered. The judge recited that "Donna's x-rays were in fact stopped prior to completion." However, in the light most favorable to the plaintiffs, the technologists took all six X-rays ordered.5 Indeed, the defendants argued in response to the plaintiffs' motion for summary judgment that "[a] genuine issue of material fact exists regarding whether the x-rays were timely terminated."

As we discuss infra, an open question exists whether there is additional admissible evidence of what happened during the X-ray exam. At a deposition taken on March 30, 2017, over five years after the day in question, Kara testified about her observations of Donna's symptoms of pain and hearing Donna pleading and begging during the X-ray exam but stated that she was "not sure whether [Donna] ever said ‘stop.’ " Similarly, Margaret, at her deposition over five years later, could not recall if she heard Donna say, "stop."

However, the record includes three documents that may be admissible to prove that Donna asked the technologists to stop, provided the required evidentiary foundation is laid. First, as soon as Kara returned home from the hospital after the X-ray exam, in the early morning hours of August 5, 2011, she wrote a summary of the events in question and e-mailed that summary to her mother and other sister (August 5 e-mail summary or summary). In that summary, Kara stated that she and her mother heard "Donna's plaintive pleading -- ‘please, please, please, please, please, please ...,’ " and that "Donna continued to wail and beg for them to stop" and that ten minutes later, the X-rays were done. Kara adopted this summary, swearing to it, in a declaration dated April 8, 2015, which was before the date of the deposition.

The second document is the hospital's redacted patient family relations report (family relations report). On August 5, 2011, the day after the X-rays were taken, the plaintiffs reported their concerns about the X-ray exam to hospital staff. The family relations report, written by Stacey Bukuras, the person who investigated the plaintiffs' concerns, documented that Kara and Margaret reported that after the door to the X-ray room closed, "for the following 20 minutes, they heard [Donna] ‘wailing,’ ‘begging to "please stop." "

The third document is Kara's contemporaneous handwritten notes (Kara's notes) of a call with Bukuras. Kara's notes stated that nursing director Eileen Molina "acknowledged that [Donna] asked to stop" and the "exam could've been stopped." Kara's notes also reflected that the technologists "cut [the X-ray exam] short -- not as short as it should've been."

Connors recalled Donna's X-ray exam and responded in discovery that "at no point did she request that the x-ray be stopped." He also testified that "[i]t is never reasonable or appropriate to continue an X-ray procedure after a patient has indicated that [they] wish the technician to stop." In their opposition to the plaintiffs' motion for summary judgment, the defendants stated that the "technologists [also] testified that it is their custom and practice to stop an X-ray if a patient asks them to stop." The defendants also acknowledged in their opposition that whether Donna withdrew her consent was a material dispute of fact.

The X-rays revealed that Donna did have a new fracture in her left femur, and she was treated with an immobilization brace. Donna died on August 10, 2011.

The plaintiffs filed this action on August 4, 2014.6 A medical malpractice tribunal was held on December 11, 2015; the tribunal found for the hospital and technologists (collectively, defendants). The plaintiffs timely posted a bond, and the parties proceeded with discovery. After extensive motion practice regarding discovery, the plaintiffs moved for summary judgment, asserting two theories of battery: withdrawn consent and lack of informed consent. Shortly thereafter, the defendants moved for summary judgment on all twelve counts. The defendants' motion characterized the claim for battery as an informed consent claim. The judge granted the defendants' motion and denied the plaintiffs' motion.

The judge's summary judgment decision, understandably, focused on the plaintiffs' failure to produce expert testimony on any issue. As for the issue of withdrawn consent, the judge determined, without elaboration, that there was no competent evidence that Donna asked to stop the X-rays. The judge did not address the admissibility of the documents previously described (i.e., Kara's August 5 e-mail summary, the family relations report, and Kara's notes). He noted that an affidavit cannot be used to contradict a deposition. He also stated that "to the extent that the plaintiffs' case depends upon the credibility of their witnesses, the Court cannot assume that a jury would find them credible." The plaintiffs' motions for reconsideration and vacatur were denied. The plaintiffs appealed.

Discussion. 1. Summary judgment standards. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). We review a decision to grant summary judgment de novo. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215, 786 N.E.2d 817 (2003). Before turning to the merits of the appeal, we address several issues that arose during resolution of the parties' motions for summary judgment.

a. Deposition testimony differing from prior declaration. It is well-settled that one cannot create an issue of fact sufficient to defeat summary judgment by submitting a later affidavit that contradicts one's own prior deposition testimony. See Hanover Ins. Co. v. Leeds, 42 Mass. App. Ct. 54, 58, 674 N.E.2d 1091 (1997). This is not such a case, however, for two reasons. First, Kara's declaration, which adopted her August 5 e-mail summary that Donna said to stop during the X-ray exam, came before -- not after -- the deposition. Second, in the light most favorable to the plaintiffs, the declaration and the later deposition are not in conflict with one another. Rather, in the required light, Kara's deposition spoke to her memory at the time of the deposition over five years after the fact, rather than what she knew earlier.7 Thus, her declaration should not have been disregarded simply because it differed from her deposition testimony. Palermo v. Brennan, 41 Mass. App. Ct. 503, 508, 672 N.E.2d 540 (1996) (conflict between affidavit made prior to deposition and deposition, absent election between versions, must be resolved at trial).

Kara's declaration standing alone, however, was not sufficient to defeat summary judgment unless the facts it contained would be admissible in evidence. Rule 56(e) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), requires that affidavits supporting and opposing summary judgment shall present information upon "personal knowledge," and that they "shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The problem for the plaintiffs is that Kara, in her later deposition, testified that she could not recall if Donna said to stop.8 Because Kara and Margaret bore the burden of proof, the defendants relied on the plaintiffs' depositions admitting that they could not recall if Donna had said, "stop," to argue that the plaintiffs could not...

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