Vacca v. Brigham & Women's Hosp., Inc.

• Decision Date: 21 September 2020
• Docket Number: No. 19-P-962,19-P-962
• Citation: 156 N.E.3d 800,98 Mass.App.Ct. 463
• Parties: Anne VACCA v. The BRIGHAM & WOMEN'S HOSPITAL, INC.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 463

156 N.E.3d 800

Anne VACCA

v.The BRIGHAM & WOMEN'S HOSPITAL, INC.

No. 19-P-962

Appeals Court of Massachusetts, Suffolk..

Argued May 13, 2020.

Decided September 21, 2020.

Jeffrey S. Raphaelson, Boston, for the plaintiff.

Brian H. Sullivan (Rebecca A. Cobbs also present), Boston, for the defendant.

Present: Neyman, Englander, & Hand, JJ.

NEYMAN, J.

This is an appeal from a summary judgment issued by a judge of the Superior Court in favor of the defendant, The Brigham & Women's Hospital, Inc. (BWH),¹ on claims including breach of contract, promissory estoppel, and intentional infliction of emotional distress. In 2012, BWH agreed to provide free treatment to the plaintiff, Anne Vacca. In 2016, Vacca brought this lawsuit after she became dissatisfied with the care she received.

The judge found that Vacca could not prevail on her claims because there was no evidence that BWH had committed a breach of any alleged promise it made to Vacca, BWH's conduct was not extreme and outrageous as a matter of law, and Vacca's claims should have been pleaded as malpractice claims. We affirm.

Background. 1. BWH agrees to treat Vacca. Vacca has suffered from major depression for many years. Despite treatment with various medications, psychotherapy techniques, and electroconvulsive therapy, her depression showed little improvement.

In 2011, Vacca's psychiatrist, Dr. Jane Erb, recommended treating her with deep brain stimulation (DBS). The United States Food and Drug Administration has not approved DBS to treat depression, but the treatment is approved for other conditions such as Parkinson's disease.

DBS involves implanting electrodes within the brain. The electrodes produce electrical impulses that can be directed to affect specific areas of the brain. Implanting a DBS device requires brain surgery, which, in Vacca's case, would cost approximately $150,000. The battery in the device needs periodic replacement, necessitating additional and expensive adjustments and surgeries. There are also recurring costs to monitor the patient and program the DBS device. Vacca's health insurance carrier refused to pay for DBS treatment, and Vacca was unable to pay for such treatment herself. However, in 2012, Dr. Erb was the clinical director of the depression center at BWH. On April 23, 2012, Dr. Erb sent a letter to Julia Sinclair, BWH's vice-president for clinical services, proposing that BWH provide free DBS treatment for Vacca. Sinclair approved Dr. Erb's proposal. Dr. Erb and Dr. Travis Tierney, the neurosurgeon who would perform Vacca's surgery, informed Vacca that BWH had agreed "to perform the surgery, provide the aftercare or the postoperative care, which included battery replacements, programming the device, and cover the costs as long as [she] needed that."

The parties did not discuss any further details of Vacca's treatment at that time. They did not discuss the type of batteries that would be used in the device, who would program the device, or the possibility that Vacca might receive follow-up care at another hospital. For its part, BWH contemplated that all postoperative and follow-up care would take place at its facility. The parties did not execute any written agreement.

There is evidence in the summary judgment record to suggest that BWH agreed to pay for Vacca's treatment not only because it wanted to help Vacca, but also because it wanted to expand its psychosurgery program. Indeed, BWH had recently recruited Dr. Tierney, who had experience using DBS to treat psychiatric conditions, with an eye towards growing the program. BWH later featured Vacca's case in promotional materials discussing the psychosurgery program.

On July 3, 2012, Dr. Tierney performed the implantation surgery. Thereafter, BWH provided Vacca with postoperative care, including surgeries to replace the device battery in 2013, 2014, and 2015. In 2014 and 2015, the parties discussed the pros and cons of rechargeable and standard batteries. BWH ultimately implanted a standard battery in all three battery replacement surgeries.

The DBS treatment proved successful. Vacca agreed that DBS had been "very helpful" in treating her depression. She also testified that she no longer had the disabling depression that she suffered prior to receiving the DBS treatment.

2. The relationship sours. By 2015, despite the success of her treatment, Vacca was dissatisfied with the care she was receiving. She outlined her concerns to BWH and to Dr. Erb, which included that the battery needed replacement more often than anticipated; that the most recent battery replacement had caused her to have problems sleeping; that her surgeon, Dr. Tierney, was leaving the hospital; and that BWH had not assigned a psychiatrist to program the DBS device.² Vacca was also unhappy with the decision to continue using standard batteries in the DBS device.³ She requested that BWH transfer her care to another hospital.

BWH had some internal discussion regarding Vacca's concerns. Dr. Erb also had communications with Vacca, and on May 20, 2015, sent her an e-mail in which Erb stated that she was "doing everything possible to right the course of this and if that doesn't happen at BWH, then we'll make sure this happens properly, and cover it, elsewhere." However, Dr. Erb did not have authority to agree to cover the cost of Vacca's care at another hospital.⁴ BWH ultimately did not agree to pay for Vacca's treatment at another institution, but was willing to transfer Vacca's care at her own expense.

Around this same time, Vacca requested documentation of the 2012 "agreement." In response, BWH prepared a proposed letter agreement (letter agreement). The letter agreement stated that it would become effective on the date that Vacca signed it. Vacca refused to do so because she was unhappy with some of the terms, including a provision that allowed either party to terminate the letter agreement upon written notice. Vacca requested that her care be transferred to Massachusetts General Hospital (MGH), expressing the view that BWH lacked the expertise necessary to continue her treatment. BWH disagreed. BWH told Vacca that it was "confident" it could "provide the expert care [she] require[d]." However, BWH again offered to transfer Vacca's care at her own expense. For reasons explained in correspondence from MGH to Vacca, MGH did not agree to assume Vacca's care.

In October 2016, BWH performed another battery replacement surgery on Vacca. Although Vacca has represented that she is no longer receiving treatment at BWH, BWH remains willing to provide DBS care for her.

3. The lawsuit. Vacca filed a complaint in Superior Court alleging breach of contract, misrepresentation, violation of G. L. c. 93A, intentional infliction of emotional distress, and promissory estoppel. At the close of discovery, BWH moved for summary judgment on all claims. The judge allowed the motion, and judgment entered for BWH. Vacca timely appealed.

On appeal, Vacca presses only the breach of contract, promissory estoppel, and intentional infliction of emotional distress claims. She first argues that a jury could find that BWH committed a breach of its promise to pay for her care by implanting a standard battery, rather than a rechargeable battery, in 2015; refusing to pay for her care at another institution; sending the letter agreement in 2015; and failing to ensure independent ethical oversight of her treatment. She next argues that these claims do not sound in medical malpractice because her treatment was experimental and because BWH made certain care decisions for financial reasons. Finally, she contends that her intentional infliction of emotional distress claim should survive summary judgment because a jury could find it extreme and outrageous that BWH abandoned her care for financial reasons.

Discussion. We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, "all material facts have been established and the moving party is entitled to judgment as a matter of law" (citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786, 792, 89 N.E.3d 1184 (2018). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

1. Breach of contract claim. We first consider whether there were triable issues that precluded summary judgment on the breach of contract claim. "To prevail on a claim for breach of contract, a plaintiff must demonstrate that there was an agreement between the parties; the agreement was supported by consideration; the plaintiff was ready, willing, and able to perform his or her part of the contract; the defendant committed a breach of the contract; and the plaintiff suffered harm as a result." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690, 46 N.E.3d 24 (2016). See Singarella v. Boston, 342 Mass. 385, 387, 173 N.E.2d 290 (1961). Here, even assuming that a jury could find that the parties entered into an oral contract related to Vacca's DBS treatment, there is no evidence that BWH committed a breach of that contract.

a. Contract formation. The parties dispute whether their discussions about the cost of Vacca's DBS treatment resulted in the formation of a contract. Thus, we begin by reviewing the relevant principles of contract law, which we recently summarized in Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215, 113 N.E.3d 355 (2018) :

"Contract formation requires a bargain in which there is a manifestation of mutual assent to the exchange. This manifestation of mutual assent, otherwise known as a meeting of the minds, occurs when there is an offer by one [party] and an acceptance of it by the other. [A]n offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Acceptance exists where the offeree assents to the

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