Rahilly v. North Adams Regional Hosp.

• Citation: 636 N.E.2d 280,36 Mass.App.Ct. 714
• Decision Date: 09 September 1994
• Docket Number: No. 92-P-1583,92-P-1583
• Parties: Christopher J. RAHILLY, administrator, 1 v. NORTH ADAMS REGIONAL HOSPITAL & others. 2
• Court: Appeals Court of Massachusetts

Page 280

636 N.E.2d 280

36 Mass.App.Ct. 714

Christopher J. RAHILLY, administrator, ¹ v. NORTH ADAMS REGIONAL HOSPITAL & others. ²

No. 92-P-1583.

Appeals Court of Massachusetts,

Hampden.

Argued Feb. 18, 1994.

Decided June 28, 1994.

Further Appellate Review Denied Sept. 9, 1994.

William K. Danaher, Jr., Springfield, & Edward J. Spence, III, Pittsfield, for plaintiff.

John A. Agostini, Pittsfield, for Diane Gagne & others.

Paul R. Greenberg, Worcester, for Daniel Muse & others.

Michael J. Powers, Springfield, for Paul Marz.

Kathleen E. Sheehan, Springfield, for Stephen Lieberman.

Mary J. Kennedy, Springfield, for Baystate Medical Center.

Nancy A. Lyon, Pittsfield, for Michael Sussman, submitted a brief.

Before DREBEN, KAPLAN and GILLERMAN, JJ.

DREBEN, Justice.

Five month old Jeremy Rahilly died at the Baystate Medical Center (Baystate) in Springfield on August 10, 1988. There was a question whether the child had been abused--the medical examiner's opinion was that "the manner of death was homicide." Jeremy's father was charged with murder. He was acquitted, and thereafter brought this action, as administrator of Jeremy's estate, alleging medical malpractice against North Adams Regional Hospital (North Adams), Baystate, numerous physicians, nurses, a respiratory therapist, and New England Life Flights, Inc. His offer of proof included, among other materials, grand jury testimony and testimony from his criminal trial. A medical malpractice panel, convened pursuant to G.L. c. 231, § 60B, concluded that the plaintiff's offer of proof, if substantiated, while sufficient as to some of the defendants, was not "sufficient to raise a legitimate question of liability appropriate for judicial inquiry" as to others. Judgments of dismissal entered as to the latter defendants, the plaintiff having failed to file a bond. The plaintiff's appeal from those dismissals raises the question of the sufficiency of his offer of proof. We affirm the judgments of dismissal against some of the defendants but reverse as to others.

We take our facts from the materials in the plaintiff's offer of proof. At about 11:30 P.M. on August 5, 1988, the plaintiff saw that his son Jeremy was having difficulty breathing while sleeping in his crib. When he lifted his son out of the crib, the breathing stopped. He called the North Adams police department and began artificial respiration. The police arrived within five minutes, by which time the child had resumed very slow breathing, but the ambulance, which the police had called, was unable to find the plaintiff's house and did not arrive for about one-half hour. The child was driven to the North Adams Regional Hospital. On arrival, he was "limp and pale, breathing at the rate of four respirations a minute" (a very slow rate), and could not focus his eyes. An attempt to intubate Jeremy was unsuccessful, the endotracheal tube was inserted into his esophagus rather than the trachea, and air was administered to his stomach rather than to his lungs. ³

Dr. Michael Sussman, Jeremy's pediatrician, arrived at the hospital at about 12:50 A.M., and assumed responsibility for his care. He examined the child, spoke to the father, and ordered Jeremy transferred by helicopter via New England Life Flights to Baystate, which had a pediatric intensive care unit. The discharge diagnosis at North Adams included: "Respiratory Arrest.... Possible hypoxic cerebral injury."

The child arrived at Baystate "marginally responsive" at 3:24 A.M. A second-year resident in pediatrics, Dr. Paul Marz, after discussions with the director of the pediatric intensive care unit, Dr. Stephen Lieberman, performed a lumbar puncture. The puncture showed bleeding, and Dr. Marz ordered a CT scan.

No CT scan had been performed at North Adams and none was performed at Baystate until 8 A.M. on August 6, more than four and one-half hours after the child's arrival at Baystate. The 8 A.M. CT scan showed intracranial bleeding ⁴ as well as findings "consistent with generalized anoxia" (lack of oxygen). The scan showed no evidence of increased intracranial pressure. The child died at Baystate on August 10. Baystate's records state the final diagnosis as: "Anoxic brain damage. Intracranial Hemorrhage. Aspiration Pneumonia." That record also states that the child was "found to have a significant intracranial bleed along with anoxic brain damages, verified by CT scan."

The plaintiff's offer of proof rested in large part on a letter of Dr. Robert Buscho, a physician who had a specialty, among others, of emergency medicine. The offer also included, in addition to grand jury and trial testimony from the father's trial, the report of Dr. Richard Otis, an anatomic pathologist, records of the hospitals, and of New England Life Flights, the helicopter transport service.

Dr. Buscho's report, insofar as it relates to the defendants in this appeal, is set forth as an Appendix to this opinion. He was provided with most of the medical records. His introductory discussion, prior to delineating the negligence of specific individuals, states: "It is my opinion that a number of individuals who treated Jeremy Rahilly failed to meet accepted medical standards and contributed to his eventual injury and death. Furthermore, there are many elements of medical negligence in this case. I have divided this letter into separate sections in order to more clearly delineate those individuals and entities whose care fell below the standard of care."

In reviewing the offers of proof found insufficient by the tribunal, we will follow the order of Dr. Buscho's letter. The standard we must adopt is "comparable to that applied to a defendant's motion for a directed verdict, and appraisal of the weight and credibility of the evidence is impermissible." Gugino v. Harvard Community Health Plan, 380 Mass. 464, 468, 403 N.E.2d 1166 (1980). Thus, the evidence must be viewed in the light most favorable to the plaintiff.

1. Sufficiency of the offer of proof as to Dr. Sussman. "To succeed against a physician, the plaintiff's offer of proof must show that: (1) a doctor-patient relationship existed; (2) the doctor did not conform to accepted medical standards in performing his duties with regard to the patient; and (3) damage resulted from this failure to conform. Kapp v. Ballantine, 380 Mass. 186, 193 (1980)." Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 676, 602 N.E.2d 570 (1992). Since a doctor-patient relationship was shown between Jeremy and Dr. Sussman, we turn to the remaining two requirements. Dr. Buscho opined first that Dr. Sussman deviated from the "standard of care" by failing to perform and document a complete history and medical examination of the child. Had he done so, "it is possible [he] would have found the scalp contusion ⁵ indicating that the child had a head injury"; had that been appreciated, "it would have led the physicians to perform a CT scan"; the scan would have "shown the intracranial bleed and changed the entire therapeutic care for this baby." There were, in Dr. Buscho's opinion, strong indications to perform an emergency CT scan at North Adams. "Not only was there clinical evidence of a head injury that was not appreciated, but also in any unconscious and unresponsive child, a CT scan should be performed to rule out a number of intracranial conditions."

The foregoing discussion stating that a CT scan should have been performed is an opinion as to the course of action that a physician reasonably exercising the care and skill of an average pediatrician should have followed. See Bradford v. Baystate Med. Center, 415 Mass. 202, 207 n. 6, 613 N.E.2d 82 (1993). ⁶ This evidence was sufficient to meet the directed verdict standard on the issue of Dr. Sussman's negligence.

Dr. Buscho explained the significance of the failure to perform the scan. Hypoxia and intracranial bleeding each cause intercranial pressure. "A CT scan would have given this diagnosis, and treatments would have then been undertaken to lower the intracranial pressure."

Dr. Sussman's contention, adopted by the dissent, stresses that the first CT scan which was taken at 8 A.M. on August 6 at Baystate does not show increased intracranial pressure. From that fact, Dr. Sussman (and the dissent) argue that the factual assumptions essential to Dr. Buscho's opinion are not supported by the plaintiff's offer of proof. This is too grudging a reading of Dr. Buscho's letter. A reasonable "meaning" of Dr. Buscho's letter, open to a jury, see Kopycinski v. Aserkoff, 410 Mass. 410, 418, 573 N.E.2d 961 (1991), is that, had the hypoxia and intracranial bleeding, which were both shown on the CT scan, been diagnosed by Dr. Sussman, the "entire therapeutic care" would have been "changed"--intracranial pressure would have been anticipated and treated preventively.

Testimony at the father's trial ⁷ as well as Dr. Otis's opinion letter on the cause of the baby's death ⁸ support the conclusion that hypoxia (shortage of oxygen) and anoxia (the complete absence of oxygen) lead to swelling (edema), i.e., intracranial pressure, thus reinforcing the need for early diagnosis and treatment.

Dr. Buscho's opinion, buttressed by that of Dr. Otis, was that the failure to recognize and aggressively treat the intracranial pressure "contributed to Jeremy's brain damage." Fairly read, this evidence, when coupled with his statement that "in the evolution of the care of this infant, it is my opinion that there are many areas of negligence which eventually led to the child's brain death" (see Appendix infra at 288) was sufficient to meet the causation standard set forth in Bradford v. Baystate Med. Center, 415 Mass. at 208-209, 613 N.E.2d 82.

Dr. Buscho also considered Dr. Sussman's decision to transfer the critically ill child, before he was stabilized and without accompanying medical records, "below the standard of care." ⁹ Although Dr. Sussman argues there is no evidence to support the...