Thou v. Russo

• Decision Date: 23 October 2014
• Docket Number: No. 13–P–1610.,13–P–1610.
• Citation: 86 Mass.App.Ct. 514,17 N.E.3d 1113
• Parties: Monyreth THOU, administrator, v. Joseph RUSSO.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 514

17 N.E.3d 1113

Monyreth THOU, administrator¹

v.Joseph RUSSO.

No. 13–P–1610.

Appeals Court of Massachusetts, Middlesex.

Argued June 3, 2014.

Decided Oct. 23, 2014.

John N. Lewis, West Newton, for the plaintiff.

Gisela M. DaSilva, Cambridge, for the defendant.

Present: CYPHER, BROWN, & AGNES, JJ.

Opinion

CYPHER, J.

The plaintiff, administrator of the estate of Sophal Chan Chin (decedent), appeals from a Superior Court judgment dismissing his malpractice action against the defendant doctor, Joseph Russo, following an adverse decision of a medical malpractice tribunal and the plaintiff's failure to post a bond. See G.L. c. 231, § 60B. We agree with the plaintiff that his offer of proof was sufficient.

Background.² The decedent died from cardiac arrest after liposuction and abdominoplasty³ procedures performed at Milton Hospital (hospital) by Russo on May 17, 2011. As detailed by

Russo in his operation report, after the decedent was brought into the operating room, a general anesthesia was induced. In performing the liposuction procedure, Russo utilized a tumescent solution⁴ containing xylocaine (lidocaine ) and epinephrine delivered through “several small stab incisions” into the areas to be suctioned. Approximately one liter of tumescent solution was infused into each side of her waist. In treating the medial thigh and knee areas, approximately 600 milliliters of tumescent solution were infused. When the upper arms were treated, approximately 300 to 400 milliliters of tumescent solution were infused into each upper arm. Russo recorded that the total infusion was 3,800 milliliters (or 3.8 liters). No tumescent solution use was reported for the abdominoplasty.

The two procedures took place between 1:30 p.m. and approximately 6:00 p.m. Russo reported that, as the abdominal wound was about one-half closed, at about 6:03 p.m. , the anesthesiologist reported a sudden drop in the decedent's blood pressure. Code emergency procedures immediately were instituted and performed over the next one and one-half hours. The decedent briefly was stabilized to a normal blood pressure and was transferred to the intensive care unit. After about one hour, she suffered cardiac arrest, was unable to be resuscitated, and was declared dead at 9:50 p.m.⁵

The plaintiff filed a complaint in the Superior Court on April 17, 2012, alleging that the decedent's death was caused by Russo's negligence. Russo requested a medical malpractice tribunal pursuant to G.L. c. 231, § 60B. Following the submission of an offer of proof by the plaintiff, and a hearing, the tribunal issued a report stating that “there is not sufficient evidence to raise a legitimate question as to liability appropriate for judicial inquiry.” When the plaintiff failed to post the required bond, judgment entered dismissing the plaintiff's complaint. He timely appealed.

Discussion. The plaintiff's claim of malpractice essentially is that Russo failed to conform to the requisite standards of care in his administration of the anesthetic solution which allegedly was given in toxic doses, causing the decedent's death.⁶ The plaintiff's offer of proof consists of a memorandum of facts and law; an opinion letter of a medical expert, Dr. Robert M. Stark,⁷ his curriculum vitae, and the published articles on which he relied; the decedent's Milton Hospital records; the medical examiner's records; and Russo's office records.

We test the sufficiency of an offer of proof by viewing the evidence “in a light most favorable to the plaintiff,” Blake v. Avedikian, 412 Mass. 481, 484, 590 N.E.2d 183 (1992), to determine principally whether Russo's “performance did not conform to good medical practice,” and whether damage resulted. Santos v. Kim, 429 Mass. 130, 133, 706 N.E.2d 658 (1999) (citation omitted). An offer of proof is sufficient if “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” St. Germain v. Pfeifer, 418 Mass. 511, 516, 637 N.E.2d 848 (1994) (citation omitted). See Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037 (1978) (tribunal's task similar to trial judge's function in ruling on defendant's motion for directed verdict).

The principal thrust of Dr. Stark's opinion is that Russo deviated from the standard of care by ordering the infusion of a toxic dose of tumescent solution, which caused the decedent's cardiac arrest. Dr. Stark noted that, before the procedures began, by “the end of one hour, this [intravenous (I.V.) ] infusion provided the [decedent] a dose of 1 mg epinephrine and 400 mg of lidocaine.... During the ensuing liposuction procedure, Dr. Russo administered a total of 3.85 liters of ‘tumescent solution’ that ... delivered an additional dose of 3.8 mg of epinephrine and 1,340 mg of lidocaine to the [decedent's] subcutaneous tissue.” Given these facts, Dr. Stark opined:

“[I]t is my opinion to a reasonable degree of medical certainty that Dr. Russo failed to exercise that degree of skill and care of the average qualified practitioner of medicine in general and as a surgeon of any specialty by: (1) prescribing and ordering the perioperative I.V. infusion of a toxic dose of tumescent anesthetic solution; (2) failing to prevent the I.V. administration of a toxic dose of anesthetic solution by reviewing his orders before performing the procedure; and (3) failing to realize that his patient had received the tumescent anesthetic I.V., thereby compromising further resuscitative efforts by the administration of additional lidocaine and epinephrine as part of the Advanced Cardiac Life Support (ACLS) protocol. It is my further opinion to a reasonable degree of medical certainty that it was the toxic dose of epinephrine contained in the I.V. and potentiated by the co- administration of lidocaine which caused [the decedent's] death and that, notwithstanding Dr. Russo undertaking a combination of liposuction and an abdominoplasty under general anesthesia which carries the highest risk of morbidity according to the literature, ... but for his ordering, allowing and not realizing that she had received an I.V. infusion of the anesthetic solution, [the decedent] would have survived the procedure.”

Citing opinions of authorities in published papers that “liposuction by local anesthesia is safer than liposuction by general anesthesia,”⁸ and that “there have been no deaths associated with tumescent liposuction totally by local anesthesia without parenteral narcotic analgesia or general anesthesia,”⁹ Dr. Stark stated that, based on his “own education, training and experience as a cardiologist, it is my opinion to a reasonable degree of medical certainty, that there was no clinical indication or reason to administer perioperative fluids containing epinephrine and lidocaine to [the decedent].”¹⁰ Dr. Stark concluded that the “ventricular ectopy and fibrillation that [the decedent] developed in the [operating room] were, in my opinion to a reasonable degree of

medical certainty, the result of an epinephrine overdose.”

In response, Russo claims that he ordered the tumescent solution only to be administered subcutaneously, and not intravenously. Referring to his preoperative orders, he asserts that he ordered standard lactated “Ringer's” solution,¹¹ which does not contain epinephrine or lidocaine, to be administered intravenously; he points to hospital anesthesia records showing that Ringer's solution was administered intravenously between 1:30 p.m. and 5:00 p.m. However, Dr. Stark points to a hospital “provider order summary” that shows that a secondary intravenous infusion (IV) was ordered, specified as follows:

“Start: 05/17/11 0753

“Stop: 05/17/11 0852

“Lactated Ringers Volume: 1000 ML

“Lidocaine 2 20ML Dose: 400MG

“Epinephrine

...