Washington v. Cranmer

• Decision Date: 01 December 2014
• Docket Number: No. 12–P–1770.,12–P–1770.
• Parties: Crystal WASHINGTON v. Hilarie CRANMER.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 674

20 N.E.3d 613

Crystal WASHINGTON

v.Hilarie CRANMER.

No. 12–P–1770.

Appeals Court of Massachusetts, Suffolk.

Argued June 3, 2013.

Decided Dec. 1, 2014.

Nicholas D. Cappiello, Boston, for the plaintiff.

Matthew S. Rydzewski for the defendant.

Present: RAPOZA, C.J., CYPHER, KANTROWITZ, MILKEY, & MALDONADO, JJ.¹

Opinion

MILKEY

, J.

On the morning of March 22, 2008, the plaintiff, Crystal Washington, went to the emergency department at Brigham and Women's Hospital (BWH). There, she complained of various symptoms, and the defendant, Hilarie Cranmer, M.D., examined, treated, and discharged her. After she returned home, Washington suffered a stroke

overnight, which caused permanent neurological damage. She filed this action in Superior Court alleging that Dr. Cranmer caused her injuries by not complying with the applicable

standard of care.² In accordance with G.L. c. 231, § 60B

, the matter was referred to a medical malpractice tribunal.³ After a hearing, the tribunal concluded that Washington's offer of proof, even if properly substantiated, was insufficient to raise a “legitimate question of liability appropriate for judicial inquiry.” G.L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. Washington did not post the $6,000 bond required by the statute, and her action therefore was dismissed.⁴ See ibid. (“[i]f [the] bond is not posted within thirty days of the tribunal's finding the action shall be dismissed”). Because we agree with Washington that her offer of proof was adequate, we reverse.

Standard of review. “Before a medical malpractice tribunal, a plaintiff's offer of proof must (1) show that the defendant is a provider of health care as defined in G.L. c. 231, § 60B

; (2) demonstrate that the health care provider [in question] did not conform to good medical practice; and (3) establish resulting damage.” Saunders v. Ready, 68 Mass.App.Ct. 403, 403–404, 862 N.E.2d 422 (2007)

, citing Santos v. Kim, 429 Mass. 130, 132–134, 706 N.E.2d 658 (1999). The relevant standard of care is the one that applies to “the average qualified physician in his or her area of specialty” (in this case, an emergency medicine physician). Medina v. Hochberg, 465 Mass. 102, 106, 987 N.E.2d 1206 (2013). Whether the physician met the applicable standard of care generally can be answered only with the aid of expert opinion. See Kapp v. Ballantine, 380 Mass. 186, 190 & n. 4, 402 N.E.2d 463 (1980). The expert opinion must be rooted in the record evidence and not be based on speculation, conjecture, or assumptions not supported by the evidence. Blood v. Lea, 403 Mass. 430, 434, 530 N.E.2d 344 (1988).

In determining whether a plaintiff's offer of proof is sufficient, “[t]he question to be decided ... by the tribunal is a factual one.” Kopycinski v. Aserkoff, 410 Mass. 410, 413, 573 N.E.2d 961 (1991)

. However, the tribunal's task is “akin to a trial judge's evaluation of a motion for a directed verdict.”

Cooper v. Cooper–Ciccarelli, 77 Mass.App.Ct. 86, 91, 928 N.E.2d 672 (2010)

, citing Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037 (1978). Thus, “the tribunal may not examine the weight or credibility of the evidence.” Ibid., citing Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 676, 602 N.E.2d 570 (1992). Instead, it must consider the proof in the light most favorable to a plaintiff.⁵

Blake v. Avedikian, 412 Mass. 481, 484, 590 N.E.2d 183 (1992). “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.’ ” Thou v. Russo, 86 Mass.App.Ct. 514, 516 (2014), quoting from St. Germain v. Pfeifer, 418 Mass. 511, 516, 637 N.E.2d 848 (1994).

Background. a. Facts. At 9:51 a.m. , on March 22, 2008, Washington, then thirty-seven years old, arrived by ambulance at the BWH emergency department in Boston. Washington reported that for the past twenty-four hours she had been experiencing body weakness, left arm weakness, difficulty keeping her balance, increased blood sugars, dizziness, and blurry vision. A triage nurse conducted the initial patient intake, and recorded Washington's blood pressure at 234/153. Intake records also show that Washington had a “gait disturbance” that made her a “fall risk,” that she was “slow to respond” to questions, and that she had some difficulty with finding words (described in a later record as “mild dysarthria

”). In addition, despite her relative youth, Washington already had a rich medical history that included diabetes, chronic hypertension, high cholesterol, and—in 2004—a stroke.

Dr. Cranmer apparently first saw Washington at 10:10 A.M. After conducting physical and neurological examinations, Dr. Cranmer concluded that Washington was alert, ambulatory, and oriented to person, place, and time; that her neurological exam was “normal” apart from her being hypertensive; and that she had a “regular” heart rate and rhythm and “[n]o obvious ... motor or sensory deficits.” Washington also exhibited no chest pain, shortness of breath, headache, or fever. Washington confirmed that she had not taken her blood pressure medication that morning (March 22).

In response, Dr. Cranmer directed the assisting nurses to give Washington two medications (labetalol

and hydrochlorothiazide )

to lower her blood pressure. At 10:45 a.m., Washington received the prescribed medication orally. Dr. Cranmer also ordered a computer tomography

(CT) scan of Washington's head and various “lab work,” and placed Washington on a cardiac monitor and electrocardiogram (EKG) monitor. Two hours later, at 12:45 p.m., Washington's blood pressure had fallen to 126/73.

The radiology report from the CT scan

did not reveal any intracranial hemorrhage or other acute abnormalities.⁶ Except for Washington's elevated blood sugar (258), her laboratory results were found to be within normal limits. At 1:07 p.m., Dr. Cranmer ordered “MRI/A” (i.e., magnetic resonance imaging /angiography ) scans in order to evaluate Washington for a “Head Stroke.” In addition, Dr. Cranmer admitted Washington to the emergency department observation section (OBS) and ordered that she be monitored for a transient ischemic attack (TIA)⁷ and for continued blood pressure control. Dr. Cranmer instructed that Washington's OBS admission was subject to the “transient neurologic” protocol, and she identified aspirin, MRI/A scans, and “consultation” on an as-needed basis as the appropriate interventions.

By the early afternoon, Dr. Cranmer had made plain that her plan of continued treatment and care for Washington was contingent on the results of the MRI/A scans that she had ordered. Specifically, Dr. Cranmer intended to discharge Washington after her dinner meal, unless there were “new CVA [cerebral vascular accident] findings on the MRI/A” scans. Dr. Cranmer noted that there was “no need for urgent neuro unless MRI/A is as above [i.e., new CVA findings].” The nurses continued to monitor Washington while she rested in the OBS, and they administered aspirin

to her at 1:45 p.m. Meanwhile, Washington's blood pressure had begun to rise again. By 2:00 p.m., it had risen to 153/101, and at 2:45 p.m., it was at 165/107.

At approximately 3:30 p.m., in advance of the scheduled MRI/A scans, the nursing staff administered medication to Washington in an effort to treat her anxiety regarding the proposed procedure. Ultimately, Washington's claustrophobia

prevented her from going through with the MRI/A scans. After the failed MRI/A attempt, Washington was returned to the OBS. The same “E [mergency]

D[epartment] progress note” that stated that Washington was “unable to do the MRI” also noted that Washington reported that “her speech still isn't baseline.”

By 4:00 p.m., Washington's blood pressure had risen to 174/106, and it remained at that elevated level (174/105) at 6:00 p.m. when she was discharged.⁸ Before she was discharged, Washington received another dose of blood pressure medication orally, and Dr. Cranmer issued instructions to “TAKE YOUR MEDS” and to “RETURN FOR ANY WORSENING ANYTHING.” Dr. Cranmer also directed Washington to follow up with a neurologist and her primary care physician within two weeks.

At home that night and the following morning (March 23), Washington's condition declined. She returned to the BWH emergency department by ambulance at 9:45 a.m. on March 23, presenting with left-sided facial droop as well as left-sided weakness. Her “mild dysarthria

” from the day before had “worsened,” and her speech was now “slurred.” In addition, her blood pressure had risen to 218/139 and she was hyperglycemic. Washington was given labetalol to lower her blood pressure and insulin to lower her blood sugar. A new CT scan did not evidence signs of a stroke. However, follow-up tests, including MRI/A scans, revealed that Washington had suffered one.⁹

On April 2, 2008, Washington was discharged from BWH and transferred to Spaulding Rehabilitation Hospital (SRH). Eventually, she was discharged from SRH. Washington now is confined to a wheelchair and, although she can feed herself, “[s]he needs assistance for all other activities of daily living.”

b. Expert opinion. Before the tribunal, Washington submitted her medical records and an expert opinion letter that had been prepared by Kenneth C. Fischer, M.D., a board-certified neurologist. Among his other conclusions, Dr. Fischer opined that Washington had sustained a “stroke

and resultant severe and permanent neurological injury as the direct result of the substandard care and treatment” rendered by Dr. Cranmer on March 22, 2008. According to Dr. Fischer, the average qualified emergency medicine physician would (a) “recognize and appreciate” the complaints and medical

history presented here as signs and symptoms of a “hypertensive emergency” and TIA; (b) “administer intravenous antihypertensive agents” to the patient in order to lower her blood pressure; and (c)...