Opinion
20-P-1335
12-02-2021
SUSAN WEILBRENNER, individually & as personal representative, [1] v. ROBERT B. PORTNEY.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this medical malpractice action, the plaintiff appeals from the dismissal of her claims against Robert Portney, the sole remaining defendant, on summary judgment. Because we conclude that the judge employed the incorrect legal standard when acting on the motion, we vacate so much of the judgment allowing summary judgment for Portney, and remand for further proceedings.
"Our review of the allowance of summary judgment is de novo, 'because we examine the same record and decide the same questions of law' as the motion judge." Eaton v. Federal Nat'1 Mtge. Ass'n, 93 Mass.App.Ct. 216, 218 (2018), 1 quoting Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. III, 116 (2017) . In reviewing the allowance of a motion for summary judgment, we ask "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." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "[A] dispute about a material fact is 'genuine' when 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party' and a fact is 'material' when it 'might affect the outcome of the suit under the governing law.'" Dennis v. Kaskel, 7 9 Mass.App.Ct. 736, 740-741 (2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
"When the court considers the materials accompanying a motion for summary judgment, 'the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.'" 2 Attorney Gen, v. Bailey, 386 Mass. 367, 371, cert, denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). Furthermore, "all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment" (citation omitted). Bailey, supra. Where the record contains differing or contradictory evidence on an issue of material fact, such that a reasonable jury could find for either party, summary judgment is improper. See Dennis, 7 9 Mass.App.Ct. at 743-744 ("unresolved factual issues" in the record raise "a question for resolution by a fact finder, not for resolution on summary judgment").
Viewed through the appropriate legal standards we have set out above, the summary judgment record -- taken in the light most favorable to the plaintiff -- showed the following. Lorraine Weilbrenner was a resident of the German Old Folks' Home of Lawrence, Mass. (German Home), an unlocked rest home facility in Lawrence, from 2003 until her death in 2014. On June 6, 2014, Weilbrenner was found dead in the courtyard below her second-story bedroom window. It appeared that her death was caused by blunt-force trauma following a fall from the bedroom window. Photographs taken by State police officers who investigated Weilbrenner's bedroom shortly after her death show that the room contained one window, approximately two and one- 3 half to three feet above the floor; in front of the window was a radiator surmounted by a radiator cover. A chair was pushed up against the radiator cover, pillows were placed on top of the chair, and towels were placed on top of the radiator cover. The sash of Weilbrenner's window was raised, and the storm window was open as well. The arrangement of these objects in the room permitted the inference that Weilbrenner had thrown herself out the window. When the defendant, who was Weilbrenner's long-term psychiatrist, telephoned the plaintiff to inform her of Weilbrenner's death, he reported that the death "sounded like suicide."
Weilbrenner had a history of mental illness, and by 2013 was suffering from "schizoaffective disorder." The defendant evaluated Weilbrenner's psychiatric condition ten times between November 21, 2013, and June 4, 2014. Weilbrenner's mental health conditions were among the "highest risks" for suicide and the defendant prescribed her medication "to reduce the risk of being suicidal." Weilbrenner was among "the most disturbed mood wise" of the defendant's patients, and she suffered from "major depressive episodes." In early 2014, the defendant worried that Weilbrenner's mental health was on a "downward trend." Weilbrenner told German Home nurses and the defendant about seeing hallucinations of ominous ghosts and the devil, and asked nurses whether she could be sent to a psychiatric hospital. On 4 May 25, 2014 -- only approximately two weeks before her death --Weilbrenner fell or threw herself in front of an oncoming car outside the German Home, in what at least one witness described as a suicide attempt. On June 4, 2014, two days before Weilbrenner's death, the defendant examined Weilbrenner for the last time; this examination was made in response to concerns raised by German Home nurses about Weilbrenner's "increased psychotic difficulties and suicidal feelings."
The crux of the plaintiff's medical malpractice claims is that the defendant negligently failed to place Weilbrenner in a more protective residential setting than the German Home, and that this negligence led to Weilbrenner's suicide. The issue whether Weilbrenner's death was by suicide, or whether it was the result of some accident unrelated to the defendant's conduct as Weilbrenner's psychiatrist, was therefore material. See Dennis, 79 Mass.App.Ct. at 740-741. The defendant argued that he was entitled to summary judgment because the plaintiff could not "conclusively demonstrate" that Weilbrenner's death was a suicide rather than an accident. The motion judge erroneously adopted this analysis. Instead, the judge should only have looked to determine whether the summary judgment record raised a triable issue of fact as to whether Weilbrenner committed suicide. See Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 44 (2009) (dismissal proper "where there is no set of facts that 5 could support a conclusion that the plaintiff's injuries were within the scope of liability").
As long as the summary judgment record permitted the jury to find that Weilbrenner died by suicide, it does not matter that the facts also permitted the jury to reach a different conclusion as to the cause of her death. See Dennis, 79 Mass.App.Ct. at 740-744. See also Hopper v. Callahan, 408 Mass. 621, 630-631 (1990) ("[T]here is enough evidence in the record to show that required medical attention to [the plaintiff's] condition may have been denied to her in circumstances that a jury could reasonably conclude demonstrated grossly negligent conduct amounting to a failure to exercise professional judgment"). And even if the countervailing facts appeared to be of equal weight -- as the judge apparently thought they were --this, too, did not entitle the defendant to summary judgment. At the summary judgment stage, the issue is not whether the plaintiff can establish her claim by a preponderance of the evidence. "The question of causation is generally a question of fact for the jury." Harlow v. Chin, 405 Mass. 697, 702 (1989). Summary judgment for the defendant would only have been proper where all of the record evidence, viewed in the light most favorable to the plaintiff, could only show that the plaintiff's harm was caused by some accident completely outside the scope of the foreseeable risk arising from the defendant's negligence. 6 See, e.g., Leavitt, 454 Mass. at 38, 44-45 (no causation as matter of law).
So much of the judgment as allowed summary judgment for Portney is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court
Wolohojian, Kinder & Hershfang, JJ. 7
The panelists are listed in order of seniority.