Opinion
No. 12–P–1751.
2013-06-17
Lynne WILLIAMS, administratrix, v. Radha AGARWAL & others.
By the Court (MILKEY, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff is the administratrix of the estate of Deborah Meeker, who died on May 5, 2010, from a ruptured myocardial infarct. The plaintiff brought a medical malpractice action against defendant Radha Agarwal, an internist who examined and treated Meeker on May 5, 2010, just hours before her death. A medical malpractice tribunal determined that the offer of proof was insufficient to raise a legitimate question of liability as to Agarwal.
After the plaintiff failed to post a bond, and separate and final judgment entered for Agarwal, the plaintiff appealed. We affirm. Background. The fifty-two year old Meeker went to the emergency department at MetroWest Medical Center on May 2, 2010, with complaints of nausea, vomiting, diarrhea, weakness, and aches in her head, chest, back, arms, and legs. Kevin Stone, a doctor in the emergency department, performed a physical examination, and based on clinical indication of shortness of breath, ordered a chest X-ray, which showed no active disease in Meeker's chest. He informed Meeker of the likely viral nature of her illness, prescribed medication for nausea, and referred her to Agarwal.
Defendant Kevin Stone, an emergency department doctor, examined and treated Meeker at the MetroWest Medical Center on May 2, 2010. The tribunal found the offer of proof sufficient to raise a legitimate question of liability as to Stone. The plaintiff's case against Stone and the other defendant is not before us.
Meeker saw Agarwal for the first and only time on May 5, 2010. On her medical history form, Meeker denied having heart disease. She complained of mid-back pain, difficulty breathing for one week, and a cough she had for a few days. She stated that earlier vomiting had stopped, and that she had no dizziness, chest or abdominal pain, or swelling. She was crying, appeared anxious, stated that she lacked motivation, was depressed, and wanted to be admitted to the hospital for depression. Agarwal noted that Meeker weighed 173 pounds, her blood pressure was 110 over 88, and her lungs were clear. Agarwal noted “tachycardia—? [abnormally fast resting heart rate] 2 ... to anxiety,” ordered complete blood work and an electrocardiogram (EKG), prescribed the medication Zoloft, and recommended that Meeker see a psychotherapist. Agarwal advised Meeker several times to go back to the emergency department in light of her shortness of breath, that X-rays could be done right away there, and that she would need to go through the emergency department to be admitted. Meeker declined because she thought that nothing was done in the emergency department when she came there on May 2.
Meeker collapsed at her sister's house at 2:15 P.M. on the same day and was pronounced dead at the MetroWest Medical Center at 2:57 P.M. The medical examiner ruled that the immediate cause of death was ruptured myocardial infarct with hemopericardium over a course of days due to atherosclerotic cardiovascular disease over the course of years.
Discussion. A plaintiff in a medical malpractice action must make an offer of proof to the tribunal that: (1) the defendant is a provider of health care as defined in G.L. c. 231, § 60B; (2) the health care provider did not conform to good medical practice; and (3) damage resulted therefrom. Saunders v. Ready, 68 Mass.App.Ct. 403, 403–404 (2007), citing Santos v. Kim, 429 Mass. 130, 132–134 (1999). Expert opinion generally is required on the latter two points, and a plaintiff's expert cannot base his or her opinions on speculation, conclusory allegations, or assumptions not supported by the record. See McCarthy v. Hauck, 15 Mass.App.Ct. 603, 609–610 (1983); Booth v. Silva, 36 Mass.App.Ct. 16, 20 (1994).
The opinion letter from the plaintiff's expert, Dr. Walter N. Simmons, stated in pertinent part as follows:
“Cardiac ischemia can be evaluated by performing a cardiac work-up including but not limited to, chest x-ray, EKG, and cardiac enzyme laboratory studies.... [T]he accepted standard of care in Massachusetts in 2010 required the average qualified emergency medicine physician caring for a patient who presents with chest pain, left upper back pain, nausea and vomiting, and a family history of heart disease to order and perform a cardiac work-up including but not limited to chest x-ray, EKG, and cardiac enzyme laboratory studies. Additionally, the accepted standard of care required the average qualified internal medicine physician caring for a patient to perform and document a complete physical examination including a full set of vital signs and to inform the patient of risks of not presenting to the hospital for further evaluation of tachycardia and shortness of breath.... Had Dr. Agarwal rendered care in accordance with the accepted standard of care as outlined above, Ms. Meeker's atherosclerotic coronary artery disease and cardiac ischemia would have been diagnosed and treated prior to her cardiopulmonary arrest.”
There are several problems with this offer of proof. First, it fails to document how the actions of Agarwal violated the applicable standard of care. It indicates that cardiac ischemia is typically diagnosed by chest X-ray, EKG, and laboratory studies, but then ignores that Agarwal ordered that an EKG and full bloodwork be done, and that she was aware that a negative X-ray already had been performed by Stone. To the extent that Dr. Simmons is suggesting that Agarwal should have diagnosed cardiac ischemia not by the standard methods identified by him, but by a complete physical examination including a full set of vital signs, he does not indicate which ones improperly were omitted,
and how those particular vital signs would have led to a diagnosis of cardiac ischemia. Similarly, Dr. Simmons fails to set forth how Agarwal's actions (or omissions) deprived Meeker of effective treatment in the short time between her appointment and her death, in the face of Agarwal's repeatedly advising Meeker to go to the emergency department (as documented in Agarwal's office notes).
Agarwal's notes indicate that she measured Meeker's pulse and checked her lungs.
Judgment affirmed.