Opinion
19-P-831
02-21-2020
Carolyn CALVIN-SAMUELS, personal representative, v. David RICHMAN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue is a medical malpractice tribunal's conclusion that the plaintiff failed to raise a legitimate question of liability with respect to Lisa Bruning, L.P.N., a visiting nurse who on one occasion examined and treated the plaintiff's decedent, Marshae Paul, a twenty-four year old woman who died after giving birth to her first child. After the plaintiff failed to post a bond to pursue her claim in the Superior Court, Bruning's motion to dismiss and for the entry of a separate and final judgment was allowed. This appeal followed, and we now vacate the judgment of dismissal.
The tribunal's contrary conclusion regarding Dr. Richman is not before us.
We summarize the evidence in the plaintiff's offer of proof in the light most favorable to the plaintiff. See Feliciano v. Attanucci, 95 Mass. App. Ct. 34, 35 (2019). On September 16, 2015, Paul gave birth to a baby boy at the Melrose Wakefield Hospital. She had a history of elevated blood pressure at various points during her pregnancy and birth, during which she was followed by the codefendant, David Richman, M.D. Two days after giving birth, Paul was discharged to her home with a plan that visiting nurses would see her over the course of that weekend. She was visited by Bruning on the morning after her discharge. Bruning was aware that Paul's pregnancy was complicated by preeclampsia, with blood pressure readings ranging from 136/84 to 140/82 while she was in the hospital. Bruning recorded Paul's blood pressure at 160/100 when sitting, and 150/100 when standing. Bruning encouraged Paul to lie on her left side. On recheck fifteen minutes later, her blood pressure was 160/100. Paul denied having a headache, visual disturbances, or epigastric pain. Bruning noted that Paul had bilateral "3+" edema to her feet and ankles. Paul's reflexes were "+2," and her lungs were clear.
Bruning was sufficiently concerned by Paul's elevated blood pressure that she called Dr. Richman and described the situation. Dr. Richman prescribed Labetalol to begin immediately, an instruction Bruning conveyed to Paul. He did not instruct Paul, through Bruning, to report to a hospital for examination by a physician. Bruning did not independently tell Paul to go immediately to the hospital. Instead, Paul was advised to go to the emergency room if she noted any changes in her condition.
Dr. Richman asked that a visiting nurse return the following morning to check on Paul's blood pressure and cardiopulmonary status. Before that could occur, however, Paul experienced chest pain and shortness of breath, leading her to call for emergency services. She ultimately died of severe peripartum cardiomyopathy caused by the acute onset of systolic dysfunction after giving birth.
The plaintiff's offer of proof included an opinion by Alexander Friedman, M.D., a physician board certified in obstetrics and gynecology and maternal fetal medicine. Dr. Friedman is an assistant professor of obstetrics and gynecology at Columbia University and an attending maternal fetal medicine physician at New York Presbyterian Hospital. He is familiar with the accepted standard of care as it pertains to the average qualified obstetrician and the average licensed practical nurse practicing in Massachusetts from 2015 to the present.
In Dr. Friedman's opinion, when Bruning examined Paul, Paul's blood pressures were consistent with a hypertensive emergency, and the standard of care therefore required Bruning to send Paul to a hospital for evaluation and treatment, even though Dr. Richman did not so state. In Dr. Friedman's "professional opinion, to a reasonable degree of medical certainty, the care and treatment rendered to Marshae Paul by Lisa Bruning, L.P.N. deviated from the accepted standard of care at the time for the average qualified licensed practical nurse when Nurse Bruning failed to recognize and appreciate Ms. Paul's persistent blood pressure of 160/100 as a hypertensive emergency, and when Nurse Bruning failed to independently send Ms. Paul to the emergency department for an in-person examination by a physician."
Dr. Friedman further opined to a reasonable degree of medical certainty that, had Bruning sent Paul to the emergency room, "her examination findings would have been consistent with heart failure, including but not limited to peripheral edema, hypertension, and pulmonary edema. These findings more likely than not would have prompted diagnosis and treatment for peripartum cardiomyopathy." Dr. Friedman concluded that "Paul's premature and preventable death was the direct result of the substandard care and treatment rendered to her by David Richman, M.D. and Lisa Bruning, L.P.N."
"A plaintiff's offer of proof shall prevail before a medical malpractice tribunal (1) if the defendant is a health care provider as defined in G. L. c. 231, § 60B, ‘(2) if there is evidence that the [health care provider's] performance did not conform to good medical practice, and (3) if damage resulted therefrom’ " (citation omitted). Feliciano, 95 Mass. App. Ct. at 37, quoting Kapp v. Ballantine, 380 Mass. 186, 193 (1980). The narrow task of the tribunal is to "simply examine the evidence proposed to be offered on behalf of the [plaintiff] to determine whether that evidence, if properly substantiated, ... is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result" (quotations omitted). Feliciano, supra, quoting G. L. c. 231, § 60B. "[T]he evidence presented by the offer of proof is viewed by a standard comparable to a motion for a directed verdict." Blake v. Avedikian, 412 Mass. 481, 484 (1992). "That standard is whether ‘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.’ " Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied, 493 U.S. 850 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212 (1978).
Taken at face value, the offer of proof meets the required standard. Bruning, however, argues that it nonetheless falls short in two respects. First, she argues that it was overly speculative to offer an opinion as to what would have happened had Bruning sent Paul to the emergency room as Dr. Friedman opines she should have and, therefore, there was insufficient evidence of causation. This, though, is an argument directed to the weight of Dr. Friedman's opinion, something that is not to be determined by the tribunal. "In evaluating the offer of proof, the tribunal may not examine the weight and credibility of the evidence." Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 676 (1992). Moreover, we note that the tribunal determined that the claim against the codefendant, Dr. Richman, which was based on the same theory of causation, met the required standard. We can see no way to reconcile the tribunal's decision with respect to the two defendants if it was based on causation. We note in this regard that the tribunal did not identify the basis for its decision, and we are loath to attribute inconsistent ones.
Second, Bruning argues that Dr. Friedman's opinion that she had an independent duty to send Paul to the emergency room is without factual support. See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 92-93 (2010). In Cooper, the expert's opinion did not acknowledge or state that the defendant had consulted two radiology experts before she did not order a CT scan. Id. In those circumstances, the court concluded that the opinion was "based on an assumption of facts that were not rooted in the evidence." Id. at 93. Here, by contrast, Dr. Friedman's opinion acknowledges that Bruning called Dr. Richman, conveyed the information concerning Paul's condition, and followed Dr. Richman's prescribed course of conduct. His opinion, therefore, does not suffer from the same defect as in Cooper.
For these reasons, the judgment dismissing the plaintiff's claim as against Bruning is vacated. A new decision of the tribunal as to Bruning shall enter that the plaintiff's offer of proof, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.
Our decision here is not based on the ultimate merit of the plaintiff's claim against Bruning, nor on how a jury might assess it; we deal here only with the sufficiency of the offer of proof.
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So ordered.
Vacated