Opinion
14-P-531
02-13-2015
DARRELL JACKSON, administrator, v. MARK DELANO & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 20, 2013, a medical malpractice tribunal held a hearing on the plaintiff's third amended complaint, alleging that malpractice on the part of defendant Mark Delano, a radiology technologist, caused the death of the plaintiff's decedent, Shirley Jackson. Brigham and Women's Hospital (hospital) was included as a defendant under a theory of vicarious liability. Following a medical malpractice tribunal's finding against the plaintiff, and the plaintiff's subsequent failure to post a bond, the Superior Court dismissed the plaintiff's action against Delano and the hospital. The plaintiff appeals.
Discussion. We review the sufficiency of the plaintiff's offer of proof before the tribunal "to determine principally whether [Delano's] 'performance did not conform to good medical practice,' and whether damage resulted." Thou v. Russo, 86 Mass. App. Ct. 514, 516 (2014), quoting from Santos v. Kim, 429 Mass. 130, 133 (1999). "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, supra, quoting from St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994). While we must view the evidence in the light most favorable to the plaintiff, the offer of proof must not be based on speculation, conclusory allegations, or assumptions not supported by the record. See McCarthy v. Hauck, 15 Mass. App. Ct. 603, 610 (1983); Keppler v. Tufts, 38 Mass. App. Ct. 587, 589-590 (1995).
The only issue before us is whether Delano failed to meet the standard of care reasonably expected of the average radiology technologist, and whether any such failure resulted in Ms. Jackson's death. See Medina v. Hochberg, 465 Mass. 102, 106 (2013); Washington v. Cranmer, 86 Mass. App. Ct. 674, 675 (2014). We agree with the tribunal's conclusion that no reasonable inference supports a legitimate question of Delano's liability.
The plaintiff's offer of proof turns on the opinion letter of Douglas Gibson, M.D., a radiologist. Dr. Gibson's opinion addresses the actions of two health care providers: Dr. Christopher Brennan, the gastroenterologist who ordered CT enterography for the plaintiff's decedent using an intravenous contrast (Ultravist 300), and defendant Delano, the technician who administered the intravenous contrast for the test on October 25, 2007. Dr. Brennan is not a defendant in this case.
The patient collapsed in the hospital fifteen minutes after the CT scan and subsequently died in the emergency room. The medical examiner concluded that the manner of death was "accident," and the immediate cause of death was "cardiac arrest due to acute airway obstruction consistent with allergic reaction to contrast substance." The record is uncontested that Ms. Jackson had previously undergone two CT scans using an intravenous contrast, without incident, once on August 22, 2007, just two months before her death, and once approximately eight months before that, on December 23, 2006.
The record shows that the contrast for the December 23, 2006, CT scan was "125 cc of intravenous Ultravist 300." The reports on the August 22, 2007, CT scan refer to "100 mL of intravenous contrast and oral contrast," without further specification.
Dr. Gibson opined that prior to administering the intravenous contrast, someone (presumably Dr. Brennan or Delano, but Dr. Gibson's opinion does not delineate their respective responsibilities) should have performed an assessment, including review of available medical records, "to identify any allergies or potential cross allergies." Although the records available to Dr. Gibson did not indicate "who administered the IV contrast, who performed the CT-Scan, and who released or discharged Ms. Jackson from the radiology department," he nonetheless concluded that "an initial screening questionnaire was started but not completed by radiology technologist Mark Delano."
The basis for Dr. Gibson's conclusion is apparently an unsigned "IV Contrast Health Screening Form and Order" dated "8/25/07." Whether Delano actually prepared this form, and whether it relates to the October 25 CT scan, is entirely speculative. The defendants' answers to interrogatories establish only that Delano administered the contrast substance.
Dr. Gibson noted that "Ms. Jackson had three risk factors that are generally accepted and are required to be screened for [which] include asthma, allergic rhinitis and eczema," as well as "a history of anaphylactic reactions with angioedema to sulfa drugs and a history of anxiety." According to Dr. Gibson, these indications "required Mr. Delano to discuss Ms. Jackson's care with an attending radiologist for change in protocol and possible pre-treatment and post care observation."
Dr. Gibson's opinion also states that "the multiple potential contraindications . . . required consultation with a physician for consideration of not giving IV contrast and using only oral contrast or following a pretreatment protocol prior to the administration of IV contrast."
This opinion, however, fails to account for the facts that at least two physicians had reviewed Ms. Jackson's medical records before Delano administered the intravenous contrast, and that Ms. Jackson had recently undergone two previous CT scans, using intravenous contrast, without any incident. The risk factors identified by Dr. Gibson are all noted in an October 17, 2007 report by Dr. Amy Tien, reviewed and confirmed by Dr. John Saltzman, recommending CT enterography. This report was available to Dr. Brennan on October 22, 2007, when he ordered the use of Ultravist 300. Although Dr. Brennan noted, "Barium only if IV contrast is contraindicated," Dr. Gibson does not explain who, if not Dr. Brennan, would be responsible for determining the existence of any contraindications. Nothing in his opinion or in the record supports the proposition that the radiology technologist who administers the intravenous contrast is responsible for questioning the conclusions of the ordering physicians. "Because Dr. [Gibson's] opinion was based on an assumption of facts that were not rooted in the evidence, the offer of proof was fatally deficient." Cooper v. Cooper- Ciccarelli, 77 Mass. App. Ct. 86, 93 (2010) (record did not support plaintiff's expert's opinion that emergency room physician was liable for failing to override opinion of two physicians with greater expertise).
Finally, Dr. Gibson opined that "the standard of care required that Ms. Jackson be monitored until such time that it was clear that she was not having any type of reaction to the contrast." Again, neither his opinion nor the record evidence provides any basis to conclude that Delano performed the CT scan or was responsible for the decision to release Ms. Jackson at the conclusion of the study.
Because any question of Delano's liability is based entirely on speculation, conclusory allegations, and assumptions not supported by the record, the medical malpractice tribunal properly required the plaintiff to pursue the claim only upon filing a bond. G. L. c. 231, § 60(b).
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 13, 2015.