Opinion
16-P-1342
06-09-2017
April JENNISON v. Elaine AMBROSINI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, who suffered a ruptured uterus during labor, brought a medical malpractice action against Elaine Ambrosini, R.N., obstetrician-gynecologist Dr. David Adelstein, and Triad Ob/Gyn, P.C. (Triad). A medical malpractice tribunal determined that the plaintiff's offer of proof was insufficient to raise a legitimate question of liability as to Ambrosini. The plaintiff failed to post a bond, and a separate and final judgment entered for Ambrosini pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). On the plaintiff's appeal, we affirm.
The tribunal found the offer of proof sufficient as to Dr. Adelstein. The plaintiff agreed that no tribunal consideration was needed for Triad. Neither Dr. Adelstein nor Triad are parties to this appeal.
Background. The plaintiff's offer of proof included her medical records from Triad and Tobey Hospital and the opinion letter of her expert, Dr. Joshua Holden. The factual statements that follow are drawn from the medical records. Dr. Holden's opinion is reserved for later discussion.
There appear to be numerous inconsistencies in the medical records, some of which are material to the disputed issues in this case. We review all of the facts in the light most favorable to the plaintiff, taking all reasonable inferences in her favor.
In 2005, the plaintiff gave birth to her first child by a caesarean section (C-section) performed with a "classical incision," which increases the risk of uterine rupture if the patient goes into labor in later pregnancies. In 2012, the plaintiff became pregnant again and began receiving prenatal care at Triad. The plaintiff's medical records from Triad note the prior classical incision and indicate that she should not be permitted to go into labor. Instead, the plaintiff was scheduled for a C-section on May 28, 2013, about two weeks before her expected due date.
Early on the morning of May 27, 2013, the plaintiff called Triad's obstetrician on call, Dr. Adelstein, and reported cramping without bleeding. On Dr. Adelstein's advice, the plaintiff went to the hospital for evaluation. At 5:50 A.M. , Ambrosini performed an admission assessment, during which she recorded that the plaintiff's blood pressure was 144/98 and that the plaintiff continued to experience abdominal cramping causing pain described as a nine out of ten.
The admission records indicate that at 6 A.M. Dr. Adelstein was notified that the plaintiff had been admitted to the hospital. He then placed telephone orders for various evaluations, laboratory tests, and an IV to help reduce the plaintiff's cramping. A record of the telephone order reflects that Dr. Adelstein's plan was to perform the C-section that day if the contractions continued. Ambrosini attached an electronic fetal monitor and inserted the IV, per Dr. Adelstein's instructions. The admission record indicates that she continued to monitor the plaintiff at regular intervals until her shift ended at 7 A.M. A different nurse, Lynda Landry, took over the plaintiff's care at that time. When Landry performed an evaluation at 7:03 A.M. , the baby's heart rate was 135, and the plaintiff's cramps had started to abate both in frequency and intensity.
Records indicate that Dr. Adelstein arrived at 7:30 A.M. At that time, the baby was reacting normally to routine tests and there was no active bleeding, but the plaintiff's contractions had become more frequent and she reported that her pain again had become more intense. After talking with the plaintiff, Dr. Adelstein decided to go ahead with the C-section one day early.
At 8:03 A.M. , the baby's heart rate had accelerated to 170 and the contractions were occurring approximately every two minutes. Dr. Adelstein's notes indicate that while the plaintiff was using the bathroom before being taken to the operating room, she screamed and "said that something felt like it was ripping out of her body," causing pain like she had never felt before.
By 8:19 A.M. , Landry was unable to find the baby's heart rate, and Dr. Adelstein performed an emergency C-section. The baby was delivered at 8:28 A.M. During the surgery, Dr. Adelstein observed that the plaintiff's uterus had ruptured.
Discussion. We review the sufficiency of the plaintiff's offer of proof before the tribunal "by viewing the evidence in a light most favorable to the plaintiff, ... to determine principally whether [the defendant's] performance did not conform to good medical practice, and whether damage resulted." Thou v. Russo, 86 Mass. App. Ct. 514, 516 (2014) (quotations omitted). The plaintiff's expert cannot base his opinions on speculation, conclusory allegations, or assumptions not supported by the record. See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91, 93 (2010).
Fatal to the plaintiff's offer of proof is her failure to address Ambrosini's particular role in the plaintiff's care vis-á-vis that of the attending physician. The plaintiff's expert principally appears to be of the mind that Ambrosini erred by failing to use sufficient alacrity to bring her condition to the attention of a responsible obstetrician. But even read in the light most favorable to the plaintiff, the record shows that Dr. Adelstein was involved with the plaintiff's care throughout the relevant period. Indeed, he and the plaintiff spoke even before her admission to the hospital. Dr. Adelstein was then contacted ten minutes after Ambrosini completed her intake assessment, and he established a specific course of action at that time (including plans to conduct an emergency C-section if her symptoms did not improve). There is nothing in the record to suggest that Ambrosini did not follow the plan that Dr. Adelstein put in place. To the contrary, the record indicates that just as Ambrosini's shift ended, the plaintiff's symptoms had improved considerably (worsening again only later). Under these circumstances, allegations that Ambrosini's failure to do more caused the plaintiff's injury are entirely speculative.
Nor has been there any basis shown that Ambrosini somehow could have countermanded Dr. Adelstein's selected course of action.
Another problem with the plaintiff's offer of proof is the standard of care that her expert purported to apply. Although Dr. Holden states, in conclusory fashion, what he considers to be the accepted standard of care for a labor nurse at the time of the plaintiff's injury, his letter does not assert the basis of such an understanding. Moreover, at least in great part, Dr. Holden appears to have subjected Ambrosini to the same standard of care applied to Dr. Adelstein—that of an obstetrician rather than a nurse. For example, Dr. Holden stated that both Dr. Adelstein and Ambrosini erred in the same exact respect: by failing to obtain an "order for tocolysis while preparing for an emergent cesarean section in a term, high risk patient with a prior classical incision, in labor."
At the outset of his letter, Dr. Holden states that he is familiar with the standard of care for an obstetrician, but makes no mention of his understanding of the corresponding standard for a labor nurse. Nothing in his curriculum vitae establishes knowledge of that standard.
"[T]ocolytic. ... Denoting any pharmacologic agent used to arrest uterine contractions; often used in an attempt to arrest premature labor contractions...." Steadman's Medical Dictionary 1994 (28th ed. 2006).
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Without support, Dr. Holden also suggests that Ambrosini is responsible for any shortcomings by the obstetrician, effectively holding her to the same standard of care. For example, he opined that Ambrosini fell short of the applicable standard of care when she failed to "call Dr. Adelstein and request that he ... physically assess Ms. Jennison shortly after her arrival to the hospital and/or go up [the] nursing chain of command until another obstetrician responded appropriately." Nothing in Dr. Holden's opinion or in the record supports the proposition that a nurse who follows the doctor's orders is responsible for questioning his conclusions. See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. at 92-93.
In sum, Dr. Holden's opinion is conclusory, ignores the limited nature of Ambrosini's role in the plaintiff's care, and relies on unsupported assumptions about the standard of care applicable to an average qualified labor and delivery nurse. The tribunal's conclusion that the plaintiff's offer of proof was insufficient to raise a legitimate question of liability as to Ambrosini was well supported.
Judgment pursuant to Mass.R.Civ.P. 54(b) affirmed.