Opinion
No. 12–P–406.
2013-02-7
Anangely GONZALEZ, administratrix, v. Robert S. WOOL & others.
By the Court (GRASSO, BERRY & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, as administratrix of the estate of Giezi Gamaliel Vargas (baby), brought an action alleging medical malpractice by two doctors and one nurse (and their employers) who treated her at the Baystate Medical Center, immediately prior to, during, and after the premature delivery of the plaintiff's baby. In her complaint, she claimed that the defendants' failure to care for and treat the baby resulted in his pain and suffering and subsequent death. The medical malpractice tribunal decided that the offer of proof was insufficient to raise a legitimate question of liability as to all of the defendants. The plaintiff appeals from the judgment dismissing her complaint for failure to post a bond. We affirm. The plaintiff's offer of proof consisted of a memorandum, her hospital records, and an opinion letter of her expert, Dr. Wayne R. Cohen.
Facts. The eighteen year old plaintiff, whose 2009 pregnancy ended with an intrauterine fetal death, presented to the Baystate Medical Center on August 7, 2010, with a history of abnormal first-trimester screen and bleeding earlier in the day. She was in preterm labor at twenty-two weeks and one day. Dr. Robert S. Wool, who saw the plaintiff and reviewed her chart, noted the fetus to be previable. Dr. Rachana Singh subsequently spoke with the plaintiff and her family. Singh explained that the expected fetal viability was poor, the chance of survival was less than ten percent, and that if the baby survived, the risk of poor neurodevelopmental outcomes was very high. She documented this conversation, noting, “At this time NICU team will not be called for resuscitation. If [the baby] makes through to 23–24 weeks will reconsult.”
The baby, weighing one pound and 2.625 ounces, was born on August 7 at 5:48 P.M. His Apgar score at one, five, and ten minutes was three. The plaintiff's medical record noted that there were no interventions, i.e., that no cardiopulmonary resuscitation, newborn airway suction, or oxygen administration was performed, and that the newborn expired in the delivery room at 9:06 P.M.
The autopsy report listed, in part, the length of the umbilical cord as “23.5 cm” compared to a mean length of “36.4 ... cm,” acute chorioamnionitis, and focal villous edema.
Singh again spoke to the family at 7:00 P.M. and the attending physician spoke to them at 8:20 P.M. in light of the family's concern about the lack of heroic efforts for the baby. The attending physician again explained the prognosis and survivability of a baby born at twenty-two-week gestation and expressed hope that the plaintiff and her family have a better understanding that any effort to resuscitate the baby would have been futile and would have caused needless pain and suffering to him.
The comments in the autopsy report explained:
“The umbilical cord length is shorter than expected for gestational age.... There may be increased risk for neurologic dysfunction in infants with unusually short cords.
“Villous edema is seen as a placental response to fetal stress and is associated with fetal hypoxia due to compression of blood vessels within the edematous villi. The condition is seen more frequently with acute chorioamnionitis, placental abruption, and fetal anomalities.... There is significant increased risk for fetal demise and neonatal morbidity associated with hypoxia in preterm gestations complicated by villous edema.”
In his opinion letter, the plaintiff's expert, Dr. Cohen, opined:
“It is my opinion that [Wool, Singh, and Bruso] departed from the standard of care expected of a physician and nurse caring for an obstetric patient when they did not follow the applicable law in existence in the Commonwealth of Massachusetts (M.G.L. c. 112, section 12P) that states in part that a ‘physician performing an abortion shall take all the reasonable steps, both during and subsequent to the abortion, in keeping with good medical practice, consistent with the procedure being used, to preserve the life and health of the aborted child.’
“It is obvious from the existing law in the Commonwealth of Massachusetts in August of 2010, that if a physician is required to preserve the life and health of an aborted child (fetus), a physician is also required to preserve the life and health of a prematurely born infant who, without any supporting measures, survived spontaneously for 3 hours and 18 minutes. The conduct of these medical providers is even more egregious when one takes into account that the mother of this child clearly expressed that she wished heroic efforts be taken to sustain the baby's life. While it is impossible to predict how long this premature infant would have survived, and for that matter in what condition this infant would have survived, not to have provided any care to preserve the life of this infant was a clear deviation from the standard of care required by Massachusetts law.”
The medical tribunal's task is similar to a trial judge's role in ruling on a motion for a directed verdict. Keppler v. Tufts, 38 Mass.App.Ct. 587, 589 (1995), citing Little v. Rosenthal, 376 Mass. 573, 578 (1978). Under that standard, a plaintiff's offer of proof as to negligence will prevail before a medical tribunal if the plaintiff can show (1) that the defendant is a provider of health care as defined in G.L. c. 231, § 60B; (2) that the health care provider did not conform to good medical practice; and (3) that damage resulted therefrom. Saunders v. Ready, 68 Mass.App.Ct. 403, 403–404 (2007), citing Santos v. Kim, 429 Mass. 130, 132–134 (1999).
A physician is held to the standard of care and the skill of the average member of the medical profession practicing his specialty, accounting for advances in the profession. Palandjian v. Foster, 446 Mass. 100, 104 (2006). Here, Dr. Cohen's assertion that the defendants departed from the standard of care when they did not follow c. 112, § 12P, does not address the standard of care and skill of the average member of the medical profession. Furthermore, the statute, applicable to abortions of pregnancies of twenty-four weeks or more, is inapplicable to the present case of premature labor and delivery at twenty-two weeks.
As to Dr. Cohen's reliance on the plaintiff's alleged expressed wish for heroic efforts on behalf of the baby, it is likewise misplaced. Irrespective of whether the plaintiff or other members of her family expressed such an understandable wish, such a wish does not define a standard of care for Wool, Singh, and Bruso.
Not only did Dr. Cohen fail to show how the defendants departed from good medical practice, but he similarly failed to show causation. The opinion letter would have needed to state that the defendants' treatment more probably than not caused harm. Bradford v. Baystate Med. Center, 415 Mass. 202, 209 (1993). Here, Dr. Cohen conceded that “it is impossible to predict how long this premature infant would have survived, and for that matter in what condition....” We conclude that there was no evidence in the offer of proof to indicate that “more probably than not” the baby “would have lived longer or suffered less” had the medical professionals acted differently. See Keppler v. Tufts, 38 Mass.App.Ct. at 592 (citations omitted). There was no error in the decision of the medical malpractice tribunal.
Judgment affirmed.