Opinion
20-P-1388
02-22-2022
MARY JEAN MURRAY, personal representative, [1] v. BETH ISRAEL DEACONESS MEDICAL CENTER, INC., & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Mary Jean Murray brought the underlying medical malpractice action in the Superior Court as the executor of her late mother's (decedent) estate. Murray appeals from the denial of her motion to set aside the judgment dismissing the claims against Beth Israel Deaconess Medical Center, Ron Alterman, and Taylor Chace (together, BI defendants) for Murray's failure to timely respond to interrogatories. She also appeals from the grant of summary judgment for two sets of defendants: (1) Pedro Nin-Martinez, Kindred Healthcare, Inc., and Kindred Hospital Boston, and (2) Drs. Roderick McCoy and Reda Safieddine. We affirm the dismissal of the claims against the BI defendants and the grant of summary judgment for Nin-Martinez. We affirm in part and reverse in part the grant of summary judgment for Kindred and Dr. McCoy. We reverse the grant of summary judgment for Dr. Safieddine.
Although the amended complaint identified Kindred Healthcare, Inc., and Kindred Hospital Boston as one party, viz. Kindred Healthcare, Inc., doing business as Kindred Hospital Boston, they were subsequently treated as two separate parties. We will refer to Kindred Healthcare, Inc., and Kindred Hospital Boston together as "Kindred."
1. Dismissal of BI defendants.
Under Mass. R. Civ. P. 33 (a) (4), as appearing in 436 Mass. 1401 (2002), a party may apply for entry of final judgment if the opposing party does not respond to interrogatories within forty days after service of the final request for answers. The BI defendants first served interrogatories on Murray in June 2017 through her then counsel. On February 5, 2019, the BI defendants served their final requests for answers on Murray at her home address, her attorney having since withdrawn. On March 21, 2019, when Murray still had not answered, the BI defendants filed applications for entry of final judgment, which the judge allowed on March 28. The judge later denied Murray's motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to set aside the judgment, as well as Murray's motion for reconsideration of that denial.
Although Murray's motion also sought relief under Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), the parties agree on appeal that rule 60 (b) was the applicable rule.
To prevail under rule 60 (b), Murray had the burden to show that her failure to timely answer the interrogatories stemmed from "excusable neglect" and not from her "own carelessness." Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 158 (1987), quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979). The judge's denial of the motion "will not be overturned, except upon a showing of a clear abuse of discretion." Scannell, supra. An abuse of discretion does not exist "simply because a reviewing court might have reached a different result"; rather, so long as the judge acted "within the bounds of [his] discretion," our "inquiry is at an end." Id. at 160, quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986).
The thrust of Murray's claim of excusable neglect is that she was unaware of the interrogatories because her former attorney never provided them to her. This claim is unavailing because the BI defendants sent the final requests to Murray's home address, after her attorney withdrew. Contrary to Murray's assertion, the BI defendants were not obliged to provide proof of mailing, such as a certified mail receipt. It was sufficient that, as reflected on the certificates of service, the final requests were mailed, postage prepaid, to Murray's correct home address. See Mass. R. Civ. P. 5 (b), 365 Mass. 745 (1974) (service complete upon mailing to recipient's last known address). Moreover, at a status conference on March 22, 2019, after the BI defendants had already applied for final judgment, the judge advised Murray to contact the BI defendants' attorney to "figure out what may have happened" to the interrogatories that were mailed to her home. The judge also encouraged Murray and the BI defendants to try to resolve the issue before he acted on the application for final judgment. Yet Murray failed to contact the BI defendants' attorney and still had not answered the interrogatories by the time final judgment entered on March 28. Murray's rule 60 (b) motion also failed to show, or even attempt to show, that she had a meritorious claim, as was required to establish excusable neglect. See CIamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 806 (2002). For all these reasons, the judge acted within his discretion to deny the rule 60 (b) motion. Cf. Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010); Scannell, 401 Mass. at 158-159.
The judge likewise acted within his discretion to deny Murray's motion for reconsideration. Murray argues that she should have prevailed on this motion because she provided new evidence in the form of affidavits from her family members attesting that they lived with Murray and did not see the BI defendants' final requests for answers or applications for judgment in the mail. But nothing in these affidavits was new information that Murray could not have provided earlier. "In such circumstances, the judge was not required even to consider the motion for reconsideration, let alone to allow it." Clamp-All Corp., 53 Mass.App.Ct. at 808.
2. Summary judgment.
The remaining defendants originally moved for summary judgment on the ground that Murray had failed to designate an expert who would testify at trial. In opposing those motions, Murray provided a two-page letter from Dr. John Merritt, a physician licensed in Florida, and identified him as her trial expert. Concluding that the letter did not contain the information required by Mass. R. Civ. P. 26 (b) (4), 365 Mass. 772 (1974), a judge ordered Murray to provide a supplemental expert disclosure within thirty days. The judge denied the defendants' summary judgment motions without prejudice to renewal upon receipt of the supplemental disclosure.
We see no merit to Murray's argument that the judge abused his discretion by requiring her to supplement the expert disclosure.
Murray then provided an eighteen-page updated opinion from Dr. Merritt (the opinion). The defendants again moved for summary judgment, this time on the ground that the opinion did not raise a genuine issue for trial. A second judge agreed, finding that the opinion still "fail[ed] to supply the designated information" required by rule 26 (b) (4). In particular, the judge found that the opinion "fail[ed] to establish the standard of care applicable to each defendant."
On appeal the defendants variously suggest that judgment in their favor was proper because the opinion contains conclusory assertions that are inadequate to meet the requirements of rule 26 (b) (4). That is not the issue before us, however. The purpose of rule 26 (b) (4) is notice -- i.e., "to facilitate the fair exchange of information about critical witnesses and to prevent unfair surprise." Race v. Liang, 472 Mass. 630, 636 (2015). Even a "barebones" disclosure can be sufficient in certain circumstances to provide notice. See Larkin v. Dedham Med. Assocs., 93 Mass.App.Ct. 661, 667 (2018). Here, the defendants did not move to exclude Dr. Merritt from testifying at trial on the ground that his opinion did not give notice of the substance of his anticipated testimony. See, e.g., Barron v. Fidelity Magellan Fund, 57 Mass.App.Ct. 507, 519-520 (2003); Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 223-224 (1999). Instead, they moved for summary judgment. Therefore, the issue before us is whether the defendants met their burden to show that proof of an essential element of Murray's case was "unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) .
We agree with the defendants that the opinion is oftentimes conclusory and is deficient in several respects, as we detail below. But in determining whether an expert opinion creates an issue for trial, "[a] reasonable measure of doubt may be tolerated because 'all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.'" Noble v. Goodyear Tire & Rubber Co., 34 Mass.App.Ct. 397, 402 (1993), quoting Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991). That said, "[t]he expert opinion must be rooted in the record evidence and not be based on speculation, conjecture, or assumptions not supported by the evidence." Washington v. Cranmer, 86 Mass.App.Ct. 674, 675 (2014). In medical malpractice cases, the expert opinion must be adequate to raise triable issues on whether the defendant breached the applicable standard of care and whether that breach caused injury. See Palandjian v. Foster, 446 Mass. 100, 104 (2006). With these principles in mind, we consider separately each allegation in the opinion as to each defendant.
Nin-Martinez.
The opinion contains two allegations against Nin-Martinez, a respiratory therapist: (1) he placed the decedent on improper ventilator settings and failed to wean her from the ventilator "in an appropriate way"; and (2) he improperly replaced her soft tracheostomy cuff with a hard cuff. We agree with Nin-Martinez that he was entitled to summary judgment as to both allegations.
Nin-Martinez was acting under the orders of a physician. Of course there may be times when a respiratory therapist commits malpractice in carrying out a physician's orders. Here, the opinion states that the expert reviewed the medical records and then concludes that "[t]he average qualified respiratory therapist should have ensured that [the decedent] receive[d] proper ventilator settings, ha[d] been weaned from the ventilator in an appropriate way, and never had a hard water filled balloon cuff placed in her tracheostomy." Although this might be read as an implicit conclusion that Nin-Martinez committed malpractice notwithstanding that he followed a physician's orders, we read the decision in Cooper v. Cooper-Ciccarelli, 77 Mass.App.Ct. 86, 93 (2010), to require that the opinion "contain an assertion that [a respiratory therapist], confronted with these circumstances, would deviate from the governing standard of care if [he or] she failed to override" the physician's orders or take other steps before complying with them. See also Rahilly v. North Adams Reg'l Hosp., 36 Mass.App.Ct. 714, 721 (1994). The evidence, even viewed favorably to Murray, establishes that Nin-Martinez was acting under specific physician orders both when he set the ventilator and when he replaced the tracheostomy cuff. Because the opinion does not expressly state that the standard of care required Nin-Martinez to deviate from those orders, we are constrained by Cooper to hold that summary judgment in favor of Nin-Martinez was proper.
Kindred.
Generally, hospitals may be held vicariously liable for the actions of employees or agents over whom they have the right of control. See Chase v. Independent Practice Ass'n, 31 Mass.App.Ct. 661, 665 (1991). Here, there is no dispute that Drs. McCoy and Safieddine are not Kindred employees and that Kindred is not vicariously liable for their conduct. There is also no dispute, on the other hand, that Kindred may be held vicariously liable for the negligence of its own staff.
In addition to Nin-Martinez, the opinion identifies two nurses: "Andrea ?" and "Stephanie ?" As neither nurse's last name is identified, we will refer to the nurses as nurse Andrea and nurse Stephanie. The plaintiff's claims against nurse Andrea and nurse Stephanie were dismissed for untimely service. See note 2, supra.
The opinion contains six allegations against Kindred. We conclude that summary judgment was proper as to four of them: (1) that improper skin care caused the decedent to suffer a stage 4 decubitus ulcer; (2) that the decedent received inadequate respiratory care; (3) that her vancomycin levels were improperly monitored; and (4) that poor cleaning protocols caused a PICC line infection. We conclude that summary judgment should not have been granted as to the remaining allegations: (1) that Kindred staff failed to use a hard cervical collar when moving the decedent; and (2) that a nurse gave the decedent an improper diuretic dosage.
a. Skin care.
The opinion states that improper skin care caused the decedent to "suffer[] a stage 4 decubitus ulcer to the bone." But the medical records show that the decedent already had the stage 4 decubitus bone ulcer when she was admitted to Kindred. The opinion is therefore not rooted in the evidence and fails to raise a genuine issue on causation. See Washington, 86 Mass.App.Ct. at 675.
b. Respiratory care.
The opinion states that Dr. Safieddine and Nin-Martinez provided inadequate care by using improper ventilator settings and a hard tracheostomy cuff. Again, however, it is undisputed that Kindred is not vicariously liable for any negligence of Dr. Safieddine, who is not a Kindred employee. And because the opinion fails to raise a genuine issue as to Nin-Martinez's liability, as discussed above, there can be no vicarious liability. See Gifford v. Westwood Lodge Corp., 24 Mass.App.Ct. 920, 922 (1987).
c. Vancomycin levels.
Fairly read, the opinion asserts that the failure to monitor vancomycin levels was attributable to Dr. McCoy. Notably, the allegations against Dr. McCoy are repeated nearly verbatim against Kindred. As Kindred is not vicariously liable for the acts of Dr. McCoy, this part of the opinion does not raise a genuine issue for trial.
d. Cleaning protocols.
The opinion states that "[t]he average qualified hospital staff should have ensured that proper cleaning protocols be followed to reduce the risk of a PICC line infection." We agree with Kindred that this does not adequately set forth a standard of care. The opinion fails to identify what cleaning protocols an average hospital staff would have followed, but Kindred staff did not. That the decedent developed a PICC line infection does not itself establish that Kindred breached a standard of care.
e. Cervical collar.
Contrary to Kindred's contention, this part of the opinion adequately states a standard of care --that "[t]he average qualified hospital staff should have ensured that [decedent's] healing fracture be stabilized by [the] use of a hard cervical neck collar during all transfers." The opinion also states that Kindred staff -- including, specifically, nurse Andrea -- breached that standard by moving the decedent without using a hard collar, or using no collar at all, causing severe injuries. This is sufficient to raise factual issues on all elements of the claim.
f. Improper diuretic dosage.
The opinion states that an "average qualified nurse should have administered the proper dose of Torsemide as prescribed by Dr. McCoy" and that nurse Stephanie "incorrectly administered an overdose" to the decedent, causing acute renal failure. This is sufficient to raise factual issues on all elements of the claim.
Dr. McCoy.
The opinion contains five allegations against Dr. McCoy. We conclude that summary judgment was proper as to three of them: (1) that improper skin care led to a stage 4 decubitus ulcer; (2) that the decedent received inadequate respiratory care; and (3) that poor cleaning protocols led to a PICC line infection. We conclude that summary judgment should not have been granted as to the allegations that Dr. McCoy breached the standard of care by (1) not ordering the exclusive use of a hard cervical collar during transfers and (2) by not ordering routine testing of the decedent's vancomycin levels.
a. Skin care.
This allegation is identical to the one levied against Kindred and fails to create a genuine issue on causation, for the reasons stated above.
b. Respiratory care.
This allegation is also identical to the one against Kindred. It does not articulate a standard of care for Dr. McCoy. Furthermore, the decedent's respiratory care was managed by Dr. Safieddine, a pulmonologist, and the opinion does not state why the standard of care would require Dr. McCoy to override Dr. Safieddine's orders. See Cooper, 77 Mass.App.Ct. at 93 (expert opinion failed to establish breach of standard of care where it "lacked any consideration of the defendant's actual conduct in seeking out the higher expertise of the [specialists] with whom she consulted").
c. Cleaning protocols.
Fairly read, the opinion asserts that this was an issue of "nursing hygiene." The opinion does not state what Dr. McCoy did or did not do that would violate the standard of care for an average physician.
d. Cervical collar.
The opinion states the following standard of care: the "average qualified doctor" would have ensured that the decedent was "stabilized by [use of] a hard cervical neck collar during all transfers." The opinion concludes that Dr. McCoy deviated from that standard by failing to order that the decedent be "only moved while wearing a hard cervical collar," which led to worsening of her spinal fracture, among other complications.
Dr. McCoy argues that the opinion is not rooted in the evidence because there are notations in the medical records that he ordered a "Miami J collar" (a hard collar) on several occasions. But while the records do contain orders for a Miami J collar, a factual issue exists as to whether Dr. McCoy ordered that a hard collar be used exclusively. There are also notations in the records suggesting that Dr. McCoy was trying to secure a soft collar for the decedent. Viewing the evidence favorably to Murray, the opinion is sufficient to create a genuine issue for trial.
e. Vancomycin levels.
The opinion states that the average qualified physician would have "ordered routine [v]ancomycin trough level tests" and that Dr. McCoy's failure to do so or to check the trough levels "for many days" contributed to the decedent's renal failure. This is sufficient to raise factual issues on all elements of the claim. Although Dr. McCoy argues that the opinion lacks sufficient detail -- because it does not name the specific days the trough levels were not checked --that was not necessary to survive summary judgment. The argument goes to the weight of the evidence, which is an issue for trial. See Noble, 34 Mass.App.Ct. at 402 (although expert opinion did not account for "every day" or "every past event," "a perfect case need not be shown in opposing a motion for summary judgment").
Dr. Safieddine.
The opinion contains two allegations against Dr. Safieddine: (1) that he placed the decedent on improper ventilator settings and failed to wean her from the ventilator; and (2) that he failed to ensure that she had the proper tracheostomy cuff. We conclude that summary judgment should not have been granted as to either allegation.
a. Ventilator settings and weaning.
The opinion states that "[t]he average qualified physician should have ensured that [the decedent] receive[d] proper ventilator settings and been weaned from the ventilator in an appropriate way." The opinion also states that Dr. Safieddine breached that standard by "maintain[ing] [the decedent] on very high ventilator settings," which were "inappropriate for [the decedent] and severely compromised her pulmonary function." As a result, the opinion concludes, the decedent suffered "respiratory infections, an unnecessarily prolonged weaning course, pneumonia, and respiratory failure and death."
This is sufficient to raise triable issues on all elements of the claim. In arguing otherwise, Dr. Safieddine maintains that the opinion is not specific enough to root in the facts, pointing to medical records showing that he conducted several weaning trials with the decedent. But we read the opinion to assert that, from the beginning of the decedent's time as Dr. Safieddine's patient, her lungs suffered because of excessively high ventilator settings, which ultimately made it harder to wean her off the ventilator. While Dr. Safieddine is correct that the evidence could be interpreted multiple ways by a jury, it must be viewed on summary judgment in the light most favorable to Murray. See Noble, 34 Mass.App.Ct. at 403, quoting Rutland v. Fife, 385 Mass. 1010, 1010 (1982) ("the opinion of an expert is not to be dismissed as a 'generalized assertion of opinion' so long as it is 'sufficiently substantial . . . to raise an apparent issue of fact'").
b. Tracheostomy cuff.
The opinion likewise raises triable issues on all elements of the claim related to the tracheostomy cuff. It establishes a standard of care -- that "[t]he average qualified physician should have ensured that [the decedent] have a soft balloon cuff" -- and states that Dr. Safieddine deviated from that standard by allowing the use of a hard cuff, which "caused a massive bleed from a fistula" and, eventually, death.
We disagree with Dr. Safieddine's suggestion that he cannot be held liable because a different physician ordered the hard cuff. The opinion states that "Dr. Safieddine was in charge of [the decedent's] respiratory care and should have never allowed this hard cuff to be used" and that his failure to remove the cuff caused the decedent's injuries. Thus, regardless of who ordered the cuff, the evidence viewed in the light most favorable to Murray raises a factual issue as to whether Dr. Safieddine breached the standard of care. We also reject Dr. Safieddine's contention that the opinion is deficient because it does not consider the time the decedent spent in other hospitals prior to developing the fistula. This argument goes to the weight of the opinion -- again, an issue for trial. See Noble, 34 Mass.App.Ct. at 402-403.
Conclusion.
So much of the final judgment as dismissed the claims against Kindred and Dr. McCoy is reversed in part and affirmed in part: As to Kindred, the judgment is reversed on the theories that the failure to use a hard cervical collar when moving the decedent and the administration of an improper diuretic dosage by a nurse breached the standard of care. In all other respects, the judgment is affirmed as to Kindred. As to Dr. McCoy, the judgment is reversed on the theories that the failure to order the exclusive use of a hard cervical collar during transfers and the failure to order routine testing of the decedent's vancomycin levels breached the standard of care. In all other respects, the judgment is affirmed as to Dr. McCoy. So much of the final judgment as dismissed the claims against Dr. Safieddine is reversed. In all other respects, the judgment is affirmed.
So ordered.
The panelists are listed in order of seniority.