Washington v. Cranmer ( 2014 )


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    12-P-1770                                             Appeals Court
    CRYSTAL WASHINGTON   vs.   HILARIE CRANMER.
    No. 12-P-1770.
    Suffolk.    June 3, 2013. - December 1, 2014.
    Present:   Rapoza, C.J., Cypher, Kantrowitz, Milkey,
    & Maldonado, JJ.1
    Medical Malpractice, Tribunal, Expert opinion. Negligence,
    Doctor, Medical malpractice. Practice, Civil, Offer of
    proof. Evidence, Offer of proof.
    Civil action commenced in the Superior Court Department on
    November 30, 2010.
    A motion to dismiss was considered by Frances A.
    McIntyre, J.
    Nicholas D. Cappiello for the plaintiff.
    Matthew S. Rydzewski for the defendant.
    1
    This case was initially heard by a panel comprised of
    Justices Kantrowitz, Milkey, and Maldonado. After circulation
    of the opinion to the other justices of the Appeals Court, the
    panel was expanded to include Chief Justice Rapoza and Justice
    Cypher. See Sciaba Constr. Corp. v. Boston, 
    35 Mass. App. Ct. 181
    , 181 n.2 (1993).
    2
    MILKEY, J.    On the morning of March 22, 2008, the
    plaintiff, Crystal Washington, went to the emergency department
    at Brigham and Women's Hospital (BWH).    There, she complained of
    various symptoms, and the defendant, Hilarie Cranmer, M.D.,
    examined, treated, and discharged her.    After she returned home,
    Washington suffered a stroke overnight, which caused permanent
    neurological damage.    She filed this action in Superior Court
    alleging that Dr. Cranmer caused her injuries by not complying
    with the applicable standard of care.2    In accordance with G. L.
    c. 231, § 60B, the matter was referred to a medical malpractice
    tribunal.3    After a hearing, the tribunal concluded that
    Washington's offer of proof, even if properly substantiated, was
    insufficient to raise a "legitimate question of liability
    appropriate for judicial inquiry."    G. L. c. 231, § 60B,
    inserted by St. 1975, c. 362, § 5.    Washington did not post the
    $6,000 bond required by the statute, and her action therefore
    was dismissed.4    See 
    ibid. ("[i]f [the] bond
    is not posted within
    2
    The claims were based on negligence and related theories.
    3
    General Laws c. 231, § 60B, the medical malpractice
    tribunal statute, applies broadly to "all treatment-related
    claims" involving a "provider of health care." Vasa v. Compass
    Med., P.C., 
    456 Mass. 175
    , 177 (2010), quoting from Little v.
    Rosenthal, 
    376 Mass. 573
    , 576 (1978). See generally Jacobs &
    Laurence, Professional Malpractice §§ 5.1-5.7 (2007).
    4
    Washington filed a motion to reduce the bond to $100 on
    the ground that she was indigent. That motion was denied by a
    3
    thirty days of the tribunal's finding the action shall be
    dismissed").   Because we agree with Washington that her offer of
    proof was adequate, we reverse.
    Standard of review.    "Before a medical malpractice
    tribunal, a plaintiff's offer of proof must (1) show that the
    defendant is a provider of health care as defined in G. L.
    c. 231, § 60B; (2) demonstrate that the health care provider [in
    question] did not conform to good medical practice; and (3)
    establish resulting damage."   Saunders v. Ready, 68 Mass. App.
    Ct. 403, 403-404 (2007), citing Santos v. Kim, 
    429 Mass. 130
    ,
    132-134 (1999).   The relevant standard of care is the one that
    applies to "the average qualified physician in his or her area
    of specialty" (in this case, an emergency medicine physician).
    Medina v. Hochberg, 
    465 Mass. 102
    , 106 (2013).     Whether the
    physician met the applicable standard of care generally can be
    answered only with the aid of expert opinion.    See Kapp v.
    Ballantine, 
    380 Mass. 186
    , 190 & n.4 (1980).     The expert opinion
    must be rooted in the record evidence and not be based on
    speculation, conjecture, or assumptions not supported by the
    evidence.   Blood v. Lea, 
    403 Mass. 430
    , 434 (1988).
    In determining whether a plaintiff's offer of proof is
    sufficient, "[t]he question to be decided . . . by the tribunal
    judge in the Superior Court, and Washington did not appeal that
    ruling. See Faircloth v. DiLillo, 
    466 Mass. 120
    , 124 (2013).
    4
    is a factual one."        Kopycinski v. Aserkoff, 
    410 Mass. 410
    , 413
    (1991).   However, the tribunal's task is "akin to a trial
    judge's evaluation of a motion for a directed verdict."        Cooper
    v. Cooper-Ciccarelli, 
    77 Mass. App. Ct. 86
    , 91 (2010), citing
    Little v. Rosenthal, 
    376 Mass. 573
    , 578 (1978).        Thus, "the
    tribunal may not examine the weight or credibility of the
    evidence."     Ibid., citing Perez v. Bay State Ambulance & Hosp.
    Rental Serv., Inc., 
    413 Mass. 670
    , 676 (1992).        Instead, it must
    consider the proof in the light most favorable to a plaintiff.5
    Blake v. Avedikian, 
    412 Mass. 481
    , 484 (1992).        "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, 
    86 Mass. App. Ct. 514
    , 516 (2014),
    quoting from St. Germain v. Pfeifer, 
    418 Mass. 511
    , 516 (1994).
    Background.     a.    Facts.   At 9:51 A.M., on March 22, 2008,
    Washington, then thirty-seven years old, arrived by ambulance at
    the BWH emergency department in Boston.        Washington reported
    that for the past twenty-four hours she had been experiencing
    body weakness, left arm weakness, difficulty keeping her
    balance, increased blood sugars, dizziness, and blurry vision.
    5
    Section 60B "requires a physician member on the tribunal
    so that he or she may lend expertise in medical matters and
    assist in screening out nonmeritorious claims." Blood v. 
    Lea, 403 Mass. at 435
    .
    5
    A triage nurse conducted the initial patient intake, and
    recorded Washington’s blood pressure at 234/153.    Intake records
    also show that Washington had a "gait disturbance" that made her
    a "fall risk," that she was "slow to respond" to questions, and
    that she had some difficulty with finding words (described in a
    later record as "mild dysarthria").   In addition, despite her
    relative youth, Washington already had a rich medical history
    that included diabetes, chronic hypertension, high cholesterol,
    and -- in 2004 -– a stroke.
    Dr. Cranmer apparently first saw Washington at 10:10 A.M.
    After conducting physical and neurological examinations, Dr.
    Cranmer concluded that Washington was alert, ambulatory, and
    oriented to person, place, and time; that her neurological exam
    was "normal" apart from her being hypertensive; and that she had
    a "regular" heart rate and rhythm and "[n]o obvious. . . motor
    or sensory deficits."   Washington also exhibited no chest pain,
    shortness of breath, headache, or fever.   Washington confirmed
    that she had not taken her blood pressure medication that
    morning (March 22).
    In response, Dr. Cranmer directed the assisting nurses to
    give Washington two medications (labetalol and
    hydrochlorothiazide) to lower her blood pressure.    At 10:45
    A.M., Washington received the prescribed medication orally.      Dr.
    Cranmer also ordered a computer tomography (CT) scan of
    6
    Washington's head and various "lab work," and placed Washington
    on a cardiac monitor and electrocardiogram (EKG) monitor.     Two
    hours later, at 12:45 P.M., Washington's blood pressure had
    fallen to 126/73.
    The radiology report from the CT scan did not reveal any
    intracranial hemorrhage or other acute abnormalities.6    Except
    for Washington's elevated blood sugar (258), her laboratory
    results were found to be within normal limits.   At 1:07 P.M.,
    Dr. Cranmer ordered "MRI/A" (i.e., magnetic resonance
    imaging/angiography) scans in order to evaluate Washington for a
    "Head Stroke."   In addition, Dr. Cranmer admitted Washington to
    the emergency department observation section (OBS) and ordered
    that she be monitored for a transient ischemic attack (TIA)7 and
    for continued blood pressure control.   Dr. Cranmer instructed
    that Washington's OBS admission was subject to the "transient
    neurologic" protocol, and she identified aspirin, MRI/A scans,
    and "consultation" on an as-needed basis as the appropriate
    interventions.
    By the early afternoon, Dr. Cranmer had made plain that her
    plan of continued treatment and care for Washington was
    6
    The scan did show indicia -- "lacunes" in the "left
    thalamus and caudate head" -- of the "old" 2004 stroke.
    7
    A transient ischemic attack is an "acute neurologic
    deficit resulting from circulatory impairment that resolves
    within 24 hours." Steadman's Medical Dictionary 1849 (28th ed.
    2006).
    7
    contingent on the results of the MRI/A scans that she had
    ordered.   Specifically, Dr. Cranmer intended to discharge
    Washington after her dinner meal, unless there were "new CVA
    [cerebral vascular accident] findings on the MRI/A" scans.       Dr.
    Cranmer noted that there was "no need for urgent neuro unless
    MRI/A is as above [i.e., new CVA findings]."    The nurses
    continued to monitor Washington while she rested in the OBS, and
    they administered aspirin to her at 1:45 P.M.   Meanwhile,
    Washington's blood pressure had begun to rise again.     By 2:00
    P.M., it had risen to 153/101, and at 2:45 P.M., it was at
    165/107.
    At approximately 3:30 P.M., in advance of the scheduled
    MRI/A scans, the nursing staff administered medication to
    Washington in an effort to treat her anxiety regarding the
    proposed procedure.   Ultimately, Washington's claustrophobia
    prevented her from going through with the MRI/A scans.       After
    the failed MRI/A attempt, Washington was returned to the OBS.
    The same "E[mergency] D[epartment] progress note" that stated
    that Washington was "unable to do the MRI" also noted that
    Washington reported that "her speech still isn't baseline."
    By 4:00 P.M., Washington's blood pressure had risen to
    174/106, and it remained at that elevated level (174/105) at
    8
    6:00 P.M. when she was discharged.8    Before she was discharged,
    Washington received another dose of blood pressure medication
    orally, and Dr. Cranmer issued instructions to "TAKE YOUR MEDS"
    and to "RETURN FOR ANY WORSENING ANYTHING."     Dr. Cranmer also
    directed Washington to follow up with a neurologist and her
    primary care physician within two weeks.
    At home that night and the following morning (March 23),
    Washington's condition declined.    She returned to the BWH
    emergency department by ambulance at 9:45 A.M. on March 23,
    presenting with left-sided facial droop as well as left-sided
    weakness.   Her "mild dysarthria" from the day before had
    "worsened," and her speech was now "slurred."     In addition, her
    blood pressure had risen to 218/139 and she was hyperglycemic.
    Washington was given labetalol to lower her blood pressure and
    insulin to lower her blood sugar.     A new CT scan did not
    evidence signs of a stroke.   However, follow-up tests, including
    MRI/A scans, revealed that Washington had suffered one.9
    On April 2, 2008, Washington was discharged from BWH and
    transferred to Spaulding Rehabilitation Hospital (SRH).
    8
    Although Washington was not formally discharged until
    after she had completed her dinner at approximately 6:00 P.M.,
    BWH records indicate that Dr. Cranmer signed the discharge order
    at 4:47 P.M.
    9
    Specifically, an initial MRI/A scan revealed "brainstem
    infarction in the right pons and bilateral medulla," and a
    second MRI/A scan showed additional damage.
    9
    Eventually, she was discharged from SRH.      Washington now is
    confined to a wheelchair and, although she can feed herself,
    "[s]he needs assistance for all other activities of daily
    living."
    b.      Expert opinion.   Before the tribunal, Washington
    submitted her medical records and an expert opinion letter that
    had been prepared by Kenneth C. Fischer, M.D., a board-certified
    neurologist.    Among his other conclusions, Dr. Fischer opined
    that Washington had sustained a "stroke and resultant severe and
    permanent neurological injury as the direct result of the
    substandard care and treatment" rendered by Dr. Cranmer on March
    22, 2008.    According to Dr. Fischer, the average qualified
    emergency medicine physician would (a) "recognize and
    appreciate" the complaints and medical history presented here as
    signs and symptoms of a "hypertensive emergency" and TIA; (b)
    "administer intravenous antihypertensive agents" to the patient
    in order to lower her blood pressure; and (c) order an
    "immediate neurology consultation" and admit the patient to the
    neurology intensive care unit (ICU) for monitoring and
    treatment.     Dr. Fischer further opined that if Dr. Cranmer had
    acted in conformance with this course of treatment, then
    Washington would have received blood thinner medication "at the
    new onset of symptoms and, more likely than not, she would not
    10
    suffer from the severe and permanent neurological injury with
    which she lives today."
    Discussion.   As the record amply reveals, when Washington
    arrived at the BWH emergency department on March 22, she
    presented with multiple causes for serious concern.   In sum, a
    patient who already had experienced a stroke at age thirty-three
    -- and who had chronic hypertension and poorly controlled
    diabetes -- was experiencing severely high blood pressure,
    difficulty walking and finding words, and paresthesia.     However,
    the record also reveals that Dr. Cranmer's initial course of
    action in responding to Washington's symptoms and medical
    history generally conformed to the standard of care set forth in
    Dr. Fischer's opinion letter.   Far from ignoring the serious
    concerns that Washington's case presented, Dr. Cranmer
    understood that Washington was in a hypertensive crisis that
    presented attendant risks for a TIA or stroke.   This is well
    demonstrated by the initial actions she took:    conducting a
    neurological examination, prescribing blood pressure medication,
    ordering laboratory work and a CT scan of Washington's head, and
    scheduling MRI/A scans to evaluate her for a stroke.10   Indeed,
    10
    There are some remaining potential discrepancies between
    the initial actions that Dr. Cranmer took and the standard of
    care that Dr. Fischer described. For example, Dr. Cranmer
    administered blood pressure medication orally instead of
    intravenously, and there is no evidence that she consulted with
    a neurologist. Given the grounds on which we rest, we need not
    11
    Dr. Cranmer's own appellate brief highlights that the actions
    she pursued were done in an effort to address the TIA and stroke
    risks that Washington presented.
    By midday, the medication that Dr. Cranmer ordered had
    reduced Washington's blood pressure to normal limits, and the
    testing that was done did not reveal any significant
    abnormalities.   However, Dr. Cranmer herself recognized the
    inconclusiveness of these promising indicators and was awaiting
    the results of the MRI/A scans.11   Her contemporaneous notes
    decide whether Dr. Fischer's opinion letter adequately explained
    how any such differences mattered. Additionally, we note that
    neither party has addressed the potential inconsistency between
    Dr. Cranmer's conclusion that Washington's neurological
    examination was normal, and near contemporaneous observations
    made by the triage nurse that Washington had both a "gait
    disturbance" and difficulty finding words. We do not rest on
    that ground.
    11
    In his opinion letter, Dr. Fischer stated that "[a]
    hypertensive emergency is a severe and persistent elevation in
    the blood pressure with acute impairment of an organ system
    (end-organ dysfunction) including, but not limited to, arm and
    leg weakness, paresthesia, gait disturbance, blurry vision, and
    difficulty with word finding." Based on that statement, the
    dissent posits that Washington could not have presented with
    "hypertensive emergency" because "[t]he laboratory work, imaging
    studies, and [EKG] results here furnished no indication of acute
    end-organ damage." Post at      . Thus, according to the
    dissent, "Dr. Fischer's opinion (and by extension the
    plaintiff's malpractice claim) rests on an ill-based factual
    assumption, namely, the presence of a hypertensive emergency,
    which, in the end, is not supported by anything in the record."
    Post at     . This conclusion rests on a misreading of what Dr.
    Fischer actually said. He characterized a hypertensive
    emergency principally by a set of symptoms, all of which were
    present on Washington's arrival at the emergency department. He
    did not state, or even imply, that a patient who exhibits those
    12
    indicate that she considered the MRI/A scans critical, stating
    that the patient could be discharged based on the MRI/A findings
    and that no urgent neurological care was needed unless the MRI/A
    results were abnormal.
    Once Washington's claustrophobia prevented her from going
    forward with the MRI/A scans, this in turn prevented Dr. Cranmer
    from having the benefit of the MRI/A results that she considered
    critical.   Nevertheless, Dr. Cranmer went ahead and discharged
    Washington even though her blood pressure had risen
    significantly since its midday low, and at midafternoon,
    Washington reported that she continued to have difficulty
    speaking.   In our view, there is a sufficient dispute over
    whether Dr. Cranmer did enough prior to Washington's discharge
    very symptoms cannot present with a hypertensive emergency
    absent independent proof of "end-organ dysfunction" through
    laboratory tests and the like. The dissent reads Dr. Fischer's
    opinion with a gloss that, at a minimum, is unduly demanding at
    the tribunal stage. In addition, it passes over the fact that
    Dr. Cranmer herself recognized that the testing results were
    inconclusive and that MRI/A scans should be done. Further, it
    bears noting that the additional CT scan done after the stroke
    was itself negative (unlike the MRIs), thus corroborating Dr.
    Cranmer's own views regarding the limited diagnostic role that
    CT imaging plays in this context. Especially given our duty to
    read the record in the light most favorable to Washington, we
    disagree with the dissent's conclusion that, as a matter of law,
    no reasonable jury could have concluded that she presented a
    "hypertensive emergency."
    13
    to preclude the case from being dismissed at the initial
    tribunal stage.12
    To be sure, Dr. Fischer's opinion letter does not grapple
    directly with Washington's inability to go forward with the MRI,
    and that omission diminishes the letter's force.    However, it
    does state that "imaging studies" should be conducted in order
    to rule out stroke.    Although one imaging study was performed
    (the initial CT scan), Dr. Cranmer discharged Washington without
    ever having received the additional benefit of another imaging
    study (the MRI/A) that she herself deemed important in order to
    rule out a stroke.    Thus, Dr. Cranmer's own course of action
    provides support for Dr. Fischer's assertions that she diverged
    from the applicable standard of care.
    Moreover, Washington's offer of proof is based on the
    overarching theory that BWH discharged a high-risk patient in
    the throes of a "hypertensive emergency" before that emergency
    was adequately resolved, and there was record support that the
    12
    Dr. Cranmer highlights that one hospital record
    characterized Washington's discharge from BWH on March 22, 2008,
    as her having "left against medical advice." However, that
    statement was not contemporaneous, but instead appears in a much
    later BWH report that followed Washington's stroke. If a
    patient who faced an obvious stroke risk was in fact discharged
    against the medical advice of the attending physician, a
    reasonable juror might expect to see that point noted in a
    hospital record that accompanied her discharge.
    14
    crisis had not been resolved.13    As noted, Dr. Fischer
    specifically opined, inter alia, that Dr. Cranmer should have
    admitted Washington to the neurology intensive care unit for
    "close monitoring and treatment," and that had this been done,
    the administration of blood thinner medication likely would have
    prevented Washington's injuries.    In contrast, Dr. Cranmer
    discharged Washington after giving her more blood pressure
    medications, and telling her to come back if she presented new
    symptoms.
    We emphasize that the details of what transpired between
    the failed MRI/A attempt and Washington's discharge are not well
    developed in the current record.    In the end, the evidence at
    trial may show that Dr. Cranmer acted entirely reasonably under
    the difficult circumstances presented and that she fully
    complied with the applicable standard of care.14    However, that
    is not something that can be resolved on the current record
    without straying into the inappropriate role of weighing the
    13
    In one BWH record, Dr. Cranmer suggested that she was
    comfortable discharging her patient because Washington had
    become "asymptomatic." However, that statement manifestly was
    not true at the time that Washington was discharged given the
    elevation in her blood pressure over the course of the
    afternoon. A different BWH record more accurately states that
    Washington "was discharged after getting some symptomatic
    relief" (emphasis added).
    14
    We do not mean to suggest that this case necessarily
    should proceed to trial. Depending on how the facts are
    developed in discovery, the case might be appropriate for
    summary judgment.
    15
    evidence.   See Cooper v. 
    Cooper-Ciccarelli, 77 Mass. App. Ct. at 91
    .   We conclude that Washington has satisfied her initial
    burden of "rais[ing] a legitimate question of liability
    appropriate for judicial inquiry."   G. L. c. 231, § 60B.
    Accordingly, we reverse the judgment of dismissal.
    So ordered.
    1
    MALDONADO, J. (dissenting, with whom Kantrowitz, J.,
    joins).    Driven by the critical shortcomings of the plaintiff's
    case, which I conclude fall woefully short of the standard
    demanded by G. L. c. 231, § 60B, I respectfully dissent.    The
    vital question here, as to which the parties sharply disagree,
    is whether the plaintiff's proof permits an inference that the
    defendant did not, in fact,1 conform to good medical practice.
    See Blood v. Lea, 
    403 Mass. 430
    , 433 (1988); Booth v. Silva, 
    36 Mass. App. Ct. 16
    , 20 (1994).    As is true in most instances,
    this inquiry can be answered only with the aid of expert
    opinion.    Kapp v. Ballantine, 
    380 Mass. 186
    , 190 & n.4 (1980).
    The expert's opinion, however, must be rooted in the record
    evidence and not be based on speculation, conjecture, or
    assumptions not supported by the evidence.    Blood v. Lea, supra
    at 434.
    When comparing Dr. Kenneth C. Fischer's expert opinion as
    to what would have been good medical practice against the record
    evidence memorializing the actual treatment rendered by the
    defendant, Dr. Hilarie Cranmer, a remarkable convergence emerges
    between the expert opinion and the treatment provided to the
    plaintiff on March 22, 2008, in the emergency department at
    Brigham and Women's Hospital (BWH).    Promptly, upon interviewing
    and examining the plaintiff, Dr. Cranmer recognized and
    1
    Ante at   .
    2
    appreciated the plaintiff's symptoms and history as involving a
    hypertensive crisis and transient ischemic attack (TIA), as is
    demonstrated by her orders to administer antihypertensive agents
    to lower the plaintiff's blood pressure; perform a computer
    tomography (CT) scan of the plaintiff's head; conduct laboratory
    work of the plaintiff's blood and fluids; and schedule magnetic
    resonance imaging/angiography (MRI/A) scans to evaluate the
    plaintiff for a head stroke.
    As of 12:45 P.M., while under the care of Dr. Cranmer and
    assisting medical personnel, the plaintiff's blood pressure had
    stabilized within normal limits.    Neither the laboratory tests
    nor CT scan revealed or suggested an acute end-organ
    dysfunction.   Dr. Fischer's opinion and ultimate conclusion --
    i.e., that Dr. Cranmer failed to conform to good medical
    practice -- hinges entirely upon the presence of acute end-organ
    dysfunction or ongoing damage.     On this record, there is no
    evidence at all to permit an inference that the plaintiff
    suffered, on March 22 at the BWH emergency department, from
    acute end-organ damage or dysfunction.
    It is undisputed that Dr. Cranmer assigned the plaintiff to
    the emergency department observation section (OBS) for
    monitoring of a possible TIA and continued blood pressure
    control.   Dr. Cranmer also scheduled MRI/A scans for the latter
    part of the afternoon.   It is also undisputed that, due to the
    3
    plaintiff's unwillingness to undergo the MRI/A scans, Dr.
    Cranmer did not have the benefit of this essential medical
    diagnostic resource.2
    Dr. Fischer explicitly defined a "hypertensive emergency"
    as "a severe and persistent elevation in the blood pressure with
    acute impairment of an organ system (end-organ dysfunction)."
    "[A]rm and leg weakness, paresthesia, gait disturbance, blurry
    vision, and difficulty with word finding" may suggest
    dysfunction, but do not demonstrate the presence of actual acute
    impairment of an end-organ system.   The laboratory work, imaging
    studies, and electrocardiogram (EKG) results here furnished no
    indication of acute end-organ damage.   Under no view of the
    evidence was it demonstrated that the plaintiff, while treated
    at the BWH emergency department on March 22, presented a
    "hypertensive emergency" as that medical term was defined by Dr.
    Fischer.   Rather, it cannot be reasonably disputed that on March
    22, the plaintiff presented a nonemergent hypertensive
    condition, for which Dr. Cranmer prescribed, and the plaintiff
    received, oral antihypertensive medication, and gradually, over
    2
    "Because the standard of care is based on the care that
    the average qualified physician would provide in similar
    circumstances, the actions that a particular physician, no
    matter how skilled, would have taken are not determinative."
    Palandjian v. Foster, 
    446 Mass. 100
    , 104-105 (2006). "It is
    permissible to consider the medical resources available to the
    physician as one circumstance in determining the skill and care
    required." Brune v. Belinkoff, 
    354 Mass. 102
    , 109 (1968).
    4
    a two-hour period, the plaintiff's blood pressure was lowered to
    the normal range.   Dr. Cranmer then arranged for the plaintiff
    to be monitored in the OBS for a TIA and blood pressure control.
    Dr. Cranmer also requested MRI/A scans to evaluate the plaintiff
    for a stroke.
    The plaintiff refused to undergo the MRI/A scans, and thus
    we can only speculate what the MRI/A scans would have revealed.
    Moreover, the next day's MRI/A scan results shed no light on
    what they might have revealed the day before.
    In short, up to the time of the plaintiff's discharge on
    March 22, there were no "indicators" that should have impelled
    Dr. Cranmer to act other than she did,3 LaFond v. Casey, 43 Mass.
    App. Ct. 233, 234 (1997); rather, Dr. Fischer's opinion (and by
    extension the plaintiff's malpractice claim) rests on an ill-
    based factual assumption, namely, the presence of a hypertensive
    emergency, which, in the end, is not supported by anything in
    the record.   Given this material shortcoming in the proof,
    combined with the undeniable fact that the plaintiff was
    unwilling to have the MRI/A scans on March 22, the plaintiff's
    proof is legally insufficient to permit an inference in her
    favor.   An inference must be based on "probabilities" not
    possibilities.   Alholm v. Wareham, 
    371 Mass. 621
    , 627 (1976).
    3
    The plaintiff's blood pressure reduced to normal, elevated
    slightly, and then stabilized at 174/105 -- reading the same at
    4:00 P.M. and 6:00 P.M., when she was discharged.
    5
    Nor do we look back on this most unfortunate incident "with the
    wisdom born of the event."   Greene v. Sibley, Lindsay & Curr
    Co., 
    257 N.Y. 190
    , 192 (1931) (Cardozo, C.J.).
    Based on the foregoing, I would affirm the judgment of the
    Superior Court.