Thou v. Russo , 86 Mass. App. Ct. 514 ( 2014 )

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13-P-1610 Appeals Court
MONYRETH THOU, administrator,1 vs. JOSEPH RUSSO.
No. 13-P-1610.
Middlesex. June 3, 2014. - October 23, 2014.
Present: Cypher, Brown, & Agnes, JJ.
Medical Malpractice, Tribunal, Bond, Standard of care.
Negligence, Medical malpractice, Doctor. Doctor.
Civil action commenced in the Superior Court Department on
April 17, 2012.
A motion to dismiss was heard by Maureen B. Hogan, J.
John N. Lewis for the plaintiff.
Gisela M. DaSilva for the defendant.
CYPHER, J. The plaintiff, administrator of the estate of
Sophal Chan Chin (decedent), appeals from a Superior Court
judgment dismissing his malpractice action against the defendant
doctor, Joseph Russo, following an adverse decision of a medical
malpractice tribunal and the plaintiff's failure to post a bond.
1
Of the estate of Sophal Chan Chin.
2
See G. L. c. 231, § 60B. We agree with the plaintiff that his
offer of proof was sufficient.
Background.2 The decedent died from cardiac arrest after
liposuction and abdominoplasty3 procedures performed at Milton
Hospital (hospital) by Russo on May 17, 2011. As detailed by
Russo in his operation report, after the decedent was brought
into the operating room, a general anesthesia was induced. In
performing the liposuction procedure, Russo utilized a tumescent
solution4 containing xylocaine (lidocaine) and epinephrine
delivered through "several small stab incisions" into the areas
to be suctioned. Approximately one liter of tumescent solution
was infused into each side of her waist. In treating the medial
thigh and knee areas, approximately 600 milliliters of tumescent
solution were infused. When the upper arms were treated,
approximately 300 to 400 milliliters of tumescent solution were
2
We take the facts from the plaintiff's offer of proof;
they are assumed to be true for purposes of our review. Cooper
v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 87 n.2 (2010).
3
Here, abdominoplasty was the surgical alteration of a
preexisting scar and of tissues to improve the contour of the
abdomen.
4
The tumescent technique for liposuction utilizes a dilute
anesthetic solution of lidocaine and epinephrine which produces
swelling and firmness of the targeted fatty areas to facilitate
suctioning of the fat. Lidocaine provides local anesthesia, and
epinephrine constricts small blood vessels to prevent absorption
of lidocaine into the bloodstream and to prolong the anesthesia.
See generally Klein, The Tumescent Technique: Anesthesia
(2010).
3
infused into each upper arm. Russo recorded that the total
infusion was 3,800 milliliters (or 3.8 liters). No tumescent
solution use was reported for the abdominoplasty.
The two procedures took place between 1:30 P.M. and
approximately 6:00 P.M. Russo reported that, as the abdominal
wound was about one-half closed, at about 6:03 P.M., the
anesthesiologist reported a sudden drop in the decedent's blood
pressure. Code emergency procedures immediately were instituted
and performed over the next one and one-half hours. The
decedent briefly was stabilized to a normal blood pressure and
was transferred to the intensive care unit. After about one
hour, she suffered cardiac arrest, was unable to be
resuscitated, and was declared dead at 9:50 P.M.5
The plaintiff filed a complaint in the Superior Court on
April 17, 2012, alleging that the decedent's death was caused by
Russo's negligence. Russo requested a medical malpractice
tribunal pursuant to G. L. c. 231, § 60B. Following the
submission of an offer of proof by the plaintiff, and a hearing,
the tribunal issued a report stating that "there is not
sufficient evidence to raise a legitimate question as to
liability appropriate for judicial inquiry." When the plaintiff
5
The intensive care unit physician recorded the cause of
death as "severe pul[monary] edema" and "cardiac arrest." The
medical examiner's certificate stated the cause of death as
"complications of abdominoplasty and liposuction."
4
failed to post the required bond, judgment entered dismissing
the plaintiff's complaint. He timely appealed.
Discussion. The plaintiff's claim of malpractice
essentially is that Russo failed to conform to the requisite
standards of care in his administration of the anesthetic
solution which allegedly was given in toxic doses, causing the
decedent's death.6 The plaintiff's offer of proof consists of a
memorandum of facts and law; an opinion letter of a medical
expert, Dr. Robert M. Stark,7 his curriculum vitae, and the
published articles on which he relied; the decedent's Milton
Hospital records; the medical examiner's records; and Russo's
office records.
We test the sufficiency of an offer of proof by viewing the
evidence "in a light most favorable to the plaintiff," Blake v.
Avedikian, 412 Mass. 481, 484 (1992), to determine principally
whether Russo's "performance did not conform to good medical
practice," and whether damage resulted. Santos v. Kim, 429
6
The plaintiff's brief alleges that two members of the
tribunal were biased based on their personal or professional
relationships with defense counsel. The allegation was not made
below and we do not consider it. See Blood v. Lea, 403 Mass.
430, 435-436 (1988).
7
Dr. Stark, board certified in cardiology and internal
medicine, and familiar with authorities and published literature
in liposuction practice, appears well qualified and was not
seriously challenged by Russo. See Letch v. Daniels, 401 Mass.
65, 68 (1987) (expert need not be specialist in medical area
concerned, but should have education, training, experience, and
familiarity with subject matter of testimony).
5
Mass. 130, 133 (1999) (citation omitted). 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." St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994)
(citation omitted). See Little v. Rosenthal, 376 Mass. 573, 578
(1978) (tribunal's task similar to trial judge's function in
ruling on defendant's motion for directed verdict).
The principal thrust of Dr. Stark's opinion is that Russo
deviated from the standard of care by ordering the infusion of a
toxic dose of tumescent solution, which caused the decedent's
cardiac arrest. Dr. Stark noted that, before the procedures
began, by "the end of one hour, this [intravenous (I.V.)]
infusion provided the [decedent] a dose of 1 mg epinephrine and
400 mg of lidocaine. . . . During the ensuing liposuction
procedure, Dr. Russo administered a total of 3.85 liters of
'tumescent solution' that . . . delivered an additional dose of
3.8 mg of epinephrine and 1,340 mg of lidocaine to the
[decedent's] subcutaneous tissue." Given these facts, Dr. Stark
opined:
"[I]t is my opinion to a reasonable degree of medical
certainty that Dr. Russo failed to exercise that degree of
skill and care of the average qualified practitioner of
medicine in general and as a surgeon of any specialty by:
(1) prescribing and ordering the perioperative I.V.
infusion of a toxic dose of tumescent anesthetic solution;
(2) failing to prevent the I.V. administration of a toxic
6
dose of anesthetic solution by reviewing his orders before
performing the procedure; and (3) failing to realize that
his patient had received the tumescent anesthetic I.V.,
thereby compromising further resuscitative efforts by the
administration of additional lidocaine and epinephrine as
part of the Advanced Cardiac Life Support (ACLS) protocol.
It is my further opinion to a reasonable degree of medical
certainty that it was the toxic dose of epinephrine
contained in the I.V. and potentiated by the co-
administration of lidocaine which caused [the decedent's]
death and that, notwithstanding Dr. Russo undertaking a
combination of liposuction and an abdominoplasty under
general anesthesia which carries the highest risk of
morbidity according to the literature, . . . but for his
ordering, allowing and not realizing that she had received
an I.V. infusion of the anesthetic solution, [the decedent]
would have survived the procedure."
Citing opinions of authorities in published papers that
"liposuction by local anesthesia is safer than liposuction by
general anesthesia,"8 and that "there have been no deaths
associated with tumescent liposuction totally by local
anesthesia without parenteral narcotic analgesia or general
anesthesia,"9 Dr. Stark stated that, based on his "own education,
training and experience as a cardiologist, it is my opinion to a
reasonable degree of medical certainty, that there was no
clinical indication or reason to administer perioperative fluids
containing epinephrine and lidocaine to [the decedent]."10 Dr.
8
Klein, The Tumescent Technique: Anesthesia (2010).
9
Klein, The Two Standards of Care for Tumescent Liposuction
(1997).
10
Dr. Stark also noted, "In situations of extreme
bradycardia or hypotension where epinephrine is required, the
dose ranges from 0.2 to 10 micrograms per minute, or 120 to 600
7
Stark concluded that the "ventricular ectopy and fibrillation
that [the decedent] developed in the [operating room] were, in
my opinion to a reasonable degree of medical certainty, the
result of an epinephrine overdose."
In response, Russo claims that he ordered the tumescent
solution only to be administered subcutaneously, and not
intravenously. Referring to his preoperative orders, he asserts
that he ordered standard lactated "Ringer's" solution,11 which
does not contain epinephrine or lidocaine, to be administered
intravenously; he points to hospital anesthesia records showing
that Ringer's solution was administered intravenously between
1:30 P.M. and 5:00 P.M. However, Dr. Stark points to a hospital
"provider order summary" that shows that a secondary intravenous
infusion (IV) was ordered, specified as follows:
"Start: 05/17/11 0753
"Stop: 05/17/11 0852
"Lactated Ringers Volume: 1000 ML
"Lidocaine 2 20ML Dose: 400MG
"Epinephrine Dose: 1 MG
"Rate: 1021 MLS/HR
"Infusion Site: IV"
micrograms per hour. [The decedent] was given over 1,000
micrograms of I.V. epinephrine in the first hour followed by
3,800 micrograms of epinephrine delivered to her subcutaneous
tissues."
11
Ringer's solution, also known as Ringer lactate,
resembles "blood serum in its salt constituents" and is "used as
a fluid and electrolyte replenisher by intravenous infusion."
Stedman's Medical Dictionary 1787 (28th ed. 2006).
8
The electronic medication administration record also lists
an order for 1,000 milliliters of "lactated Ringer's,"
specifying the same amounts of lidocaine and epinephrine as the
hospital anesthesia record, and adding "label cmts: tumescent
anesthesia" scheduled for intravenous route.
Dr. Stark also found that Russo failed to note in his
operation report the use of Marcaine (bupivacaine), "a local
anesthetic twice as powerful as lidocaine and more cardiotoxic."
The use of Marcaine also had not been recorded with the other
medications in the decedent's chart. Dr. Stark, however,
discovered an entry in a nurse's note that forty-five
milliliters of "25 Marcaine & epi[nephrine]" had been
administered, apparently during the ACLS protocol. He noted
that Marcaine was administered "directly into the area where the
surgical incision was made to perform the abdominoplasty."12 Dr.
Stark opined to a reasonable degree of medical certainty that
lidocaine and Marcaine "by themselves can cause ventricular
tachycardia and ventricular fibrillation," and that "severe and
12
Dr. Stark stated he could not "definitively assess the
harm that may have been contributed by these excessive doses [of
Marcaine, epinephrine, and additional lidocaine delivered
subcutaneously] because [the decedent] was under general
anesthesia when they were given." His inability to assess that
harm does not negate his ultimate conclusion that these
excessive doses compounded the toxicity that contributed to her
death.
9
intractable arrhythmia can occur with the accidental IV
injection [of lidocaine]."
Finally, Dr. Stark stated that the "hospital record is
incomplete and inconsistent as [to] the amount of I.V. fluids
given, but at the time [the decedent] was pronounced dead, she
had gained 10.4 kg (22+ lbs) due to I.V. fluids (measured during
the autopsy)." He stated that pulmonary edema was unavoidable,
and that the toxicology report was unreliable because the
analgesic medications and epinephrine had been "massively
diluted" by the IV fluids.13
Specifically, Dr. Stark's letter tracks the breach of
Russo's duty to conform to good medical practice with Dr.
Stark's statements regarding the administration of a toxic dose
of tumescent solution, the use of general anesthesia, and the
use of Marcaine. Dr. Stark links these actions by Russo to the
decedent's death, satisfying the requirement of causation.
Because the plaintiff's offer of proof regarding his claim
against Russo contained evidence that, "if substantiated, would
reasonably support an inference . . . that [Russo's] performance
did not conform to good medical practice, and that injury to the
[decedent] resulted therefrom," the tribunal erred in holding
13
A postmortem analysis of the decedent's blood, taken at
6:42 P.M. did not detect the presence of lidocaine. A second
postmortem analysis of a sample taken at 9:00 P.M. detected a
nontoxic level of lidocaine.
10
otherwise. St. Germain v. Pfeifer, 418 Mass. at 518. Thus, the
plaintiff was not required to post a bond to prevent dismissal
of his claim against Russo.
The judgment of the Superior Court is vacated. The matter
is remanded to the Superior Court where the determination of the
tribunal is to be substituted by a determination that the
plaintiff's offer of proof was sufficient to raise a legitimate
question appropriate for judicial inquiry.14
So ordered.
14
The plaintiff's request for appellate attorney's fees is
denied.