Washington v. Cranmer

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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.