Vacca v. The Brigham & Women's Hospital, Inc.

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19-P-962 Appeals Court
ANNE VACCA vs. THE BRIGHAM & WOMEN'S HOSPITAL, INC.
No. 19-P-962.
Suffolk. May 13, 2020. - September 21, 2020.
Present: Neyman, Englander, & Hand, JJ.
Contract, What constitutes, Validity, With hospital, Performance
and breach, Implied covenant of good faith and fair
dealing, Modification, Promissory estoppel. Medical
Malpractice. Emotional Distress. Hospital. Negligence,
Hospital, Emotional distress. Practice, Civil, Summary
judgment.
Civil action commenced in the Superior Court Department on
August 4, 2016.
The case was heard by Paul D. Wilson, J., on a motion for
summary judgment.
Jeffrey S. Raphaelson for the plaintiff.
Brian H. Sullivan (Rebecca A. Cobbs also present) for the
defendant.
NEYMAN, J. This is an appeal from a summary judgment
issued by a judge of the Superior Court in favor of the
2
defendant, The Brigham & Women's Hospital, Inc. (BWH),1 on claims
including breach of contract, promissory estoppel, and
intentional infliction of emotional distress. In 2012, BWH
agreed to provide free treatment to the plaintiff, Anne Vacca.
In 2016, Vacca brought this lawsuit after she became
dissatisfied with the care she received.
The judge found that Vacca could not prevail on her claims
because there was no evidence that BWH had committed a breach of
any alleged promise it made to Vacca, BWH's conduct was not
extreme and outrageous as a matter of law, and Vacca's claims
should have been pleaded as malpractice claims. We affirm.
Background. 1. BWH agrees to treat Vacca. Vacca has
suffered from major depression for many years. Despite
treatment with various medications, psychotherapy techniques,
and electroconvulsive therapy, her depression showed little
improvement.
In 2011, Vacca's psychiatrist, Dr. Jane Erb, recommended
treating her with deep brain stimulation (DBS). The United
States Food and Drug Administration has not approved DBS to
treat depression, but the treatment is approved for other
conditions such as Parkinson's disease.
1 BWH is a charitable organization that provides medical
care to patients at its hospitals and outpatient facilities, and
engages in educational activities and scientific research.
3
DBS involves implanting electrodes within the brain. The
electrodes produce electrical impulses that can be directed to
affect specific areas of the brain. Implanting a DBS device
requires brain surgery, which, in Vacca's case, would cost
approximately $150,000. The battery in the device needs
periodic replacement, necessitating additional and expensive
adjustments and surgeries. There are also recurring costs to
monitor the patient and program the DBS device. Vacca's health
insurance carrier refused to pay for DBS treatment, and Vacca
was unable to pay for such treatment herself. However, in 2012,
Dr. Erb was the clinical director of the depression center at
BWH. On April 23, 2012, Dr. Erb sent a letter to Julia
Sinclair, BWH's vice-president for clinical services, proposing
that BWH provide free DBS treatment for Vacca. Sinclair
approved Dr. Erb's proposal. Dr. Erb and Dr. Travis Tierney,
the neurosurgeon who would perform Vacca's surgery, informed
Vacca that BWH had agreed "to perform the surgery, provide the
aftercare or the postoperative care, which included battery
replacements, programming the device, and cover the costs as
long as [she] needed that."
The parties did not discuss any further details of Vacca's
treatment at that time. They did not discuss the type of
batteries that would be used in the device, who would program
the device, or the possibility that Vacca might receive follow-
4
up care at another hospital. For its part, BWH contemplated
that all postoperative and follow-up care would take place at
its facility. The parties did not execute any written
agreement.
There is evidence in the summary judgment record to suggest
that BWH agreed to pay for Vacca's treatment not only because it
wanted to help Vacca, but also because it wanted to expand its
psychosurgery program. Indeed, BWH had recently recruited Dr.
Tierney, who had experience using DBS to treat psychiatric
conditions, with an eye towards growing the program. BWH later
featured Vacca's case in promotional materials discussing the
psychosurgery program.
On July 3, 2012, Dr. Tierney performed the implantation
surgery. Thereafter, BWH provided Vacca with postoperative
care, including surgeries to replace the device battery in 2013,
2014, and 2015. In 2014 and 2015, the parties discussed the
pros and cons of rechargeable and standard batteries. BWH
ultimately implanted a standard battery in all three battery
replacement surgeries.
The DBS treatment proved successful. Vacca agreed that DBS
had been "very helpful" in treating her depression. She also
testified that she no longer had the disabling depression that
she suffered prior to receiving the DBS treatment.
5
2. The relationship sours. By 2015, despite the success
of her treatment, Vacca was dissatisfied with the care she was
receiving. She outlined her concerns to BWH and to Dr. Erb,
which included that the battery needed replacement more often
than anticipated; that the most recent battery replacement had
caused her to have problems sleeping; that her surgeon, Dr.
Tierney, was leaving the hospital; and that BWH had not assigned
a psychiatrist to program the DBS device.2 Vacca was also
unhappy with the decision to continue using standard batteries
in the DBS device.3 She requested that BWH transfer her care to
another hospital.
BWH had some internal discussion regarding Vacca's
concerns. Dr. Erb also had communications with Vacca, and on
May 20, 2015, sent her an e-mail in which Erb stated that she
was "doing everything possible to right the course of this and
if that doesn't happen at BWH, then we'll make sure this happens
2 Vacca discussed with Dr. John Sullivan and Dr. Tierney her
concern "about the lack of psychiatric assessment and oversight
related to programming of her stimulator." According to Dr.
Sullivan's notes, Vacca "had been wondering whether, despite her
clear response to the treatment, there were other adjustments
that could be made to the DBS settings to optimize treatment and
perhaps improve her response yet further." She also told Dr.
Erb that she believed that a psychiatrist "should have been
involved from the beginning" in programming her device and
monitoring her response.
3 Vacca told one doctor in 2014 that she did not want a
rechargeable battery, but later that year Vacca said that she
did want a rechargeable battery rather than a standard battery.
6
properly, and cover it, elsewhere." However, Dr. Erb did not
have authority to agree to cover the cost of Vacca's care at
another hospital.4 BWH ultimately did not agree to pay for
Vacca's treatment at another institution, but was willing to
transfer Vacca's care at her own expense.
Around this same time, Vacca requested documentation of the
2012 "agreement." In response, BWH prepared a proposed letter
agreement (letter agreement). The letter agreement stated that
it would become effective on the date that Vacca signed it.
Vacca refused to do so because she was unhappy with some of the
terms, including a provision that allowed either party to
terminate the letter agreement upon written notice. Vacca
requested that her care be transferred to Massachusetts General
Hospital (MGH), expressing the view that BWH lacked the
expertise necessary to continue her treatment. BWH disagreed.
BWH told Vacca that it was "confident" it could "provide the
expert care [she] require[d]." However, BWH again offered to
transfer Vacca's care at her own expense. For reasons explained
in correspondence from MGH to Vacca, MGH did not agree to assume
Vacca's care.
4 Vacca does not contend on appeal that Dr. Erb had actual
or apparent authority to bind BWH to pay for Vacca's treatment
at a different hospital.
7
In October 2016, BWH performed another battery replacement
surgery on Vacca. Although Vacca has represented that she is no
longer receiving treatment at BWH, BWH remains willing to
provide DBS care for her.
3. The lawsuit. Vacca filed a complaint in Superior Court
alleging breach of contract, misrepresentation, violation of
G. L. c. 93A, intentional infliction of emotional distress, and
promissory estoppel. At the close of discovery, BWH moved for
summary judgment on all claims. The judge allowed the motion,
and judgment entered for BWH. Vacca timely appealed.
On appeal, Vacca presses only the breach of contract,
promissory estoppel, and intentional infliction of emotional
distress claims. She first argues that a jury could find that
BWH committed a breach of its promise to pay for her care by
implanting a standard battery, rather than a rechargeable
battery, in 2015; refusing to pay for her care at another
institution; sending the letter agreement in 2015; and failing
to ensure independent ethical oversight of her treatment. She
next argues that these claims do not sound in medical
malpractice because her treatment was experimental and because
BWH made certain care decisions for financial reasons. Finally,
she contends that her intentional infliction of emotional
distress claim should survive summary judgment because a jury
8
could find it extreme and outrageous that BWH abandoned her care
for financial reasons.
Discussion. We review a grant of summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the nonmoving party, "all material facts have been
established and the moving party is entitled to judgment as a
matter of law" (citation omitted). Casseus v. Eastern Bus Co.,
478 Mass. 786, 792 (2018). See Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002). See also Kourouvacilis v.
General Motors Corp., 410 Mass. 706, 716 (1991).
1. Breach of contract claim. We first consider whether
there were triable issues that precluded summary judgment on the
breach of contract claim. "To prevail on a claim for breach of
contract, a plaintiff must demonstrate that there was an
agreement between the parties; the agreement was supported by
consideration; the plaintiff was ready, willing, and able to
perform his or her part of the contract; the defendant committed
a breach of the contract; and the plaintiff suffered harm as a
result." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690
(2016). See Singarella v. Boston, 342 Mass. 385, 387 (1961).
Here, even assuming that a jury could find that the parties
entered into an oral contract related to Vacca's DBS treatment,
there is no evidence that BWH committed a breach of that
contract.
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a. Contract formation. The parties dispute whether their
discussions about the cost of Vacca's DBS treatment resulted in
the formation of a contract. Thus, we begin by reviewing the
relevant principles of contract law, which we recently
summarized in Sea Breeze Estates, LLC v. Jarema, 94 Mass. App.
Ct. 210, 215 (2018):
"Contract formation requires a bargain in which there is a
manifestation of mutual assent to the exchange. This
manifestation of mutual assent, otherwise known as a
meeting of the minds, occurs when there is an offer by one
[party] and an acceptance of it by the other. [A]n offer
is a manifestation of willingness to enter into a bargain,
so made as to justify another person in understanding that
his assent to that bargain is invited and will conclude it.
Acceptance exists where the offeree assents to the offer in
the terms in which it is made." (Quotations and citations
omitted.)
"[I]t is essential to the existence of a contract that its
nature and the extent of its obligations be certain." Caggiano
v. Marchegiano, 327 Mass. 574, 579 (1951). Where an alleged
agreement "is silent as to material matters important in its
interpretation for the ascertainment of the obligations of the
parties," the contract may be too indefinite to enforce
(citation omitted). Held v. Zamparelli, 13 Mass. App. Ct. 957,
958 (1982). "Nevertheless, '[i]t is not required that all terms
of the agreement be precisely specified' so long as the material
terms are ascertainable" (citation omitted). JPMorgan Chase &
Co. v. Casarano, 81 Mass. App. Ct. 353, 356 (2012).
10
Here, BWH argues that the parties' discussions about DBS
were too indefinite to lead to the formation of a binding
contract. Although the parties discussed BWH's willingness to
pay for Vacca's DBS implantation and aftercare, the details of
the arrangement remained open. The parties did not, for
example, discuss the type of battery to be used in the device,
whether Vacca could receive treatment at another facility, or
how they would resolve disputes that might arise.
Vacca responds that a jury could find that the parties
reached an oral agreement as to the terms the parties did
discuss. Specifically, BWH would perform Vacca's DBS surgery
and provide her aftercare at no cost to Vacca. Viewing the
evidence in the light most favorable to Vacca, as we must, we
conclude that there is evidence of a "manifestation of mutual
assent to the [parties'] exchange" (citation omitted). Sea
Breeze Estates, LLC, 94 Mass. App. Ct. at 215. See Brewster
Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.
App. Ct. 582, 596 (2007) ("Except where the evidence is
undisputed or consists solely of writings, whether a contract
was intended to be formed, what were its terms, and whether it
was supported by consideration are issues of fact for
determination by the jury").
Having concluded that there is sufficient evidence of a
meeting of the minds to survive summary judgment, we next
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address whether there was consideration for BWH's promise to
provide free DBS care. See Vasconcellos v. Arbella Mut. Ins.
Co., 67 Mass. App. Ct. 277, 280 (2006) ("An oral contract, like
any other, requires an offer, acceptance, and consideration").
There was evidence in the record that BWH benefited from the
arrangement because it hoped to establish a DBS program for the
treatment of depression. BWH used Vacca's case in promotional
materials in the hopes of attracting both qualified doctors and
future patients for the program. This evidence was sufficient
to create a triable issue whether there was valid consideration
for the parties' agreement. See Sewall-Marshal Condominium
Ass'n v. 131 Sewall Ave. Condominium Ass'n, 89 Mass. App. Ct.
130, 134 (2016), quoting Newhall v. Paige, 76 Gray 366, 368
(1858) ("The law does not undertake to determine the adequacy of
a consideration. . . . It is sufficient if the consideration be
of some value, though slight, or of a nature which may enure to
the benefit of the party making the promise").
b. The alleged breaches. Although a jury could find that
the parties formed an oral contract, Vacca's breach of contract
claim fails because she cannot establish that BWH committed any
breach. The undisputed evidence shows that BWH provided DBS
treatment to Vacca at no cost from 2012 until after Vacca filed
this action. Though Vacca represented at oral argument that she
has now transferred her care to another institution, it is
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undisputed that BWH remains willing to care for her. BWH thus
has complied with all of the agreed terms of the contract.
Vacca nonetheless argues that BWH committed a material
breach of the agreement by (1) implanting a standard battery,
rather than a rechargeable battery, in 2015; (2) refusing to pay
for the plaintiff's care at another institution; (3) failing to
ensure independent ethical oversight for her care; and (4)
sending her a letter agreement in 2015 that contained terms to
which the parties had not agreed. None of this conduct
constitutes the commission of a breach of any material term of
the parties' oral contract. Indeed, there is no evidence to
suggest that the parties discussed the type of battery to be
used in the DBS device, the possibility of treatment at a
facility other than BWH,5 or how Vacca's care would be monitored
before they entered into their oral contract in 2012. Insofar
as there was no evidence of a meeting of the minds regarding the
terms now specified by Vacca, there was also no breach of such
alleged terms.
Lacking proof that BWH committed a breach of any express
term of the oral contract, Vacca argues that a jury could find
that BWH committed a breach of the covenant of good faith and
fair dealing implied in all contracts in Massachusetts. Relying
5 See note 4, supra.
13
on Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 177
(2003), she emphasizes that the 2015 letter agreement prepared
by BWH constituted an attempt to exploit her position and force
her to relinquish rights she otherwise had under the oral
contract.
The implied covenant provides "that neither party shall do
anything that will have the effect of destroying or injuring the
right of the other party to receive the fruits of the contract
. . . ." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass.
451, 471-472 (1991), quoting Drucker v. Roland Wm. Jutras
Assocs., 370 Mass. 383, 385 (1976). Because "the purpose of the
covenant is to guarantee that the parties remain faithful to the
intended and agreed expectations of the parties," it may not be
"invoked to create rights and duties not otherwise provided for
in the existing contractual relationship." Uno Restaurants,
Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004).
Here, Vacca received the benefit of her bargain: free DBS
surgery and aftercare. She cannot use the implied covenant to
impose additional obligations on BWH beyond those to which the
parties agreed.
We agree that there may be circumstances where actions by
one party to a contract designed "to recapture opportunities
forgone on contracting . . . and to secure a better deal from
[the other party]" could constitute a breach of the implied
14
covenant (quotation and citation omitted). Tufankjian, 57 Mass.
App. Ct. at 178. However, Vacca's reliance on Tufankjian is
misplaced. In that case, a bank that had agreed to finance a
portion of the purchase of an automobile dealership took steps
to undermine the borrower's ability to obtain financing for the
remainder of the purchase, including making disparaging
statements about the borrower to the other lender and delaying
an appraisal. Id. at 177-178. The bank then attempted to
capitalize on the desperate situation it had created by offering
to finance the entire purchase at rates that greatly exceeded
the agreed rates. Id. at 178.
Here, BWH's reasons for drafting the letter agreement and
its conduct after Vacca rejected that agreement differ from the
bank's bad faith conduct in Tufankjian. It is undisputed that
BWH prepared the letter agreement in response to Vacca's request
for written documentation of the oral contract the parties had
reached several years earlier. When Vacca refused to sign the
letter agreement because it contained terms to which she had not
agreed, BWH did not attempt to coerce her into signing.
Instead, it continued to provide free medical care consistent
with the oral contract. In this context, the letter agreement,
at most, was as an attempted, and unsuccessful, modification of
the parties' oral contract. See Sea Breeze Estates, 94 Mass.
App. Ct. at 216, 217 (discussing requirements for written and
15
oral modification of contract and concluding that no
modification was made where appellant "presented no evidence
that the parties expressly agreed to the 'material terms' of a
modification"). The evidence in the summary judgment record
does not support the claim that the letter agreement was an
improper attempt to coerce Vacca into forgoing her contractual
rights.
c. Malpractice preemption. Of final note, with respect to
Vacca's breach of contract claim, most of the alleged breaches
she raised sound in medical malpractice and, as a matter of law,
cannot be disguised or recast as a breach of contract claim. In
Massachusetts, "[e]very action for malpractice, error or mistake
against a provider of health care" is subject to certain
procedural requirements. G. L. c. 231, § 60B. See G. L.
c. 231, §§ 60C-60I. Further, where a malpractice claim is
brought against a "nonprofit organization providing healthcare,"
such as BWH here, damages are capped at $100,000. G. L. c. 231,
§ 85K. A plaintiff may not circumvent this statutory scheme by
"restat[ing] a claim, otherwise subject to the medical
malpractice act, as [another type of claim]." Darviris v.
Petros, 442 Mass. 274, 283 (2004). In other words, a judge
faced with a claim against a health care provider must look at
the substance of the plaintiff's allegations, rather than the
label on the cause of action, to determine if the claim is a
16
malpractice claim. Id. See Roukounakis v. Messer, 63 Mass.
App. Ct. 482, 487 (2005) (where "crux" of plaintiff's claim was
"failure properly to diagnose," plaintiff's claim was for
medical negligence). Claims that challenge the "medical
judgment exercised by the defendant physicians" are malpractice
claims subject to the requirements for and limitations on such
claims. Vasa v. Compass Med., P.C., 456 Mass. 175, 178 (2010)
(claim by third party injured by patient driving while under
influence of medication sounded in malpractice because it
involved defendant's medical judgment in determining whether to
give certain warnings to patient about medication). Cf. Morgan
v. Laboratory Corp. of Am., 65 Mass. App. Ct. 816, 821-822
(2006) (claim for failure to convey test results to patient did
not sound in malpractice because error was administrative and
did not involve medical judgment).
Here, Vacca's concerns about BWH's failure to use
rechargeable batteries in the DBS device, the qualifications of
the psychiatrist programming the device, and the lack of ethical
oversight of her treatment all challenge BWH's medical judgment.
That the vast majority of Vacca's claims sound in medical
malpractice is underscored by her description of her concerns,
which she repeatedly couches in terms of BWH's alleged failure
to comply with relevant "scientific and ethical standards" to
ensure medically optimal results.
17
Vacca further argues that her breach of contract claim
should survive because malpractice does not provide a remedy for
BWH's alleged failure to pay for her care. This claim fails for
the reasons stated in the breach of contract discussion, supra:
BWH upheld its end of the bargain by providing DBS treatment to
Vacca at no cost from 2012 until after Vacca filed this action,
and by remaining willing to care for her.6
2. Promissory estoppel claim. Vacca's promissory estoppel
claim fails for substantially the same reasons as her breach of
contract claim. "Promissory estoppel is an equitable doctrine"
that "[i]n the absence of a contract in fact, . . . implies a
contract in law." Malden Police Patrolman's Ass'n v. Malden, 92
Mass. App. Ct. 53, 60 (2017), quoting Barrie-Chivian v. Lepler,
87 Mass. App. Ct. 683, 686 (2015). To prevail on a claim for
promissory estoppel, a plaintiff must establish that (1) the
6 Vacca also argues that she is not challenging the medical
judgment of any doctor but, rather, BWH's financial decision not
to pay for elements of her care. Vacca cites no authority for
the proposition that a health care provider loses the protection
of the medical malpractice statutory regime if it takes
financial considerations into account when making treatment
decisions. Indeed, some cases have drawn a distinction between
claims related to a provider's exercise of its medical judgment
and claims arising from purely administrative or entrepreneurial
aspects of a medical business, such as advertising or billing.
See Darviris, 442 Mass. at 279 (discussing availability of G. L.
c. 93A claims against health care providers); Morgan, 65 Mass.
App. Ct. at 821-822. The latter typically do not sound in
medical negligence. In any event, we need not resolve this
issue here, in view of the absence of any evidence of a breach
of the oral contract.
18
defendant made "a promise which [it] should reasonably expect to
induce action or forbearance of a definite and substantial
character on the part of the [plaintiff], (2) the promise does
induce such action or forbearance, and (3) injustice can be
avoided only by enforcement of the promise." Loranger Constr.
Corp. v. E.F. Hauserman Co., 6 Mass. App. Ct. 152, 154, S.C.,
376 Mass. 757 (1978). In the present case, BWH at most promised
to provide DBS care to Vacca at no cost. Where BWH did not
commit a breach of that promise, Vacca is no more entitled to
enforce the promise equitably than she is to enforce it at law.
3. Intentional infliction of emotional distress claim.
Vacca contends that a jury could find BWH liable for intentional
infliction of emotional distress because, upon determining that
it could not build a successful DBS program for depression
treatment, BWH sought to minimize the expense of Vacca's care,
such as implanting a standard battery and discussing removal of
the DBS device. To prevail on this claim, Vacca must prove "(1)
that the actor intended to inflict emotional distress or that he
knew or should have known that emotional distress was the likely
result of his conduct; (2) that the conduct was 'extreme and
outrageous,' was 'beyond all possible bounds of decency' and was
'utterly intolerable in a civilized community'; (3) that the
actions of the defendant were the cause of the plaintiff's
distress; and (4) that the emotional distress sustained by the
19
plaintiff was 'severe' and of a nature 'that no reasonable man
could be expected to endure it'" (citations omitted). Agis v.
Howard Johnson Co., 371 Mass. 140, 144-145 (1976). She has not
done so.
BWH's actions do not constitute the sort of extreme and
outrageous conduct that would allow Vacca to recover for
intentional infliction of emotional distress. BWH's alleged
wrongdoing arose in the context of its oral agreement to provide
hundreds of thousands of dollars in free care to a patient who
otherwise could not afford treatment. Even putting "as harsh a
face on [BWH's] actions . . . as the basic facts would
reasonably allow," Zaleskas v. Brigham & Women's Hosp., 97 Mass.
App. Ct. 55, 68 (2020), quoting Richey v. American Auto. Ass'n,
Inc., 380 Mass. 835, 839 (1980), no jury could find it utterly
intolerable in a civilized society for BWH to discuss
alternative treatment options with Vacca, to take cost into
account in determining what treatment to provide, or to refuse
to pay for her treatment at another hospital (without
interfering with her ability to transfer her care at her own
expense). See, e.g., Sena v. Commonwealth, 417 Mass. 250, 263
(1994) (upholding judge's ruling on summary judgment that
20
"alleged conduct was, as a matter of law, not extreme and
outrageous").7
For the foregoing reasons, we conclude that the judge
properly entered summary judgment in favor of BWH.
Judgment affirmed.
7 We also note that no jury could find that BWH's proposal
of the letter agreement, containing some terms viewed by Vacca
as unfavorable, was beyond the bounds of decency where the
evidence shows that BWH continued to provide free care to Vacca
after she refused to sign the letter agreement. Cf. Zaleskas,
97 Mass. App. Ct. at 68 (finding triable issue as to extreme and
outrageous conduct where there was evidence that X-ray
technician knew patient was in great pain, but did not allow
family into examination room, refused to stop examination
despite patient's screams, returned patient to a soiled bed, and
lied about what had happened); Boyle v. Wenk, 378 Mass. 592,
593-595 (1979) (conduct of private investigator repeatedly
harassing woman just released from hospital with newborn baby
was extreme and outrageous).