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A medical group that provided comprehensive radiological services to a Worcester hospital could be liable in tort for the wrongful death of an emergency room patient, notwithstanding its contention that its duties were limited to the terms of its service contract with the hospital, the Appeals Court has determined.
The plaintiff’s husband, Duane C. Brown, died from an acute gallbladder infection shortly after being admitted as an ER patient at Saint Vincent Hospital. The plaintiff brought malpractice claims against the hospital and certain individual medical providers, claiming her husband’s death could have been avoided had an “interventional radiologist” been available to perform an emergency procedure to drain the site of the infection.
In addition, the plaintiff asserted a negligence claim against Saint Vincent Radiological Associates, or SVRA, a practice group that had entered into a contract to be the hospital’s exclusive provider of radiological services.
Defendant SVRA moved for summary judgment, arguing it had no duty of care in tort with respect to the decedent because he was not a party to its contract with the hospital, and its duties were defined by the terms of that agreement.
However, the Appeals Court reversed the trial judge’s grant of summary judgment, concluding a duty of care was derived from the obvious fact that hospitals owe a duty of reasonable care to patients admitted to their emergency departments.
“To the extent the standard of reasonable emergency care requires having certain radiology services available, and to the extent SVRA was required by contract to provide those services on behalf of Saint Vincent — both of which are contested issues for trial — SVRA owed a duty of care to patients to provide those services,” Judge Gregory I. Massing wrote for the panel. “The contract required SVRA to assume duties to Brown recognized at common law — no more, but no less.”
The 20-page decision is Brown v. Saint Vincent Radiological Associates, Inc., Lawyers Weekly No. 11-099-24.
Patient expectations
The plaintiff’s attorney, Kerry P. Choi, said via email that the decedent was on the verge of becoming “legally invisible” based on the trial judge’s earlier ruling that, because the contract gave rise to the duty, there could be no independent tort duty, leaving as the only remedy a claim for breach of a third-party beneficiary contract.
Choi said the Appeals Court’s decision set things right.
“The hospital did not move for summary judgment and did not dispute that it owed its patient a duty,” Choi said. “On the contrary, the facts were that the hospital seemed to recognize it owed a duty and that the level of due care it intended for its patients required the specialty service, which is why it entered into the contract. It would be anomalous for the hospital to recognize its tort duty to its patient, yet the only means of providing that care, the specialty group, owed no duty to the hospital’s patient.”
Defense counsel Megan Grew Pimentel of Boston was unavailable for comment prior to deadline.
Kathryn J. Wickenheiser, a medical malpractice attorney in Peabody, said the purpose behind the outsourced service was to provide care to patients.
“You can’t hide behind a contract and say there’s no duty of care when the entire purpose of the contract is to provide patient care,” she said.
Wickenheiser added that the Appeals Court panel made an important point by refusing to recognize one more avenue for medical providers to limit or avoid liability.
“Massachusetts has been doing that for a long time with the charitable [damages] cap for hospitals,” she said. “We can’t extend [protections] to these individual corporations to deny plaintiffs recovery.”
Susan M. Bourque, a med-mal attorney in Boston, said Brown addresses an increasingly common business model being adopted by hospitals in an effort to reduce costs.
Groups of doctors in the same practice area are joining as corporations and presenting hospitals with opportunities to reduce costs, she said, noting that radiology is probably the most outsourced of practice groups in medicine.
“It’s a win-win,” Bourque said. “Hospitals are saving money, paying the contract service company less than they would if they were paying individual doctors [to staff a unit]. The company is making money by getting access to patients that they otherwise wouldn’t have access to.”
Brown addresses important liability issues that arise from that business model, she added.
“Here, you had a patient that presents to the hospital that needs a very specific procedure that the hospital doesn’t provide because it has this contract with this other company,” Bourque said. “The hospital calls the other company to get this [radiologist to perform the procedure], but this other company says it’s going to take three days. That can’t be OK.”
In allowing the plaintiff’s negligence claim against SVRA to go before a jury, the court acknowledged that the company was the hospital’s radiology department, Bourque said.
“Forget who’s behind the curtain. When the patient goes to the hospital and needs a procedure, they assume they are going to be able to get the procedure. If your job is to staff a radiology department and you don’t staff that radiology department, that’s a problem,” she said.
Wrongful death claim
As an acute-care hospital, Saint Vincent maintains a radiology department on its premises.
According to court records, SVRA is an incorporated group of radiologists. SVRA’s contract with Saint Vincent called on the defendant to provide full-time radiology services at the hospital on a 24-hour basis “every day of the calendar year.”
More specifically, the contract required SVRA to have: (1) a “sufficient number” of its doctors physically present at the hospital to provide full coverage Monday through Friday during normal business hours; (2) one full-time doctor present on Saturdays, Sundays and holidays; and (3) at least one doctor on call for telephone consultations seven nights a week.
In addition, SVRA was required to have available “interventional radiologists.” Apart from being able to interpret medical imaging like other radiologists, interventional radiologists are also trained to perform minimally invasive procedures on patients with the use of image-guided technology.
On Dec. 21, 2011, the plaintiff’s 61-year-old husband went to Saint Vincent’s ER complaining of neck pain. After receiving pain medication, he was discharged. Despite the pain medication and a cortisol injection from his primary care physician, Brown continued to experience neck pain, eventually becoming confused and delusional.
Brown was taken by ambulance back to Saint Vincent’s on Dec. 25, complaining of difficulty breathing and severe abdominal pain. SVRA doctors supervised the residents in the hospital’s radiology department as they performed a chest X-ray and computed tomography scans on Brown’s abdomen, pelvis and brain.
Doctors diagnosed Brown with an inflamed and infected gallbladder. In order to stabilize Brown’s condition prior to surgery to remove the gall bladder, the attending physician recommended the patient undergo a minimally invasive percutaneous cholecystostomy.
However, SVRA’s scheduler allegedly informed Saint Vincent’s doctors that an interventional radiologist would not be available to perform the percutaneous cholecystostomy on Brown for three days.
But while Saint Vincent’s doctors were told that SVRA did not have on-call interventional radiology coverage at the time, there allegedly was an SVRA interventional radiologist at the hospital doing other work.
Meanwhile, Brown’s family members and the attending physicians agreed the best course was to immediately transport the patient to UMass Memorial Medical Center for an emergency cholecystostomy procedure.
Accordingly, six hours after Brown had arrived at Saint Vincent, he was transferred to UMass Memorial. However, he died from the gallbladder infection before UMass Memorial doctors could insert the cholecystostomy tube.
In 2013, the plaintiff filed a wrongful death action in Worcester Superior Court against the three Saint Vincent doctors who had treated her husband. She later filed an amended complaint that included as defendants both Saint Vincent and SVRA.
The plaintiff’s claims against Saint Vincent and the individual defendants were eventually resolved and dismissed by agreement of the parties.
The plaintiff alleged claims of negligence and breach of contract against SVRA based on the theory that Brown was a third-party beneficiary of the outsourcing agreement between SVRA and Saint Vincent. The parties later settled the contract claim, leaving only the plaintiff’s claim of negligence against SVRA.
The defendant moved for summary judgment, arguing that the plaintiff was not entitled to a jury trial on her negligence claim because SVRA owed no duty of care to Brown apart from its contractual duties with Saint Vincent.
Judge J. Gavin Reardon granted the defendant’s motion, deciding SVRA had only a contractual obligation to provide services to Saint Vincent and owed no duty to Brown to perform the cholecystostomy upon which his survival depended.
Summary judgment reversed
Addressing defendant SVRA’s argument that it owed no duty to Brown distinct from its contract with Saint Vincent, the panel acknowledged that, under Massachusetts law, “a contractual duty may not give rise to a duty in tort to third persons if the duty assumed under the contract goes beyond the duties recognized under common-law tort principles.”
However, it found that that guidepost did not apply to the case at hand.
“Viewing the facts in the light most favorable to the plaintiff, under SVRA’s contract with Saint Vincent, SVRA effectively agreed to act as Saint Vincent’s radiology department,” Massing wrote. “Accordingly, it assumed the duty to provide medical treatment consistent with the standard of care in the practice of radiology. That common-law duty included whatever duty the radiology department of an acute-care hospital with an emergency unit owes to the hospital’s patients.”
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