Hitchcock v. Emergency Servs. of New England, Inc., No. 620-12-09 Wmcv (Wesley, J., June 6, 2011)

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                                                STATE OF VERMONT
SUPERIOR COURT                                               Civil Division
Windham Unit.                                                Docket No. 620-12-09 Wmcv

JOHN HITCHCOCK, EXECUTOR OF
THE ESTATE OF IRENA GONYER and
FRANK GONYER,
     Plaintiffs

            v.

EMERGENCY SERVICES OF
NEW ENGLAND, INC., et al.
     Defendants

                                     Opinion and Order re Defendants’
                                    Motion for Partial Summary Judgment

           In September of 2008, a physician’s assistant at the Springfield Hospital Urgent

Care Facility located in Bellows Falls, Vt. erroneously determined that Irena Gonyer was

having an acute heart attack after reviewing an EKG taken on a different patient. As a

result, Ms. Gonyer was given several medications which caused her to suffer a stroke and

ultimately led to her death. The eight Defendants named in this action include the

medical personnel and medical facilities involved with the treatment of Ms. Gonyer.

Currently pending is the Motion for Partial Summary Judgment of Defendants

Emergency Services of New England, Inc. (“ESNE”), Warren Montgomery, Richard

Marasa, and Springfield Hospital(“Hospital”) (referred to herein as “Defendants”).

Based on the following, Defendants’ Motion for Partial Summary Judgment is

GRANTED in part and DENIED in part.

           Summary Judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, referred to in

the statements required by Rule 56(c)(2), show that there is no genuine issue as to any
material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.

56(c)(3). The party moving for summary judgment has the burden of proof, and the

opposing part must be given the benefit of all reasonable doubts and inferences in

determining whether a genuine issue of material fact exists. Price v. Leland, 149 Vt. 518,

521 (1988).

                                           Facts

       On September 13, 2008, Irena Gonyer was seen at the Springfield Hospital’s

Urgent Care facility in Bellows Falls where an EKG was administered. Physician’s

assistant (“PA”) Warren Montgomery read the EKG report he believed was associated

with testing administered to Ms. Gonyer and concluded that she was having an acute

heart attack. However, the EKG came from another patient, eventually determined to

have been taken many months previously, and Ms. Gonyer was not having a heart attack.

       Ms. Gonyer was transferred by ambulance to the Springfield Hospital where she

received two additional EKGs and other testing. These EKGs did not indicate that Ms.

Gonyer was having a heart attack. However, based on the initial EKG erroneously

attributed to Ms. Gonyer, PA Benjamin Holobowicz consulted with a cardiology resident

at Dartmouth-Hitchcock Medical Center (“DHMC”) in Lebanon, New Hampshire. The

cardiology fellow recommended the administration of blood thinning and clot busting

medications. These medications were administered and caused Ms. Gonyer to suffer a

stroke. Ms. Gonyer was transferred to DHMC where physicians and surgeons performed

emergency brain surgery to slow the inter-cranial bleeding. Ms. Gonyer never recovered

and died several months later.

       Springfield Hospital’s Urgent Care facility is staffed primarily by fourteen PAs.




                                             2
Dr. Richard Marasa is the only supervising physician who oversees these PAs. Dr.

Marasa works ten hours per week in direct patient care and was not present at the facility

at the time of the accident. Each PA’s Scope of Practice agreement, which is

incorporated into each licensure petition to the Board of Medical Practice, requires that

the PA work “simultaneously” with the primary supervising doctor during approximately

50% of clinical hours.

                                   Procedural History

       This motion for partial summary judgment was filed subsequent to a similar

motion for partial summary judgment filed by Defendant Benjamin Holobowicz. In Mr.

Holobowicz’s motion for partial summary judgment, he argued that (1) Mr. Gonyer could

not recover for loss of consortium after the death of Irena Gonyer; (2) Mr. Gonyer could

not maintain a claim for “extreme emotional distress” against him because the evidence

supported neither the elements of intentional infliction of emotional distress nor negligent

infliction; and (3) Plaintiffs could not recover punitive damages against him because he

was, at most, negligent.

       Plaintiffs responded that (1) Mr. Gonyer was only seeking to recover for loss of

consortium for the time period after the accident but before Ms. Gonyer’s death; (2) that

Mr. Gonyer was not seeking any claim of emotion distress from Mr. Holobowicz; and (3)

that Plaintiffs were not seeking punitive damages from Mr. Holobowicz. Plaintiffs

explained in a footnote that their claim for extreme emotional distress was directed

primarily at the Hospital and ESNE, citing Restatement (Second) Torts § 46. Based on

the absence of any substantial opposition, Defendant Holobowicz’s motion for partial

summary judgment was granted without extensive analysis.




                                             3
       The pending motion purports to “join in Co-Defendant Benjamin Holobowicz’

Motion for Partial Summary Judgment in Defendants’ favor as to Plaintiff Frank

Gonyer’s claims for loss of consortium, Frank Gonyer’s claims for ‘extreme emotional

distress,’ and any claims for punitive damages.” In addition, Defendants seek summary

judgment as to Count VI of Plaintiff’s Amended Complaint, regarding the staffing policy

of Springfield Hospital. Defendants briefed the issues of the Hospital’s staffing policy

and punitive damages, but did not argue the issues of loss of consortium or extreme

emotional distress. In response, Plaintiffs addressed only the two arguments briefed by

Defendants.

                                        Discussion

       1. Frank Gonyer’s claim for loss of consortium after the death of Ms.
       Gonyer.

       In response to Mr. Holobowicz’s motion for partial summary judgment, Plaintiffs

explained that they are not seeking to recover for loss of consortium after Ms. Gonyer’s

death. It is clear that Plaintiff Frank Gonyer cannot recover for loss of consortium from

any Defendant for the time after the death of Ms. Gonyer. See Restatement (Second)

Torts § 693, cmt. f (“In case of death resulting to the impaired spouse, the deprived

spouse may recover under the rule stated in this Section only for harm to his or her

interests and expense incurred between the injury and death. For any loss sustained as a

result of the death of the impaired spouse, the other spouse must recover, if at all, under a

wrongful death statute.”). Therefore, summary judgment on this claim must be

GRANTED.




                                              4
       2. Frank Gonyer’s claim for extreme emotional distress.

       This issue of Mr. Gonyer’s extreme emotional distress has not been adequately

briefed by either party. The previous motion only addressed this claim as it applied to

Mr. Holobowicz and was uncontested by Plaintiffs. In response to that motion, while

disclaiming any such cause of action against Mr. Holobowicz, Plaintiffs made clear that

they believed that there is a basis for an emotional distress claim against several of the

Defendants who now move for partial summary judgment. Yet, Defendants have not

offered further analysis to illuminate this issue.

       On the other hand, Plaintiff has supplied scant explanation as to how the facts

support a finding that the moving Defendants caused him extreme emotional distress.

Nevertheless, on the current record, the Court cannot conclude that there are no material

facts in dispute, or that Defendants are entitled to judgment as a matter of law. V.R.C.P.

56. Defendants’ motion for summary judgment on this claim is therefore DENIED.

       3. Plaintiffs’ claim regarding the Springfield Hospital’s staffing policy.

       By Count VI of their complaint, Plaintiffs allege that Ms Gonyer’s injuries and

eventual death were “the direct and proximate result of the official policies of Springfield

Hospital which authorizes physician’s assistants to diagnose and treat patients in an

urgent care department and in an emergency department outside the presence of and

without the direct supervision of physicians.” In the next paragraph of Count VI,

Plaintiffs further allege that this “official policy wantonly and maliciously ignores the

demands and complexities of urgent and emergency care.”

       By their motion for summary judgment, statement of undisputed facts and

supporting exhibits, Defendants purport to establish that the Hospital’s policies with




                                               5
respect to its employment of physician’s assistants, as well as the supervisory duties

exercised by Defendant Richard Marasa, M.D., met the standard of care in every respect.

According to Dr. Marasa’s affidavit, each PA employed by Springfield Hospital is

required to petition the Board of Medical Practice every two years in order to remain

licensed. That process requires that the PA file a statement, endorsed by Dr. Marasa as

the supervising physician, outlining his or her scope of practice. With respect to the PAs

furnished to Springfield Hospital under contract with Defendant ESNE, the scope of

practice agreement is provided by ESNE and approved by the Board of Medical Practice.

All PAs involved in Ms. Gonyer’s care were properly licensed at the time of the incidents

which are the subject of Plaintiffs’ complaint. The Board of Medical Practice has never

disapproved ESNE’s scope of practice agreement, as submitted by each PA and endorsed

by Dr. Marasa, either before or since that time.

         Plaintiffs dispute none of these assertions.1 However, their approach to

responding to Defendants’ motion for summary judgment is not a model of clarity when

attempting to discern the basis for their claim in Count VI. In their Statement of Facts



1
  Indeed, as argued by Defendants, Plaintiffs’ approach to Rule 56 practice entitles Defendants to claim
that all facts as set forth in their Statement of Undisputed Facts are deemed admitted. V.R.C.P.56(c)(2)
provides: “The opposing party shall include with the affidavits and memorandum filed under paragraph (1)
a separate, short, and concise statement of the material facts as to which it is contended that there exists a
genuine issue to be tried. All material facts set forth in the statement required to be served by the moving
party will be deemed to be admitted unless controverted by the statement required to be served by the
opposing party. The statements of material facts required to be served under this paragraph shall consist of
numbered paragraphs and shall contain specific citations to the record.” Instead of the procedure required
by the Rule, Plaintiffs include their Statement of Facts within their memorandum, not separately, including
39 exhibits which arguably reflect “specific citations to the record”. Yet, in a separate Response to
Emergency Services of New England’s, Warren Montgomery’s, Richard Marasa’s and Springfield
Hospital’s Statement of Undisputed Material Facts, Plaintiffs purported citations to the record are, in fact,
citations to the Statement of Facts in their memoranda. Thus, to attempt to identify Plaintiffs’ evidentiary
basis for disputing Defendant’s claimed undisputed facts, the Court is required to flip back to Plaintiffs’
memorandum, and then follow any references to the exhibits appended to the memorandum. This laborious
endeavor is exactly what the Supreme Court condemned in Webb v. Leclair, 2007 VT 65, ¶6, 182 Vt. 559
(“[f]orcing courts to sift through nearly fifty pages of narrative in order to find contested and uncontested
facts is precisely the type of ‘needle in a haystack’ search the rule is meant to avoid”).


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section, at ¶ ¶ 67-69, Plaintiffs insert several legal propositions, including “[i]t is

unprofessional conduct (not simply malpractice) for a physician to assign a physician’s

assistant to tasks if those physician’s assistants are not trained or qualified to perform

those tasks”; “[u]nprofessional conduct is separate and distinct from a deviation from the

standard of care”; “Dr. Marasa’s deliberate failure to work simultaneously with the 14

physician’s assistants acting under his care manifests a gross disregard for the rights of

patients at the Springfield Hospital Emergency Department”. It is curious that these

assertions are couched as statements of fact, and even more curious that Plaintiffs fail to

offer any further analysis of these legal propositions in their memorandum.

         After the initial “Statement of Facts”, Plaintiffs’ memorandum addresses

Defendant’s “Staffing Policy for Their Emergency Department”. In this section Plaintiffs

argue that “the policies of the Springfield Hospital preclude Mr. Holobowicz and other

physician’s assistants from conforming to the Scope of Practice Agreement”. In

particular, Plaintiffs note that portion of the agreement under the heading “Supervision”

which provides: “P.A. work (sic) simultaneously with the primary supervising MD for

approximately 50% of clinical hours”.2 Plaintiff’s memorandum argues further, “[t]here

is simply no way that the 14 physician’s assistants who staff the Springfield Hospital

Emergency Department 24 hours per day, seven days per week, 168 hours per week, can

‘work simultaneously’ with Dr. Marasa, who spends only 10 hours per week in direct

2
 The Agreement goes on: “When the primary MD is not on premises, he is available by phone. When the
primary supervising MD is absent, the secondary supervising physician is available at all times either on
premises or by phone. At all times, the PA has the full complement of on-call medical staff at their
disposal, in major specialties. On call physicians are always available for consultation, evaluation, and
admission per hospital by-laws and respond to the Emergency Department when requested. Supervising
physician reviews 100% of patient counters and co-signs each record after having done such.” Plaintiffs
have not demonstrated that the portions of the Scope of Practice Agreement specifically contemplating
patient care by PAs outside the direct physical supervision of a supervising physician violate any regulation
or standard of care, nor that the mechanisms for consultation and evaluation contemplated by the
Agreement were inadequate in Ms Gonyer’s case.


                                                     7
patient care.”

         Though the tone of Plaintiffs memorandum makes plain their belief that

Defendants’ deviation from the requirement that PAs work “simultaneously with the

primary supervising MD for approximately 50% of clinical hours” is patent, they support

the argument with little beyond arithmetic. Even acknowledging the “simply no way”

argument, Plaintiffs’ fail to explain, much less support with evidence, the relationship

between a violation of “the 50% rule” and any injuries to Ms. Gonyer. Also, while it

appears undisputed that Dr. Marasa was not present during the treatment of Ms. Gonyer

by the PAs at the Springfield Hospital facilities, Plaintiff proffers neither evidence nor

law to demonstrate that such physical absence either presents a departure from the

standard of care, or was causally related to Ms. Gonyer’s injuries.

         Despite the confusing presentation of Plaintiffs’ allegations regarding deficiencies

in Springfield Hospital’s staffing policy, the Court is satisfied that they do no more than

raise a claim of medical negligence, and the Court examines the claim in that light.3 In

medical negligence, as in tort law generally, a plaintiff has the burden of proving the

applicable standard of care, that defendant breached that standard, and that as a proximate

result plaintiff suffered injuries that would not otherwise have occurred. 12 V.S.A. §

1908. Except where the alleged violation of the standard of care is so apparent that it can

be understood by a layperson without the aid of medical experts, the burden of proof in

medical malpractice action requires expert testimony. Provost v. Fletcher Allen Health



3
   In ¶ 67 of their Statement of Facts, in ostensible support of the proposition that “unprofessional conduct
is separate and distinct from a deviation from the standard of care”, Plaintiffs cite to Ex. 38, which is a copy
of 26 V.S.A. § 1354, and which defines “unprofessional conduct” in the context of proceedings before the
Board of Medical Practice. Assuming this reference is intended to support the existence and parameters of
the cause of action framed in Count VI of Plaintiffs’ complaint, it is wholly inadequate in the absence of
further analysis and authorities.


                                                       8
Care, Inc., 2005 VT 115, ¶12, 179 Vt. 545.

       The standard of care regarding a hospital’s staffing policy is not so apparent that it

can be understood by a layperson. This conclusion follows easily when considering the

level of regulatory oversight such policies receive by governmental authorities as

demonstrated by Defendants’ Statement of Undisputed Facts, both as a matter of hospital

practice, as well as the licensing requirements for physician’s assistants. The failure to

offer an expert opinion to establish the standard of care, and that Defendant’s deviation

from it caused injury to Plaintiffs’ decedent, is therefore fatal to this claim. Provost, 2005

VT 115, ¶12. In addition, Plaintiffs’ argument fails to address, let alone support, how the

staffing policy or lack of Dr. Marasa’s physical presence played any causal role in the

adverse outcome suffered by Ms. Gonyer. Therefore, summary judgment must be

GRANTED.

       4. Plaintiffs’ claim for punitive damages

       Plaintiffs assert that they are entitled to punitive damages stemming from their

claim that Dr. Marasa and Springfield Hospital were willing to ignore the great risk of

harm caused by the staffing policy in order to secure higher profits.

       Punitive damages are permitted upon a showing of (1) wrongful conduct that is

outrageously reprehensible, and (2) malice. Fly Fish Vt., Inc. v. Chapin Hill Estates, Inc.,

2010 VT 33, ¶18, 187 Vt. 541. Malice is “defined variously as bad motive, ill will,

personal spite or hatred, reckless disregard, and the like.” Id. Negligence alone without

malice cannot support the imposition of punitive damages. Id. at ¶24. Recklessness can

support an award of punitive damages so long as there is “evidence that the defendant

acted, or failed to act, in conscious and deliberate disregard of a known, substantial and




                                              9
intolerable risk of harm to the plaintiff, with the knowledge that the acts or omissions

were substantially certain to result in the threatened harm.” Id.

       To establish the requisite malice, Plaintiffs posit an outrageous willingness to put

profit over patient safety. However, as already examined, Plaintiffs have failed to

demonstrate that the Hospital’s staffing policy represents a deviation from the standard of

reasonable and ordinary medical care, to say nothing of a deviation that rises to the level

of outrageous conduct motivated maliciously by a profit-seeking mentality.

       Except for the unsupported claims regarding the staffing policy, Plaintiffs do not

allege any malice and the Court cannot find any indication of bad motive, ill will,

personal spite or hatred, or reckless disregard required to support an award of punitive

damages. While the results in this case were tragic, the conduct of the Defendants—as

demonstrated by the evidence in the summary judgment record—amounts, at worst, to

simple negligence which can never by itself support an award of punitive damages. Fly

Fish, 2010 VT 33, ¶24. Therefore, summary judgment on this issue must be

GRANTED.



               Based on the foregoing, it is hereby ORDERED:

       Defendants’ motion for summary judgment on the issue of Mr. Gonyer’s claim
       for loss of consortium after the death of Irena Gonyer is GRANTED.

       Defendants’ motion for summary judgment on the issue of Springfield Hospital’s
       staffing policy, is GRANTED.

       Defendants’ motion for summary judgment on the issue of punitive damages is
       GRANTED.

       Defendant’s motion for summary judgment on the issue of extreme emotional
       distress is DENIED.




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DATED   , at Bennington, Vermont,



        ______________________
        John Wesley
        Presiding Judge




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