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.