Hitchcock v. Emergency Servs. of New England, Inc., No. 620-12-09 Wmcv (Wesley, J., June 6, 2011) [The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] 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 th e Springfield Hospital Urgent Care Facility located in Bellows Falls, Vt. erroneo usly 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 wh ich 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 w ith the treatment of Ms. Gonyer. Currently pending is the Motion for Partial Summary Judgment of Defendants Emergency Services of New England, Inc. (“ESNE”), W arren Montgomery, Richard Marasa, and Springfield Hospital(“Hospital”) (refer red to herein as “Defendants”). Based on the following, Defendants’ Motion for Part ial 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 w ith the affidavits, if any, referred to in the statements required by Rule 56(c)(2), show that there is no genuine issue as to any2

material fact and that any party is entitled to jud gment as a matter of law.” V.R.C.P. 56(c)(3). The party moving for summary judgment ha s the burden of proof, and the opposing part must be given the benefit of all reas onable doubts and inferences in determining whether a genuine issue of material fac t 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 rep ort he believed was associated with testing administered to Ms. Gonyer and conclud ed that she was having an acute heart attack. However, the EKG came from another p atient, eventually determined to have been taken many months previously, and Ms. Gon yer was not having a heart attack. Ms. Gonyer was transferred by ambulance to the Spri ngfield Hospital where she received two additional EKGs and other testing. Th ese EKGs did not indicate that Ms. Gonyer was having a heart attack. However, based o n the initial EKG erroneously attributed to Ms. Gonyer, PA Benjamin Holobowicz co nsulted with a cardiology resident at Dartmouth-Hitchcock Medical Center (“DHMC”) in L ebanon, New Hampshire. The cardiology fellow recommended the administration of blood thinning and clot busting

medications. These medications were administered a nd caused Ms. Gonyer to suffer a stroke. Ms. Gonyer was transferred to DHMC where p hysicians and surgeons performed emergency brain surgery to slow the inter-cranial b leeding. Ms. Gonyer never recovered

and died several months later. Springfield Hospital’s Urgent Care facility is sta ffed primarily by fourteen PAs.3

Dr. Richard Marasa is the only supervising physicia n who oversees these PAs. Dr. Marasa works ten hours per week in direct patient c are and was not present at the facility at the time of the accident. Each PA’s Scope of Pr actice agreement, which is incorporated into each licensure petition to the Bo ard of Medical Practice, requires that the PA work “simultaneously” with the primary super vising 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 Defend ant Benjamin Holobowicz. In Mr. Holobowicz’s motion for partial summary judgment, h e 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 distres s” against him because the evidence supported neither the elements of intentional infli ction of emotional distress nor negligent infliction; and (3) Plaintiffs could not recover pu nitive 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 b ut before Ms. Gonyer’s death; (2) that Mr. Gonyer was not seeking any claim of emotion dis tress from Mr. Holobowicz; and (3) that Plaintiffs were not seeking punitive damages f rom Mr. Holobowicz. Plaintiffs explained in a footnote that their claim for extrem e emotional distress was directed primarily at the Hospital and ESNE, citing Restatem ent (Second) Torts § 46. Based on the absence of any substantial opposition, Defendan t Holobowicz’s motion for partial summary judgment was granted without extensive anal ysis.4

The pending motion purports to “join in Co-Defenda nt Benjamin Holobowicz’ Motion for Partial Summary Judgment in Defendants’ favor as to Plaintiff Frank Gonyer’s claims for loss of consortium, Frank Gonye r’s claims for ‘extreme emotional distress,’ and any claims for punitive damages.” I n addition, Defendants seek summary judgment as to Count VI of Plaintiff’s Amended Comp laint, regarding the staffing policy of Springfield Hospital. Defendants briefed the is sues 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 addres sed only the two arguments briefed by

Defendants.

Discussion 1. Frank Gonyer’s claim for loss of consortium afte r 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 can not recover for loss of consortium from any Defendant for the time after the death of Ms. G onyer. 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 Se ction only for harm to his or her interests and expense incurred between the injury a nd death. For any loss sustained as a result of the death of the impaired spouse, the oth er spouse must recover, if at all, under a wrongful death statute.”). Therefore, summary judg ment on this claim must be

GRANTED

.5 2. Frank Gonyer’s claim for extreme emotional distr ess. This issue of Mr. Gonyer’s extreme emotional distre ss 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. Ho lobowicz, Plaintiffs made clear that they believed that there is a basis for an emotiona l distress claim against several of the Defendants who now move for partial summary judgmen t. Yet, Defendants have not offered further analysis to illuminate this issue. On the other hand, Plaintiff has supplied scant exp lanation as to how the facts support a finding that the moving Defendants caused him extreme emotional distress. Nevertheless, on the current record, the Court cann ot conclude that there are no material facts in dispute, or that Defendants are entitled t o judgment as a matter of law. V.R.C.P. 56. Defendants’ motion for summary judgment on thi s claim is therefore DENIED

. 3. Plaintiffs’ claim regarding the Springfield Hosp ital’s staffing policy. By Count VI of their complaint, Plaintiffs allege that Ms Gonyer’s injuries and eventual death were “the direct and proximate resul t 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 departme nt outside the presence of and without the direct supervision of physicians.” In the next paragraph of Count VI, Plaintiffs further allege that this “official polic y wantonly and maliciously ignores the demands and complexities of urgent and emergency ca re.” By their motion for summary judgment, statement of undisputed facts and supporting exhibits, Defendants purport to establis h that the Hospital’s policies with6

respect to its employment of physician’s assistants , as well as the supervisory duties exercised by Defendant Richard Marasa, M.D., met th e standard of care in every respect. According to Dr. Marasa’s affidavit, each PA employ ed 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 sco pe of practice. With respect to the PAs furnished to Springfield Hospital under contract wi th 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. Th e 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 judgme nt 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’ appr oach to Rule 56 practice entitles Defendants to cla im that all facts as set forth in their Statement of U ndisputed Facts are deemed admitted. V.R.C.P.56(c) (2) provides: “The opposing party shall include with th e affidavits and memorandum filed under paragraph ( 1) a separate, short, and concise statement of the mat erial facts as to which it is contended that there exists a genuine issue to be tried. All material facts set f orth in the statement required to be served by the moving party will be deemed to be admitted unless controve rted by the statement required to be served by the opposing party. The statements of material facts r equired to be served under this paragraph shall con sist of numbered paragraphs and shall contain specific cita tions to the record.” Instead of the procedure req uired by the Rule, Plaintiffs include their Statement of Facts within their memorandum, not separately, incl uding 39 exhibits which arguably reflect “specific citati ons to the record”. Yet, in a separate Response to Emergency Services of New England’s, Warren Montgom ery’s, Richard Marasa’s and Springfield Hospital’s Statement of Undisputed Material Facts, Plaintiffs purported citations to the record are, i n fact, citations to the Statement of Facts in their memora nda. Thus, to attempt to identify Plaintiffs’ evid entiary basis for disputing Defendant’s claimed undisputed facts, the Court is required to flip back to Plaint iffs’ memorandum, and then follow any references to the e xhibits appended to the memorandum. This laborious endeavor is exactly what the Supreme Court condemne d in Webb v. Leclair , 2007 VT 65, ¶6, 182 Vt. 559 (“[f]orcing courts to sift through nearly fifty pag es of narrative in order to find contested and unco ntested facts is precisely the type of ‘needle in a haystac k’ search the rule is meant to avoid”).7

section, at ¶ ¶ 67-69, Plaintiffs insert several le gal 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 manife sts a gross disregard for the rights of patients at the Springfield Hospital Emergency Depa rtment”. It is curious that these assertions are couched as statements of fact, and e ven more curious that Plaintiffs fail to offer any further analysis of these legal propositi ons in their memorandum. After the initial “Statement of Facts”, Plaintiffs’ memorandum addresses Defendant’s “Staffing Policy for Their Emergency De partment”. In this section Plaintiffs argue that “the policies of the Springfield Hospita l preclude Mr. Holobowicz and other physician’s assistants from conforming to the Scope of Practice Agreement” . In particular, Plaintiffs note that portion of the agr eement under the heading “Supervision” which provides: “P.A. work (sic) simultaneously wit h 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 p er week, 168 hours per week, can ‘work simultaneously’ with Dr. Marasa, who spends o nly 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 sup ervising 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 E mergency Department when requested. Supervising physician reviews 100% of patient counters and co-s igns each record after having done such.” Plaintif fs have not demonstrated that the portions of the Scop e of Practice Agreement specifically contemplating patient care by PAs outside the direct physical sup ervision of a supervising physician violate any reg ulation or standard of care, nor that the mechanisms for co nsultation and evaluation contemplated by the Agreement were inadequate in Ms Gonyer’s case.8

patient care.” Though the tone of Plaintiffs memorandum makes plai n their belief that Defendants’ deviation from the requirement that PAs work “simultaneously with the primary supervising MD for approximately 50% of cli nical hours” is patent, they support the argument with little beyond arithmetic. Even a cknowledging the “simply no way” argument, Plaintiffs’ fail to explain, much less su pport with evidence, the relationship between a violation of “the 50% rule” and any injur ies 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 eithe r presents a departure from the standard of care, or was causally related to Ms. Go nyer’s injuries. Despite the confusing presentation of Plaintiffs’ a llegations regarding deficiencies in Springfield Hospital’s staffing policy, the Cour t 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 pla intiff has the burden of proving the applicable standard of care, that defendant breache d that standard, and that as a proximate result plaintiff suffered injuries that would not o therwise have occurred. 12 V.S.A. § 1908. Except where the alleged violation of the st andard of care is so apparent that it can be understood by a layperson without the aid of med ical experts, the burden of proof in medical malpractice action requires expert testimon y. Provost v. Fletcher Allen Health

3 In ¶ 67 of their Statement of Facts, in ostensibl e support of the proposition that “unprofessional c onduct 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 “unprofessio nal conduct” in the context of proceedings before t he Board of Medical Practice. Assuming this reference is intended to support the existence and parameter s of the cause of action framed in Count VI of Plaintiff s’ complaint, it is wholly inadequate in the absenc e of further analysis and authorities.9

Care, Inc. , 2005 VT 115, ¶12, 179 Vt. 545. The standard of care regarding a hospital’s staffin g policy is not so apparent that it can be understood by a layperson. This conclusion f ollows 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 o f care, and that Defendant’s deviation from it caused injury to Plaintiffs’ decedent, is t herefore fatal to this claim. Provost , 2005 VT 115, ¶12. In addition, Plaintiffs’ argument fai ls to address, let alone support, how the staffing policy or lack of Dr. Marasa’s physical pr esence 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 punitiv e 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 secu re 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 v ariously as bad motive, ill will, personal spite or hatred, reckless disregard, and t he like.” Id. Negligence alone without malice cannot support the imposition of punitive da mages. Id. at ¶24. Recklessness can support an award of punitive damages so long as the re is “evidence that the defendant acted, or failed to act, in conscious and deliberat e disregard of a known, substantial and10

intolerable risk of harm to the plaintiff, with the knowledge that the acts or omissions were substantially certain to result in the threate ned harm.” Id

. To establish the requisite malice, Plaintiffs posit an outrageous willingness to put profit over patient safety. However, as already ex amined, Plaintiffs have failed to demonstrate that the Hospital’s staffing policy rep resents a deviation from the standard of reasonable and ordinary medical care, to say nothin g of a deviation that rises to the level of outrageous conduct motivated maliciously by a pr ofit-seeking mentality. Except for the unsupported claims regarding the sta ffing policy, Plaintiffs do not allege any malice and the Court cannot find any ind ication of bad motive, ill will, personal spite or hatred, or reckless disregard req uired to support an award of punitive damages. While the results in this case were tragi c, the conduct of the Defendants—as demonstrated by the evidence in the summary judgmen t 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 issu e of Mr. Gonyer’s claim for loss of consortium after the death of Irena Gon yer is GRANTED

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

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

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

.11 DATED , at Bennington, Vermont,

______________________ John Wesley Presiding Judge