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Attorney in Brattleboro Memorial Hospital lawsuit: Plaintiff's death 'preventable'

BRATTLEBORO — A woman who was suing Brattleboro Memorial Hospital for failing to exercise reasonable care in the treatment of a "highly suspicious mass on her left kidney" has died.

Cynthia Hawthorne died on Feb. 7, according to her obituary. She was 58. Her attorney, Joel Faxon, of Faxon Law Group in New Haven, Conn., filed an amended complaint on April 25 naming Hawthorne's son, Justin T. Johnston, as the new plaintiff in the suit that was originally filed two years ago.

"Cynthia succumbed to kidney cancer," Faxon wrote in an email to the Reformer. "Sadly, her death was totally preventable. Several physicians at Brattleboro Memorial Hospital either knew she had a massive tumor on her kidney and never told her about it or treated her over a two year period without reviewing her medical records and telling her about the cancer. It was horribly improper medical care as found by the Vermont Department of Health when it cited BMH for numerous violations."

Brattleboro Memorial Hospital declined to comment on pending litigation.

On March 21, 2017, the Division of Licensing and Protection visited BMH in relation to Hawthorne's care. As a result, BMH received a pair of citations, one for violating a patient's right of "being informed of his or her health status, being involved in care planning and treatment and being able to request or refuse treatment" and another for failing to thoroughly investigate the reason why the results of Hawthorne's CT scan were not communicated to her. Following the report, BMH submitted a plan of correction, which was accepted by DLP.

Hawthorne visited the hospital's emergency department on March 24, 2014, and complained of lower abdominal pain. Treatment included intravenous liquids, pain medication and a CT scan. The initial goal of the scan was to determine whether she was suffering from diverticulitis, an inflammation or infection in the colon.

A radiologist with Windham Radiology Associates, which is located within BMH, issued a report warning of a mass on Hawthorne's left kidney that was "highly suspicious for a renal cell carcinoma (cancer)," stated the DLP report.

Though the radiologist recommended biopsy and a follow-up with a urologist, according to the state's findings, Hawthorne was discharged that same day with a prescription for antibiotics and instructions for managing diverticulitis.

According to the DLP report, it took Hawthorne two-and-a-half years to be notified of the cancer in her kidney. By then, the cancer had spread to her lungs as well.

Following the filing of the initial complaint, BMH contended that because the staff of its emergency department are employees of Dartmouth Hitchcock Medical Center in Lebanon, N.H., Dartmouth Medical should have been named as the plaintiff and not BMH. But the new filing names only BMH and Windham Radiology Associates as the defendants in the case. The suit accuses both BMH and WRA of medical malpractice and wrongful death.

The new complaint states that while the ED director purportedly reviewed images of the CT study, the ED director through his employer Dartmouth Hitchcock Clinic "denies ever having a conversation with anyone from [Windham Radiology Associates], and that, apparently, according to the claims of DHC and/or [the ED director], the medical records prepared by WRA within BMH's medical record system are fallacious."

The new complaint also notes that Hawthorne first underwent a CT scan for left abdominal pain on Jan. 23, 2012, showing a small renal mass on her left kidney. However, states the complaint, while the CT scan "was conducted and read by physicians, providers, employees, agents and/or contractors of BMH (and not DHC) ... [the] report of the CT scan does not mention the left renal mass."

The report submitted for the March 24, 2014, scan also does not mention the left renal mass "but rather states that Hawthorne's left kidney appears normal."

However, an addendum to the March 24 report noted "[f]urther evaluation of the kidneys reveals that there is indeed a left renal mass ..." states the new complaint, though none of the ''physicians, providers, agents, and/or employees of DHC were made aware of this new finding in or around March 2014."

Hawthorne was seen again on March 27 and April 14 but neither time did providers "note the left renal mass ..." And on June 19, Hawthorne met with a doctor at BMH. "However, the physician's note does not indicate that the left renal mass shown on the March 24, 2014 CT scan was actually discussed with Hawthorne on June 19, 2014."

It wasn't until Sept. 26, 2016, that "for the first time, BMH informed her of the highly suspicious mass on her left kidney ..." states the new complaint.

"As a result of the carelessness, negligence and/or reckless disregard of Cynthia's serious, potentially lethal health condition, by BMH, [she] suffered serious, painful and permanent injuries, and death ..." notes the new complaint.

In addition, states the new complaint, "If the accusatory allegations of DHC are true, and the WRA radiologists either failed to communicate the ominous findings to [the ED director] despite the express statement of the communication having occurred as set forth in the medical record, or if the radiologists negligently misread the 2012, CT Scan, as alleged by DHC, the plaintiff adopts these allegations and further alleges that the injuries and damages, and death ... were caused by WRA and its agents ..."