BMH named in malpractice suit

Brattleboro Memorial Hospital
Brattleboro Reporter
Bob Audette
May 31, 2017

BRATTLEBORO — A woman at the center of a case that resulted in the Division of Licensing and Protection issuing a pair of citations to Brattleboro Memorial Hospital filed a malpractice lawsuit on May 22.

According to documents filed in the U.S. District Court for the District of Vermont, attorneys for Cynthia Hawthorne, of Ohio, contend the hospital and its emergency department director, George Terwilliger, failed "to exercise reasonable care and skill in the care, monitoring, supervision, management, and treatment provided to (Hawthorne), and or reckless disregard of the plaintiff's serious, potentially lethal health condition ... in connection with the highly suspicious mass on her left kidney ... ," identified in a CT scan conducted on March 24, 2014.

Following the CT scan procedure, states the court filing, the radiologist and Terwilliger discussed the discovery "of a left renal mass that was highly suspicious for renal cell carcinoma ... ," or kidney cancer. Though the pair discussed that further evaluation of Hawthorne was necessary, states the filing, "Defendant failed to communicate to plaintiff that she had a highly suspicious mass on her left kidney ... and failed to order any further testing or evaluation on her in connection with this finding."

As a result of the notification failure, wrote Joel Faxon, of Faxon Law Group in New Haven, Conn., Hawthorne required the removal of her left kidney.

Hawthorne first 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 the patient was suffering from diverticulitis, an inflammation or infection in the colon. And the radiologist did, in fact, find evidence of that condition. But the radiologist included an addendum report that warned of a mass on the patient's left kidney. "This appearance of a solid renal mass is highly suspicious for a renal cell carcinoma (cancer)," stated the report.

Though the radiologist recommended biopsy and a follow-up with a urologist and discussed these findings with an emergency department physician, 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 findings issued by the Vermont Division of Licensing and Protection, 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.

Brattelboro Memorial Hospital had no comment on the pending litigation.

The state cited Brattleboro Memorial Hospital both for the notification error and for initially failing to thoroughly investigate the incident. Those are the kinds of violations that could, if left unaddressed, jeopardize a hospital's access to Medicare and Medicaid funding. However, the state Division of Licensing and Protection accepted the hospital's "plan of corrections." It included new communication and review strategies designed to keep such test results from falling through the cracks again.

"We take this matter and all patient complaints extremely seriously, and, as reported, we have instituted multiple system improvements to our care processes," Gina Pattison, Brattleboro Memorial's development and marketing director, told VTDigger in April of this year..

Because of the failure to notify Hawthorne in a timely manner, noted Faxon, she suffered fear of death, severe emotional distress and physical pain and suffering. Hawthorne also "has been deprived and will in the future be deprived of her ability to carry on and enjoy life's activities, and her earning capacity has been destroyed, and she has incurred and will continue to incur medical expenses and costs," wrote Faxon.

Hawthorne is seeking damages in excess of $75,000.

The DLP report noted the hospital's initial failure to disclose the 2014 test results constituted a violation of patient rights. Those rights include "being informed of his or her health status, being involved in care planning and treatment and being able to request or refuse treatment." The state says Brattleboro Memorial also didn't meet "quality assurance/performance improvement" standards after finding out about the error.

Overall, the state noted, the hospital failed "to interview individuals whose departments were associated with the (cancer patient's) event and who may have been able to assist in the implementation of preventative action when first acknowledged in September 2016."

In response, BMH developed a process to handle so-called unexpected findings, telling the DLP "redundancies in communication have been affected in order to mitigate the potential for clinicians to unintentionally neglect pertinent clinical results."

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