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Dartmouth-Hitchcock places delayed cancer notification firmly on Brattleboro Memorial Hospital's shoulders

BRATTLEBORO — A malpractice lawsuit filed against Brattleboro Memorial Hospital has spawned a legal fight between the hospital and Dartmouth-Hitchcock Clinic, which runs its emergency department, over who bears liability for any damages resulting from the lawsuit.

In a motion filed Tuesday in U.S. District Court on behalf of Dartmouth-Hitchcock Clinic, attorney William D. Pandolph wrote "An actual controversy and dispute has arisen and now exists between DHC and BMH concerning their respective rights and obligations under the Agreement" that governs liability for the emergency department, which DHC has run since 2012. "DHC seeks a judicial determination of the rights and duties of each party," he added.

In October, BMH filed a third-party motion in the case, claiming that DHC, which has run BMH's emergency department since 2012, should be held responsible for damages from the suit. The malpractice suit claims that the hospital and its emergency department director failed to notify an Ohio woman that a CT scan had uncovered a mass on her left kidney that later proved to be cancerous.

In its motion, Dartmouth-Hitchcock Clinic asked U.S. District Judge William Sessions to place the financial responsibility directly on the hospital instead, and relieve DHC of liability. "DHC requests a judicial declaration that it is not obligated to indemnify BMH under the Agreement for the claims made by Hawthorne, but rather that BMH must indemnify DHC," wrote Pandolph, of Sulloway & Hollis in Concord, N.H.

A spokeswoman for BMH declined to comment on the filing as it is part of an ongoing legal matter.

The lawsuit, filed by Cynthia Hawthorne, of Ohio, claims that BMH and its emergency department director, George Terwilliger, failed to notify Hawthorne in a timely manner about "a highly suspicious mass on her left kidney" that turned out to be cancerous. The mass was identified in a CT scan conducted on March 24, 2014.

According to the Vermont Division of Licensing and Protection, it took the hospital two-and-a-half years to notify Hawthorne. By then, the cancer had spread to her lungs and required the removal of her left kidney.

In March, the Division of Licensing and Protection cited BMH for the notification error and for initially failing to thoroughly investigate the incident. Following the citation, the hospital submitted a "plan of corrections," which DLP accepted.

In May, Hawthorne filed her civil suit against BMH and Terwilliger.

In the October filing, BMH attorneys Ian Carleton and Justin Brown, of Sheehey Furlong & Behm, noted that according to the 2012 contract, Dartmouth-Hitchcock is "the exclusive provider of physicians and providers to operate BMH's emergency room," including Terwilliger.

According to Carleton and Brown, the agreement places the responsibility on Dartmouth-Hitchcock for any liability that is a result "of or in connection with any claimed acts or omissions of [DHC] or [DHC's] Physicians and Providers, agents or employees.'"

While that's the way the agreement is written, noted Pandolph, Dartmouth "denies it caused any injury" to BMH or Hawthorne, because both neither Dartmouth nor Terwilliger were notified of the "radiologist's [post-discharge] renal mass finding ..." following the March 24, 2014, CT scan.

On June 19, 2014, wrote Pandolph, Hawthorne met with representatives of BMH. " However, the physician's note does not indicate that the left renal mass shown ... was actually discussed with Hawthorne ..." he wrote. Therefore, he concluded, "BMH's liability is the result of its own acts or omissions or the acts or omissions of third parties, and not DHC."

In addition to finding Dartmouth-Hitchcock is not liable, the motion also asks Sessions to award it any attorney fees related to BMH's third-party claim filing.