Hospital Suit Settled Out of Court

Brattleboro Reformer
Bob Audette
October 30, 2019

BRATTLEBORO — A lawsuit against Brattleboro Memorial Hospital, Windham Radiology Associates and Dartmouth-Hitchcock Clinic has been settled out of court.

The suit, filed by Cynthia Hawthorne in May 2017, alleged that hospital staff failed to exercise reasonable care in the treatment of a "highly suspicious mass on her left kidney."

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 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 a report issued by the Division of Licensing and Protection, it took two-and-a-half years for Hawthorne to be notified of the cancer in her kidney. By then, the cancer had spread to her lungs as well. Hawthorne died on Feb. 7 at the age of 58. Following her death, Hawthorne's son, Justin T. Johnston of Guilford, was named as plaintiff.

"Sadly, her death was totally preventable," wrote Joel Faxon, who represented Hawthorne and Johnston, in an email to the Reformer in April. "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."

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.

Faxon had no comment on the confidential settlement that was reached in late September. A representative from BMH also declined the opportunity to comment on the settlement.

"It is hereby ordered that this action is hereby dismissed, without costs, with the right to petition, upon good cause shown within 60 days, to reopen the action if settlement is not consummated," wrote Judge William K. Sessions III in a decision issued on Sept. 24. According to documents filed with the U.S. District Court for the District of Vermont, the suit was dismissed after a settlement was reached in mediation.