Thou v. Russo

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13-P-1610 Appeals Court

MONYRETH THOU, administrator,1 vs. JOSEPH RUSSO.

No. 13-P-1610.

Middlesex. June 3, 2014. - October 23, 2014.

Present: Cypher, Brown, & Agnes, JJ.

Medical Malpractice, Tribunal, Bond, Standard of care.
Negligence, Medical malpractice, Doctor. Doctor.

Civil action commenced in the Superior Court Department on
April 17, 2012.

A motion to dismiss was heard by Maureen B. Hogan, J.

John N. Lewis for the plaintiff.
Gisela M. DaSilva for the defendant.

CYPHER, J. The plaintiff, administrator of the estate of

Sophal Chan Chin (decedent), appeals from a Superior Court

judgment dismissing his malpractice action against the defendant

doctor, Joseph Russo, following an adverse decision of a medical

malpractice tribunal and the plaintiff's failure to post a bond.

1
Of the estate of Sophal Chan Chin.
2

See G. L. c. 231, § 60B. We agree with the plaintiff that his

offer of proof was sufficient.

Background.2 The decedent died from cardiac arrest after

liposuction and abdominoplasty3 procedures performed at Milton

Hospital (hospital) by Russo on May 17, 2011. As detailed by

Russo in his operation report, after the decedent was brought

into the operating room, a general anesthesia was induced. In

performing the liposuction procedure, Russo utilized a tumescent

solution4 containing xylocaine (lidocaine) and epinephrine

delivered through "several small stab incisions" into the areas

to be suctioned. Approximately one liter of tumescent solution

was infused into each side of her waist. In treating the medial

thigh and knee areas, approximately 600 milliliters of tumescent

solution were infused. When the upper arms were treated,

approximately 300 to 400 milliliters of tumescent solution were

2
We take the facts from the plaintiff's offer of proof;
they are assumed to be true for purposes of our review. Cooper
v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 87 n.2 (2010).
3
Here, abdominoplasty was the surgical alteration of a
preexisting scar and of tissues to improve the contour of the
abdomen.
4
The tumescent technique for liposuction utilizes a dilute
anesthetic solution of lidocaine and epinephrine which produces
swelling and firmness of the targeted fatty areas to facilitate
suctioning of the fat. Lidocaine provides local anesthesia, and
epinephrine constricts small blood vessels to prevent absorption
of lidocaine into the bloodstream and to prolong the anesthesia.
See generally Klein, The Tumescent Technique: Anesthesia
(2010).
3

infused into each upper arm. Russo recorded that the total

infusion was 3,800 milliliters (or 3.8 liters). No tumescent

solution use was reported for the abdominoplasty.

The two procedures took place between 1:30 P.M. and

approximately 6:00 P.M. Russo reported that, as the abdominal

wound was about one-half closed, at about 6:03 P.M., the

anesthesiologist reported a sudden drop in the decedent's blood

pressure. Code emergency procedures immediately were instituted

and performed over the next one and one-half hours. The

decedent briefly was stabilized to a normal blood pressure and

was transferred to the intensive care unit. After about one

hour, she suffered cardiac arrest, was unable to be

resuscitated, and was declared dead at 9:50 P.M.5

The plaintiff filed a complaint in the Superior Court on

April 17, 2012, alleging that the decedent's death was caused by

Russo's negligence. Russo requested a medical malpractice

tribunal pursuant to G. L. c. 231, § 60B. Following the

submission of an offer of proof by the plaintiff, and a hearing,

the tribunal issued a report stating that "there is not

sufficient evidence to raise a legitimate question as to

liability appropriate for judicial inquiry." When the plaintiff

5
The intensive care unit physician recorded the cause of
death as "severe pul[monary] edema" and "cardiac arrest." The
medical examiner's certificate stated the cause of death as
"complications of abdominoplasty and liposuction."
4

failed to post the required bond, judgment entered dismissing

the plaintiff's complaint. He timely appealed.

Discussion. The plaintiff's claim of malpractice

essentially is that Russo failed to conform to the requisite

standards of care in his administration of the anesthetic

solution which allegedly was given in toxic doses, causing the

decedent's death.6 The plaintiff's offer of proof consists of a

memorandum of facts and law; an opinion letter of a medical

expert, Dr. Robert M. Stark,7 his curriculum vitae, and the

published articles on which he relied; the decedent's Milton

Hospital records; the medical examiner's records; and Russo's

office records.

We test the sufficiency of an offer of proof by viewing the

evidence "in a light most favorable to the plaintiff," Blake v.

Avedikian, 412 Mass. 481, 484 (1992), to determine principally

whether Russo's "performance did not conform to good medical

practice," and whether damage resulted. Santos v. Kim, 429

6
The plaintiff's brief alleges that two members of the
tribunal were biased based on their personal or professional
relationships with defense counsel. The allegation was not made
below and we do not consider it. See Blood v. Lea, 403 Mass.
430, 435-436 (1988).
7
Dr. Stark, board certified in cardiology and internal
medicine, and familiar with authorities and published literature
in liposuction practice, appears well qualified and was not
seriously challenged by Russo. See Letch v. Daniels, 401 Mass.
65, 68 (1987) (expert need not be specialist in medical area
concerned, but should have education, training, experience, and
familiarity with subject matter of testimony).
5

Mass. 130, 133 (1999) (citation omitted). An offer of proof is

sufficient if "anywhere in the evidence, from whatever source

derived, any combination of circumstances could be found from

which a reasonable inference could be drawn in favor of the

plaintiff." St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994)

(citation omitted). See Little v. Rosenthal, 376 Mass. 573, 578

(1978) (tribunal's task similar to trial judge's function in

ruling on defendant's motion for directed verdict).

The principal thrust of Dr. Stark's opinion is that Russo

deviated from the standard of care by ordering the infusion of a

toxic dose of tumescent solution, which caused the decedent's

cardiac arrest. Dr. Stark noted that, before the procedures

began, by "the end of one hour, this [intravenous (I.V.)]

infusion provided the [decedent] a dose of 1 mg epinephrine and

400 mg of lidocaine. . . . During the ensuing liposuction

procedure, Dr. Russo administered a total of 3.85 liters of

'tumescent solution' that . . . delivered an additional dose of

3.8 mg of epinephrine and 1,340 mg of lidocaine to the

[decedent's] subcutaneous tissue." Given these facts, Dr. Stark

opined:

"[I]t is my opinion to a reasonable degree of medical
certainty that Dr. Russo failed to exercise that degree of
skill and care of the average qualified practitioner of
medicine in general and as a surgeon of any specialty by:
(1) prescribing and ordering the perioperative I.V.
infusion of a toxic dose of tumescent anesthetic solution;
(2) failing to prevent the I.V. administration of a toxic
6

dose of anesthetic solution by reviewing his orders before
performing the procedure; and (3) failing to realize that
his patient had received the tumescent anesthetic I.V.,
thereby compromising further resuscitative efforts by the
administration of additional lidocaine and epinephrine as
part of the Advanced Cardiac Life Support (ACLS) protocol.
It is my further opinion to a reasonable degree of medical
certainty that it was the toxic dose of epinephrine
contained in the I.V. and potentiated by the co-
administration of lidocaine which caused [the decedent's]
death and that, notwithstanding Dr. Russo undertaking a
combination of liposuction and an abdominoplasty under
general anesthesia which carries the highest risk of
morbidity according to the literature, . . . but for his
ordering, allowing and not realizing that she had received
an I.V. infusion of the anesthetic solution, [the decedent]
would have survived the procedure."

Citing opinions of authorities in published papers that

"liposuction by local anesthesia is safer than liposuction by

general anesthesia,"8 and that "there have been no deaths

associated with tumescent liposuction totally by local

anesthesia without parenteral narcotic analgesia or general

anesthesia,"9 Dr. Stark stated that, based on his "own education,

training and experience as a cardiologist, it is my opinion to a

reasonable degree of medical certainty, that there was no

clinical indication or reason to administer perioperative fluids

containing epinephrine and lidocaine to [the decedent]."10 Dr.

8
Klein, The Tumescent Technique: Anesthesia (2010).
9
Klein, The Two Standards of Care for Tumescent Liposuction
(1997).
10
Dr. Stark also noted, "In situations of extreme
bradycardia or hypotension where epinephrine is required, the
dose ranges from 0.2 to 10 micrograms per minute, or 120 to 600
7

Stark concluded that the "ventricular ectopy and fibrillation

that [the decedent] developed in the [operating room] were, in

my opinion to a reasonable degree of medical certainty, the

result of an epinephrine overdose."

In response, Russo claims that he ordered the tumescent

solution only to be administered subcutaneously, and not

intravenously. Referring to his preoperative orders, he asserts

that he ordered standard lactated "Ringer's" solution,11 which

does not contain epinephrine or lidocaine, to be administered

intravenously; he points to hospital anesthesia records showing

that Ringer's solution was administered intravenously between

1:30 P.M. and 5:00 P.M. However, Dr. Stark points to a hospital

"provider order summary" that shows that a secondary intravenous

infusion (IV) was ordered, specified as follows:

"Start: 05/17/11 0753
"Stop: 05/17/11 0852

"Lactated Ringers Volume: 1000 ML
"Lidocaine 2 20ML Dose: 400MG
"Epinephrine Dose: 1 MG
"Rate: 1021 MLS/HR
"Infusion Site: IV"

micrograms per hour. [The decedent] was given over 1,000
micrograms of I.V. epinephrine in the first hour followed by
3,800 micrograms of epinephrine delivered to her subcutaneous
tissues."
11
Ringer's solution, also known as Ringer lactate,
resembles "blood serum in its salt constituents" and is "used as
a fluid and electrolyte replenisher by intravenous infusion."
Stedman's Medical Dictionary 1787 (28th ed. 2006).
8

The electronic medication administration record also lists

an order for 1,000 milliliters of "lactated Ringer's,"

specifying the same amounts of lidocaine and epinephrine as the

hospital anesthesia record, and adding "label cmts: tumescent

anesthesia" scheduled for intravenous route.

Dr. Stark also found that Russo failed to note in his

operation report the use of Marcaine (bupivacaine), "a local

anesthetic twice as powerful as lidocaine and more cardiotoxic."

The use of Marcaine also had not been recorded with the other

medications in the decedent's chart. Dr. Stark, however,

discovered an entry in a nurse's note that forty-five

milliliters of "25 Marcaine & epi[nephrine]" had been

administered, apparently during the ACLS protocol. He noted

that Marcaine was administered "directly into the area where the

surgical incision was made to perform the abdominoplasty."12 Dr.

Stark opined to a reasonable degree of medical certainty that

lidocaine and Marcaine "by themselves can cause ventricular

tachycardia and ventricular fibrillation," and that "severe and

12
Dr. Stark stated he could not "definitively assess the
harm that may have been contributed by these excessive doses [of
Marcaine, epinephrine, and additional lidocaine delivered
subcutaneously] because [the decedent] was under general
anesthesia when they were given." His inability to assess that
harm does not negate his ultimate conclusion that these
excessive doses compounded the toxicity that contributed to her
death.
9

intractable arrhythmia can occur with the accidental IV

injection [of lidocaine]."

Finally, Dr. Stark stated that the "hospital record is

incomplete and inconsistent as [to] the amount of I.V. fluids

given, but at the time [the decedent] was pronounced dead, she

had gained 10.4 kg (22+ lbs) due to I.V. fluids (measured during

the autopsy)." He stated that pulmonary edema was unavoidable,

and that the toxicology report was unreliable because the

analgesic medications and epinephrine had been "massively

diluted" by the IV fluids.13

Specifically, Dr. Stark's letter tracks the breach of

Russo's duty to conform to good medical practice with Dr.

Stark's statements regarding the administration of a toxic dose

of tumescent solution, the use of general anesthesia, and the

use of Marcaine. Dr. Stark links these actions by Russo to the

decedent's death, satisfying the requirement of causation.

Because the plaintiff's offer of proof regarding his claim

against Russo contained evidence that, "if substantiated, would

reasonably support an inference . . . that [Russo's] performance

did not conform to good medical practice, and that injury to the

[decedent] resulted therefrom," the tribunal erred in holding

13
A postmortem analysis of the decedent's blood, taken at
6:42 P.M. did not detect the presence of lidocaine. A second
postmortem analysis of a sample taken at 9:00 P.M. detected a
nontoxic level of lidocaine.
10

otherwise. St. Germain v. Pfeifer, 418 Mass. at 518. Thus, the

plaintiff was not required to post a bond to prevent dismissal

of his claim against Russo.

The judgment of the Superior Court is vacated. The matter

is remanded to the Superior Court where the determination of the

tribunal is to be substituted by a determination that the

plaintiff's offer of proof was sufficient to raise a legitimate

question appropriate for judicial inquiry.14

So ordered.

14
The plaintiff's request for appellate attorney's fees is
denied.