Vacca v. The Brigham & Women's Hospital, Inc.

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19-P-962 Appeals Court

ANNE VACCA vs. THE BRIGHAM & WOMEN'S HOSPITAL, INC.

No. 19-P-962.

Suffolk. May 13, 2020. - September 21, 2020.

Present: Neyman, Englander, & Hand, JJ.

Contract, What constitutes, Validity, With hospital, Performance
and breach, Implied covenant of good faith and fair
dealing, Modification, Promissory estoppel. Medical
Malpractice. Emotional Distress. Hospital. Negligence,
Hospital, Emotional distress. Practice, Civil, Summary
judgment.

Civil action commenced in the Superior Court Department on
August 4, 2016.

The case was heard by Paul D. Wilson, J., on a motion for
summary judgment.

Jeffrey S. Raphaelson for the plaintiff.
Brian H. Sullivan (Rebecca A. Cobbs also present) for the
defendant.

NEYMAN, J. This is an appeal from a summary judgment

issued by a judge of the Superior Court in favor of the
2

defendant, The Brigham & Women's Hospital, Inc. (BWH),1 on claims

including breach of contract, promissory estoppel, and

intentional infliction of emotional distress. In 2012, BWH

agreed to provide free treatment to the plaintiff, Anne Vacca.

In 2016, Vacca brought this lawsuit after she became

dissatisfied with the care she received.

The judge found that Vacca could not prevail on her claims

because there was no evidence that BWH had committed a breach of

any alleged promise it made to Vacca, BWH's conduct was not

extreme and outrageous as a matter of law, and Vacca's claims

should have been pleaded as malpractice claims. We affirm.

Background. 1. BWH agrees to treat Vacca. Vacca has

suffered from major depression for many years. Despite

treatment with various medications, psychotherapy techniques,

and electroconvulsive therapy, her depression showed little

improvement.

In 2011, Vacca's psychiatrist, Dr. Jane Erb, recommended

treating her with deep brain stimulation (DBS). The United

States Food and Drug Administration has not approved DBS to

treat depression, but the treatment is approved for other

conditions such as Parkinson's disease.

1 BWH is a charitable organization that provides medical
care to patients at its hospitals and outpatient facilities, and
engages in educational activities and scientific research.
3

DBS involves implanting electrodes within the brain. The

electrodes produce electrical impulses that can be directed to

affect specific areas of the brain. Implanting a DBS device

requires brain surgery, which, in Vacca's case, would cost

approximately $150,000. The battery in the device needs

periodic replacement, necessitating additional and expensive

adjustments and surgeries. There are also recurring costs to

monitor the patient and program the DBS device. Vacca's health

insurance carrier refused to pay for DBS treatment, and Vacca

was unable to pay for such treatment herself. However, in 2012,

Dr. Erb was the clinical director of the depression center at

BWH. On April 23, 2012, Dr. Erb sent a letter to Julia

Sinclair, BWH's vice-president for clinical services, proposing

that BWH provide free DBS treatment for Vacca. Sinclair

approved Dr. Erb's proposal. Dr. Erb and Dr. Travis Tierney,

the neurosurgeon who would perform Vacca's surgery, informed

Vacca that BWH had agreed "to perform the surgery, provide the

aftercare or the postoperative care, which included battery

replacements, programming the device, and cover the costs as

long as [she] needed that."

The parties did not discuss any further details of Vacca's

treatment at that time. They did not discuss the type of

batteries that would be used in the device, who would program

the device, or the possibility that Vacca might receive follow-
4

up care at another hospital. For its part, BWH contemplated

that all postoperative and follow-up care would take place at

its facility. The parties did not execute any written

agreement.

There is evidence in the summary judgment record to suggest

that BWH agreed to pay for Vacca's treatment not only because it

wanted to help Vacca, but also because it wanted to expand its

psychosurgery program. Indeed, BWH had recently recruited Dr.

Tierney, who had experience using DBS to treat psychiatric

conditions, with an eye towards growing the program. BWH later

featured Vacca's case in promotional materials discussing the

psychosurgery program.

On July 3, 2012, Dr. Tierney performed the implantation

surgery. Thereafter, BWH provided Vacca with postoperative

care, including surgeries to replace the device battery in 2013,

2014, and 2015. In 2014 and 2015, the parties discussed the

pros and cons of rechargeable and standard batteries. BWH

ultimately implanted a standard battery in all three battery

replacement surgeries.

The DBS treatment proved successful. Vacca agreed that DBS

had been "very helpful" in treating her depression. She also

testified that she no longer had the disabling depression that

she suffered prior to receiving the DBS treatment.
5

2. The relationship sours. By 2015, despite the success

of her treatment, Vacca was dissatisfied with the care she was

receiving. She outlined her concerns to BWH and to Dr. Erb,

which included that the battery needed replacement more often

than anticipated; that the most recent battery replacement had

caused her to have problems sleeping; that her surgeon, Dr.

Tierney, was leaving the hospital; and that BWH had not assigned

a psychiatrist to program the DBS device.2 Vacca was also

unhappy with the decision to continue using standard batteries

in the DBS device.3 She requested that BWH transfer her care to

another hospital.

BWH had some internal discussion regarding Vacca's

concerns. Dr. Erb also had communications with Vacca, and on

May 20, 2015, sent her an e-mail in which Erb stated that she

was "doing everything possible to right the course of this and

if that doesn't happen at BWH, then we'll make sure this happens

2 Vacca discussed with Dr. John Sullivan and Dr. Tierney her
concern "about the lack of psychiatric assessment and oversight
related to programming of her stimulator." According to Dr.
Sullivan's notes, Vacca "had been wondering whether, despite her
clear response to the treatment, there were other adjustments
that could be made to the DBS settings to optimize treatment and
perhaps improve her response yet further." She also told Dr.
Erb that she believed that a psychiatrist "should have been
involved from the beginning" in programming her device and
monitoring her response.

3 Vacca told one doctor in 2014 that she did not want a
rechargeable battery, but later that year Vacca said that she
did want a rechargeable battery rather than a standard battery.
6

properly, and cover it, elsewhere." However, Dr. Erb did not

have authority to agree to cover the cost of Vacca's care at

another hospital.4 BWH ultimately did not agree to pay for

Vacca's treatment at another institution, but was willing to

transfer Vacca's care at her own expense.

Around this same time, Vacca requested documentation of the

2012 "agreement." In response, BWH prepared a proposed letter

agreement (letter agreement). The letter agreement stated that

it would become effective on the date that Vacca signed it.

Vacca refused to do so because she was unhappy with some of the

terms, including a provision that allowed either party to

terminate the letter agreement upon written notice. Vacca

requested that her care be transferred to Massachusetts General

Hospital (MGH), expressing the view that BWH lacked the

expertise necessary to continue her treatment. BWH disagreed.

BWH told Vacca that it was "confident" it could "provide the

expert care [she] require[d]." However, BWH again offered to

transfer Vacca's care at her own expense. For reasons explained

in correspondence from MGH to Vacca, MGH did not agree to assume

Vacca's care.

4 Vacca does not contend on appeal that Dr. Erb had actual
or apparent authority to bind BWH to pay for Vacca's treatment
at a different hospital.
7

In October 2016, BWH performed another battery replacement

surgery on Vacca. Although Vacca has represented that she is no

longer receiving treatment at BWH, BWH remains willing to

provide DBS care for her.

3. The lawsuit. Vacca filed a complaint in Superior Court

alleging breach of contract, misrepresentation, violation of

G. L. c. 93A, intentional infliction of emotional distress, and

promissory estoppel. At the close of discovery, BWH moved for

summary judgment on all claims. The judge allowed the motion,

and judgment entered for BWH. Vacca timely appealed.

On appeal, Vacca presses only the breach of contract,

promissory estoppel, and intentional infliction of emotional

distress claims. She first argues that a jury could find that

BWH committed a breach of its promise to pay for her care by

implanting a standard battery, rather than a rechargeable

battery, in 2015; refusing to pay for her care at another

institution; sending the letter agreement in 2015; and failing

to ensure independent ethical oversight of her treatment. She

next argues that these claims do not sound in medical

malpractice because her treatment was experimental and because

BWH made certain care decisions for financial reasons. Finally,

she contends that her intentional infliction of emotional

distress claim should survive summary judgment because a jury
8

could find it extreme and outrageous that BWH abandoned her care

for financial reasons.

Discussion. We review a grant of summary judgment de novo

to determine whether, viewing the evidence in the light most

favorable to the nonmoving party, "all material facts have been

established and the moving party is entitled to judgment as a

matter of law" (citation omitted). Casseus v. Eastern Bus Co.,

478 Mass. 786, 792 (2018). See Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002). See also Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991).

1. Breach of contract claim. We first consider whether

there were triable issues that precluded summary judgment on the

breach of contract claim. "To prevail on a claim for breach of

contract, a plaintiff must demonstrate that there was an

agreement between the parties; the agreement was supported by

consideration; the plaintiff was ready, willing, and able to

perform his or her part of the contract; the defendant committed

a breach of the contract; and the plaintiff suffered harm as a

result." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690

(2016). See Singarella v. Boston, 342 Mass. 385, 387 (1961).

Here, even assuming that a jury could find that the parties

entered into an oral contract related to Vacca's DBS treatment,

there is no evidence that BWH committed a breach of that

contract.
9

a. Contract formation. The parties dispute whether their

discussions about the cost of Vacca's DBS treatment resulted in

the formation of a contract. Thus, we begin by reviewing the

relevant principles of contract law, which we recently

summarized in Sea Breeze Estates, LLC v. Jarema, 94 Mass. App.

Ct. 210, 215 (2018):

"Contract formation requires a bargain in which there is a
manifestation of mutual assent to the exchange. This
manifestation of mutual assent, otherwise known as a
meeting of the minds, occurs when there is an offer by one
[party] and an acceptance of it by the other. [A]n offer
is a manifestation of willingness to enter into a bargain,
so made as to justify another person in understanding that
his assent to that bargain is invited and will conclude it.
Acceptance exists where the offeree assents to the offer in
the terms in which it is made." (Quotations and citations
omitted.)

"[I]t is essential to the existence of a contract that its

nature and the extent of its obligations be certain." Caggiano

v. Marchegiano, 327 Mass. 574, 579 (1951). Where an alleged

agreement "is silent as to material matters important in its

interpretation for the ascertainment of the obligations of the

parties," the contract may be too indefinite to enforce

(citation omitted). Held v. Zamparelli, 13 Mass. App. Ct. 957,

958 (1982). "Nevertheless, '[i]t is not required that all terms

of the agreement be precisely specified' so long as the material

terms are ascertainable" (citation omitted). JPMorgan Chase &

Co. v. Casarano, 81 Mass. App. Ct. 353, 356 (2012).
10

Here, BWH argues that the parties' discussions about DBS

were too indefinite to lead to the formation of a binding

contract. Although the parties discussed BWH's willingness to

pay for Vacca's DBS implantation and aftercare, the details of

the arrangement remained open. The parties did not, for

example, discuss the type of battery to be used in the device,

whether Vacca could receive treatment at another facility, or

how they would resolve disputes that might arise.

Vacca responds that a jury could find that the parties

reached an oral agreement as to the terms the parties did

discuss. Specifically, BWH would perform Vacca's DBS surgery

and provide her aftercare at no cost to Vacca. Viewing the

evidence in the light most favorable to Vacca, as we must, we

conclude that there is evidence of a "manifestation of mutual

assent to the [parties'] exchange" (citation omitted). Sea

Breeze Estates, LLC, 94 Mass. App. Ct. at 215. See Brewster

Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.

App. Ct. 582, 596 (2007) ("Except where the evidence is

undisputed or consists solely of writings, whether a contract

was intended to be formed, what were its terms, and whether it

was supported by consideration are issues of fact for

determination by the jury").

Having concluded that there is sufficient evidence of a

meeting of the minds to survive summary judgment, we next
11

address whether there was consideration for BWH's promise to

provide free DBS care. See Vasconcellos v. Arbella Mut. Ins.

Co., 67 Mass. App. Ct. 277, 280 (2006) ("An oral contract, like

any other, requires an offer, acceptance, and consideration").

There was evidence in the record that BWH benefited from the

arrangement because it hoped to establish a DBS program for the

treatment of depression. BWH used Vacca's case in promotional

materials in the hopes of attracting both qualified doctors and

future patients for the program. This evidence was sufficient

to create a triable issue whether there was valid consideration

for the parties' agreement. See Sewall-Marshal Condominium

Ass'n v. 131 Sewall Ave. Condominium Ass'n, 89 Mass. App. Ct.

130, 134 (2016), quoting Newhall v. Paige, 76 Gray 366, 368

(1858) ("The law does not undertake to determine the adequacy of

a consideration. . . . It is sufficient if the consideration be

of some value, though slight, or of a nature which may enure to

the benefit of the party making the promise").

b. The alleged breaches. Although a jury could find that

the parties formed an oral contract, Vacca's breach of contract

claim fails because she cannot establish that BWH committed any

breach. The undisputed evidence shows that BWH provided DBS

treatment to Vacca at no cost from 2012 until after Vacca filed

this action. Though Vacca represented at oral argument that she

has now transferred her care to another institution, it is
12

undisputed that BWH remains willing to care for her. BWH thus

has complied with all of the agreed terms of the contract.

Vacca nonetheless argues that BWH committed a material

breach of the agreement by (1) implanting a standard battery,

rather than a rechargeable battery, in 2015; (2) refusing to pay

for the plaintiff's care at another institution; (3) failing to

ensure independent ethical oversight for her care; and (4)

sending her a letter agreement in 2015 that contained terms to

which the parties had not agreed. None of this conduct

constitutes the commission of a breach of any material term of

the parties' oral contract. Indeed, there is no evidence to

suggest that the parties discussed the type of battery to be

used in the DBS device, the possibility of treatment at a

facility other than BWH,5 or how Vacca's care would be monitored

before they entered into their oral contract in 2012. Insofar

as there was no evidence of a meeting of the minds regarding the

terms now specified by Vacca, there was also no breach of such

alleged terms.

Lacking proof that BWH committed a breach of any express

term of the oral contract, Vacca argues that a jury could find

that BWH committed a breach of the covenant of good faith and

fair dealing implied in all contracts in Massachusetts. Relying

5 See note 4, supra.
13

on Tufankjian v. Rockland Trust Co., 57 Mass. App. Ct. 173, 177

(2003), she emphasizes that the 2015 letter agreement prepared

by BWH constituted an attempt to exploit her position and force

her to relinquish rights she otherwise had under the oral

contract.

The implied covenant provides "that neither party shall do

anything that will have the effect of destroying or injuring the

right of the other party to receive the fruits of the contract

. . . ." Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass.

451, 471-472 (1991), quoting Drucker v. Roland Wm. Jutras

Assocs., 370 Mass. 383, 385 (1976). Because "the purpose of the

covenant is to guarantee that the parties remain faithful to the

intended and agreed expectations of the parties," it may not be

"invoked to create rights and duties not otherwise provided for

in the existing contractual relationship." Uno Restaurants,

Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004).

Here, Vacca received the benefit of her bargain: free DBS

surgery and aftercare. She cannot use the implied covenant to

impose additional obligations on BWH beyond those to which the

parties agreed.

We agree that there may be circumstances where actions by

one party to a contract designed "to recapture opportunities

forgone on contracting . . . and to secure a better deal from

[the other party]" could constitute a breach of the implied
14

covenant (quotation and citation omitted). Tufankjian, 57 Mass.

App. Ct. at 178. However, Vacca's reliance on Tufankjian is

misplaced. In that case, a bank that had agreed to finance a

portion of the purchase of an automobile dealership took steps

to undermine the borrower's ability to obtain financing for the

remainder of the purchase, including making disparaging

statements about the borrower to the other lender and delaying

an appraisal. Id. at 177-178. The bank then attempted to

capitalize on the desperate situation it had created by offering

to finance the entire purchase at rates that greatly exceeded

the agreed rates. Id. at 178.

Here, BWH's reasons for drafting the letter agreement and

its conduct after Vacca rejected that agreement differ from the

bank's bad faith conduct in Tufankjian. It is undisputed that

BWH prepared the letter agreement in response to Vacca's request

for written documentation of the oral contract the parties had

reached several years earlier. When Vacca refused to sign the

letter agreement because it contained terms to which she had not

agreed, BWH did not attempt to coerce her into signing.

Instead, it continued to provide free medical care consistent

with the oral contract. In this context, the letter agreement,

at most, was as an attempted, and unsuccessful, modification of

the parties' oral contract. See Sea Breeze Estates, 94 Mass.

App. Ct. at 216, 217 (discussing requirements for written and
15

oral modification of contract and concluding that no

modification was made where appellant "presented no evidence

that the parties expressly agreed to the 'material terms' of a

modification"). The evidence in the summary judgment record

does not support the claim that the letter agreement was an

improper attempt to coerce Vacca into forgoing her contractual

rights.

c. Malpractice preemption. Of final note, with respect to

Vacca's breach of contract claim, most of the alleged breaches

she raised sound in medical malpractice and, as a matter of law,

cannot be disguised or recast as a breach of contract claim. In

Massachusetts, "[e]very action for malpractice, error or mistake

against a provider of health care" is subject to certain

procedural requirements. G. L. c. 231, § 60B. See G. L.

c. 231, §§ 60C-60I. Further, where a malpractice claim is

brought against a "nonprofit organization providing healthcare,"

such as BWH here, damages are capped at $100,000. G. L. c. 231,

§ 85K. A plaintiff may not circumvent this statutory scheme by

"restat[ing] a claim, otherwise subject to the medical

malpractice act, as [another type of claim]." Darviris v.

Petros, 442 Mass. 274, 283 (2004). In other words, a judge

faced with a claim against a health care provider must look at

the substance of the plaintiff's allegations, rather than the

label on the cause of action, to determine if the claim is a
16

malpractice claim. Id. See Roukounakis v. Messer, 63 Mass.

App. Ct. 482, 487 (2005) (where "crux" of plaintiff's claim was

"failure properly to diagnose," plaintiff's claim was for

medical negligence). Claims that challenge the "medical

judgment exercised by the defendant physicians" are malpractice

claims subject to the requirements for and limitations on such

claims. Vasa v. Compass Med., P.C., 456 Mass. 175, 178 (2010)

(claim by third party injured by patient driving while under

influence of medication sounded in malpractice because it

involved defendant's medical judgment in determining whether to

give certain warnings to patient about medication). Cf. Morgan

v. Laboratory Corp. of Am., 65 Mass. App. Ct. 816, 821-822

(2006) (claim for failure to convey test results to patient did

not sound in malpractice because error was administrative and

did not involve medical judgment).

Here, Vacca's concerns about BWH's failure to use

rechargeable batteries in the DBS device, the qualifications of

the psychiatrist programming the device, and the lack of ethical

oversight of her treatment all challenge BWH's medical judgment.

That the vast majority of Vacca's claims sound in medical

malpractice is underscored by her description of her concerns,

which she repeatedly couches in terms of BWH's alleged failure

to comply with relevant "scientific and ethical standards" to

ensure medically optimal results.
17

Vacca further argues that her breach of contract claim

should survive because malpractice does not provide a remedy for

BWH's alleged failure to pay for her care. This claim fails for

the reasons stated in the breach of contract discussion, supra:

BWH upheld its end of the bargain by providing DBS treatment to

Vacca at no cost from 2012 until after Vacca filed this action,

and by remaining willing to care for her.6

2. Promissory estoppel claim. Vacca's promissory estoppel

claim fails for substantially the same reasons as her breach of

contract claim. "Promissory estoppel is an equitable doctrine"

that "[i]n the absence of a contract in fact, . . . implies a

contract in law." Malden Police Patrolman's Ass'n v. Malden, 92

Mass. App. Ct. 53, 60 (2017), quoting Barrie-Chivian v. Lepler,

87 Mass. App. Ct. 683, 686 (2015). To prevail on a claim for

promissory estoppel, a plaintiff must establish that (1) the

6 Vacca also argues that she is not challenging the medical
judgment of any doctor but, rather, BWH's financial decision not
to pay for elements of her care. Vacca cites no authority for
the proposition that a health care provider loses the protection
of the medical malpractice statutory regime if it takes
financial considerations into account when making treatment
decisions. Indeed, some cases have drawn a distinction between
claims related to a provider's exercise of its medical judgment
and claims arising from purely administrative or entrepreneurial
aspects of a medical business, such as advertising or billing.
See Darviris, 442 Mass. at 279 (discussing availability of G. L.
c. 93A claims against health care providers); Morgan, 65 Mass.
App. Ct. at 821-822. The latter typically do not sound in
medical negligence. In any event, we need not resolve this
issue here, in view of the absence of any evidence of a breach
of the oral contract.
18

defendant made "a promise which [it] should reasonably expect to

induce action or forbearance of a definite and substantial

character on the part of the [plaintiff], (2) the promise does

induce such action or forbearance, and (3) injustice can be

avoided only by enforcement of the promise." Loranger Constr.

Corp. v. E.F. Hauserman Co., 6 Mass. App. Ct. 152, 154, S.C.,

376 Mass. 757 (1978). In the present case, BWH at most promised

to provide DBS care to Vacca at no cost. Where BWH did not

commit a breach of that promise, Vacca is no more entitled to

enforce the promise equitably than she is to enforce it at law.

3. Intentional infliction of emotional distress claim.

Vacca contends that a jury could find BWH liable for intentional

infliction of emotional distress because, upon determining that

it could not build a successful DBS program for depression

treatment, BWH sought to minimize the expense of Vacca's care,

such as implanting a standard battery and discussing removal of

the DBS device. To prevail on this claim, Vacca must prove "(1)

that the actor intended to inflict emotional distress or that he

knew or should have known that emotional distress was the likely

result of his conduct; (2) that the conduct was 'extreme and

outrageous,' was 'beyond all possible bounds of decency' and was

'utterly intolerable in a civilized community'; (3) that the

actions of the defendant were the cause of the plaintiff's

distress; and (4) that the emotional distress sustained by the
19

plaintiff was 'severe' and of a nature 'that no reasonable man

could be expected to endure it'" (citations omitted). Agis v.

Howard Johnson Co., 371 Mass. 140, 144-145 (1976). She has not

done so.

BWH's actions do not constitute the sort of extreme and

outrageous conduct that would allow Vacca to recover for

intentional infliction of emotional distress. BWH's alleged

wrongdoing arose in the context of its oral agreement to provide

hundreds of thousands of dollars in free care to a patient who

otherwise could not afford treatment. Even putting "as harsh a

face on [BWH's] actions . . . as the basic facts would

reasonably allow," Zaleskas v. Brigham & Women's Hosp., 97 Mass.

App. Ct. 55, 68 (2020), quoting Richey v. American Auto. Ass'n,

Inc., 380 Mass. 835, 839 (1980), no jury could find it utterly

intolerable in a civilized society for BWH to discuss

alternative treatment options with Vacca, to take cost into

account in determining what treatment to provide, or to refuse

to pay for her treatment at another hospital (without

interfering with her ability to transfer her care at her own

expense). See, e.g., Sena v. Commonwealth, 417 Mass. 250, 263

(1994) (upholding judge's ruling on summary judgment that
20

"alleged conduct was, as a matter of law, not extreme and

outrageous").7

For the foregoing reasons, we conclude that the judge

properly entered summary judgment in favor of BWH.

Judgment affirmed.

7 We also note that no jury could find that BWH's proposal
of the letter agreement, containing some terms viewed by Vacca
as unfavorable, was beyond the bounds of decency where the
evidence shows that BWH continued to provide free care to Vacca
after she refused to sign the letter agreement. Cf. Zaleskas,
97 Mass. App. Ct. at 68 (finding triable issue as to extreme and
outrageous conduct where there was evidence that X-ray
technician knew patient was in great pain, but did not allow
family into examination room, refused to stop examination
despite patient's screams, returned patient to a soiled bed, and
lied about what had happened); Boyle v. Wenk, 378 Mass. 592,
593-595 (1979) (conduct of private investigator repeatedly
harassing woman just released from hospital with newborn baby
was extreme and outrageous).