August 9, 2016
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
M. Kottmyer, Justice
plaintiff, Mary Ellen Gioia (" Gioia"), a
registered nurse at the Holy Family Hospital (" the
Hospital"), filed this action seeking damages for
personal injuries she suffered when she was treating a
patient, defendant Richard D. Ratner (" Ratner").
She alleges that Ratner negligently injured her and that the
defendant, Ann L. Ratner, his wife and health-care proxy,
negligently refused to permit the Hospital to administer
defendants have moved for summary judgment in favor of Ratner
on the grounds that he was suffering from anesthesia-induced
delirium at the time of the assault and therefore could not
be found to have acted intentionally or negligently, and in
favor of Ann Ratner on the grounds that she never instructed
the Hospital not to administer antipsychotic medication and,
in any event, did not owe a duty to the plaintiff. A hearing
on the motion was held on June 28, 2016. For the following
reasons, the defendant Ann Ratner's motion for summary
judgment is ALLOWED and the defendant Richard D. Ratner's
motion for summary judgment is DENIED.
undisputed facts in the summary judgment record and
inferences therefrom, viewed in the light most favorable to
plaintiff, are as follows.
underwent surgery at the Massachusetts General Hospital
(" MGH") on September 19, 2012. (Ex. 6.) After the
surgery, he suffered from confusion, delirium and
hallucinations. (Id. ) On September 28, 2012, he was
transferred from MGH to the Northeast Rehabilitation
Hospital. While there, his delirium and confusion persisted
and he was medicated with Risperdal and Haldol. (Id.
) He was transferred to the Hospital on October 3, 2012,
" with sudden onset of confusion and delirium requiring
1 milligram of Haldol for which [sic] he was being aggressive
with the nursing staff pushing the staff and furniture
away." (Id. ) Later that day, Ratner was
admitted to the Hospital with a plan of care to " keep
him on 1:1 sitter"  and " continue on
antipsychotics p.r.n. [as needed] for agitation."
p.m. on October 3, 2012, Gioia was the charge nurse on the
floor to which Ratner was transferred and the nurse assigned
to take care of him. The floor usually handled
medical/surgical and oncology patients. Gioia reviewed
Ratner's records and she printed out his admission notes.
She was aware that he had been combative before coming to the
Hospital and understood combative to mean " hitting,
punching and kicking." (Ex. 4, 157-59.) Gioia had dealt
with confused and combative patients and had restrained
patients in the past. (Ex. 4 at 25-25.) Gioia had a
conversation with Ratner's son, Michael Ratner, who told
Gioia that " as far as giving him anything for the
confusion, my family's wishes and my mother and I do not
want to have anything . . . to make him any more
confused." (Id. at 130-31.) Gioia does not
think that she left Michael with the impression that "
that I wouldn't, because every--I probably said,
'I'll try my best.'" (Id. at 135.)
Gioia did not speak with Ann Ratner (Id. at 136.)
became increasingly agitated as the night went on. Between
11:00 p.m. and 12:00 a.m., Gioia called the first of four
" Code Grays."  Ratner was seen by a physician (the
" Hospitalist") as well as by the nursing
supervisor each time a Code Gray was called.
the sitter was at lunch, Gioia covered for her and sat with
Ratner. At about 2:00 a.m., Ratner " grabbed
plaintiff's arm and twisted it up behind her head."
Gioia called a Code Gray. (Id., 188-89.) The
Hospitalist, other nurses and security responded to the Code
Gray. The Hospitalist spoke with Michael Ratner by telephone,
(Id., 174-75), and at 2:11 a.m., Ratner was given an
injection of 2.5 milligrams of Haldol. (Ex. 7.) Gioia was
injured but she did not go to the Emergency Room at that time
because she was on duty. (Ex. 4 at 184.)
a.m. the third " Code Gray" was called. Security
responded and took Ratner to the bathroom. He then went to
sleep. (Ex. 8.) Minutes later a fourth Code Gray was called.
Security responded and reported Ratner had " strangled
[the sitter] and hurt [plaintiff]." (Ex. 4 179-82; Ex.
8.) At 5:20 a.m., Ratner received an injection of Benadryl
and at 5:21 a.m. another injection of Haldol. The plaintiff
went to the Emergency Room at about 5:00 a.m. (Ex. 4 at 206.)
Ratner was Ratner's health-care proxy. There is no
evidence in the record that she instructed Hospital personnel
not to administer ...