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Gioia v. Ratner

Superior Court of Massachusetts, Essex

July 19, 2016

Mary Ellen Gioia
Richard D. Ratner et al No. 134628

         Filed August 9, 2016


          Diane M. Kottmyer, Justice


         The 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 antipsychotic medication.

         The 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.


         The undisputed facts in the summary judgment record and inferences therefrom, viewed in the light most favorable to plaintiff, are as follows.

         Ratner 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" [1] and " continue on antipsychotics p.r.n. [as needed] for agitation." (Id. )

         At 7:00 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.)

         Ratner 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." [2] Ratner was seen by a physician (the " Hospitalist") as well as by the nursing supervisor each time a Code Gray was called.

         While 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.)

         At 4:30 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.)

         Ann Ratner was Ratner's health-care proxy. There is no evidence in the record that she instructed Hospital personnel not to administer ...

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