Tillotson et al v. Dartmouth-Hitchcock Medical Center

Filing 45

ORDER granting 26 Motion to Amend Complaint. So Ordered by Judge Landya B. McCafferty. Amended Pleadings due by 9/8/2017.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Gary and Bethanne Tillotson, as
Parents of Sean C. Tillotson, et al.
v.

Civil No. 16-cv-296-LM
Opinion No. 2017 DNH 178

Dartmouth-Hitchcock Medical Center

O R D E R
Following the death of their son, Sean Tillotson, Bethanne
and Gary Tillotson filed suit against Dartmouth-Hitchcock
Medical Center (“DHMC”), alleging that DHMC doctors failed to
identify and treat a large tumor in Sean’s left kidney that led
to his death.

The Tillotsons now move for leave to amend their

complaint based on information regarding Sean’s medical
treatment learned through discovery.

DHMC objects.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 15 provides that the court
“should freely give leave” to amend a complaint “when justice so
requires.”

Fed. R. Civ. P. 15(a)(2).

Under this standard,

leave to amend should be granted absent “any apparent or
declared reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment,
[or] futility of amendment.”

Klunder v. Brown Univ., 778 F.3d

24, 34 (1st Cir. 2015) (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)).
BACKGROUND1
On May 1, 2014, Sean Tillotson was admitted to the DHMC
emergency department in Lebanon, New Hampshire after observing
blood in his urine.
Sean’s kidneys.

Dr. Brian Girard performed an ultrasound of

Sean had previously been diagnosed with a

benign calcified cyst in his left kidney when he was younger.
Dr. Girard and Dr. Stephanie Yen reviewed Sean’s ultrasound
results and determined that his left kidney was “stable” and
“unchanged” from previous exams.

See doc. no. 1 ¶ 13.

The

doctors prepared a final report on the ultrasound results.
was discharged that same day.

Sean

He died less than two months

later after portions of a large malignant tumor in his left
kidney dislodged and traveled into his lungs and heart.
On June 29, 2016, the Tillotsons filed this wrongful death
lawsuit, alleging that DHMC’s interpretation of the May 1 kidney
ultrasound was “grossly inaccurate,” id. at ¶ 17, and that
proper interpretation of the ultrasound would have led to

These facts are drawn from the allegations in the
Tillotsons’ original complaint (doc. no. 1) and proposed amended
complaint (doc. no. 26-1).
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identification of the malignant tumor in Sean’s left kidney.

In

January 2017, through discovery in this action, the Tillotsons
learned the following information related to the May 1
ultrasound examination that DHMC had not previously disclosed:


Dr. Girard twice measured Sean’s left kidney and kidney
cyst as part of the ultrasound examination;



Dr. Girard decided to re-measure the kidney and cyst—after
acquiring an original set of still images—out of concern
that his original measurements were inaccurate;



Dr. Girard’s re-measurements of the left kidney and cyst
were “significantly smaller” than the original
measurements, doc. no. 26-1 at ¶ 17;



Dr. Girard had prepared a preliminary report on the
ultrasound results that included “dramatic differences”
from the final report, id. at ¶ 50; and



Dr. Girard recorded moving images or “cine clips” of Sean’s
kidneys as part of the ultrasound examination. Id. at ¶
18.

The Tillotsons now move to amend their complaint based on this
newly discovered information.
DISCUSSION
In their proposed amended complaint, the Tillotsons
incorporate the newly learned facts and seek to add one count
for violation of the New Hampshire Patients’ Bill of Rights, RSA
151:21 (Count III).

The Patients’ Bill of Rights requires

licensed health care facilities to adopt a policy setting forth
patients’ rights and responsibilities, as defined in the

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statute, and to treat patients in accordance with that policy.
See RSA 151:20, I.

DHMC objects to the Tillotsons’ motion,

arguing that the proposed amendment is futile, untimely, and
prejudicial.
I.

Futility
DHMC first argues that the proposed claim is futile because

the Tillotsons were not “patients” and therefore lack standing
to assert a claim under the Patients’ Bill of Rights.
In assessing futility, the court uses the same standard
that applies to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6).

Adorno v. Crowley Towing & Transp. Co., 443

F.3d 122, 126 (1st Cir. 2006).

Under Rule 12(b)(6), the court

must accept the factual allegations in the proposed amended
complaint as true, construe reasonable inferences in the
plaintiffs’ favor, and determine whether the factual allegations
in the complaint “set forth a plausible claim upon which relief
may be granted.”

Foley v. Wells Fargo Bank, N.A., 772 F.3d 63,

71 (1st Cir. 2014) (internal quotation marks omitted).

A claim

is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

The First Circuit has noted

that motions to dismiss for lack of standing are often treated

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as motions to dismiss for failure to state a claim, “thus
bringing them under the rubric of Rule 12(b)(6).”

United States

v. AVX Corp., 962 F.2d 108, 114 n.6 (1st Cir. 1992); see also
McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 67 (1st Cir.
2003) (evaluating defendant’s standing argument pursuant to Rule
12(b)(6)).
In Count III of the proposed amended complaint, the
Tillotsons allege that DHMC violated Sean’s rights under the
Patients’ Bill of Rights because it did not fully inform Sean of
his ultrasound examination results on May 1, 2014.

RSA 151:21,

IV states:
The patient shall be fully informed by a health care
provider of his or her medical condition, health care
needs, and diagnostic test results, including the
manner by which such results will be provided and the
expected time interval between testing and receiving
results, unless medically inadvisable and so
documented in the medical record, and shall be given
the opportunity to participate in the planning of his
or her total care and medical treatment, to refuse
treatment, and to be involved in experimental research
upon the patient's written consent only.
(emphasis added).

The Tillotsons allege that DHMC violated this

provision because it did not (1) inform Sean that Dr. Girard remeasured the left kidney and cyst, (2) provide Sean with the
results of those re-measurements, or (3) inform Sean that Dr.
Girard took cine clips as part of the ultrasound.
26-1 at ¶ 19.

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See doc. no.

The Patients’ Bill of Rights “plainly establishes a private
cause of action for violation” of the statute.

See Carlisle v.

Frisbie Mem’l Hosp., 152 N.H. 762, 777 (2005).

Based on the

allegations in the proposed amended complaint, there is no
question that Sean, prior to his death, would have satisfied the
basic standing requirements (i.e., injury in fact, causation,
and redressability) to assert a claim under RSA 151:21, IV.

The

Tillotsons allege that while Sean was a patient at DHMC, Dr.
Girard did not fully disclose the diagnostic test results as
required by the statute.

These allegations are sufficient at

this early stage to state a claim under this section of the
statute.

And, because the cause of action accrued before Sean’s

death, Bethanne Tillotson, as the administrator of Sean’s
estate, has standing to bring this claim.

See RSA 556:15.

Thus, the court rejects DHMC’s argument that plaintiffs lack
standing to assert a violation of the Patients’ Bill of Rights,
RSA 151:21.2

Count III of the proposed amended complaint also alleges
that DHMC violated RSA 151:21, X, by failing to provide the
Tillotsons with complete copies of Sean’s medical records.
Because, as explained above, the court finds that Count III
asserts a viable claim under the Patients’ Bill of Rights, the
court need not decide, at this stage, whether the medical
records portion of the claim survives.
2

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II.

Timeliness
DHMC next argues that the Tillotsons’ motion should be

denied because of undue delay.

This argument is without merit.

Due to DHMC’s own delay in making complete disclosures during
discovery, the Tillotsons first learned of the re-measured
images and cine clips on January 31, 2017.

They filed the

motion to amend on May 12, 2017, after conducting further
discovery on the issue.

The three and a half months between

learning of the additional images and filing the motion to amend
was not unjustified and thus does not constitute undue delay.
III. Prejudice
Finally, DHMC argues that granting the motion to amend will
add considerable time to trial preparation and result in unfair
prejudice.

The court does not agree.

The Patients’ Bill of

Rights claim is based on Dr. Girard’s actions and communications
with respect to the May 1 ultrasound; this same evidence is
relevant to the Tillotsons’ original malpractice claim.

The

Patients’ Bill of Rights claim, therefore, will not add
significant time to discovery or trial preparation in this case.
As such, the addition of this single claim will not unduly
prejudice DHMC.

See Klunder, 778 F.3d at 34-35.

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CONCLUSION
For the foregoing reasons, plaintiffs’ motion for leave to
amend (doc. no. 26) is GRANTED.

Plaintiffs shall file the

proposed amended complaint (doc. no. 26-1) as the amended
complaint on or before September 8, 2017.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
September 5, 2017
cc:

Nicholas
Bruce W.
Peter W.
Kaveh S.

F. Casolaro, Esq.
Felmly, Esq.
Mosseau, Esq.
Shahi, Esq.

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