DOLORES M. BROWN, Individually and as Personal Representative v. SAINT VINCENT RADIOLOGICAL ASSOCIATES, INC.

APPEALS COURT

DOLORES M. BROWN, individually and as personal representative,[1] vs. SAINT VINCENT RADIOLOGICAL ASSOCIATES, INC.

Docket:

23-P-771

Dates:

April 8, 2024 – October 24, 2024

Present:

Massing, Shin, & D'Angelo, JJ.

County:

Worcester

Keywords:

Negligence, Hospital, Standard of care. Contract, Physician, With hospital. Practice, Civil, Summary judgment.

Civil action commenced in the Superior

Court Department on October 18, 2013.

The case was heard by J. Gavin Reardon,

Jr., J., on a motion for summary judgment, and a motion for reconsideration was

considered by him.

Kerry Paul Choi for the plaintiff.

Megan Grew Pimentel for the defendant.

MASSING, J. The defendant, Saint Vincent Radiological

Associates, Inc. (SVRA), an incorporated group of radiologists, entered into a

contract to be the exclusive provider of radiology services for Saint Vincent

Hospital in Worcester (Saint Vincent).

In this appeal, we consider whether SVRA owed a duty of care in tort to

the plaintiff's deceased husband, Duane C. Brown (Brown),[2] who was admitted

to Saint Vincent in urgent need of SVRA's services and allegedly died because

those services were not provided.

Concluding that the summary judgment materials were sufficient to

establish that SVRA did owe Brown a duty of reasonable care, we reverse the

summary judgment entered against the plaintiff on her negligence-based claims

against SVRA.

Background. 1.

SVRA's contract with Saint Vincent.

"We summarize the material facts in the light most favorable to the

plaintiff, the nonmoving party."

Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 235 (2010). Saint Vincent is an acute-care hospital that

maintains a radiology department on its premises. SVRA contracted with Saint Vincent in 2010 to

become "the exclusive provider of radiology services of the Department." The contract required SVRA to provide

full-time services "on a [twenty-four]-hour per day basis every day of the

calendar year," with "a sufficient number, as determined by [Saint

Vincent] in consultation with [SVRA], of Physicians physically present in the

Department to provide full coverage" Monday through Friday during

customary business hours; at least one full-time equivalent physician present

on Saturdays, Sundays, and holidays; and at least one physician on call

"[seven] nights per week" for telephone consultations. One SVRA physician, selected by SVRA and

approved by Saint Vincent's chief executive officer, would be designated the

hospital's "Chief of Medical Imaging" for the duration of the contract.[3]

Among the physicians SVRA agreed to make

available were interventional radiologists.

Whereas traditional radiologists interpret medical imaging and report

their findings to other physicians, interventional radiologists perform

procedures on patients themselves using minimally invasive, image-guided

techniques. The contract held SVRA

responsible for staffing Saint Vincent's radiology department with qualified

interventional radiologists, including "an additional physician on-call

for interventional radiology procedures and vascular interventional radiology

procedures [seven] nights per week."

The contract included a provision stating

that Saint Vincent had separately contracted with "non-radiologist

physicians" to perform and interpret a specific set of "imaging

procedures" for which SVRA was not responsible. Because some lucrative procedures that could

be performed by SVRA's interventional radiologists were diverted to other

physicians, and the demand for SVRA's interventional radiology coverage overnight

was unexpectedly low, SVRA sought to modify its contract with Saint

Vincent. It proposed reducing off-hour

coverage, with weekend and holiday interventional radiology coverage "for

emergencies only," acknowledging that "there may be occasional gaps

in coverage as [it] currently exists."

Saint Vincent did not agree to the proposed modification.

2.

Treatment of plaintiff's decedent.

On December 21, 2011, Brown, age sixty-one, went to Saint Vincent's

emergency department complaining of neck pain.

He was discharged, received pain medication, and visited his primary

care provider for a cortisol injection.

His neck pain persisted, and he became confused and delusional. At approximately 5:30 A.M. on December 24, an

ambulance transported Brown to Saint Vincent's emergency department. In addition to his ongoing neck pain, he

complained of difficulty breathing and severe abdominal pain. Supervised by SVRA's attending radiologists,

radiology department residents[4] performed a chest X-ray and a series of

computed tomography scans on Brown's abdomen, pelvis, and brain. He was diagnosed with acute cholecystitis --

an inflamed and infected gallbladder.

Dr. Catherine Martone, the attending

general surgeon on duty, in consultation with Dr. Ryan Friedberg, the

attending emergency department physician, evaluated Brown. By then, because Brown's condition precluded

surgery to remove his gallbladder, Martone recommended a percutaneous

cholecystostomy, whereby the infection would be drained through a tube inserted

into the gallbladder through the skin. A

percutaneous cholecystostomy is "a temporizing measure" intended to

stabilize patients until they can withstand surgery. The tube is typically inserted by an interventional

radiologist in a short, image-guided procedure performed under local anesthesia.

At 9:23 A.M., Dr. Ashleigh Van Dijk

took over as Brown's attending physician, relieving Friedberg. She agreed with Martone's assessment that

Brown was not a candidate for surgery and would "need an emergent

cholecystostomy tube." Van Dijk

then called SVRA's scheduler, an employee of SVRA, who informed Van Dijk that

on-call interventional radiology coverage was unavailable at that time and

would not be available for another three days.

As it happened, Dr. Douglas Burd, an attending radiologist and a

partner of SVRA, who was present at the hospital reviewing images -‑ including

Brown's chest X-ray ‑‑ was an interventional radiologist qualified to place a

cholecystostomy tube. We infer from the

record that Van Dijk was not told that Burd could perform the procedure.

Brown's condition became critical, and Van

Dijk spoke with Brown's family and the emergency department at nearby UMass

Memorial Medical Center (UMass Memorial) about transferring him there for the

cholecystostomy procedure. At 11:44 A.M.,

about six hours after Brown had arrived at Saint Vincent, he was transferred to

UMass Memorial. After his arrival there,

but before a cholecystostomy tube could be inserted, Brown died from infection

of the gallbladder.

3.

Procedural history. The plaintiff

sued Martone, Van Dijk, and Friedberg in the Superior Court in 2013. After approximately two years of discovery,

the plaintiff amended the complaint to add Saint Vincent, through two

affiliated corporate entities, and SVRA.

Against each party, the amended complaint asserted a set of

negligence-based claims, including counts for wrongful death, conscious pain

and suffering, lack of informed consent,[5] loss of consortium, and gross

negligence (collectively, the negligence claims), brought individually and as

the personal representative of Brown's estate.

The plaintiff asserted an additional claim against SVRA for breach of

its contract with Saint Vincent on the theory that Brown was a third-party

beneficiary of the contract. SVRA

requested a medical malpractice tribunal, which ruled in the plaintiff's

favor. In 2018, the plaintiff further

amended the complaint to add a group of emergency department physicians at

UMass Memorial as defendants.

The plaintiff's claims against the

individual defendants and Saint Vincent have all been resolved.[6] With respect to the plaintiff's claims

against SVRA, SVRA moved for summary judgment.

The motion judge denied summary judgment on the contract claim,

concluding that there were disputed issues of material fact concerning whether

the procedure Brown needed was within the scope of services SVRA was obligated

to provide, and thus whether Brown was an intended beneficiary of SVRA's

contract with Saint Vincent. The judge entered

summary judgment for SVRA on the plaintiff's negligence claims, concluding that

SVRA had only a contractual obligation to provide services to Saint Vincent,

but did not owe a legal duty to Brown to perform a cholecystostomy. The plaintiff filed a motion for

reconsideration, which was denied.

On March 15, 2023, the plaintiff and SVRA

filed a stipulation of dismissal "without prejudice and without costs, and

preserving all rights of appeal as to any claims on which summary judgment was

granted that are covered by insurance."

At oral argument before this court, both the plaintiff and SVRA

represented that they had reached a settlement with respect to the contract

claim and that the "without prejudice" language in the stipulation

was meant to preserve the plaintiff's right to appeal from the allowance of

summary judgment with respect to the negligence claims.[7] The stipulation with SVRA amounted to a

judgment, see Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977),

and the plaintiff timely filed a notice of appeal from the allowance of summary

judgment for SVRA on the negligence claims and from the denial of her motion

for reconsideration.

Discussion. The sole issue presented in this appeal is

whether the plaintiff may proceed to trial against SVRA on tort theories of

liability or whether, as a matter of law, those avenues of relief are

foreclosed because SVRA owed no duty to Brown distinct from its contract with

Saint Vincent. To be entitled to summary

judgment, SVRA must demonstrate that, viewing the record in the light most favorable

to the plaintiff, the plaintiff has no reasonable expectation of proving the

existence of a duty, an essential element of its negligence claims. See Kourouvacilis v. General Motors Corp.,

410 Mass. 706, 716 (1991); Khalsa v. Sovereign Bank, N.A., 88 Mass. App. Ct.

824, 829-830 (2016). Our review is de

novo. See Williams v. Steward Health

Care Sys., LLC, 480 Mass. 286, 290 (2018).

To situate our discussion of the principal

issue, we briefly set forth the nature of the plaintiff's third-party beneficiary

claim and how it was resolved at the summary judgment stage. In addition to her negligence claims, the

plaintiff asserted that Brown was an intended beneficiary of SVRA's contract

with Saint Vincent. Massachusetts law

recognizes "the right of an intended beneficiary of a contract to sue for

its enforcement or breach." James

Family Charitable Found. v. State St. Bank & Trust Co., 80 Mass. App. Ct.

720, 723 (2011), citing Restatement (Second) of Contracts § 304

(1981).

The motion judge concluded that Brown

could be considered an intended beneficiary of SVRA's contract with Saint

Vincent, but only if the contract specifically obliged SVRA "to provide

24/7 interventional radiology coverage that included the placement of a

cholecystostomy tube." See

St. Charles v. Kender, 38 Mass. App. Ct. 155, 157 (1995) (subscriber to

health maintenance organization [HMO] may maintain claim against physician as

third-party beneficiary of contract between HMO and physician based on

physician's failure to timely provide services to subscriber required by

contract). The judge found that disputed

issues of material fact remained regarding the scope of SVRA's contract -–

specifically, whether the contract required SVRA to have an interventional

radiologist on call for the procedure, and whether the contract had been

modified.

Following the denial of summary judgment

as to the plaintiff's third-party beneficiary contract claim, the parties

settled that claim, and we have no occasion to address it further.[8] For the purposes of this appeal, viewing the

record in the light most favorable to the plaintiff, we assume that SVRA was

contractually obligated to have an interventional radiologist available to

treat Brown.[9]

A plaintiff who is not a party to a

contract may have a claim in tort if the contractual relationship between the

other parties gives rise to a duty of care owed to the plaintiff. See LeBlanc v. Logan Hilton Joint Venture,

463 Mass. 316, 328 (2012); Parent v. Stone & Webster Eng'g Corp., 408 Mass.

108, 113-114 (1990). "[A] defendant

under a contractual obligation 'is liable to third persons not parties to the

contract who are foreseeably exposed to danger and injured as a result of its

negligent failure to carry out that obligation.'" Parent, supra at 114 , quoting Banaghan v.

Dewey, 340 Mass. 73, 80 (1959). Thus, in

LeBlanc and Parent, the defendants -- a hotel and an electrical generating

plant, respectively -- which had contracted with other parties to provide electrical

services, were not entitled to summary judgment on tort claims brought by

plaintiffs performing work for those other parties, where the plaintiffs' death

or injury was caused by the defendants' negligent performance of their duties

under their contracts. See LeBlanc,

supra; Parent, supra at 113-114 .

Likewise in Banaghan, where the defendant elevator company's contract

with a building owner required it to maintain an elevator in safe condition,

the defendant was liable for injuries caused to the plaintiff by the elevator's

unsafe condition. See Banaghan,

supra. "In those cases, the

contract created a relationship between the defendant and third parties, by

reason of which the law recognized a duty of reasonable care in the performance

of the obligation, that supported a tort action." Anderson v. Fox Hill Village Homeowners

Corp., 424 Mass. 365, 368 (1997).

However, a contractual duty may not give

rise to a duty in tort to third persons if the duty assumed under the contract

goes beyond the duties recognized under common-law tort principles. Thus in Anderson, 424 Mass. at 367-368 , where

the defendant tenant had, in its lease, contractually assumed sole

responsibility for operation and maintenance of the premises, including a

provision requiring the defendant to promptly remove snow and ice from all

driveways and walkways, the defendant was not liable in tort to a plaintiff who

was injured when she slipped and fell on naturally accumulated ice in the

parking lot. Under the state of the

common law at the time of the decision, the natural accumulation of ice and

snow was not considered to be a property defect for which the landowner was

responsible. See id. at 369 . The court rejected the plaintiff's argument

that, under the lease, the defendant "assumed a duty greater than that

imposed under tort principles to remove the snow and ice promptly, and

negligently failed to do so," id. at 366 , because "failure to perform

a contractual obligation is not a tort in the absence of a duty to act apart

from the promise made." Id. at

368 . "To conclude that tort

liability exists solely because the defendant did not perform a contractual

duty to remove snow and ice would give rise to a common law duty which we

repeatedly have declined to impose on landowners." Id. at 368-369 .[10] See Go-Best Assets Ltd. v. Citizens Bank of

Mass., 463 Mass. 50, 59-62 (2012) (bank's contractual agreement with Board of

Bar Overseers, which required it to report to board certain activity in trust

accounts in which attorneys deposited client funds, did not establish duty to

report those transactions to attorneys' clients whose funds were held in

accounts).

SVRA argues that its only obligation to

provide an on-call interventional radiologist was a contractual duty it owed to

Saint Vincent, and that it owed no duty of care in tort to provide an on-call

interventional radiologist for Brown, let alone to place a cholecystostomy

tube. While SVRA may ultimately prevail

at trial in proving that the relevant standard of care did not require it to

have an interventional radiologist available to perform the procedure in

question, it is not entitled to summary judgment on the ground that it owed no

duty to Brown whatsoever.

To make a claim for negligence, "a

plaintiff must prove that the defendant owed the plaintiff a duty of reasonable

care, that the defendant breached this duty, that damage resulted, and that

there was a causal relation between the breach of the duty and the

damage." Jupin v. Kask, 447 Mass.

141, 146 (2006). See Leavitt v. Brockton

Hosp., Inc., 454 Mass. 37, 39 (2009) (applying same elements in patient's

negligence claim against hospital).

"Whether a party owes a duty of care to another is a legal

question, determine[d] by reference to existing social values and customs and

appropriate social policy" (quotations and citation omitted). Williams, 480 Mass. at 290 . "Although juries are uniquely qualified

to determine the scope of the duty at issue, the existence of a duty, including

an ordinary duty of reasonable care, 'is a question of law appropriate for resolution

by summary judgment.'" Shea v.

Caritas Carney Hosp., Inc., 79 Mass. App. Ct. 530 , 539 n.12 (2011), quoting

Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 261 (2007). See Jupin, supra.

Viewing the facts in the light most

favorable to the plaintiff, under SVRA's contract with Saint Vincent, SVRA

effectively agreed to act as Saint Vincent's radiology department. Accordingly, it assumed the duty to provide

medical treatment consistent with the standard of care in the practice of

radiology. See Medina v. Hochberg, 465

Mass. 102, 106 (2013) ("A physician owes a legal duty to a patient to

provide medical treatment that meets the standard of care of the average

qualified physician in his or her area of specialty"). That common-law duty included whatever duty

the radiology department of an acute-care hospital with an emergency unit owes

to the hospital's patients. See

Restatement (Second) of Torts § 324A (1965) ("One who undertakes,

gratuitously or for consideration, to render services to another which he

should recognize as necessary for the protection of a third person or his

things, is subject to liability to the third person for physical harm resulting

from his failure to exercise reasonable care to protect his undertaking, if

. . . he has undertaken to perform a duty owed by the other to the

third person").[11]

"Tort obligations are in general

obligations that are imposed by law on policy considerations to avoid some kind

of loss to others. They are obligations

imposed apart from and independent of promises made and therefore apart from

any manifested intention of parties to a contract or other bargaining

transaction." Anderson, 424 Mass.

at 368 , quoting W. Prosser & W. Keeton, Torts § 92, at 656 (5th ed.

1984). We have no difficulty concluding

that a hospital with an emergency department owes a duty of reasonable care to

patients admitted on an emergency basis.

To the extent the standard of reasonable emergency care requires having

certain radiology services available, and to the extent SVRA was required by

contract to provide those services on behalf of Saint Vincent -‑ both of which

are contested issues for trial -‑ SVRA owed a duty of care to patients to

provide those services. The contract

required SVRA to assume duties to Brown recognized at common law -‑ no more,

but no less.

SVRA further argues that any common-law

duty must involve affirmative negligent conduct rather than failure to

act. See Herbert A. Sullivan, Inc. v.

Utica Mut. Ins. Co., 439 Mass. 387, 396 (2003) (Sullivan), quoting Abrams v.

Factory Mut. Liab. Ins. Co., 298 Mass. 141, 144 (1937) ("Although the duty

arises out of the contract and is measured by its terms, negligence in the

manner of performing that duty as distinguished from mere failure to perform

it, causing damage, is a tort").

For example, an insurer may be liable in contract for failure to comply

with its duty to defend, but liable in tort for negligent handling of a

defense. See Sullivan, supra, citing

Abrams, supra at 143-144 ; Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417

Mass. 115, 118 (1994). As SVRA's

argument goes, it would be liable if one of its radiologists had negligently

performed a percutaneous cholecystostomy on Brown, but it is not liable for failure

to perform the procedure.

SVRA's reliance on Sullivan is

misplaced. There, the court held that an

insurer's negligent performance of its contractual duty to defend was a tort

that did not give rise to a claim for breach of contract. See Sullivan, 439 Mass. at 396-397 . Sullivan does not suggest that failure to act

cannot give rise to a tort claim. And

even if Sullivan can be read in that manner, this case does not involve a

"mere failure to perform" a contractual duty within the meaning of

Sullivan and the insurance cases it cites.

Id. at 396 . Unlike an insurer

that refuses to defend altogether, here SVRA affirmatively provided radiology

services for Saint Vincent pursuant to its contract and thus took on a duty of

reasonable care in its performance. See

id., citing Abrams, 298 Mass. at 144 ("by undertaking the defense of its

insured as mandated by contract, [the insurer] engaged in affirmative action,

and that action exposed its insured's legally protected interests to the risk

of harm. The insurer's action,

therefore, gave rise to a duty of reasonable performance, the violation of

which was tortious").

For example, we have affirmed a jury

verdict against a hospital for negligently allowing a pregnant woman who

entered the hospital while in labor "to remain unattended and without an

examination by a physician or resident and thereby exposing her to a danger

which involved an unreasonable risk of harm." Samii v. Baystate Med. Ctr., Inc., 8 Mass.

App. Ct. 911, 912 (1979). We have also

reinstated a jury verdict against a hospital in favor of a patient who was

admitted to the emergency room in a disoriented state and was injured falling

off a hospital bed, where the hospital had negligently left the patient

unsupervised and unrestrained. See Bennett

v. Winthrop Community Hosp., 21 Mass. App. Ct. 979, 980-981 (1986).

That the negligence in this case may be

attributable to SVRA as an entity, rather than to any individual physician,

does not relieve SVRA of liability. See

Santos v. Kim, 429 Mass. 130, 135-136 (1999) (recognizing that because of

"variety of organizational schemes that obtains in the provision of modern

medical services," there may be cases of institutional malpractice without

any one responsible physician).

There remain disputed issues of material

fact regarding the extent of SVRA's duty and whether it breached that

duty. The summary judgment record

included the affidavit of Dr. John Robert Kirkwood, a board certified

radiologist, who stated that the standard of care for radiology groups at

larger city hospitals in Massachusetts, including Saint Vincent, was to have

interventional radiology services available at all times. Similarly, Dr. Michael S. Hickey, a

board certified general surgeon with experience in general and trauma surgery,

opined to a reasonable degree of medical certainty that SVRA "departed

from the standard of care of the average qualified radiology group providing

such services to the [e]mergency [d]epartment when it failed to have an

interventional radiologist on call when Mr. Brown required placement of a

cholecystostomy tube pursuant to hospital policy and its agreement with the

hospital." See Samii, 8 Mass. App.

Ct. at 912 (hospital liable in tort based on failure to act). Hickey also stated that SVRA departed from

the standard of care by failing to inform the hospital staff that such services

were not available. See Millard v.

Corrado, 14 S.W.3d 42, 48 (Mo. Ct. App. 1999) (holding that "'on call'

physicians owe a duty to reasonably foreseeable emergency patients to provide

reasonable notice to appropriate hospital personnel when they will be

unavailable to respond to calls" and that duty "exists independently

of any duties flowing from a physician-patient relationship").

Finally, the hospital's own policy and

procedures manual required that "vascular and interventional

radiology" services be available during regular business hours, and that a

staff member from the vascular and interventional radiology department be on

call and available at all other times for emergency procedures. While Saint Vincent's policies do not create

a duty, they are relevant in determining the scope of SVRA's duty in tort as a

radiology department. See Correa v.

Schoeck, 479 Mass. 686, 697 (2018); Lev, 457 Mass. at 246-247 ; Mass. G. Evid.

§ 414 (2024).

We hold that SVRA had a duty to Brown that

existed in tort in the performance of its contractually assumed duties. SVRA's contract with Saint Vincent created a

relationship between SVRA and Brown "by reason of which the law recognize[s]

a duty of reasonable care in the performance of the obligation." Anderson, 424 Mass. at 368 . "A patient who goes to the emergency

room, if conscious, is mostly concerned with getting care, not with untangling

the contractual relationship between the hospital and the doctors who work there." Estate of Essex v. Grant County Pub. Hosp.

Dist. No. 1, 546 P.3d 407 , 409 (Wash. 2024).

Conclusion. The order granting summary judgment on the

plaintiff's negligence claims is reversed.

The case is remanded so that the plaintiff may proceed to trial on her

negligence claims against SVRA.

So ordered.

footnotes

[1] Of the estate

of Duane C. Brown.

[2] We refer to

the plaintiff's decedent as Brown, and to Brown's widow, Dolores M. Brown, as

the plaintiff.

[3] The SVRA

physician designated for this position signed his correspondence as chief of

Saint Vincent's radiology department, even when negotiating with Saint Vincent

on behalf of SVRA.

[4] The residents

were not members of SVRA. The SVRA

attending radiologists supervised and worked with the residents.

[5] The plaintiff

claimed that Brown could have been transferred sooner if the defendants had

disclosed the risks and alternatives to the proposed course of diagnosis and

treatment.

[6] Stipulations

to dismiss the claims against Friedberg and Van Dijk were filed in October

2022. In early 2023, all claims against

Martone and Saint Vincent were likewise dismissed by agreement. In March 2023, the plaintiff's claims against

the UMass Memorial physicians were tried before a jury, which handed down a

verdict for the defendants.

[7] Had the parties dismissed the contract claim without prejudice with the

intent to revive it after having obtained appellate review of the allowance of

summary judgment on the negligence claims, this appeal would not be properly

before us. See Alberti v. Alberti, 104

Mass. App. Ct. 235 , 240 (2024).

[8] SVRA does not

argue that the settlement of the contract claim made the plaintiff's negligence

claims moot. While the damages that

might be available to the plaintiff as a third-party beneficiary of the

contract overlap with the damages available for malpractice, see

St. Charles, 38 Mass. App. Ct. at 160 , the plaintiff's potential recovery

on her wrongful death claims, for example, may exceed the damages available on

the contract claim. See G. L.

c. 229, §§ 2, 6; G. L. c. 231, § 60H.

[9] At trial,

SVRA is free to argue that its contract did not include this obligation.

[10] The common

law of Massachusetts now recognizes that landowners owe a duty of reasonable

care to remove natural accumulations of snow and ice from their property. See Papadopoulos v. Target Corp., 457 Mass.

368, 378 (2010). If Anderson had been

decided today, the defendant would potentially have been liable to the

plaintiff in tort for failure to take reasonable care with respect to the

accumulated snow and ice in the parking lot.

[ 11 ] In a case holding that a hospital did not have

a duty to warn third parties when it released a patient who had been civilly

committed, the Supreme Judicial Court noted, "Some courts in other

jurisdictions have determined that, in limited circumstances, hospitals may be

directly liable for care provided in their emergency rooms, and that hospitals

have a duty to provide adequate emergency care.

At least three States have recognized a hospital's 'nondelegable duty'

to provide adequate emergency medical care." Williams, 480 Mass. at 295 n.6, quoting

Simmons v. Tuomey Regional Med. Ctr., 341 S.C. 32, 44-46 (2000). This appeal does not concern, and we express

no opinion on, the allocation of duty as between Saint Vincent and SVRA for the

failure to provide adequate emergency services to Brown. The plaintiff's claims against Saint Vincent

have been resolved by stipulation of dismissal, and neither Saint Vincent nor

SVRA filed a cross claim against the other.