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BRATTLEBORO — Because Dartmouth Hitchcock Clinic has been contracted since 2012 to run the emergency department at Brattleboro Memorial Hospital, attorneys for BMH are asking a federal judge to make Dartmouth Hitchcock pay any damages that might be awarded as a result of a malpractice lawsuit filed in May.

Attorneys for Cynthia Hawthorne, of Ohio, contend that BMH and its emergency department director, George Terwilliger, failed to notify Hawthorne in a timely manner about "a highly suspicious mass on her left kidney" that turned out to be cancer. The mass was identified in a CT scan conducted on March 24, 2014. According to the Vermont Division of Licensing and Protection, it took the hospital two-and-a-half years to notify Hawthorne. By then, the cancer had spread to her lungs and required the removal of her left kidney.

In documents filed earlier this month, BMH attorneys Ian Carleton and Justin Brown, of Sheehey Furlong & Behm, asked for permission to file "a third-party complaint against the Dartmouth-Hitchcock Clinic that asserts a claim for indemnification."

A third-party complaint is filed by a defendant or plaintiff alleging that a third party is liable for all or part of a claim or counterclaim in dispute between the original parties. An indemnification clause is a promise by the other party to cover losses if they do something that causes harm or causes a third party to sue.

"This is a procedural matter at this point because the emergency department clinicians are employed by Dartmouth Hitchcock," said Gina Pattison, BMH's Director of Development and Marketing. "Both BMH and Dartmouth counsels concur with this approach. We will continue to work with Dartmouth Hitchcock collaboratively."

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On June 22, 2012, Dartmouth Hitchcock Clinic and BMH entered into an Emergency Department Coverage Agreement, wrote Carleton and Brown, designating DHC as "the exclusive provider of physicians and providers to operate BMH's emergency room ... ," including Terwilliger. "[T]he Agreement provides that DHC 'shall indemnify and hold [BMH], its officers, directors, employees and agents harmless from any liability incurred by [BMH] as a result of or in connection with any claimed acts or omissions of [DHC] or [DHC's] Physicians and Providers, agents or employees.'"

If the court finds in Hawthorne's favor and holds Brattleboro Memorial Hospital liable, wrote Carleton and Brown, the court should order Dartmouth Hitchcock Clinic to compensate BMH both for any financial judgment and attorneys' fees and costs.

In March, the Division of Licensing and Protection issued findings related to the incident, citing BMH both for the notification error and for initially failing to thoroughly investigate the incident. Following the citation, the hospital submitted a "plan of corrections," which DLP accepted. The plan included new communication and review strategies designed to prevent a re-occurrence of the Hawthorne incident. Hawthorne is being represented by Joel Faxon, of Faxon Law Group in New Haven, Conn. Dartmouth Hitchcock Medical Center is located in Lebanon, N.H., and is affiliated with and provides services to a number of medical facilities around New England.

Bob Audette can be contacted at 802-254-2311, ext. 160.