Judge denies motion to dismiss wrongful-death lawsuits against CMC

Yahoo

28-02-2025

Feb. 27—A judge ruled that two wrongful-death lawsuits connected to the work of a former cardiovascular surgeon at Catholic Medical Center can proceed after the hospital sought to have the suits dismissed.
Myron Louis Bishop Jr., a retired pawn shop owner, died after complications from surgery performed by Dr. Yvon Baribeau in 2012, and a retired police officer, John William Queen, died on the operating table after bleeding out in 2013, according to the lawsuits.
The lawsuits allege that Baribeau should not have been performing surgeries after the deaths of two other patients in 2012 and 2013 were identified as possible reckless behavior by CMC's peer review system. One of those patients died after Bishop.
Baribeau has settled at least 20 New Hampshire malpractice cases dating from 1999 to 2021. Seventeen were threatened malpractice claims presented at one time to Baribeau after his retirement in August 2019, CMC has previously said.
The lawsuits go into great detail about allegations that the hospital knew Baribeau's morbidity and mortality rates were dramatically higher than those of his partners, Drs. Benjamin Westbrook and David Charlesworth — at times more than double and in 2005 more than nine times higher.
Baribeau was placed on a 28-day suspension by the hospital, but "a suspension of less than 30 days does not have to be externally reported to the National Practitioner Data Bank," according to the lawsuits. The surgery on Queen took place after the suspension.
The hospital claims the suits are barred by a three-year statute of limitations and six-year repose period. The filing also says a discovery rule, which allows the clock to start when a plaintiff discovers the injury, does not apply to wrongful death.
In 2022, the Boston Globe ran a series of articles on Baribeau, which led to an independent review by a Pittsburgh law firm, Horty, Springer & Mattern.
The plaintiffs say the statute of limitations should not begin until the publication of the reports.
Judge David Anderson wrote the "plaintiffs have satisfied their burden" on the discovery rule to start in September 2022 when Baribeau's actions came to light.
"The mere fact that Decedents died under Dr. Baribeau's care did not trigger their duty to investigate Dr. Baribeau at the time of their deaths," Anderson wrote. "Thus, the information Plaintiffs learned from the Boston Globe articles provided them information about Dr. Baribeau's actions that they could not have reasonably discovered beforehand."
The two sides also disagree on whether CMC should be held accountable for negligent credentialing. CMC claims the plaintiffs would be unable to admit evidence needed to prove its claim.
Anderson disagreed.
"At the pleading stage, it would be premature for the Court to determine that RSA 151:13-a categorically bars a negligent credentialing claim," he wrote.
Anderson said the allegations spelled out in the lawsuit "are more than sufficient to meet the elements of negligent credentialing."
If the allegations are true, "CMC used its peer review process negligently by allowing Dr. Baribeau to keep his hospital privileges after his recklessness resulted in another patient's death," Anderson wrote.