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Price v. Califano

Superior Court of Rhode Island

April 4, 2014

MARIA PRICE, as Administratrix of the Estate of Stacey Spikes, and on behalf of CURTIS SPIKES, a minor
v.
NICHOLAS CALIFANO, M.D.; DOMINICK TAMMARO, M.D.; RHODE ISLAND HOSPITAL, et al.

Providence County Superior Court

For Plaintiff: Amato A. DeLuca, Esq.; Miriam Weizenbaum, Esq.

For Defendant: Francis A. Connor III, Esq.; Mark P. Dolan, Esq.

DECISION

VOGEL, J.

Plaintiff, Maria Price, brings this case as Administratrix of the estate of Stacey Spikes and on behalf of a minor, Curtis Spikes against Defendants, Dr. Dominick Tammaro, an internist, and the Rhode Island Hospital. (The claims against Dr. Jennifer Hur have been dismissed). Defendants have filed a motion to strike Plaintiff's Further Supplemental Answers to Interrogatories and to stay prejudgment interest. The gist of the motion pertains to Plaintiff's supplemental expert disclosure in which she names rebuttal experts. Defendants object to the disclosure as inconsistent with the Court's scheduling order and suggest that the experts named and opinions expressed do not constitute rebuttal experts or opinions. Defendants contend that such experts should have been included in the original disclosure and that Plaintiff's effort to characterize them as rebuttal witnesses constitutes an effort to circumvent the scheduling order requiring staggering disclosure of experts. Plaintiff disputes this contention and maintains that the experts and opinions are disclosed for use in the rebuttal stage of the trial, not in connection with her case in chief.

For the reasons set forth herein, the Court rules as follows:

The motion to strike is denied. Plaintiff's rebuttal disclosure may stand. The Court defers to the trial justice to determine whether the experts and opinions disclosed constitute rebuttal evidence or if the witnesses should be excluded as constituting evidence more properly presented during Plaintiff's case-in-chief.

The Court hereby rules that Plaintiff is precluded from presenting those experts named as rebuttal witnesses at trial during her case-in-chief for her failure to name such experts in her disclosure, as required by scheduling orders issued by this Court.

Within thirty days following the completion of the trial, counsel shall appear before Justice Vogel, in the event that Defendants rest at trial without offering testimony from each of the seven experts named in their supplemental interrogatory answer. In such event, the Court may impose sanctions, including, but not limited to fees and costs to Plaintiff to reimburse her for expenses incurred in deposing any non-testifying expert.

Defendants' motion to stay prejudgment interest is denied.

Factual Allegations

In pertinent part, Plaintiff alleges that Plaintiff's decedent, Stacey Spikes, committed suicide as the result of receiving pain treatment beneath the standard of care from Defendants. She had a history of chronic abdominal pain and pancreatitis for which she received pain treatment and diagnostic testing over a period of years. The diagnostic testing failed to reveal a physiological cause of the pain.

Plaintiff alleges that Ms. Spikes presented to the emergency room at Rhode Island Hospital in 2003 with complaints of severe right quadrant pain. The emergency room physician treated her with IV Dilaudid, IV Reglan, and admitted her. While in the hospital, she developed nausea and vomiting consistent with her previous pain attacks and received IV opioids again which alleviated the pain. While hospitalized, she saw a gastroenterologist who had treated her previously, and he noted her chronic pain control and indicated that a psychiatric consult was pending. He also reported concerns over anger, depression, sedation and paranoid ideation. He reported that her mother expressed concerns that she could kill herself. She received a psychiatric consult which ruled out paranoia.

She was discharged from that hospitalization a few days after her admission. However, over the next year, with increasing frequency, she had several other admissions/ER visits reporting similar complaints. At each emergency room visit and admission, prior to her final admission, she received the same pain control regime including IV Dilaudid followed by PO pain medication until pain free and able to be discharged.

On March 26, 2004, she was admitted to the hospital floor from the emergency room where she had been treated with IV Dilaudid. On March 27, 2004, the attending physician changed her order from IV to oral medication which allegedly did not alleviate her complaints of pain. This change represented a deviation from her usual course of treatment and constitutes a significant part of the factual basis of Plaintiff's malpractice wrongful death claim.

Plaintiff claims that Ms. Spikes remained in great pain, but without effective pain treatment for several hours and that such treatment plan led to her suicide attempt on March 27, 2004, when she hung herself from an IV pole. Ms. Spikes never recovered and died on April 7, 2004.

Disclosure of Experts

Plaintiff's Expert Disclosure

On May 10, 2013, Plaintiff filed a supplemental answer to interrogatories disclosing a board certified psychiatrist, Phillip Muskin, M.D., as her only expert. He is listed as expecting to testify both as to the standard of care applicable to the treatment rendered to Ms. Spikes and also as to her likely outcome, had she received treatment within the standard of care. His opinion and the facts upon which he based the conclusions were detailed in seven and a half, single-spaced typed pages.

The disclosure includes his opinion that the pain management offered to Ms. Spikes by Defendants fell beneath the standard of care. He notes that from July 2003 to March 27, 2004, she sought treatment at the hospital for abdominal pain with increased frequency. He opines that the Defendants violated standards of pain management care by continuing to treat the pain without determining the root cause of her increased presentations, whether psychiatric or physical.

Dr. Muskin concludes that at the time of her last admission, Ms. Spikes was iatrogenically dependent on pain medication and that she had a reasonable expectation that her pain treatment during that hospitalization would be consistent with the treatment she had been receiving over the previous months. He opines that Defendants breached the standard of care by changing that treatment plan, given her dependence on the medication. Dr. Muskin is prepared to testify that when faced with the withdrawal of medication as previously administered, it was reasonably foreseeable that Ms. Spikes would take actions to call attention to the untreated pain, including harming herself. He connects the suicide attempt to a natural and probable consequence of the abrupt change to her usual pain treatment plan.

Defendants' Disclosure

On August 10, 2013, Defendants filed a supplemental answer to interrogatories disclosing seven experts—three psychiatrists, two hospitalists and two pain management specialists: Daniel D. Dressler, M.D., a hospitalist; Christopher Roy, M.D., a hospitalist; David Gitlin, M.D., a psychiatrist; Jerrold Rosenbaum, M.D., a psychiatrist; Michael Weinberger, M.D., a specialist in pain medicine; Gary Brenner, M.D., Ph.D., an anesthesiologist and specialist in chronic pain; and Colin Harrington, M.D., a psychiatrist.[1]

Their seven opinions appear to follow the same theme, to wit, that the treatment Ms. Spikes received at Rhode Island Hospital was within the standard of care and that it was not reasonably foreseeable that the change in her treatment would result in a suicide attempt. Defendants plan to present experts to testify that those who treated Ms. Spikes worked diligently to identify the cause of her pain and to provide her with appropriate treatment and that it was reasonable to transition her from IV to oral medications. Defendants expect to present testimony that Ms. Spike's previous work-up led to a probable primary diagnosis of Somatoform Disorder, a mental disorder characterized by unexplained physical symptoms. The experts are expected to testify that it was not foreseeable that a change in her treatment regimen from IV to oral medication would result in any severe self-injurious behavior, and that no suicidal ideation was found when she was seen by a psychiatrist two days before her suicide attempt.

Plaintiff's Rebuttal Disclosure

After the experts disclosed by each of the parties had been deposed, Plaintiff supplemented her interrogatory answers to name two additional experts in rebuttal. In addition to Dr. Muskin, Plaintiff now expects to present testimony from two pain medicine experts, Asokumar Buvanendran, M.D., an anesthesiologist and pain medicine specialist, and Adam Burkey, M.D., a pain medicine specialist.

Dr. Buvanendran is expected to testify that Ms. Spikes was narcotic dependent as a result of her constant exposure to opioid medication, and that she had become tolerant to narcotics. He notes that pain medication was withheld from 5:45 to 7:50 p.m. on March 27, 2004 resulting in severe pain, and that she was unable to receive oral medications. He opines that the standard of care required that any decrease or elimination of her dependence of such drugs should have been done by weaning her ...


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