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O'Connor v. Newport Hosp.

Supreme Court of Rhode Island

March 17, 2015

Jennifer O'Connor
Newport Hospital et al

Page 318

Newport County Superior Court. (NC 07-238). Associate Justice Stephen P. Nugent.

For Plaintiff: Mark B. Decof, Esq.

For Defendants: William H. Jestings, Esq., William F. White, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justice Indeglia, dissenting.


Page 319

Suttell, Chief Justice

After a three-week trial, a jury returned a verdict in favor of the defendants, Newport Hospital (hospital), Gita S. Pensa, M.D., and Newport Emergency Physicians, Inc. (NEP) (collectively defendants), in this medical malpractice action. The plaintiff, Jennifer O'Connor, appeals from the Superior Court judgment, claiming that the trial justice's erroneous admission into evidence of three documents during the voir dire of the plaintiff's standard-of-care expert, exacerbated by an allegedly " biased and incorrect" jury verdict form, was sufficiently prejudicial to warrant a new trial. We agree, and accordingly we

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vacate the judgment and remand the case for a new trial.


Facts and Procedural History

On June 22, 2006, at the age of thirty-one, O'Connor underwent cervical disk replacement surgery at Rhode Island Hospital; she was discharged from the hospital two days later. In the early morning hours of June 26, 2006, O'Connor experienced a pain behind her right eye " unlike anything that [she] had ever felt before." She testified that " it [was as] if someone took an ice pick and stuck it through the eye and it hit the point right behind your eye * * *." O'Connor also testified that she experienced numbness around her mouth, confusion, and the sensation of being hot and cold at the same time. O'Connor was transported to Newport Hospital by ambulance, at which time she also experienced nausea and sensitivity when her eye was exposed to light.

At Newport Hospital, O'Connor was treated by Dr. Pensa. According to O'Connor, Dr. Pensa thought she had an eye problem or perhaps a migraine headache. O'Connor was admitted, but a couple of hours later she was discharged from the hospital, and she returned home. Later that morning, she awoke with worsening symptoms and was driven to Rhode Island Hospital, where she was joined by the surgeon who had performed the disk replacement surgery. O'Connor learned she was having a stroke caused by a vertebral artery dissection. She testified that, after the stroke, she experienced the loss of motor skills on her right side, but that she regained function through therapy. She also testified that she continues to have chronic, debilitating nerve pain, issues with her balance, and difficulty coming up with the correct words while speaking.

On March 6, 2007, O'Connor filed suit in Superior Court against defendants, alleging negligence and lack of informed consent.[1] On May 12, 2011, Dr. Pensa and NEP filed a pretrial motion to preclude the testimony of Eddy Lang, M.D., one of plaintiff's disclosed experts on the standard of care. At the hearing on the motion, Dr. Pensa and NEP's counsel argued that Dr. Lang was not qualified to testify as an expert on the standard of care in American emergency rooms because he was a Canadian physician who was neither board-certified nor licensed to practice medicine in the United States. The trial justice denied the motion without prejudice, noting that " plaintiffs are at their peril * * * if the defendants are able to impeach the expert's credibility either on issues of experience, training, education, etc." Towards the beginning of trial testimony, a voir dire of Dr. Lang was conducted in the presence of the jury. Doctor Lang testified that he was familiar with the standard of care required of emergency-room physicians in the United States, and he also stated that there was no difference between the standard required in the United States and that required in Canada.

Counsel for Dr. Pensa and NEP cross-examined Dr. Lang regarding his qualifications and elicited the fact that, although he is a practicing emergency-medicine physician in Canada and is certified as an emergency-medicine specialist in the provinces of Qué bec and Alberta, he has neither sought, nor received, a license to practice medicine in the United States. The following colloquy took place regarding Dr.

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Lang's eligibility for board certification in the United States:

" Q And in fact, when I asked you at your deposition as to whether or not you knew if you were even eligible to sit for board certification in the United States with the American Board of Emergency Medicine, you thought you were able to, correct?
" * * *
" A I think I was uncertain as to whether I was able to.
" Q * * * You were uncertain or you believed that you were eligible?
" A I believed I was eligible.
" Q Okay. You believed you were eligible. In fact, you're not eligible to even sit for board certification with the American Board of Emergency Medicine, correct?
" * * *
" A I still do not know for certain whether I would be eligible or not.
" Q Well, okay. And have you taken time to look at the American Board of Emergency Medicine at their website to even see if you are eligible?
" * * *
" A I have not."

Following this exchange, Dr. Pensa and NEP offered three exhibits purporting to relate to the policies of the American Board of Emergency Medicine (ABEM).[2] Exhibit A reflected a printed version of a web page that purported to outline the ABEM's policies on training requirements. Exhibit B was also a printed version of what appeared to be an ABEM web page, stating that, in Canada, the Royal Association of Physicians and Surgeons of Canada (RAPSC) reviews and accredits Canadian residency programs.[3] Finally, exhibit C purported to reflect a printed version of an email from the Associate Executive Director of the Academic and Board Relations section of the ABEM. The printed version of the email stated that training through the College of Family Physicians of Canada (CFPC) did not fulfill the ABEM's eligibility requirements. All three documents were admitted as full exhibits over plaintiff's objections. At the conclusion of the voir dire and over defendants' objections, the trial justice ruled that Dr. Lang was qualified to provide expert testimony on the standard of care and causation.

After a three-week trial, the jury returned a verdict in defendants' favor on June 14, 2011, finding that plaintiff had failed to prove by a preponderance of the evidence that Dr. Pensa had breached the standard of care. In her appeal of the final judgment, plaintiff argues that: (1) the trial justice erred by admitting exhibits A-C during Dr. Lang's voir dire; (2) the trial justice erred by including the language " physician practicing in the United States at a community hospital" in question one of the jury verdict form; and (3) that these errors sufficiently prejudiced plaintiff to warrant a new trial. This case initially came before us pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After oral argument, however, we concluded that this Court would benefit from additional briefing and argument, and we reassigned this case to the full argument calendar.

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Standard of Review

" It is well established that 'the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent.'" Notarantonio v. Notarantonio,941 A.2d 138, 149 (R.I. 2008) (quoting DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 690 (R.I. 1999)). When the complaining party can show that the trial justice abused his or her discretion, we will reverse the ruling only if ...

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