Kathryn Manning et al.
Peter J. Bellafiore, M.D., et al.
County Superior Court (WC 00-63) Associate Justice Jeffrey A.
Plaintiff: Miriam Weizenbaum, Esq. Amato A. DeLuca, Esq. Shad
Miller, Esq. Candace Brown Casey, Esq.
Defendant: Lauren E. Jones, Esq. Eric F. Eisenberg, Pro Hac
Vice Adam M. Ramos, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
A. SUTTELL, CHIEF JUSTICE
case originated as a negligence and wrongful death action
brought by Kathryn Manning (Mrs. Manning or plaintiff),
individually and as administratrix of the estate of Michael
Manning (Manning) and on behalf of her four minor children,
against Peter J. Bellafiore, M.D. (Dr. Bellafiore or
defendant), but has since evolved into extensive litigation
regarding sanctions. The trial justice
sanctioned both Dr. Bellafiore and the law firm that
represented him at trial, White & Kelly, P.C. (WCK),
 for their failure to make pretrial
disclosures. The latter parties each appealed from the order
awarding sanctions and the matters were consolidated by this
Court. The overriding issue to be decided in both appeals is
whether the trial justice properly imposed sanctions. For the
reasons set forth herein, we affirm in part and reverse in
part the judgment of the Superior Court.
Facts and Procedural History
Court is familiar with the facts in this case as set forth in
Manning v. Bellafiore, 991 A.2d 399 (R.I. 2010)
(Manning I). To briefly summarize, on March 4, 1998,
Manning was taken to the emergency care unit at South County
Hospital (SCH) after he lost consciousness and fell at his
home. Manning was admitted to SCH and, over the course of
four days, Dr. Bellafiore was the treating neurologist
responsible for Manning's care. During this time, Dr.
Bellafiore also consulted with Donald M. McNiece, M.D. (Dr.
McNiece), Manning's primary-care physician. Doctor
Bellafiore established a differential diagnosis for Manning of complex migraine, aneurysm,
tumor, and stroke, and he recommended that Manning undergo a
magnetic resonance imaging (MRI)/magnetic resonance
angiography (MRA) to determine whether Manning was suffering
a stroke and, if so, to locate the blockage of blood flow to
first day he was admitted to SCH (March 4 or day 1), Manning
attempted to undergo an MRI/MRA on two occasions. The first
attempt was unsuccessful, however, because he had a
claustrophobic reaction. Doctor Bellafiore prescribed the
antianxiety medication Ativan and the antinausea medication
Compazine for Manning, but a second attempt to undergo the
MRI/MRA was also unsuccessful. The next day (March 5 or day
2), Dr. Bellafiore contacted the MRI Network of Rhode Island
to set up an "open architecture MRI" for Manning in
the hope of mitigating Manning's claustrophobia. The MRI
Network of Rhode Island directed Dr. Bellafiore to the open
MRI machine at Rhode Island Hospital (RIH). However, Dr.
Bellafiore learned that the open MRI machine at RIH was under
repair and would not be available.
March 6 (day 3), a computerized tomography (CT) scan,
conducted and ordered by Dr. Bellafiore after Manning
complained of a headache, revealed that Manning had indeed
suffered a stroke on March 4. Doctor Bellafiore again
attempted to schedule an open MRI at RIH; however, he was
informed that the machine was still down for repair but that
it would possibly be fixed by the end of the day. On March 7
(day 4), Dr. Bellafiore spoke with a radiology fellow at RIH,
who opined that an open MRI machine would not give as good an
image as a closed one. At that juncture, the decision was
made for Manning to try the closed MRI machine under general
anesthesia on March 9, the next day the MRI machine would be
available at SCH. Tragically,
however, Manning suffered a second stroke on March 7. He was
airlifted to Massachusetts General Hospital, where a blood
clot led to steadied loss of brain function. Manning's
life support was withdrawn on March 9 and he passed away.
January 6, 2000, plaintiff filed a negligence and wrongful
death suit against Drs. Bellafiore and McNiece, as well as
against SCH. As the case progressed, an important component
of plaintiff's malpractice claim against Dr. Bellafiore
was his failure to conduct the MRI during the first three
days of Manning's hospitalization and his failure to
present Manning with alternatives to obtaining the MRI in
light of Manning's claustrophobia. One of plaintiff's
main contentions was that Manning's death could have been
avoided if defendants had administered or obtained an MRI
test immediately after Manning's admission to the
hospital, either at SCH or by transferring him to a different
parties engaged in discovery from the commencement of the
action in January 2000 to January 2004, when the case went to
trial. During discovery, there was a great deal of evidence
and testimony relating to Dr. Bellafiore's treatment of
Manning. Specifically, the evidence presented focused on Dr.
Bellafiore's attempts to have Manning undergo an MRI and
discussions regarding sedation to assist him in undergoing
plaintiff's interrogatories, plaintiff asked Dr.
Bellafiore to "state to the best of [his] recollection
any and all conversations [he] had with any person concerning
the care and/or treatment of * * * Manning from March 4, 1998
to date * * *." The plaintiff asked Dr. Bellafiore to
provide information regarding "the person with whom [he]
had each conversation, " "the time and date of each
conversation, " and "the content of each
conversation." (Interrogatory No. 18.) Doctor Bellafiore
raised several objections but ultimately directed plaintiff
to his answer to interrogatory No. 7 and attested that
"[he] spoke with [Manning] and [Mrs. Manning] during
[Manning's] admission regarding his treatment, "
without specifying the content of those conversations. The
answer to interrogatory No. 7 also did not specify any
conversation Dr. Bellafiore had with Manning, instead, it
provided a brief overview of Manning's hospital stay. It
does not appear from the record that plaintiff sought to
compel more responsive answers to interrogatories No. 7 or
18. However, following Dr. Bellafiore's deposition,
plaintiff filed a motion to compel Dr. Bellafiore to file a
more responsive answer to plaintiff's interrogatory No.
16, which asked for all facts relating to defendant's
assumption of the risk defense. In Dr. Bellafiore's
supplemental answer, he averred that in
"the event that plaintiff asserts that an MRI would have
changed * * * Manning's outcome in this case, * * *
Manning refused to be sedated to undergo a 'closed'
MRI, when the 'open' MRI at [RIH] was inoperable,
despite being repeatedly informed that he might have a life
threatening condition, which might be detectable by
his deposition, Dr. Bellafiore was questioned regarding the
sequence of events, including his conversations with Manning
regarding the MRI and sedation. When asked what he gives to
patients experiencing claustrophobia to make them capable of
completing an MRI, Dr. Bellafiore replied, "I use
Ativan." He further explained that the amount of Ativan
is "dependant [sic] on [the patients']
size, their weight but also the effect that the medication
has on them." The questioning then proceeded to the
situation where sedation equipment was brought into the MRI
suite; Dr. Bellafiore testified that he was aware of that
possibility, and discussed his experiences. When asked if
there was "any reason why * * * Manning couldn't
have been sedated with the assistance of anesthesiology on
March 4th in order to accomplish the MRI, " Dr.
Bellafiore answered yes, "[b]ecause it's a dangerous
procedure to give someone general anesthesia or anesthetic
who is having a potential stroke."
Bellafiore testified that he had not called the anesthesia
department to ask what kind of sedation could be performed on
Manning "because it's dangerous or it would put him
at risk, " which Dr. Bellafiore did not wish to do
"unless [they] couldn't get the study in the open
[MRI] machine." He was asked what options there were for
sedation in a closed machine at RIH, to which he responded
that he had assumed they were the same as at SCH: "There
are a variety of things you can do including Ativan or other
benzodiazepines, there are antipsychotics that they may use,
the general things an anesthesiologist would do." At
this point, Dr. Bellafiore explained that sedation posed a
risk to Manning because "it [could] alter blood
pressure, respiratory function, it also [could] affect the
neurologic exam making it difficult to assess the patient for
integral changes. It [could] cause them to aspirate, it
[could] have technical/mechanical difficulties, all the risks
that you [would] have with general anesthesia."
Bellafiore testified that on day 1 he told the Mannings
"that it would be difficult to treat [Manning] unless
[they] had [the MRI and MRA] done." He recalled that he
asked Manning on day 2 whether Manning would undergo an MRI
if he had more sedation. When asked what he told Manning
about sedation, Dr. Bellafiore testified that "[he] said
[they] could try giving [Manning] more Ativan to make him a
little sleepier to see if [Manning] could tolerate the test,
" however, he testified that Manning "said there
was no way that he wanted to try that. He just couldn't
do it he said. Those were his words. He just [could not] do
it. And he apologized. He felt bad about it but he said he
didn't want to try." When asked if it was Dr.
Bellafiore's "testimony that [Manning] refused to
attempt this test after [he] told [Manning] that he had a
life[-]threatening condition * * *, " Dr. Bellafiore
stated "[a]bsolutely." Doctor Bellafiore also
testified that he spoke to Dr. McNiece "[e]ssentially
[about] * * * Manning * * * refusing the MRI * * * even with
more sedation in the closed machine." When asked if
Manning "had undergone sedation [short of general
anesthesia] in order to accomplish an MRI, * * * what [was]
the likelihood that his blood pressure and respiration would
become so compromised that it would be life[-]threatening,
" Dr. Bellafiore replied that he did not know a
percentage number, "but [he] would say that the chances
are great enough that you would want to attempt the open MRI
first." He testified that he told Manning in the evening
of day 2 that "[they] would try for the open MRI machine
the next day."
Bellafiore further testified that, after examining Manning in
the morning of day 3, he told Manning "that it look[ed]
like [he was] having symptoms of a stroke and that [they]
really need[ed] to perform th[e] MRI." Because the open
MRI machine at RIH was still not operational that day,
"[Dr. Bellafiore] asked [Manning] if he would consider
going into the closed unit with more sedation and [Manning]
said no." Doctor Bellafiore conceded that he did not
document this conversation or Manning's refusal to
undergo the closed MRI.
Bellafiore testified that on the following day, day 4, he
spoke to a radiology fellow at RIH again in an attempt to
learn the status of the open MRI machine. At that time it
became apparent to Dr. Bellafiore that it was unclear when
and if the open MRI machine would be working. After Dr.
Bellafiore testified that the fellow stated that he did not
believe the image in the open MRI would be as good as the
closed MRI and that he suggested trying the closed MRI under
general anesthesia, the following colloquy occurred during
"Q. Well, didn't you tell him that the closed
machine with general anesthesia posed a risk of death to your
client, your patient?
"A. We talked about it.
"Q. Well, what did he say about that risk of death from
sedation or anesthesia?
"A. Well, I don't remember what he said, but it
really didn't matter what he said. The open MRI
"Q. So how does that change the fact that sedation or
anesthesia pose[d] a risk of death to your patient? How does
that change it?
"A. It doesn't change the fact, but if there's
no alternative which at this point there wasn't --
"A. -- then we had no choice but to try the regular MRI
with some anesthesia.
"Q. So if I understand you correctly, as of March
7th you were prepared to try the closed machine
and put * * * Manning under some kind of sedation or
anesthesia in order to get a picture, right?
"Q. Well, why, Doctor, why were you prepared to take
that risk on the 7th when you weren't prepared
to have * * * -- to take that risk with * * * Manning on the
5th or the 6th?
"* * *
"A. Because on the 5th and the 6th
the expectation was that the open MRI, which was the safer
test, was going to be available. That's the information
that was conveyed to us."
Bellafiore testified that the decision was made to perform
the MRI under general anesthesia at SCH on March 9, the next
day the machine would be available at the hospital.
January 5, 2004, after a lengthy discovery period, the case
proceeded to trial. On the fifteenth day of trial, Dr.
Bellafiore testified that on days 2 and 3 of Manning's
hospitalization, he offered Manning "conscious
sedation" to assist him in undergoing a closed MRI but
that Manning apologetically refused. Specifically, Dr.
Bellafiore testified that, when his patients experience
claustrophobia, "[Ativan] [i]s the first thing that [he]
tr[ies]." He further explained that:
"Well, what I'm telling you is that I did offer him
Ativan. And then I also talked to him about IV sedation * * *
with the help of an anesthesiologist. "* * *
"I told him about conscious sedation. * * * I've had
a number of patients who had seizures who are developmentally
delayed * * * [a]nd with those patients sometimes you need to
get an MRI. And a good way of doing it, because they're
so uncooperative, is to give them this IV Versed, which is
"So I told him about those patients that I had
experience with and told him it was something that we could
certainly arrange for or try to do. "* * *
"I remember [what Manning told me], because I was struck
by it. He told me, 'I'm sorry, Doc.' I remember
it when people call me Doc. It just makes me feel like a
doctor. 'I know you need me to do this test to figure out
what to do, but I just can't do it.' This was on the
morning of the 5th after I told him all the things
that could possibly be wrong. And I told him about conscious
sedation. I told him about Ativan. I told him the open MRI
may not give us the answer we need. I basically held -- and
told him he could have a stroke, he could have a tumor. I was
holding a neurological gun to his head. That's when he
told me, 'I'm sorry, Doc, if you need me to do this,
I just can't do it.' I was struck because I never had
a patient apologize to me about that before. And frankly, I
felt a little guilty because here's a guy who's sick,
who's probably scared to death, and I'm making him
feel so guilty he's apologizing to me.
"At that point I told him, you know, 'Okay. We can
try for the open MRI, see what we can get, and we'll go
from there.' And I didn't document any of that."
Bellafiore explained that what he "mean[t] by sedation
[was] Ativan or IV Versed, and that's what [he] would
refer to as conscious sedation." He also testified that
conscious sedation was a "reasonable option" for
Manning and that he had discussed it with Manning on the
morning of day 2.
week later, plaintiff filed a motion for entry of default
judgment against Dr. Bellafiore or in the alternative to
strike his defense or testimony for inconsistencies between
his discovery disclosures and trial testimony regarding
sedation. Doctor Bellafiore objected to both remedies. The
trial justice pointed out that Dr. Bellafiore had not yet
completed testifying, and reserved his decision "until
probably after the verdict." The trial justice stated
"Sometimes the greatest penalty for a witness who has
been inconsistent or misleading is that the jury won't
believe him or her. Here the witness is still testifying so
the [c]ourt declines to step in at this point and will
reserve and see what happens. Counsel may submit additional
responses for final instructions or for other relief."
the conclusion of all testimony, plaintiff set forth a
renewed motion for entry of default judgment against Dr.
Bellafiore. The trial justice denied the motion "without
prejudice" but also "treat[ed] it as a motion for
judgment as a matter of law" and reserved his decision
until after a verdict was reached. ...