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Manning v. Bellafiore

Supreme Court of Rhode Island

June 24, 2016

Kathryn Manning et al.
Peter J. Bellafiore, M.D., et al.

         Washington County Superior Court (WC 00-63) Associate Justice Jeffrey A. Lanphear

          For Plaintiff: Miriam Weizenbaum, Esq. Amato A. DeLuca, Esq. Shad Miller, Esq. Candace Brown Casey, Esq.

          For Defendant: Lauren E. Jones, Esq. Eric F. Eisenberg, Pro Hac Vice Adam M. Ramos, Esq.

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



         This 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.[1] The trial justice sanctioned both Dr. Bellafiore and the law firm that represented him at trial, White & Kelly, P.C. (WCK), [2] 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.

         I. Facts and Procedural History

         A. Overview

         This 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[3] 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 his brain.[4]

         On the 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.

         On 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.[5] 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.

         On 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 facility.

         B. Discovery

         The 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 the procedure.

         In 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 MRI."[6]

         During 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."

         Doctor 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."

         Doctor 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."

         Doctor 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.

         Doctor 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 the deposition:

"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 wasn't available.
"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 --
"Q. Uh-huh.
"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?
"A. Correct.
"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."

         Doctor 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.

         C Trial

         On 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 that sedative.
"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."

         Doctor 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.

         Over a 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 that:

"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."

         After 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. ...

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