Phil Bartlett et al.
Dr. David Coppe.
County Superior Court WC 13-639, Associate Justice Netti C.
Plaintiff: Phil B. Bartlett, Pro Se Natalie Bartlett, Pro Se
Defendant: Andrea L. Merolla-Simister, Esq. Michael G. Sarli,
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
William P. Robinson, Associate Justice
plaintiffs, Phil and Natalie Bartlett, appeal pro se
from the Superior Court's grant of summary judgment in
favor of the defendant, Dr. David Coppe, in this medical
malpractice action. This case came before the Supreme Court
for oral argument on April 5, 2017, pursuant to an order
directing the parties to appear and show cause why the issues
raised in this appeal should not be summarily decided. After
a close review of the record and careful consideration of the
parties' arguments (both written and oral), we are
satisfied that cause has not been shown and that this appeal
may be decided at this time.
reasons set forth in this opinion, we affirm the judgment of
the Superior Court.
September 16, 2014, plaintiffs filed an amended complaint, in
which they contended that Mr. Bartlett had been treated on a
weekly basis by defendant for a "cellulitis ulcer"
at the South County Hospital Wound Care Center between
February 2, 2012 and June 21, 2012. The amended complaint
alleged that defendant breached the standard of care and was
"negligent during the period of treatment in failure to
apply certain wound evaluation practices to evaluate the lack
of progress of ulcer healing commonly used by doctors
providing treatment for this type of condition." The
amended complaint went on to allege that defendant's
"practices" failed to diagnose a "foot bone
infection" that developed and that required "right
foot bone amputation on July 12, 2012." The plaintiffs
further alleged in their amended complaint that the
"prolonged period of treatment and necessity of
amputation resulted in [Mr. Bartlett's] inability to
pursue income production, significant unnecessary medical
expenditures and prolonged period of physical inactivity for
a seventy five year old with significant physical mobility
problems." The amended complaint also included an
allegation that, as a result of Dr. Coppe's alleged
negligence, Mrs. Bartlett was required to care for her
husband's wound after the amputation, drive her husband
to doctor's appointments, and take full responsibility
for household duties.
the course of discovery, plaintiffs answered one of
defendant's interrogatories stating that they "[did]
not plan or expect to use the services of an expert to
testify in this complaint." However, after a lengthy
discovery period, in a letter to defense counsel dated
December 16, 2015, plaintiffs identified a registered nurse,
Lisa M. Burke, MSN, RN, CWOCN, as their proposed expert
witness. Nurse Burke is identified, in the documents attached
to the December 16 letter, as a "Certified Wound, Ostomy
and Continence Nurse." On March 25, 2016, defendant
filed a motion to preclude plaintiffs from relying upon an
expert witness at trial, contending that plaintiffs failed to
meet a discovery deadline with respect to the disclosure of
their expert witness and further contending that "the
expert disclosed by [plaintiffs], Lisa Burke, MSN, RN, CWOCN
does not possess the necessary qualifications to render
opinions regarding the applicable standard of care for a
physician and surgeon." On April 1, 2016, a justice of
the Superior Court heard argument on defendant's motion.
Following that hearing, the Court issued an order precluding
plaintiffs from relying on Nurse Burke as an expert because
she "lacked the necessary qualifications to provide
opinions in this case relative to [plaintiffs']
allegations of medical negligence against the Defendant, a
physician and surgeon." The order further instructed
plaintiffs to "disclose qualified expert(s) * * * on or
before May 1, 2016" or be precluded from relying on
expert witnesses in the case. The plaintiffs failed to meet
that May 1, 2016 deadline. After a scheduling conference on
May 6, 2016, the same Superior Court justice issued a
"Supplemental Scheduling Order, " stating that the
Court had "sua sponte reconsidered its prior
ruling" with respect to Nurse Burke and had affirmed
that ruling. The order further noted that plaintiffs had
"indicated that they had not contacted or retained any
physician(s) to serve on their behalf as expert(s) in this
case and further had no intention to do so[.]"
Accordingly, the hearing justice precluded plaintiffs from
relying on expert witness testimony in the case.
defendant then filed a motion for summary judgment based on
the principle that expert testimony in a medical malpractice
case is required to establish the standard of care, deviation
from the standard of care, and proximate cause. On June 20,
2016, plaintiffs filed an objection to the hearing
justice's "decision to disqualify Lisa M. Burke as
the plaintiff's expert witness." After a hearing on
June 24, 2016, defendant's motion for summary judgment
was granted, and the hearing justice stated that any other
pending motions were "deemed moot." The plaintiffs
have appealed from that ruling.