County Superior Court (PC 09-1491) Associate Justice Daniel
Plaintiff: Mark B. DeCof, Esq. Douglas E. Chabot, Esq.
Michael P. Quinn, Jr., Esq.
Defendants: Ryan K. Deady, Esq. William F. White, Esq
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
GILBERT V. INDEGLIA JUSTICE
plaintiff, Sevan (Bjorklund) Cappuccilli (Ms. Cappuccilli
or plaintiff),  appeals from a Providence County Superior
Court judgment in favor of the defendants, David A. Carcieri,
M.D., d/b/a Medical Office of David A. Carcieri, M.D. (Dr.
Carcieri or defendant), and Women & Infants Hospital of
Rhode Island (Women & Infants).
plaintiff's claim against defendants arises from an
injury that she alleges that she suffered at Women &
Infants when she underwent an emergency cesarean section
(C-section). After a three-and-a-half-week trial, the jury
returned a verdict for defendants. The plaintiff subsequently
moved for a new trial pursuant to Rule 59 of the Superior
Court Rules of Civil Procedure. The trial justice denied the
motion on November 25, 2014, concluding that reasonable minds
could differ as to whether Dr. Carcieri's conduct fell
below the appropriate standard of care. For the reasons set
forth, we affirm the judgment of the Superior Court.
Facts and Travel
March 15, 2006, Ms. Cappuccilli was admitted to Women &
Infants. Doctor Carcieri, who specializes in obstetrics and
gynecology, was also at Women & Infants that day,
supervising and teaching Brown University medical residents.
At the time she was admitted, Ms. Cappuccilli was full term
and in labor with her fifth child. Although he was not Ms.
Cappuccilli's primary obstetrician, Dr. Tawfik
"Fred" Hawwa cared for her upon her
admittance. Ms. Cappuccilli testified that
"everything [was] fine, the baby's heart rate[, ]
everything was going great."
Cappuccilli's labor soon took a turn for the worse when
her baby began evidencing signs of distress between 12:22
p.m. and 12:29 p.m. At trial, Ms. Cappuccilli recalled
"all of a sudden * * * his heart rate was dropping
tremendously." As a result of the fetal bradycardia,
Hawwa determined that Ms. Cappuccilli needed an emergency
C-section. Doctor Hawwa, unavailable to do the surgery
himself, called Dr. Carcieri and asked him to perform the
procedure as soon as possible. Doctor Carcieri had had no
previous contact with Ms. Cappuccilli, but he nevertheless
agreed; and he began the emergency C-section.
Carcieri delivered "a very healthy baby" without
any complications. Soon after the baby's delivery,
however, problems arose with Ms. Cappuccilli. Doctor Carcieri
testified that Ms. Cappuccilli's uterus had an "odd
coloration" of a "purplish appearance" and
resembled what is referred to as a "Couvelaire
uterus." Doctor Carcieri exteriorized the uterus to get
a closer look at the uterine incision, encountering no
resistance in doing so. Upon further observation, Dr.
Carcieri discovered a two-centimeter extension of the uterine
incision,  which is a horizontal cut in the uterus
through which the baby is removed. Doctor Carcieri stitched
the incision along with its lengthened extension and returned
the extension continued bleeding. Doctor Hawwa, who had since
joined Dr. Carcieri in the operating room, "scrubbed
in" to help stop the bleeding. They soon discovered that
the bleeding derived from the retroperitoneum,  which is where
the ovarian vein is located. Doctor Carcieri testified that
Dr. Hawwa "proceeded to open the retroperitoneum * * *
and clean out all that clot and clean out all that irregular
blood" and that it was then that the bleeding
intensified. Doctor Carcieri described the bleeding as like
"cranberry sauce * * * it just came pouring out."
Doctor Hawwa recalled that the blood "clotted and it
looked like it had been there for a while. It almost looked
like * * * jello." Doctor Hawwa estimated based on the
blood's appearance and consistency that it had been there
for "a while. Between 45, 30 minutes to an hour."
Carcieri and Dr. Hawwa testified that they soon discovered
the source of the massive bleeding: the ovarian vein had
separated into two pieces, referred to in the medical records
as an ovarian vein laceration. Doctor Carcieri testified that
he and Dr. Hawwa attempted to "tie [the vein] off twice,
" but "it was very odd. It was almost like tissue
paper so when we tied it, put a tie on it * * * it
immediately broke away." Doctor Hawwa testified that
"the vein was very, very friable, like, it just
crumbled." After Dr. Carcieri and Dr. Hawwa were unable
to stop the bleeding, Dr. Richard Moore assisted. Doctor
Moore ultimately succeeded in controlling the bleeding, but
not before Ms. Cappuccilli lost between 5, 000 and 8, 000
cubic centimeters of blood-more blood than she had in her
her surgery, Ms. Cappuccilli was transferred to the Trauma
Intensive Care Unit at Rhode Island Hospital, where she
required two more surgeries and remained in a
medically-induced coma for a short time. After the procedure,
Ms. Cappuccilli was "terribly traumatized by [the] whole
thing." When released from the hospital, she experienced
severe abdominal pains and swelling in her limbs. She
continues to receive treatments for what she testified was
diagnosed as lymphedema, a condition that causes swelling in
her abdomen, legs, and upper body. She also testified that
she began seeing a psychiatrist-Dr. Carmen Monzon-for
treatment of depression, anxiety, and nightmares, and started
taking medication at Dr. Monzon's direction. Doctor
Monzon believed that Ms. Cappuccilli could be suffering from
Post-Traumatic Stress Disorder. Ms. Cappuccilli alleges that
Women & Infants' risk- management team paid for her
prescription for Zoloft in August 2006; the admission of
evidence concerning that payment is at issue in this appeal.
although her son-Robert-was delivered successfully, he
received a two-to-three centimeter wound to his right temple,
described in a record as a "laceration from
scalpel." The admissibility of a photograph of
Robert's injury and of a medical record referencing it is
also at issue in this appeal.
Timing and Nature of Lacerated Ovarian Vein
trial, Ms. Cappuccilli and defendants disputed the condition
of her ovarian vein, as well as the timing of its opening.
Doctor Carcieri testified that he believed that the vein was
abnormal. Based on this belief, he testified that the vein
ruptured by itself prior to the C-section. Further,
he thought that the bleeding from the vein rupture caused the
fetal distress that necessitated the emergency C-section.
Doctor Carcieri testified that neither he nor Dr. Hawwa were
able to tie the vein off because "it was not a normal
vein." Doctor Carcieri described that the vein felt
"like tissue paper when [he] touched it, " unlike
any other vein he had encountered.
Cappuccilli disputed Dr. Carcieri's characterization of
the vein as abnormal in part because Dr. Carcieri did not
notify either Ms. Cappuccilli or Women & Infants about
the alleged abnormality, nor did he reference it in his
operative note. Ms. Cappuccilli instead believed that
the vein injury occurred during the C-section at the
hands of Dr. Carcieri. She pointed to numerous records kept
at Women & Infants and Rhode Island Hospital to support
that claim.Doctor Carcieri disputed the reliability
of this evidence, testifying that often the person dictating
these records is the "low man on the totem pole"
and is not someone intimately involved in the case. In
addition, Dr. Moore testified that "there are many
records made in the medical records that are not fact."
He further described some of the records as "medical
record notes that were cut and paste, whether they were done
by an intern or medical assistant * * *."
with Dr. Carcieri and Dr. Hawwa's testimony, Dr. Moore
testified that, based on the injury's location, he did
not believe a scalpel lacerated the vein, stating: "I
don't see how you get to that area in the span of doing a
C-section." He believed that the "bleeding had been
happening in that retroperitoneum space long before [Dr.
Carcieri and Dr. Hawwa] opened it, " based on the large
collection of blood already in the area. Doctor Moore also
reiterated that "[t]his was a vein that was like tissue
paper. In fact, it was like wet tissue paper * * *. This was
an abnormal vein." He continued, "the difficulty of
ligating that vein off was because it was friable, it was
venous complex, it was torturous and it was very abnormal and
very difficult to tie off. I have tied up thousands of
infundibulum ligaments, ovarian veins and this is not a
normal vein that I have tied off before." Similarly, Dr.
Hawwa testified that, after he had trouble tying the vein, he
determined that "this vein is not a normal vein. I have
never seen anything like it before and I have never seen
anything like it since then. It is, it is a tough vein. * * *
[W]e were discussing that something must be wrong with this
vein, otherwise it would have taken the tie. A vein should
take a tie and hold steady."
Expert Testimony at Trial
March 20, 2009, Ms. Cappuccilli filed a medical malpractice
action against defendants alleging that they negligently cut
or tore her ovarian vein during the C-section. Over the
course of a three-and-a-half-week trial, each side presented
expert testimony, and a total of fifteen witnesses testified:
eleven on behalf of plaintiff and four on behalf of
defendants. The plaintiff presented Dr. Fred Duboe, an
obstetrician gynecologist, who gave his opinion that the
injury occurred during the C-section and is not an injury
that would occur absent negligence. Doctor Duboe further
noted that "the most likely mechanism for the injury was
through forceful manipulation of the uterus exteriorizing it
or placing it back into the incision upon repair of the
uterine incision." Alternatively, Dr. Duboe also
maintained that the laceration could have occurred during
dissection into the retroperitoneal area and, contrary to Dr.
Carcieri's contention, said that such an injury is not
anatomically impossible. In addition, plaintiff presented
vascular expert Dr. Paul Collier to support her theory that
the vein was injured during the C-section. Doctor Collier
offered the opinion that the vein did not rupture
spontaneously prior to the C-section because, if it had, Ms.
Cappuccilli's medical condition would have destabilized
more than it had. Doctor Collier also gave the opinion that
plaintiff's veins were not abnormal and, instead, the
tissue-paper-like quality is "to be expected."
defendants presented Dr. Michael Arnold, also a specialist in
obstetrics and gynecology, who testified to his belief that
the bleeding began prior to the procedure and
"wasn't something that had happened immediately at
the time of the surgery." Rather, basing his opinion on
the amount of blood, changes in Ms. Cappuccilli's
anesthesia record, and her uterus's Couvelaire
appearance, Dr. Arnold believed that Ms. Cappuccilli's
ovarian vein spontaneously ruptured around 12:15 p.m. Doctor
Arnold also rejected Dr. Duboe's testimony that
exteriorizing the uterus can damage the ovarian vein,
commenting that it "anatomically and physically * * *
doesn't make sense." Finally, defendants presented
Dr. Robert Higgins, who opined that Ms. Cappuccilli was not
diagnosed with lymphedema, but rather with edema and swelling
of the limbs.
Motion for New Trial
trial justice charged the jury on two theories of negligence:
(1) a traditional departure from the standard of care; and
(2) res ipsa loquitur. On October 29, 2014, the jury
returned a verdict for defendants. The plaintiff moved for a
new trial, and the trial justice heard arguments on November
25, 2014. During the motion hearing, plaintiff claimed the
jury "bought" the story that the vein ruptured
spontaneously despite overwhelming circumstantial evidence
that the injury occurred during the C-section rather than
before it. The plaintiff alleged that the defense's
theory that the vein ruptured spontaneously was
"manufactured" and stemmed solely from Dr.
Carcieri, Dr. Hawwa, and Dr. Moore's testimony, which
plaintiff believed was not credible due to contradicting
evidence. She urged the trial justice to "make a finding
that those three doctors are not worthy of belief."
bench decision, the trial justice denied the motion for new
trial. In his ruling, he explained that his "independent
review of the evidence * * * leads to the conclusion that
reasonable minds could differ on this critical issue."
The trial justice continued that "one assigned expert
was [not] substantially better qualified or more credible and
more worthy of belief than the others. The battle of the
experts in this case can best be described as a draw."
He concluded: "Simply put, the evidence relating to
negligence on the part of Dr. Carcieri was equivocal."
The plaintiff timely appealed on December 12, 2014.
Standard of Review
"plaintiffs raise multiple issues on appeal, our
standard of review differs with respect to each issue."
Bates-Bridgmon v. Heong's Market, Inc., 152 A.3d
1137, 1143 (R.I. 2017).
Denial of a Motion for New Trial
deciding a motion for new trial, a trial justice
independently appraises "'the evidence in the light
of his [or her] charge to the jury' and 'may set
aside a verdict when [his or her] judgment tells [him or her]
that it is wrong because it fails to respond truly to the
merits of the controversy and to administer substantial
justice and is against the fair preponderance of the
evidence.'" Martin v. Lawrence, 79 A.3d
1275, 1283 (R.I. 2013) (quoting Connor v. Schlemmer,
996 A.2d 98, 114-15 (R.I. 2010)). "If, after conducting
this analysis, the trial justice concludes that the evidence
is evenly balanced or that reasonable minds could
differ on the verdict, she [or he] should not disturb the
jury's decision." Id. (quoting Accetta
v. Provencal, 962 A.2d 56, 62 (R.I. 2009)) (emphasis
Court will not upset that determination unless the moving
party demonstrates that the trial justice overlooked or
misconceived material and relevant evidence or was otherwise
clearly wrong." Bates-Bridgmon, 152 A.3d at
1144 (quoting Free & Clear Co. v. Narragansett Bay
Commission, 131 A.3d 1102, 1109 (R.I. 2016)).
"[T]he trial justice need not engage in an exhaustive
review and analysis of the evidence and testimony presented
at trial * * * [but] need only make reference to such
facts disclosed by the testimony as have motivated
his or her conclusion." Hough v.
McKiernan, 101 A.3d 853, 856 (R.I. 2014) (quoting
Bourdon's, Inc. v. Ecin Industries, Inc., 704
A.2d 747, 758 (R.I. 1997)).
the admissibility of evidence 'is within the sound
discretion of the trial justice' * * *."
Martin, 79 A.3d at 1281 (quoting Fravala v. City
of Cranston, 996 A.2d 696, 703 (R.I. 2010)).
"[T]his Court will not interfere with the trial
justice[']s decision unless a clear abuse of that
discretion is apparent." Berman v. Sitrin, 101