Phil Bartlett v. Dr. David Coppe. , 159 A.3d 1065 ( 2017 )

Supreme Court
No. 2016-221-Appeal.
(WC 13-639)
Phil Bartlett et al. :
v. :
Dr. David Coppe. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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corrections may be made before the opinion is published.
Supreme Court
No. 2016-221-Appeal.
(WC 13-639)
Phil Bartlett et al. :
v. :
Dr. David Coppe. :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Robinson, for the Court. The 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.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On 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
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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.
During 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
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the applicable standard of care for a physician and surgeon.” On April 1, 2016, a justice of the
Superior Court heard argument1 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.
1
We note that we are unable to relate what occurred at that hearing, or at any other hearing
in this case, due to the fact that plaintiffs have not provided this Court with any transcripts. We
have previously commented as follows about the failure of a litigant to provide this Court with a
transcript of what transpired below:
“The deliberate decision to prosecute an appeal without
providing the Court with a transcript of the proceedings in the trial
court is risky business. Unless the appeal is limited to a challenge
to rulings of law that appear sufficiently on the record and the
party accepts the finding of the trial justice as correct, the appeal
must fail.” Loppi v. United Investors Life Insurance Co., 126 A.3d
458, 460 (R.I. 2015) (internal quotation marks omitted); see also
Bailey v. Saunders, 151 A.3d 764, 764 (R.I. 2017) (mem.).
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The 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.
II
Issues on Appeal
Our review of plaintiffs’ statement and supplemental statement, both of which were filed
pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure, discloses
that plaintiffs contend on appeal that it was not “fair and just” or “equitable” that they were not
given an opportunity to “argue their factual evidence” or “the merits of their Complaint.” They
also aver that they were “turned into the Defendants in this matter due to the fact that they were
prevented from arguing the merits of their case * * *.” The plaintiffs further take issue with the
fact that, in their words, “at no time during Court hearings, has the Appellee been required by the
Court to challenge or dispute the Appellant’s alleged factual data supporting [his] alleged
negligence * * *.” Mr. and Mrs. Bartlett also posit that they intended to move forward with their
case, in the absence of expert testimony, “applying the Principle of Common Knowledge in
belief that the allegations [they] made * * * were not of a complex nature which could be
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understood by the average juror.” They further allege that the hearing justice who granted
defendant’s motion for summary judgment was biased.2
III
Standard of Review
We conduct a de novo review of the granting of a motion for summary judgment.
Rodrigues v. DePasquale Building and Realty Co., 926 A.2d 616, 622 (R.I. 2007); see also
Walsh v. Lend Lease (US) Construction, 155 A.3d 1201, 1204 (R.I. 2017); Lynch v. Spirit Rent-
A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009). It has been our consistent position that “[s]ummary
judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the
light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of
material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Walsh,
155 A.3d at 1204 (internal quotation marks omitted); see also Peloquin v. Haven Health Center
of Greenville, LLC, 61 A.3d 419, 424-25 (R.I. 2013); Sola v. Leighton, 45 A.3d 502, 506 (R.I.
2012).
In opposing a motion for summary judgment, “the nonmoving party bears the burden of
proving by competent evidence the existence of a disputed issue of material fact and cannot rest
upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.”
Bellevue–Ochre Point Neighborhood Association v. Preservation Society of Newport County,
151 A.3d 1223, 1229 (R.I. 2017) (internal quotation marks omitted); see also Great American E
2
In their Rule 12A statement and supplemental statement, plaintiffs reference a motion for
summary judgment which they claim they filed on May 18, 2016; they also state that that motion
was scheduled to be heard on August 22, 2016. The plaintiffs contend that the hearing justice
“str[uck] this document” and did not give them the opportunity to “discuss the data included in
this motion.” The record does not reflect that any such motion was ever filed by plaintiffs.
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& S Insurance Co. v. End Zone Pub & Grill of Narragansett, Inc., 45 A.3d 571, 574 (R.I. 2012).
Furthermore, we “will not hesitate to affirm a grant of summary judgment if the nonmoving
party fails to make a showing sufficient to establish the existence of an element essential to that
party’s case * * *.” Laplante v. Rhode Island Hospital, 110 A.3d 261, 264 (R.I. 2015) (emphasis
in original) (internal quotation marks omitted).
IV
Analysis
We note initially that, on appeal, plaintiffs did not raise an objection to the hearing
justice’s order precluding them from relying on Nurse Burke as an expert witness.3 Article I,
Rule 16(a) of the Supreme Court Rules of Appellate Procedure states that “[e]rrors not claimed,
questions not raised and points not made ordinarily will be treated as waived and not be
considered by the Court.” See McGarry v. Pielech, 108 A.3d 998, 1004-05 (R.I. 2015).
Moreover, we have stated that “[e]ven when a party has properly preserved its alleged error of
law in the lower court, a failure to raise and develop it in its briefs constitutes a waiver of that
issue on appeal and in proceedings on remand.” Id. at 1005. Accordingly, any challenge to the
hearing justice’s ruling which precluded plaintiffs’ proposed expert witness—Nurse Burke—
from testifying has been waived and will not be considered by this Court.
With respect to plaintiffs’ vigorously asserted contention on appeal that they were not
permitted to argue the facts of their case and that the grant of defendant’s motion for summary
3
That argument is not included in the Bartletts’ Rule 12A statement or in their
supplemental statement. Additionally, it was conceded by Mr. Bartlett in the course of his pro se
presentation at oral argument that, on appeal, plaintiffs were not contesting the hearing justice’s
decision to preclude Nurse Burke’s testimony.
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judgment was in error, we refer to our ample precedent clearly reiterating that an expert witness
is required in a medical malpractice action. It has been our consistent holding that “[t]o recover
against a physician for medical malpractice, a plaintiff must demonstrate negligence on the part
of the physician * * * [by establishing] ‘a standard of care and prov[ing], by a preponderance of
the evidence, that the defendant deviated from that standard of care.’” Mandros v. Prescod, 948
A.2d 304, 310 (R.I. 2008) (quoting Riley v. Stone, 900 A.2d 1087, 1095 (R.I. 2006)); see also
Malinou v. Miriam Hospital, 24 A.3d 497, 509 (R.I. 2011). We have further stated that “[t]ime
and time again, we have required expert testimony * * * to establish deviation from the standard
of care when the lack of care is not so evident as to be obvious to a lay person.” Malinou, 24
A.3d at 509 (quoting Foley v. St. Joseph Health Services of Rhode Island, 899 A.2d 1271, 1277
(R.I. 2006)); see also Laplante, 110 A.3d at 265; Riley, 900 A.2d at 1095. The expert witness is
needed to “measure the care that was administered against the degree of care and skill ordinarily
employed in like cases by physicians in good standing engaged in the same type of practice in
similar localities.” Malinou, 24 A.3d at 509 (internal quotation marks omitted). As such, the
just-cited cases have made it amply clear that, for a plaintiff to prevail in a medical malpractice
action, an expert witness is essential, unless the deviation from the standard of care would be
clear to a layperson.
In the instant case, plaintiffs indicated they had no intention of retaining another expert
witness, and the hearing justice thereafter precluded them from relying on any expert witnesses
in the case. Additionally, we do not agree with plaintiffs’ contention that the allegations of
malpractice which they made vis-à-vis Dr. Coppe “were not of a complex nature which could be
understood by the average juror.” By way of example, we have stated that such a non-complex
or obvious situation “might occur if a surgeon were to leave an instrument inside a patient.”
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Laplante, 110 A.3d at 265. The instant case involves a drastically different situation. Here,
plaintiffs allege that defendant breached the standard of care for treatment of a “cellulitis ulcer”
on Mr. Bartlett’s foot. This is certainly not the type of case in which defendant’s negligence
would be obvious to a layperson. Thus, plaintiffs’ claims could only have been established by
expert testimony; given the fact that plaintiffs were precluded from relying on expert testimony,
they were not able to establish an essential element of their case. See id. at 264. As such, no
material facts remained in dispute, and defendant was entitled to judgment as a matter of law.
See Walsh, 155 A.3d at 1204.
Finally, plaintiffs have raised the issue of what they contend was bias on the part of the
hearing justice. However, plaintiffs did not move for the hearing justice’s recusal in Superior
Court. See Huntley v. State, 109 A.3d 869, 874 (R.I. 2015) (“Since the appellants neither moved
for recusal nor raised the alleged issue of bias on the record, we deem that argument to have been
waived.”). Moreover, our consideration of the alleged bias of the hearing justice and whether or
not that issue was raised on the record is certainly hampered by the fact that plaintiffs chose not
to submit any transcripts to this Court on appeal. As such, their appeal on this ground is
unavailing. See Loppi v. United Investors Life Insurance Co., 126 A.3d 458, 460 (R.I. 2015).
That being said, after our in-depth review of the record before us, we are unable to perceive any
evidence that the hearing justice was biased against plaintiffs or that she acted in any way that
would be incompatible with the interests of justice.
Accordingly, there being no reversible error by the hearing justice evident in any of the
areas preserved on appeal in the instant case, we affirm her grant of the defendant’s motion for
summary judgment.
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V
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
We remand the record to that tribunal.
Justice Indeglia did not participate.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case Phil Bartlett et al. v. Dr. David Coppe.
No. 2016-221-Appeal.
Case Number
(WC 13-639)
Date Opinion Filed May 16, 2017
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Written By Associate Justice William P. Robinson
Source of Appeal Washington County Superior Court
Judicial Officer From Lower Court Associate Justice Netti C. Vogel
For Plaintiff:
Phil B. Bartlett, Pro Se
Natalie Bartlett, Pro Se
Attorney(s) on Appeal
For Defendant:
Andrea L. Merolla-Simister, Esq.
Michael G. Sarli, Esq.
SU-CMS-02A (revised June 2016)