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The Law of Medical Malpractice in Rhode Island: A Survey of Basic Considerations

The Law of Medical Malpractice in Rhode Island:   A Survey of Basic Considerations

 

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Rhode Island medical malpractice law is among the most complex legal practice areas.  The statutes, case law, and regulations governing medical malpractice law in Rhode Island are highly technical.  For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim.  Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Rhode Island exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Rhode Island by both members of the general public as well as practicing lawyers.  This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Rhode Island medical malpractice law in practice.  It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Rhode Island.  After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case.  Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Rhode Island.

Below is a list of topics covered in this article.  You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts

-What is Medical Malpractice in Rhode Island?

-Required Elements of a Medical Malpractice Claim in Rhode Island

-Introduction

-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims

-Introduction to Statute of Limitations

-Statute of Limitations for Medical Malpractice Claims in Rhode Island

-The Discovery Rule

-Introduction

-The Discovery Rule in Rhode Island

-Special Provisions

-Minors

-Mental Incompetence

-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery

-Introduction

-Statute of Repose in Rhode Island

IV. Immunities and Limitations on Liability

-Sovereign Immunity

-Introduction

-Sovereign Immunity in Rhode Island

-Good Samaritan Law

-Introduction

-Good Samaritan Law in Rhode Island

-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

-Basic Elements

-Notice Pleading

VI. Expert Medical Witnesses

-Introduction

-Who Qualifies as An Expert Medical Witness

-Admissibility of Expert Testimony

-Introduction

-Admissibility of Expert Testimony in Rhode Island

VII. Pure Comparative Negligence

VIII. Limitation on Damages

IX. Limitations on Attorney Fees

-Contingent Fee Arrangement

-Limitations on Attorney Fees in Rhode Island

X. Apologies and Gestures of Sympathy

XI. Website Disclaimer

 

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Rhode Island?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

The Rhode Island Supreme Court explained: “Medical malpractice may consist in the lack of proper skill or care in making a diagnosis as well as in giving treatment.”  Wilkinson v. Vesey, 295 A.2d 676, 682 (R.I. 1972).

Required Elements of a Medical Malpractice Claim in Rhode Island

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Rhode Island law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.  The Rhode Island Supreme Court advised: “A physician is not a guarantor of either a correct diagnosis or a successful course of treatment.”  Young v. Park, 417 A.2d 889, 893 (R.I. 1980).

Rhode Island medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are as follows.

  1. Standard of care—applicable standard of care requiring the healthcare provider to conform to certain conduct or level of competence, e., duty;

 

  1. Breach—a failure on the healthcare provider’s part to conform to the standard required or violation of the standard of care, e., a breach; and

 

  1. Causation—the causal relationship between the violation or breach of the applicable standard of care and the harm complained of. Schenck v. Roger Williams General Hospital, 382 A.2d 514, 516-517 (R.I. 1977).

The Rhode Island Supreme Court held that “a physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.”  Sheeley v. Memorial Hospital, 710 A.2d 161, 165 (R.I. 1998).  In Sheeley, the Supreme Court expressly repudiated the “same or similar” communities standard, i.e., expanded Locality Rule, in favor of a national standard with respect to the applicable standard of care for healthcare providers.  Id.

It is important to note that the Supreme Court “has repeatedly held that a physician’s duty is not to cure, but to exercise the same degree of diligence and skill as physicians in good standing engaged in the same type of practice….”   Schenck, 382 A.2d at 517.  That is, the duty healthcare providers owe to their patients is to conform with the applicable standard of care; they do not owe a duty to cure.

In a medical malpractice case, “expert testimony is an essential requirement in proving the standard of care applicable to the defendant….”  Sheeley, 710 A.2d at 164.  The expert need not hold the same title or work in the same practice area as the defendant against whom the testimony is offered.  Gianquitti v. Atwood Medical Associates, Ltd., 973 A.2d 580, 591 (R.I. 2009).  The Court instructed: “Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard.”  Id. at 591-592.

For example, the Supreme Court concluded that a doctor who was board certified in pediatrics and family medicine qualified as an expert to testify about the standard of care for the treatment of an animal bite wound against an emergency room physician/internist.  Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425, 427 (R.I. 1996).  The Court explained:

Thus, a doctor skilled in pediatrics and family medicine with experience in treating animal-bite wounds of the kind suffered by this plaintiff need not be board certified in emergency or internal medicine to testify about the pertinent standard of care in treating such wounds and to opine whether the defendant-physician met that standard.  Nor would the proposed expert’s lack of any training or experience working in an emergency room be fatal to qualifying under § 9-19-41.  However relevant such matters may be to the weight given by the factfinder to the expert’s opinion, they should not bar such testimony ab initio….

[T]he proponent of such evidence must still show the trial court that the so-called expert-witness has knowledge, skill, training, or experience in the same field as the alleged malpractice so that the expert’s testimony can be genuinely helpful to the jury.  Board certification, training, or experience practicing in the same specialty as the defendant doctor is certainly one possible way to qualify as an expert witness under § 9-19-41, but it is not the sine qua non for doing so.  Id. at 426-427.

Expert witness testimony is also generally required to establish the defendant’s deviation from or breach of the applicable standard of care.  Gianquitti, 973 A.2d at 594.  “The expert must 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….”  Richardson v. Fuchs, 523 A.2d 445, 448 (R.I. 1987).

However, there is an exception to the expert witness requirement for establishing the applicable standard of care and breach thereof.  If “the lack of care is so obvious as to be within the layman’s common knowledge,” then expert witness testimony is not required to establish the standard of care and breach thereof.  Id. at 448.  That is, where the negligence and resultant harm are sufficiently obvious as to lie within a layperson’s common knowledge, expert testimony is not necessary.  The classic example of a situation that is within the common knowledge and experience of laypeople is where a foreign object is inadvertently left inside a patient following surgery.  Another example is where the wrong limb is amputated, i.e., the right leg is amputated instead of the left leg.  In those situations, it does not require an expert medical witness to explain to the judge and jury that negligence occurred.

In medical malpractice actions, the plaintiff has the burden of establishing “that the defendant had a duty to act or refrain from acting and that there was a causal relation between the act or omission of the defendant and the injury to the plaintiff.”  Schenck v. Roger Williams General Hospital, 382 A.2d 514, 516-517 (R.I. 1977).  According to the Rhode Island Supreme Court, proximate cause “may be established in most cases by showing that the harm to the plaintiff would not have occurred but for the defendant’s negligence.”  Id. at 517.  The causal relationship between the defendant’s negligence and the plaintiff’s injury “must be established by competent evidence,” which generally takes the form of expert witness testimony.  Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006).

The Supreme Court instructed that when “the only evidence offered by the plaintiff on causation is the testimony of a medical expert, it is well settled that such evidence must speak in terms of probabilities, rather than possibilities.” [internal quotation marks omitted] Id. at 468.  The Court added that while “absolute certainty is not required, the expert must show that the result most probably came from the cause alleged.” [internal quotation marks omitted] Id.  

II. Filing Deadlines for Medical Malpractice Claims

 Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Rhode Island  

In general, medical malpractice claims in Rhode Island are subject to a three-year statute of limitations contained in Rhode Island General Laws (“GL”) § 9-1-14.1.  It provides that a medical malpractice action “shall be commenced within three (3) years from the time of the occurrence of the incident which gave rise to the action….”  Under the standard three-year statute of limitations governing medical malpractice claims, a plaintiff has three years from the date of the alleged negligence in which to commence an action or be forever time-barred from bringing suit.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under Rhode Island law in calculating the exact date the applicable limitations period ends.  Rule 6 of the Rhode Island Superior Court Rules of Civil Procedure sets forth how time is calculated under Rhode Island law.  It instructs:

In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included.  The last day of the period is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday

Once the date of accrual of a medical malpractice claim in known, the exact date the three-year limitations period ends can easily be calculated by applying the foregoing rules for the computation of time.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Rhode Island

Rhode Island recognizes the Discovery Rule in medical malpractice cases.  Wilkinson v. Harrington, 243 A.2d 745, 753 (R.I. 1968).  The Rhode Island Supreme Court first announced its applicability in medical malpractice cases in Wilkinson, stating “we prefer to follow the discovery rule in medical malpractice cases because in our opinion the theory behind it is eminently fair and perfectly consistent with the function and nature of limitation acts.”  Id.  The Court reasoned:

It would, in our opinion, be manifestly unjust to bar the enforcement of injury claims brought by a plaintiff who was not, nor could not have known that he was, the victim of tortious conduct because the consequent harm was unknowable within two years of the negligent act.  In this age of enlightened medicine and highly sophisticated curative treatment it is very likely that the maturation of injury resulting from negligent treatment would not evidence itself for well after the two years provided for in the statute of limitations [limitations period in place at time of the decision].  This thought becomes particularly disturbing when one realizes that the latent injuries arising from medical malpractice would very likely go undetected by the victim, as only trained and skillful practitioners of medicine could ascertain whether a patient has been mistreated.  Even the physical symptoms which might herald future inquiry may well be beyond the comprehension or perception of the average layman. [internal citation omitted] Id. at 752.

The rationale underlying the Discovery Rule was summed up by the Supreme Court as follows: “To require a man to seek a remedy before he knows of his rights, is palpably unjust.”  Id. at 753.

The Discovery Rule has been codified and now is a part of the medical malpractice statute of limitations.  GL § 9-1-14.1(2).  The statute reads, in pertinent part:

In respect to those injuries or damages due to acts of medical … malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered.

The question of whether the limitations period begins to run when the patient discovers or constructively discovers the injury or when both the injury and its likely cause are discovered was answered by the Supreme Court in WilkinsonId. at 752-753.  This is a critical distinction because many years can pass between the former and latter discoveries, and if the former discovery triggers the running of the limitations period, many claims will be time-barred that would not be barred if the latter discoveries serve as the triggering event.  The Rhode Island Supreme Court determined that under its formulation of the Discovery Rule both the injury and its likely cause are necessary to trigger the running of the three-year limitations period.  Id.

Special Provisions

Minors

Minors are subject to a different limitations period than the standard three-year period that normally applies to medical malpractice claims.  GL § 9-1-14.1(1).  It provides that if the plaintiff is a minor at the time the claim accrues the statute of limitations is tolled until the disability is removed, i.e., reaches the age of 18.  Once the plaintiff turns 18, he or she “shall bring the action within three (3) years from the removal of the disability,” i.e., an action must be commenced by the plaintiff’s 21st birthday.  Id.

The Rhode Island Supreme Court ruled that the statute is constitutional in the 1995 case Dowd v. Rayner, 655 A.2d 679, 684 (R.I. 1995).  In Dowd, the plaintiff mounted equal protection and open courts challenges to the constitutionality of GL § 9-1-14.1(2) as applied to minors.  Similar challenges to medical malpractice-specific statutes of limitations governing actions by minors were successful in other states.  However, the Rhode Island Supreme Court rejected the challenges, holding “that § 9-1-14.1 offends neither the equal protection of the laws nor the open courts guarantee of the Rhode Island Constitution.  Id.

Mental Incompetence

Like with actions involving minors, persons suffering from the legal disability of mental incompetence are subject to a different limitations period than the standard three-year period that normally applies to medical malpractice claims.  GL § 9-1-14.1(1).  It provides that if the plaintiff is mentally incompetent at the time the claim accrues the statute of limitations is tolled until the disability is removed.  Id.  Once the disability of mental incompetence is removed, the person has three years from the date of removal to commence an action for medical malpractice.  Id.

Final Thoughts

The application of Rhode Island’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Rhode Island medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Rhode Island attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Rhode Island

Rhode Island does not have a statute of repose applicable to medical malpractice claims.  Accordingly, in theory, there does not appear to be an outer limit on the time in which a person has to discover an injury and its likely cause under the Discovery Rule.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Rhode Island

In general, Rhode Island and its political subdivisions have waived sovereign immunity with respect to tort actions.  GL § 9-31-1(a).  The statute provides:

The state of Rhode Island and any political subdivision thereof, including all cities and towns, shall, subject to the period of limitations set forth in § 9-1-25, hereby be liable in all actions of tort in the same manner as a private individual or corporation; provided, however, that any recovery in any such action shall not exceed the monetary limitations thereof set forth in this chapter.

Under the statute, the state and its political subdivisions are subject to medical malpractice claims “in the same manner as a private individual,” subject to specific statutory requirements and limitations.  The Rhode Island Supreme Court provided the following discussion on the implicit limited nature of the state’s waiver of immunity.

There can be no questioning the fact that the General Assembly, in enacting § 9-31-1, has sharply reduced the broad notion of sovereign immunity that had prevailed in this jurisdiction.  However, we do not believe that the Legislature ever intended the statute to operate so as to impose liability upon the state for any and all acts or omissions of its employees and officers which might cause injury to persons….

State after state abolished sovereign immunity during the sixties and seventies, until at present the doctrine exists in only a handful of jurisdictions.  Nevertheless … there has been a decided reluctance in all jurisdictions that have considered the question to impose liability upon the state for certain activities conducted by its agents and servants.  The rationale for this hesitancy is not difficult to discern.  [S]ome remnant of governmental immunity must be retained to insure effective government.  It would be unthinkable, for example, to hold the state liable for a wrong decision of its courts or the implementation of a particular state program. The disruptive effect such a result would have upon our branches of government needs no elaboration.  However, unlike the common law doctrine of sovereign immunity which operated as a bar to recovery regardless of whether countervailing policies were implicated, current limitations upon governmental liability proceed from considerations of competing interests.  There must be a weighing of the injured party’s demand for justice against the state’s equally valid claim to exercise certain powers for the good of all without burdensome encumbrances and disruptive forces….

We are mindful that our statute, § 9-31-1, does not contain an explicit restriction upon the state’s tort liability.  Our preceding discussion should make it clear, however, that abolition of the doctrine of sovereign immunity has never been understood as completely subjecting every and all governmental functions to court action.  It is within this framework that the General Assembly enacted § 9-31-1. We will not attribute to the Legislature the intent to wipe away all barriers to state liability and thereby radically depart from established conceptions of state tort responsibility without a clear statement regarding such a change. [internal citations omitted] Calhoun v. City of Providence, 390 A.2d 350, 353-355 (R.I. 1978).

A plaintiff with an actionable claim against the state or any of its political subdivisions must commence an action within three years of the accrual of the claim or be forever time-barred from ever bringing suit.  GL § 9-1-25.

GL § 9-31-2 imposes a $100,000 cap on damages in any tort action against the state or any political subdivision.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Rhode Island

Rhode Island has enacted a general Good Samaritan law that is codified in GL § 9-1-27.1.  The statute provides immunity from civil damages for individuals who voluntarily render emergency care for those in need.  It states:

No person who voluntarily and gratuitously renders emergency assistance to a person in need thereof including the administration of life saving treatment to those persons suffering from anaphylactic shock shall be liable for civil damages which result from acts or omissions by such persons rendering the emergency care, which may constitute ordinary negligence.  This immunity does not apply to acts or omissions constituting gross negligence or willful or wanton conduct.

Notice that the immunity granted by Rhode Island’s Good Samaritan law does not apply if the rendering of assistance constitutes “gross negligence or willful or wanton conduct.”  Id.  Thus, Good Samaritans are shielded from civil liability for ordinary negligence, but not conduct that amounts to gross negligence or willful or wanton conduct.

The Rhode Island Supreme Court stated that whether conduct constitutes “ordinary or gross negligence” is a question for the jury to determine.  Travers v. Vaz, 714 A.2d 603, 604 (R.I. 1998).  In addition, “whether there existed an emergency situation that warranted the application of the Good Samaritan statute is also an issue of fact” for the jury to decide.  Id.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Rhode Island General Laws.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 9—Courts and Civil Procedure.

V. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Rhode Island, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the Superior Court Rules of Civil Procedure.

According to Rule 3, a “civil action is commenced by the filing of a complaint, Civil Case Cover Sheet, and all other required documents together with the fees prescribed by law.”  A complaint is one type of pleading allowed under Rhode Island law.  Rule 7(a).  Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.

Under Rule 8(a), a complaint must contain (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief; and (2) a demand for the relief sought.  The Rule also states: “In an action for personal injury, injury to property, or wrongful death, the pleading shall not state the amount claimed, but only that the amount is sufficient to establish the jurisdiction of the court.”  In addition, “[r]elief in the alternative or of several different types may be demanded.”  Id.

According to Rule 8(e)(1), each allegation in a complaint must “be simple, concise, and direct.  No technical forms of pleading or motions are required.”  The complaint “may set out two (2) or more statements of a claim … alternatively or hypothetically, either in one (1) count … or in separate counts….”  If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.  Id.   In addition, the complaint may “state as many separate claims” as the plaintiff has, “regardless of consistency and whether based on legal or equitable grounds or both.”  Id.  Finally, the complaint “must be construed so as to do justice.”  Id.  Finally, “[a]ll pleadings shall be so construed as to do substantial justice.”  Rule 8(f).

The complaint “shall contain a caption setting forth the name of the court, the county, the title of the action, the file number, and a designation as” a complaint.  Rule 10(a).  “In the complaint title of the action shall include the names of all the parties….”  Id.  All allegations of a claim “shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstance….”  Rule 10(b).  “Each claim founded upon a separate transaction or occurrence … shall be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.”  Id.

When the plaintiff is represented by an attorney, the complaint “shall be personally signed by at least one (1) attorney of record in the attorney’s individual name and shall state the attorney’s address, email address, bar number, and telephone number.”  Rule 11.

Notice Pleading

Rhode Island is a notice pleading state.  Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992).  Under a system of notice pleading, the complaint “simply must provide the opposing party with ‘fair and adequate notice of the type of claim being asserted.’”  Gardner v. Baird, 871 A.2d 949, 953 (R.I. 2005).  Applying the liberal notice pleading requirements, the Rhode Island Supreme Court declared that “this Court has recognized the sufficiency of complaints even when the claims asserted within those complaints lack specificity.”  Konar v. PFL Life Insurance Company, 840 A.2d 1115, 1118 (R.I. 2004).  The Rhode Island Supreme Court explained:

Under Rule 8(a) of the Superior Court Rules of Civil Procedure, a claim for relief need be only “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he or she deems himself entitled.”  The plaintiff is not required to plead the ultimate facts that must be proven in order to succeed on the complaint.  The plaintiff is also not obligated to set out the precise legal theory upon which his or her claim is based. All that is required is that the complaint give the opposing party fair and adequate notice of the type of claim being asserted.  Although a statement of circumstances and occurrences in support of the claim being presented is plainly contemplated in order to provide such notice, great generality in such a statement is allowed as long as defendant is in fact given fair notice of what is claimed….  The policy behind these liberal pleading rules is a simple one: cases in our system are not to be disposed of summarily on arcane or technical grounds.  If a judgment on the pleadings is to be given, it is because it is apparent beyond a reasonable doubt that a trial would be of no use in determining the merits of the plaintiff’s claim for relief. In light of the simplified pleadings permitted under Rule 8, however, it is most unusual that the information contained on the face of the pleadings will alone be sufficiently definite and complete to allow the court to grant a Rule 12(c) motion [summary judgment]. [internal citations omitted] Haley, 611 A.2d at 848.

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is GL § 9-19-41.  It provides that in any medical malpractice action on or after January 1, 1987 “only those persons who by knowledge, skill, experience, training, or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice.”  Id.

The Rhode Island Supreme Court stated that the “General Assembly has identified the qualifications that a witness must possess to offer an expert opinion” as set forth in GL § 9-19-41.  Foley v. St. Joseph Health Services, 899 A.2d 1271, 1280 (R.I. 2006).  The Court discussed the statute as follows:

When interpreting this statute we have found nothing in its plain and unambiguous terms that requires an expert in a medical malpractice case to practice in the same specialty as the defendant or have training in the same medical specialty as the defendant.  We have explained that an expert’s opinion may be heard to aid the jury in its quest for truth where the subject matter of the testimony is of a mechanical, scientific, professional or like nature, none of which is within the understanding of laymen of ordinary intelligence, and where the witness seeking to testify possesses special knowledge, skill or information about the subject matter acquired by study, observation, practice or experience.  Id. at 1280-1281.

The Rhode Island Supreme Court has consistently ruled that an expert witness need not hold the same title or work in the same practice area as the defendant against whom the testimony is offered.  Gianquitti v. Atwood Medical Associates, Ltd., 973 A.2d 580, 591 (R.I. 2009).  The Court instructed: “Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard.”  Id. at 591-592.

For example, the Supreme Court concluded that a doctor who was board certified in pediatrics and family medicine qualified as an expert to testify about the standard of care for the treatment of an animal bite wound against an emergency room physician/internist.  Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425, 427 (R.I. 1996).  Similarly, the Supreme Court ruled that a doctor, “though not a specialist in the field of psychiatry, was nevertheless competent to testify as an expert regarding mental condition or matters of insanity.  His lack of training or experience in the field of psychiatry may affect the weight of his testimony, but not his competency to testify.”  Schenck v. Roger Williams General Hospital, 382 A.2d 514, 520 (R.I. 1977).

According to the Rhode Island Supreme Court, the “determination of the competency of an expert witness to testify is within the discretion of the trial justice, the exercise of which we shall not disturb in the absence of clear error or abuse.”  Richardson v. Fuchs, 523 A.2d 445, 447 (R.I. 1987).  In making its determination, the trial court must be satisfied that the expert witness possesses special knowledge, skill, or information about the particular subject matter at issue acquired by study, observation, practice, or experience such that the testimony provided will assist the trier of fact in its search for the truth.  Id.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Rhode Island

Rhode Island Rule of Evidence 702 sets forth the basic requirements for the admissibility of expert witness testimony.  It states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Like with the determination of whether a prospective expert is qualified to offer opinion testimony, the admissibility of an expert witness’ testimony is within the sound discretion of the trial judge.  State v. Capalbo, 433 A.2d 242, 246-247 (R.I. 1981).  The Rhode Island Supreme Court explained:

The purpose of expert testimony is to aid in the search for the truth.  It need not be conclusive and has no special status in the evidentiary framework of a trial.  This Court consistently has held that a jury is free to accept or to reject expert testimony in whole or in part or to accord it what probative value the jury deems appropriate….  This Court clearly has enunciated that the admissibility of expert testimony does not require the use of “magic words” or “precisely constructed talismanic incantations” to achieve its objective.  Morra v. Harrop, 791 A.2d 472, 477 (R.I. 2002).

Although the Rhode Island Supreme Court has not formally adopted either the Frye or Daubert standard, it has instructed trial courts to evaluate the following four nonexclusive factors from Daubert in determining the reliability and validity of expert testimony (which are elements to be considered when making an admissibility determination) involving novel or technically complex theories or procedures:

 

  1. whether the proffered knowledge has been or can be test;

 

  1. whether the theory or technique has been the subject of peer review and publication;

 

  1. whether there is a known or potential rate of error; and

 

  1. whether the theory or technique has gained general acceptance in the scientific community. Morabit v. Hoag, 80 A.3d 1, 12 (R.I. 2013).

The Morabit Court explained:

Satisfaction of one or more of these factors may suffice to admit the proposed evidence and the trial justice need not afford each factor equal weight.  We have emphasized, however, that “when the proffered knowledge is neither novel nor highly technical, satisfaction of one or more of these factors is not a necessary condition precedent to allowing the expert to testify.”  “If the expert’s evidence is not novel, then the foundation need not be novel either.”  Id.

VII. Pure Comparative Negligence

By statute, Rhode Island utilizes pure comparative negligence.  GL § 9-20-4.  The statute provides that a plaintiff’s negligence does not bar recovery, stating:

In all actions hereafter brought for personal injuries, or where personal injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property or person having control over the property, may not have been in the exercise of due care shall not bar a recovery, but damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured, or the owner of the property or the person having control over the property.

Comparative negligence is a fault and damages allocation system.  Under Rhode Island’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury.  GL § 9-20-4.  The statute provides that “damages shall be diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured….” Id.  Under pure comparative negligence, the plaintiff can be 99% at fault and still be eligible to obtain a damage award.

For example, if the trier of fact determines that the plaintiff is 60% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 60%.  As a result, the maximum amount the plaintiff can receive is 40% of the total monetary recovery.  Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 40% of that amount or $40,000.  Notice that the plaintiff in this example is actually deemed to be at greater fault than the defendant.  Nevertheless, in a pure comparative negligence system, that is not a bar to recovery.

In contrast, under contributory negligence (the doctrine that Rhode Island followed up until 1971 when “the Legislature abolished the all-or-nothing bar to recovery under contributory negligence and adopted a ‘pure’ comparative negligence approach”—Swajian v. General Motors Corporation, 559 A.2d 1041, 1044 (R.I. 1989)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under Rhode Island’s current doctrine of pure comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

VIII. Limitation on Damages

Rhode Island does not impose any statutory cap on either economic or noneconomic damages.[2]

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Rhode Island  

Rhode Island law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Rhode Island under Rule 1.5 of the Rhode Island Disciplinary Rules of Professional Conduct.  Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.  The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

 

  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

 

  • the fee customarily charged in the locality for similar legal services;

 

  • the amount involved and the results obtained;

 

  • the time limitations imposed by the client or by the circumstances;

 

  • the nature and length of the professional relationship with the client;

 

  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and

 

  • whether the fee is fixed or contingent.

It appears that a contingency fee of about 40% of the total recovery represents a standard fee rate for medical malpractice attorneys in the state.

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Rhode Island is one of the few states that does not have an “I’m Sorry.”  As a result, expressions of apology or other sympathetic gestures may be admitted into evidence during a medical malpractice action against defendants.

However, there are a couple of state laws that provide some degree of protection for healthcare providers.  GL § 9-19-35 provides that the “failure of a health care provider to bill a patient for services rendered shall not be construed as an admission of liability and shall not be admissible in evidence as to liability….”  Similarly, GL § 9-19-36 states that any “advance payment for medical bills by a health care provider or by the insurer of a health care provider shall not be construed as an admission of liability and shall not be admissible in evidence as to liability….”

XI. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

[1] In fact, only Nevada, North Dakota, and Virginia do not follow the factors in either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

 

[2] It was reported in September 2017 that a jury awarded $40 million to a North Providence man who lost his right leg due to severe blood clotting.  It represents the largest medical malpractice award in Rhode Island history and would not be possible (or rather, would be reduced by the trial court) if there were any cap on damages in the state.

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