Brian Dockray v. Roger Williams Medical Center

• Court: Supreme Court of Rhode Island
• Decided: June 15, 2023
• Docket: 22-235
• Status: Published

Opinion

June 15, 2023 Supreme Court

No. 2022-235-Appeal. (PC 15-4785)

Brian Dockray :

v. :

Roger Williams Medical Center. :

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 (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. The plaintiff, Brian Dockray, appeals

from the Providence County Superior Court’s grant of summary judgment in favor

of the defendant, Roger Williams Medical Center (RWMC).1 On appeal, he asserts

that the motion justice erred in granting RWMC’s motion for summary judgment

on the ground that, without an expert, he could not prove his claims, which

sounded in medical malpractice and negligent credentialing.

This case came before the Supreme Court for oral argument pursuant to an

order directing the parties to show cause why the issues raised in this appeal should

1 Three additional defendants were named in the amended complaint (which is the operative complaint)—viz., the Estate of Christopher Huntington, M.D.; Gary R. Marecek, M.D.; and the Medical Malpractice Joint Underwriting Association of Rhode Island. However, the claims against those defendants were subsequently dismissed with prejudice, and they are not before us on appeal.

-1- not be summarily decided. After considering the written and oral submissions of

the parties and after carefully reviewing the record, we are of the opinion that the

appeal may be resolved without further briefing or argument. For the reasons set

forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Travel

On December 14, 2015, plaintiff filed an amended complaint (the

complaint), advancing claims of medical malpractice and negligent credentialing.2

The complaint alleged that, on September 5, 2012, Dr. Christopher Huntington3

performed spinal surgery on plaintiff at RWMC, during which he purportedly

“improperly placed hardware in Brian Dockray’s spine.” The complaint further

alleged that Dr. Huntington “was not fit to perform [the] surgery” because there

were “prior complaints of Dr. Huntington’s pattern of prescribing controlled

substances to patients in a manner that did not meet the standards of acceptable

practice, which ultimately led to his summary suspension from the practice of

medicine on March 8, 2013 * * *.” The complaint also alleged that an x-ray was

performed, which was later interpreted by Dr. Gary R. Marecek. It further alleged

2 The plaintiff filed his initial complaint on November 2, 2015. He subsequently filed an amended complaint on December 14, 2015, which we treat as the operative complaint. 3 Doctor Huntington had passed away on March 8, 2013.

-2- that “Dr. Marecek was negligent in not detecting that Dr. [Huntington] had

negligently installed the hardware.” The complaint also alleged that “[b]ecause of

the negligent and improper placement of hardware in Plaintiff’s spine, he was

required to have corrective surgery, and has been left with permanent disabling

injuries directly and proximately caused by Dr. Huntington’s misplacement of the

hardware, and by Dr. Marecek’s failure to detect the same.”

After a lengthy period of discovery had transpired, a scheduling order

entered, requiring that plaintiff make his expert disclosure by January 15, 2022.

However, plaintiff failed to comply with that order. Subsequently, on February 17,

2022, an additional scheduling order entered, extending the deadline for expert

disclosure to March 15, 2022. Once again, plaintiff failed to make his expert

disclosure. On March 21, 2022, RWMC filed a motion to preclude plaintiff from

disclosing experts, and that motion was granted on March 25, 2022.

A

The Motion for Summary Judgment

On April 12, 2022, RWMC filed a motion for summary judgment as to the

two counts that were still being litigated (Counts Two and Three)4 on the ground

that plaintiff could not prove his claims without expert testimony. The plaintiff

4 The counts that were still being litigated were Count Two (alleging that RWMC was responsible for the negligence of Dr. Huntington pursuant to the concept of apparent agency) and Count Three (alleging that RWMC was negligent in credentialing Dr. Huntington).

-3- objected to the motion for summary judgment, contending that the “case presents

triable issues of fact from which a lay juror could conclude that [Dr. Huntington]

was negligent * * * and also that [RWMC] was negligent in allowing [Dr.

Huntington] to operate in its facility * * *.”

B

Triable Issues of Fact Regarding the Apparent Agency Claim5

To support his contention that there are “triable issues of fact from which a

lay juror could conclude that [Dr. Huntington] was negligent” (and, therefore,

RWMC was liable under an agency theory), plaintiff referred to the March 11,

2021 deposition of Joseph King, M.D., in which, according to plaintiff, the doctor

stated that plaintiff “had obviously loose bilateral 1-4 screws that were at a

suboptimal trajectory * * *.”6 Notably, however, plaintiff stated that Dr. King

5 The complaint alleged that RWMC was liable to plaintiff on the ground that Dr. Huntington was its agent (or “apparent agent”) and that, therefore, RWMC was liable for his alleged negligence. 6 The plaintiff cited this deposition testimony, but it is not included in the record before this Court. See Riley v. Stone, 900 A.2d 1087, 1093-94 (R.I. 2006) (“It is the responsibility of the appellant to furnish this Court with so much of the record, including the transcript, depositions, (if any) and relevant exhibits introduced during the proceeding as will enable the Court to decide the issues raised on appeal. We consistently have declared that an incomplete record on appeal precludes any meaningful review by this Court.”); see also Palange v. Palange, 243 A.3d 783, 784 (R.I. 2021) (mem.) (“This Court has recognized that the deliberate decision to prosecute an appeal without providing the Court with a transcript of the proceedings in the trial court is risky business.”) (internal quotation marks and brackets omitted).

-4- “could not say whether [the screws] were put in loose or became loose later.” The

plaintiff further alleged that he “had a cage installed by Dr. Huntington between

the L-4 and L-5 vertebral bodies,” which “was loose and out of position.” He

stated that, although Dr. King “did not opine on when the cage became loose,” the

doctor did indicate that “cages popping out of position are * * * rare.”

C

Triable Issues of Fact Regarding the “Negligent Credentialing” Claim

In a further attempt to establish that this “case presents triable issues of

fact,” plaintiff argued that he did not need an expert to prove his “negligent

credentialing” claim against RWMC because “[t]he failure of the hospital to

maintain records of information about malpractice claims considered in the

credentialing process, and failure to keep records of the minutes of meetings of the

credentialing committee, combined [with] the disciplinary history of Dr.

Huntington and his history of malpractice cases” would be “within the

understanding of a lay jury in its consideration of whether the hospital negligently

permitted Dr. Huntington to operate at it’s [sic] facility.”7

7 To support his contention, plaintiff attached as an exhibit to his objection to the motion for summary judgment the March 8, 2013 “Summary Suspension” of Dr. Huntington’s medical license by the Rhode Island Department of Health Board of Medical Licensure and Discipline, which found, in part, that Dr. Huntington had “a pattern of prescribing controlled substances to patients in a manner that does not meet the standards of acceptable practice.” The plaintiff also attached as an exhibit a list of the names of nine medical malpractice actions brought against Dr.

-5- D

The Decision of the Motion Justice

On May 12, 2022, the motion justice issued a bench decision granting

RWMC’s motion for summary judgment. In her decision, the motion justice noted

that plaintiff’s apparent agency claim against RWMC could not be established

without first proving that Dr. Huntington was in fact negligent. Then, in

addressing plaintiff’s claim of negligence against Dr. Huntington, the motion

justice acknowledged that plaintiff had pointed to language in Dr. King’s

deposition, but she noted that “not once, in those quotes, does the doctor opine

that, to a reasonable degree of medical certainty, Dr. Huntington breached the

standard of care and that, as a proximate result of that breach, the Plaintiff suffered

* * * [what] he describes in injuries and damages.”

Next, in determining that an expert witness is necessary for plaintiff to prove

his “negligent credentialing” claim against RWMC, the motion justice posed the

following questions:

Huntington during a period spanning approximately two decades. Additionally, plaintiff attached as an exhibit portions of the April 5, 2021 deposition transcript of the “hospital representative,” Kimberly Dixon, in which she attested that she had seen documents indicating: (1) that Dr. Huntington had been disciplined in 2000, 2003, and 2004; (2) that Dr. Huntington had “some suspension because of problems with * * * medical recordkeeping;” (3) that Dr. Huntington had been “discipline[d] for allowing his malpractice insurance to lapse;” and (4) that “during a time period” Dr. Huntington was required “to have a co-assistant go in for certain procedures.”

-6- “What is the standard of care regarding credentialing a physician? What is the standard of care when a hospital who has credentialed a physician should suspend those credentials? And, in this case, does an expert have an opinion, to a reasonable degree of certainty, that [Dr.] Huntington should not have been credentialed when [RWMC] gave him privileges or that, prior to the surgery, his privileges should have been suspended[?]”

Ultimately, the motion justice ruled that plaintiff’s “claims require expert

testimony” because “[t]he allegations are not simple ones the layperson can

determine without the assistance of an expert.” An order granting RWMC’s

motion for summary judgment entered on May 17, 2022; and, on that same day,

final judgment entered in favor of RWMC. The plaintiff filed a timely notice of

appeal the next day.

II

Issue on Appeal

On appeal, plaintiff contends that the motion justice erred in granting

RWMC’s motion for summary judgment on the ground that he could not prove his

medical malpractice and negligent credentialing claims without expert testimony.

It is his contention that expert testimony is not required because his claims “would

be comprehensible to a lay jury.”

-7- III

Standard of Review

It is well established that “[w]e review Superior Court rulings with respect to

summary judgment motions in a de novo manner.” Papudesu v. Medical

Malpractice Joint Underwriting Association of Rhode Island, 18 A.3d 495, 497

(R.I. 2011); see also DiMaggio v. Tucker, 288 A.3d 981, 985 (R.I. 2023). In doing

so, “[w]e apply the same standards used by the motion justice.” DeMaio v.

Ciccone, 59 A.3d 125, 129 (R.I. 2013); see also DiMaggio, 288 A.3d at 985.

Ultimately, this Court will “review the evidence in a light most favorable to the

nonmoving party and will affirm the judgment if there exists no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.”

Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009); see also

DiMaggio, 288 A.3d at 985. Significantly, however, “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 * * *.” Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013) (internal quotation

marks omitted); see also Bartlett v. Coppe, 159 A.3d 1065, 1069 (R.I. 2017).

-8- IV

Analysis

Apparent Agency

The plaintiff first contends that expert testimony is not required to prove his

apparent agency claim against RWMC stemming from the alleged negligence of

Dr. Huntington because the doctor’s “alleged malpractice would be

comprehensible to a lay jury.” We are unpersuaded.

It is well settled that “[u]nder Rhode Island law, in order for a plaintiff to

make out a case of medical malpractice, the plaintiff must provide 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.” Laplante v. Rhode Island Hospital,

110 A.3d 261, 265 (R.I. 2015) (internal quotation marks omitted). By contrast,

expert testimony is not required “where the lack of care is so obvious as to be

within the layman’s common knowledge.” Marshall v. Tomaselli, 118 R.I. 190,

196, 372 A.2d 1280, 1283 (1977); see also Laplante, 110 A.3d at 265. By way of

example, we have recognized that “such a situation might occur if a surgeon were

to leave an instrument inside a patient.” Laplante, 110 A.3d at 265.

The exhibits attached to plaintiff’s memorandum in opposition to RWMC’s

motion for summary judgment reveal the highly technical and complex nature of

-9- his diagnosis and treatment.8 See Marshall, 118 R.I. at 197, 372 A.2d at 1284 (“It

is apparent that the treatment of [the] plaintiff’s condition is neither sufficiently

common nor sufficiently nontechnical that a layman could be expected to appraise

it.”). It is clear to us that Dr. Huntington’s alleged negligence in performing

plaintiff’s spinal surgery is not “so obvious as to be within the layman’s common

knowledge.” Id. at 196, 372 A.2d at 1283.

Consequently, when plaintiff opposed RWMC’s motion for summary

judgment, it was his burden to provide expert testimony establishing the applicable

standard of care for the doctor, deviation from such standard of care, and causation

between the doctor’s alleged negligence and the injuries in which he allegedly

sustained. See, e.g., Foley v. St. Joseph Health Services of Rhode Island, 899 A.2d

1271, 1277-78 (R.I. 2006); see also Boccasile v. Cajun Music Limited, 694 A.2d

686, 690-91 (R.I. 1997). It is undisputed, however, that plaintiff did not provide

expert testimony establishing the standard of care applicable to the doctor.

Moreover, he also failed to provide expert testimony evidencing any causal link

between Dr. Huntington’s alleged breach of the standard of care and plaintiff’s

alleged injuries. As such, plaintiff is unable to establish that Dr. Huntington was

negligent. Accordingly, it follows, as the night the day, that RWMC could not be

held liable under an agency theory. As such, we are fully satisfied that the motion

8 See Part I, Section B, supra.

- 10 - justice acted correctly in granting RWMC’s motion for summary judgment as to

his apparent agency claim.

Negligent Credentialing9

The plaintiff further contends that expert testimony is not required to prove

that RWMC was negligent in credentialing Dr. Huntington because the relevant

facts may “be readily understood by a lay jury and point to the conclusion” that

RWMC was “negligent in allowing” Dr. Huntington to operate.

It is well settled that “[i]n any negligence action, * * * the plaintiff must

establish a standard of care and prove, by a preponderance of the evidence, that the

defendant deviated from that standard of care.” Riley v. Stone, 900 A.2d 1087,

1095 (R.I. 2006); see also Mangiarelli v. Town of Johnston, 289 A.3d 560, 568

(R.I. 2023). Furthermore, “expert testimony is required to establish any matter that

is not obvious to a lay person and thus lies beyond common knowledge.” Mills v.

State Sales, Inc., 824 A.2d 461, 468 (R.I. 2003); see also Mangiarelli, 289 A.3d at

568.

9 The plaintiff’s “negligent credentialing” claim is often referred to as a corporate negligence claim. See Pastore v. Samson, 900 A.2d 1067, 1082 (R.I. 2006). And we have indicated that “[t]he doctrine of corporate negligence imposes liability upon a hospital that has failed to exercise reasonable care in selecting or renewing the staff privileges of an unfit physician.” Rodrigues v. Miriam Hospital, 623 A.2d 456, 462 (R.I. 1993).

- 11 - Notwithstanding what the record reflects relative to Dr. Huntington’s

shortcomings, we have no hesitation in holding that whether RWMC was negligent

in credentialing Dr. Huntington “lies beyond common knowledge.” Mills, 824

A.2d at 468. As such, the plaintiff’s inability to present expert testimony

establishing the standard of care applicable to RWMC in credentialing Dr.

Huntington, its breach of that standard, and damages proximately caused by said

breach is fatal to his negligent credentialing claim against RWMC. Accordingly,

since the plaintiff failed to establish triable issues of material fact, we are satisfied

that the motion justice did not err in granting summary judgment in favor of

RWMC on his negligent credentialing claim.

V

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The record may be returned to that tribunal.

- 12 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Title of Case Brian Dockray v. Roger Williams Medical Center.

No. 2022-235-Appeal. Case Number (PC 15-4785)

Date Opinion Filed June 15, 2023

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Netti C. Vogel

For Plaintiff:

James T. McCormick, Esq. Attorney(s) on Appeal For Defendant:

Erin McKenna, Esq.

SU-CMS-02A (revised November 2022)