On Thursday, October 23, 2014, I had the privilege of presenting on Recent Developments in Rhode Island Law – State Courts and Civil Procedure as part of the Rhode Island Bar Association’s annual Recent Developments CLE program. The slides from my seminar appear below and focus on the following: (1) Electronic Filing in Civil Cases; (2) the Providence County Non-Dispositive Motion Calendar; (3) Issues of First Impression in the 2013-2014 Supreme Court Term and (4) Appellate Practice.
On Thursday, October 23, 2014 from 9:00 a.m. – 4:00 p.m., I will be presenting at the Rhode Island Bar Association’s CLE Seminar “Recent Developments in the Law 2014,” at the Crowne Plaza. In this one-day format, you will receive an update on rules changes, legal trends and new legislation in eight key areas of law. For more information please click here.
In a case of first impression, the Rhode Island Supreme Court held that a doctor who was hired by a third party to provide an opinion about a patient based solely on his review of the patient’s records did not owe a duty of care to the patient. Consequently, the doctor cannot be held liable in a suit by the patient for any negligence occurring in connection with the doctor’s medical records review.
In Woodruff v. Gitlow, No. 2012-67-M.P., the plaintiff, a commercial pilot, surrendered his medical certificate at the request of the Federal Aviation Administration (“FAA”) after he had been involved in a motor vehicle accident. Id. at 1-2. Upon recovering from the accident, the plaintiff sought to have his medical certificate reinstated. Id. The FAA retained a psychiatrist as a medical consultant to review the plaintiff’s medical records and to make a recommendation about the plaintiff’s fitness to have his medical certificate reinstated. Id. at 2. The FAA provided the psychiatrist with portions of the plaintiff’s hospital, medical and driving records, as well as forms that the plaintiff had completed. Id. The psychiatrist reviewed the documents that had been provided to him and made his conclusions based solely on those documents. Id. at 2-3. Importantly, he never physically examined the plaintiff. Id. at 3.
After the psychiatrist completed his review, the FAA denied the plaintiff’s application to renew his medical certificate. Id. Consequently, the plaintiff filed suit against the psychiatrist alleging that his evaluation had been negligently performed. Id.
In considering the plaintiff’s claim, the Court first considered whether a traditional physician-patient relationship existed between the psychiatrist and the plaintiff. Id. at 7-8. Having concluded that there was no such relationship, the Court proceeded to examine whether the psychiatrist owed the plaintiff any duty of care. Id. at 8.
To prevail on a negligence claim, “‘a plaintiff must establish a legally cognizable duty owed by a defendant to a plaintiff, a breach of that duty, proximate causation between the conduct and the resulting injury, and the actual loss or damage.’” Id. (quoting Wyso v. Full Moon Tide, LLC, 78 A.3d 747, 750 (R.I. 2013)). Thus, the plaintiff could not pursue his negligence claim unless he could establish that the psychiatrist owed him a legally cognizable duty of care. Id.
Presented with this issue of first impression, the Rhode Island Supreme Court looked to case law from other jurisdictions for guidance. In doing so, the Court noted that the majority of courts, in the context of medical malpractice cases, have held that doctors who have been engaged to perform an independent medical examination do not owe a duty of care to the patient because there is no physician-patient relationship. Id. at 9.
Some courts have, however, held that a health care provider engaged to perform an independent medical examination owes a limited duty to the patient under common law negligence principles. For example, some courts have held that a doctor performing an independent medical examination owes a duty to avoid causing harm to the patient. Id. at 9-10. Other courts have held that a health care provider engaged to perform an independent medical examination has a duty of care to diagnose serious or life threatening medical condition or to disclose those conditions to the examinee. Id. at 10.
Viewing the facts of the case against this backdrop and against its own prior case law concerning the determination of a duty of care, the Supreme Court concluded it was important that the psychiatrist never conducted a physical examination of the plaintiff. Id. Thus, the case was distinguishable from the cases in which an independent medical examiner had failed to diagnose a serious or life threatening medical condition or caused some harm to the examinee during the course of the examination. Id. at 11.
Additionally, the Supreme Court was persuaded by the fact that imposing a duty of care on the psychiatrist would do little to prevent future harm to the plaintiff because the harm from which the plaintiff suffered was his medical condition itself, not any action or inaction on the part of the psychiatrist. Id. at 16. The Court also noted that there are numerous safeguards, including administrative review processes that help safeguard the process of obtaining independent medical records reviews. Id.
Finally, the Court concluded that exposing health care professionals who perform independent medical records reviews to liability would result in a chilling effect on their willingness to serve in that capacity. Id. at 17. Even worse, health care professionals concerned about liability resulting from their medical records reviews may be more inclined to produce a report more favorable to the party whose records are being reviewed. Id. Both consequences militated against finding that the psychiatrist owed a duty of care to the plaintiff.
In holding that the psychiatrist did not owe a duty of care to the plaintiff, the Supreme Court was cautious to limit its holding to the facts of the case before it. Id. Nevertheless, the decision is clear that the Court views medical records reviews and independent medical examinations differently. Thus, its decision in the context of a medical records review case is not determinative of the result it may reach in a case involving an independent medical examination.
Interlocutory orders “‘are those that are provisional or temporary, or that decide some immediate point or matter but are not a final decision on the whole matter.’” Coit v. Tillinghast, No. 2013-197-Appeal at 9 (quoting Simpson v. Vose, 702 A.2d 1176, 1177 (R.I. 1997)).
It is well settled that interlocutory orders, generally are not subject to immediate appellate review unless the order or decree falls within one of the statutory exceptions to the final judgment rule. Id. (citing R.I. Gen. Laws § 9-24-7)). This principle has been addressed at length in prior Court decisions. Past editions of the Fast Five on Appellate Procedure have addressed such decisions.
In Coit, the Rhode Island Supreme Court addressed a second, long established judicial exception to the general rule that interlocutory orders are not subject to appellate review. First recognized by the Supreme Court in McAuslan v. McAuslan, 83 A. 837, 841 (R.I. 1912), the McAuslan Doctrine provides that an interlocutory order may be reviewed before a case has concluded when the order “‘has such an element of finality as to require immediate review by [the Supreme] Court to avoid possible injurious consequences.’” Id. (quoting Chiaradio v. Falck, 794 A.2d 494, 496 (R.I. 2002)). The judicially crafted exception is designed to prevent clearly imminent and irreparable harm that would otherwise result if judicial review was not available. Id. (citing Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977)).
There has long been confusion over whether the McAuslan Doctrine should be invoked in the context of a direct appeal or a petition for writ of certiorari. While the Rhode Island Supreme Court did not directly address that issue in Weeks v. 735 Putnam Pike Operations, LLC, No. 2012-356-Appeal, its decision strongly suggests that the doctrine may be invoked in the context of a direct appeal.
In Weeks, the defendant argued that the plaintiff’s appeal was interlocutory in nature and should be dismissed because the plaintiff chose to file a direct appeal instead of filing a petition for writ of certiorari. Id. at 3-4. Although recognizing that as a general rule, appeals from interlocutory orders are not permitted, the Supreme Court noted that interlocutory appeals are permitted if they all within the McAuslan Doctrine. Id. at 5. Under the McAuslan Doctrine, the Court will permit appellate review of “an order or decree which, although in a strict sense interlocutory, does possess such an element of finality that action is called for before the case is finally terminated in order to prevent clearly imminent and irreparable harm.” Id. (quoting Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977). If the Court deems the appeal appropriate under McAuslan, it will treat it as a final order. Id.
Applying the McAuslan Doctrine, the Court held that although the trial justice’s order directing the parties to resolve their dispute through binding arbitration was interlocutory in nature, the plaintiff’s appeal was proper under McAuslan. Id.
In DePina v. State, No. 2011-259-Appeal, the Supreme Court concluded that an order denying a motion to quash a subpoena, while interlocutory in nature, was reviewable under the McAuslan Doctrine. Id. at 6. Although recognizing its long-standing practice of declining to address on appeal an interlocutory order that lacks finality, the Supreme Court held that application of the McAuslan Doctrine was not only proper but necessary in the context of that case. Id. at 5-6.
In DePina, in connection with his application for postconviction relief, the plaintiff had filed a subpoena seeking discovery of the mental health records of an eyewitness in his 1998 murder trial. Id. at 3. The eyewitness moved to quash the subpoena and after the motion was denied, appealed to the Supreme Court. Id. On appeal, the eyewitness argued that the consequences of the trial court’s order were imminent and irreparable because upon release of her medical records, the confidential nature of those documents would be irremediably breached. Id. at 6.
Agreeing with the eyewitness, the Supreme Court concluded that the trial court’s order “possesse[d] the requisite element of finality and potential for irreparable harm to warrant . . . immediate review.” Id.
In Cayer v. Cox Rhode Island Telecom, LLC, No. 2012-23-Appeal, after the trial court granted summary judgment in favor of one of the defendants, it granted that defendant’s motion for a Rule 54(b) judgment. Id. at 9. The plaintiff, in turn, plaintiff moved for leave to amend her complaint to include a claim against another party. Id. The trial court denied that motion and the plaintiff appealed. Id.
On appeal, the Supreme Court held that the plaintiff’s appeal was interlocutory and, therefore, not properly before the Court. In so holding, the Court recognized that generally, interlocutory orders are not subject to review unless (1) “the order or decree falls within one of the exceptions set forth in G.L. 1956 § 9-24-7” or (2) the “order [falls] within the ambit of [the McAuslan Doctrine, a] judicially created rule that permits review of an interlocutory order that has such an element of finality as to require immediate review by [the Supreme Court] to avoid possible injurious consequences.” Id. at 9-10. For purposes of the McAuslan Doctrine, consequences are injurious “when their occurrence is imminent and the damage they will work irreparable.” Id. at 10.
Against this backdrop, the Supreme Court concluded that the denial of the plaintiff’s motion for leave to amend did not fall within either exception and, accordingly, the Court declined to entertain it. Id.
The Rhode Island Supreme Court often will raise issues related to the permissibility of an appeal during the required prebriefing conference? See Coit v. Tillinghast, No. 2013-197-Appeal at 8 (Court raised issue concerning the interlocutory nature of the appeal during the prebriefing conference and directed the parties to file supplemental memoranda addressing whether the order from which the appeal was taken was interlocutory).
The Rhode Island Supreme Court’s decision in McGovern v. Bank of America, N.A., No. 2013-184-Appeal, serves as a useful reminder that a party who opposes a motion for summary judgment has an obligation to come forward with competent evidence to establish a genuine issue of material fact.
In McGovern, a foreclosure case, the defendant moved for summary judgment and supported its motion with competent evidence, in the form of an affidavit and an authenticated copy of the plaintiff’s payment history to demonstrate that the plaintiff was in arrears on his loan and had failed to cure the default prior to foreclosure. Id. at 3-4, 6. In opposing the defendant’s motion, the plaintiff provided two affidavits, neither of which indicated he was current on his loan payments. Id. at 4-5. Instead, plaintiff attempted to rely on the assertion in his complaint that his mortgage was not in arrears. Id. at 7.
The Supreme Court concluded that the plaintiff’s assertion was insufficient to withstand summary judgment. Indeed, it is well settled that a non-moving party “cannot rest on allegations, denials in the pleadings, conclusions, or legal opinions.” Id. (citing Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57 (R.I. 2010)); see also Ingram v. Mortgage Electronic Registration Systems, Inc., No. 2012-269-Appeal at 7. Rather, the non-moving party “must present evidence of a substantial nature predicated on more than mere conclusory statements.” McGovern, No. 2013-184-Appeal at 7 (citing Riel v. Harleysville Worcester Ins. Co., 45 A.3d 561, 570 (R.I. 2012)).
Faced with such evidence, plaintiff was required to come forward with competent evidence of his own to establish a genuine issue of fact. See Plainfield Pike Gas & Convenience, LLC, 994 A.2d at 57 (The “party opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact.”).