Ashey v. Kupchan

• Decision Date: 07 January 1993
• Docket Number: No. 92-222-A,92-222-A
• Citation: 618 A.2d 1268
• Parties: Gerard W. ASHEY and Pauline Ashey, as heirs-at-law of decedent, Michael G. Ashey v. Dr. Audrey KUPCHAN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 1268

618 A.2d 1268

Gerard W. ASHEY and Pauline Ashey, as heirs-at-law of decedent, Michael G. Ashey v. Dr. Audrey KUPCHAN et al.

No. 92-222-Appeal.

Supreme Court of Rhode Island.

Jan. 7, 1993.

Raymond T. Trebiasacci, Groton, CT, for plaintiffs.

R. Kelly Sheridan, Roberts, Carroll, Feldstein & Peirce, Providence, for defendants.

OPINION

PER CURIAM.

This case came before this court on December 15, 1992, pursuant to an order directed to both parties to appear and show cause why we should not summarily decide the issues raised by the plaintiffs' appeal. After hearing arguments and reviewing the memoranda of counsel, we are of the opinion that the parties failed to show cause.

The facts and procedural history of this case are as follows. The plaintiffs, Gerard W. Ashey and Pauline Ashey, are the parents of Michael G. Ashey, who died from a pulmonary embolism following surgery for a bowel obstruction. On July 30, 1987, days before his death, Michael Ashey apparently called Rhode Island Group Health Association (RIGHA), complaining of vomiting, and a RIGHA employee gave him a prescription over the phone. Three days later, on August 3, 1987, Michael Ashey again telephoned RIGHA and was given advice over the phone. On August 4, 1987, Michael Ashey underwent surgery at the Miriam Hospital, and on August 7, 1987, he died.

In November of 1989 plaintiffs filed suit against RIGHA, alleging that RIGHA negligently treated their son. A trial justice in the Superior Court properly dismissed this suit because RIGHA's charter specifically precludes actions against the RIGHA corporation based upon the malpractice of its employees.

The plaintiffs then brought a second suit on February 25, 1991, three years and six months after the death of Michael Ashey, against Dr. Audrey Kupchan, Dr. Linda Coffin, and Barbara Chace, C.N.P., alleging that these individuals negligently advised and treated their son just prior to his death and that this negligence caused Michael Ashey's death.

The statute of limitations governing this action is G.L.1956 (1985 Reenactment) § 10-7-2, as amended by P.L.1989, ch. 525, § 1. It reads in pertinent part:

"With respect to any death caused by any wrongful act, neglect or default which is not known at the time of death, such action shall be commenced within three (3) years of the time that the wrongful act, neglect or default is discovered or, in the exercise of reasonable diligence, should have been discovered."

The defendants filed a motion for summary judgment, arguing that since plaintiffs discovered the wrongful act at the time of Michael Ashey's death and failed to file a complaint for more than three years, § 10-7-2 time bars plaintiffs' lawsuit. In opposition to this motion plaintiffs raised two arguments. First, plaintiffs suggested that the discovery date should be July 1, 1988, the date that plaintiffs received a letter from an expert stating that these defendants were negligent in failing to bring Michael Ashey to the hospital on the basis of the symptoms he described over the phone. Second, plaintiffs argued that at the very least, the date that plaintiffs discovered the "wrongful act" was a question of fact for the jury and accordingly that the trial justice's resolution of this issue at the summary-judgment stage of the litigation was inappropriate.

In deciding whether to grant a motion for summary judgment, the trial justice must review the pleadings, the affidavits, the admissions, the answers to interrogatories, and other items in the light most favorable to the nonmoving party. If this review reveals no...