Contois v. Town of West Warwick

• Decision Date: 17 December 2004
• Docket Number: No. 2003-379-Appeal.,2003-379-Appeal.
• Citation: 865 A.2d 1019
• Parties: Thomas CONTOIS et al. v. TOWN OF WEST WARWICK et al.
• Court: Rhode Island Supreme Court

865 A.2d 1019

Thomas CONTOIS et al. v. TOWN OF WEST WARWICK et al.

No. 2003-379-Appeal.

Supreme Court of Rhode Island.

December 17, 2004.

Michael Coleman, Providence, for Plaintiff.

Kathleen M. Daniels, Marc DeSisto, Providence, for Defendant.

Before WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

FLAHERTY, Justice.

The plaintiffs, Thomas and Deborah Contois, have suffered a loss so profound that no mere judicial decision could ever provide a remedy. However, it falls upon this Court to address their appeal and their attempt to hold responsible those they claim contributed to the death of their eight-year-old son Zachary. The plaintiffs raise several issues in their appeal of a Superior Court judgment finding that the defendants, the Town of West Warwick and town rescue workers, were not grossly negligent in their delivery of emergency medical treatment to Zachary Contois. The plaintiffs urge this Court (1) to formally adopt the loss of chance doctrine, (2) that the trial justice's failure to charge the jury on that doctrine confused the jury in light of the plaintiffs' expert testimony, and (3) that the trial justice erred by including an intervening cause instruction in her charge to the jury. For the reasons stated herein, we hold that the loss of chance doctrine does not apply to the instant case. Additionally, we hold that although the trial justice erred by instructing the jury on intervening cause, as it was inappropriate to the facts of the case, the error was harmless. Thus, we affirm the judgment of the Superior Court.

Facts and Procedural History

Zachary Contois passed away in the early morning of March 19, 1999, three days shy of his ninth birthday. During the night preceding his death, Zachary's temperature increased to dangerous levels. Because Zachary was a child with a history of seizures often triggered by high fever, Deborah Contois faithfully monitored her son throughout the night. At the recommendation of an on-call physician, she gave him fever-reducing medications and kept close at hand the portable suction machine needed to help clear Zachary's mouth of vomit during seizures.¹

At approximately 5:00 a.m., after Zachary's temperature reached nearly 104 degrees, Mrs. Contois again contacted the on-call physician, and then called 911. Minutes later, a West Warwick fire truck and a rescue vehicle arrived, each carrying defendant Emergency Medical Technicians (EMTs). Mrs. Contois informed the rescue workers of Zachary's medical history, current symptoms, and treatment needs. After assessing Zachary's vital signs, the EMTs decided to walk Zachary to the rescue vehicle parked in front of the Contois' home. Soon after being placed in the vehicle, Zachary began to seize and vomit. The EMTs immediately turned Zachary onto his left side, and, although the parties disagree about the timing of the events that followed, it is undisputed that he was suctioned.

The plaintiffs contend that a delay of approximately one minute in suctioning their son doomed any chance Zachary had to survive the seizure and resulting aspiration of food materials into his airways.² They argue that the EMTs' failure to act promptly deprived their son of a substantial chance to survive the incident. The defendant EMTs respond that there was no delay in accessing and utilizing the suctioning device in their efforts to prevent aspiration and asphyxiation. The defendants maintain that they immediately retrieved and activated the necessary equipment, that Mrs. Contois took the device from them and attempted, with some difficulty, to suction Zachary herself, and that after she handed the device back to the EMTs, they suctioned Zachary for several seconds, stopping only to allow him to take a breath.

After clearing Zachary's mouth of vomit, the EMTs noticed that Zachary was having difficulty breathing, and they began efforts to resuscitate him. The rescue vehicle then departed for Kent County Hospital, but, tragically, Zachary was pronounced dead within twenty minutes of arrival at that facility. Doctor Elizabeth Laposata, the chief medical examiner for the State of Rhode Island, performed an autopsy and determined Zachary's cause of death to be asphyxia due to massive aspiration³ of gastric contents associated with seizures. Nearly two years later, in March 2001, plaintiffs brought a negligence action against defendants, the Town of West Warwick and the individual EMTs involved in the events of March 19, 1999. They alleged gross negligence and negligent infliction of emotional distress, and requested both compensatory and punitive damages.

After a trial in the Superior Court, a verdict was returned in favor of defendants. In response to the following special interrogatory, posed as to each defendant, the jury responded in the negative.

"Do you find that [defendant] was grossly negligent in the delivery of emergency medical services to Zachary Contois on March 19, 1999, and, if so, do you find that such gross negligence was a proximate cause of the death of Zachary Contois?"

The jury found that defendant EMTs were not liable in their delivery of emergency medical treatment to Zachary Contois, and that defendant Town of West Warwick was not liable in its training and supervising of the individual EMTs. Because the jury did not find defendants to be grossly negligent, it did not reach the issue of negligent infliction of emotional distress. Subsequently, plaintiffs filed a motion for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure, alleging that the verdict was against the fair preponderance of the evidence and failed to do substantial justice between the parties. In response, defendants renewed their earlier motion for judgment as a matter of law pursuant to Rule 50(b) of the Superior Court Rules of Civil Procedure.

The Superior Court denied both motions. Sitting as a "superjuror," the trial justice reviewed the evidence and credibility of the witnesses at trial, determined that the verdict was not against the fair preponderance of the evidence, and found that the jury's verdict was a valid response to the merits of the case. With respect to defendant's motion for judgment as a matter of law, the trial justice, without assessing the credibility of the witnesses or weighing the evidence, found that factual issues were present as to the existence of a delay and the moment of aspiration, and that reasonable minds could have drawn different conclusions from the evidence. Therefore, the Court denied the renewed motion for judgment as a matter of law and ordered that the verdict stand.

On appeal to this Court, plaintiffs allege that the trial justice's jury instructions were deficient in two respects. First, Mr. and Mrs. Contois contend that the trial justice, after allowing testimony over objection consistent with the loss of chance doctrine, failed to charge the jury on the doctrine as they requested, thereby confusing the jury.⁴ They argue that because the trial court allowed their experts to testify about Zachary's loss of chance of survival, that doctrine should have been part of the jury instruction, and, further, that this Court should formally adopt it as part of Rhode Island common law. Second, plaintiffs appeal the trial justice's instruction on intervening cause. They contend that the evidence was not sufficient to warrant such an instruction.

Standard of Review

The plaintiffs argue that the trial justice erred by failing to charge the jury on the loss of chance doctrine and by instructing the jurors on intervening cause. The standard of review for jury instructions is well settled. "[T]he charge given by a trial justice need only `adequately cover [] the law.'" Plourde v. Myers, 823 A.2d 1138, 1143 (R.I.2003) (quoting State v. Hurteau, 810 A.2d 222, 224-25 (R.I.2002)). On review, this Court examines the instructions in their entirety to establish the manner in which the jury would have understood them. Id. We "`will not examine single sentences. Rather, the challenged portions must be examined in the context in which they were rendered.'" Parrella v. Bowling, 796 A.2d 1091, 1101 (R.I.2002). "An erroneous charge warrants reversal only if it can be shown that the jury `could have been misled' to the resultant prejudice of the complaining party." Montecalvo v. Mandarelli, 682 A.2d 918, 922 (R.I.1996) (quoting Brodeur v. Desrosiers, 505 A.2d 418, 422 (R.I.1986)).

Analysis

I Overview of the Loss of Chance Doctrine

The plaintiffs urge this Court to formally adopt the loss of chance doctrine as an alternative to traditional notions of proximate causation. Tort law ordinarily focuses on negligence and proximate cause. "`It is well settled that in order to gain recovery in a negligence action, a plaintiff must establish * * * proximate causation between the conduct and the resulting injury * * *.'" English v. Green, 787 A.2d 1146, 1151 (R.I.2001)." `[P]roximate cause is established by showing that but for the negligence of the tortfeasor, injury to the plaintiff would not have occurred.'"⁵ Id.

In contrast to traditional theories of tort liability, the loss of chance doctrine presents a more liberal and expansive view of causation. Loss of chance occurs when "the defendant's negligent conduct caused the plaintiff to lose a chance to avoid the ultimate harm." Mead v. Adrian, 670 N.W.2d 174, 186 (Iowa 2003) (Cady, J. concurring).⁶ It remains necessary for a plaintiff alleging loss of chance to first establish a duty and breach of that duty. See id. at 186. However, rather than prove that the breach of duty proximately caused the harm, the plaintiff need only establish that "defendant's negligence was a proximate cause of the lost chance to avoid the ultimate harm." Id. Crucially, "recovery is consequently predicated on proof that the medical negligence, whether based upon an incorrect diagnosis or improper or untimely treatment, caused the loss of chance...