Franco v. Latina

• Decision Date: 05 March 2007
• Docket Number: No. 2006-146-Appeal.,2006-146-Appeal.
• Citation: Franco v. Latina, 916 A.2d 1251 (R.I. 2007)
• Parties: Linda J. FRANCO et al. v. Joseph A. LATINA, M.D.
• Court: Rhode Island Supreme Court

916 A.2d 1251

Linda J. FRANCO et al. v.Joseph A. LATINA, M.D.

No. 2006-146-Appeal.

Supreme Court of Rhode Island.

March 5, 2007.

Mark B. Decof, Providence, for Plaintiff.

Michael G. Sarli, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

Linda J. Franco(Franco or plaintiff) felt some serious pain in her stomach on Super Bowl Sunday of 1996, and it wasn't because she couldn't bear watching the Dallas Cowboys win another championship.¹A trip to her physician led to a diagnosis that she was suffering from gallstones and that her gallbladder would have to be removed.She selected Joseph A. Latina, M.D.(Dr. Latina or defendant) to perform the surgery.Unfortunately, what Franco thought would be a simple procedure that would not even interrupt her plans for a Florida vacation later that week instead led to great pain and reconstructive surgery.Franco later discovered that during the procedure to remove her gallbladder, Dr. Latina mistakenly had removed her common bile duct rather than her cystic duct.She filed a medical malpractice suit against Dr. Latina, and, two trials and one appeal to this Court later, the second trial justice took the decision on liability out of the hands of the jury and granted plaintiff's motion for judgment as a matter of law after she concluded that there was no legal basis for the jury to find in favor of defendant.The question of damages then was resubmitted to the jury, and after a verdict on damages was returned, judgment was entered for Franco.For the second time, Dr. Latina timely appealed.For the reasons stated in this opinion, and even though we appreciate the gravity of negating a jury's verdict, we affirm.

IFacts and Procedural History

On two occasions in January 1996, Franco experienced pain that she described as "severe pain in my right side radiating around up into my back."She dismissed the first instance as "gas pains or something," but after a second painful episode that commenced while she watched the Super Bowl next to her sleeping husband, she began to worry that she was experiencing a more serious problem.In an effort to discover the cause of her distress, she paid a visit to her primary care physician who scheduled her for an ultrasound.²

The procedure revealed that Franco did have gallstones.After it was suggested to Franco that she needed to see a surgeon, Franco sought advice from Dr. Latina, who had treated her in the past.Franco and Dr. Latina met in his office on Monday, January 29, 1996, to discuss her diagnosis.At that time, Dr. Latina informed plaintiff that she had to have her gallbladder removed,³ news that Franco found particularly disquieting because she had planned a vacation to Florida later that same week.Doctor Latina assuaged these concerns, however, by telling her that the procedure he was going to use, laparoscopic cholecystectomy, required a very short recovery period, and that there would be no need to postpone her vacation.Calmed by the doctor's assurances, Franco decided to have the surgery immediately.The procedure went forward as planned, to all appearances a complete success, and there was no immediate indication of any difficulties or complications.Indeed, the hospital records reveal that the operation took only twenty-six minutes.

According to the testimony presented in this case, a laparoscopic cholecystectomy is a surgical procedure in which the patient is placed under general anesthesia and then four small incisions are made in the abdomen.A small camera is inserted into the abdomen through one of the incisions to project the image of the inside of the patient on two twelve-inch television screens.The patient's abdomen is then inflated with carbon dioxide to create a larger area for the surgeon to work and to improve visibility on the television screens.Using the television images to see what is happening, the doctor inserts surgical implements called trocars through the other abdominal incisions.He then identifies the cystic duct and cuts and clips it to free the gallbladder so that it can be removed.The gallbladder, no longer anchored within the patient's body, is then pulled through one of the small incisions.Finally, the incisions are closed by the doctor, sparing the patient from the normal trauma of internal surgery and leaving her with but a few small scars.

Franco was scheduled to depart for Florida post-surgery on February 2, 1997, but when that day came she did not feel up to traveling.Consequently, she and her husband delayed the start of their vacation until Sunday, February 4, 1997.The Francos were traveling by automobile and, on the first day of their journey, they made it to North Carolina.Throughout that day, however, Franco did not feel quite right.Also, she began to notice that her skin and eyes looked a little yellow — a condition described in medical terms as jaundice.However, she chalked it up to having recently been under anesthesia in surgery and kept traveling.

The next day, Franco and her husband made the drive the rest of the way to Sarasota, Florida, where Franco's sister lived.However, Franco felt poorly and believed that her physical condition was deteriorating,⁴ so during a short stop in Jacksonville, Florida, she called Dr. Latina to ask him about her symptoms.⁵He told her that he was not sure what was wrong with her and that she should wait a couple of days to see whether the problems she was experiencing diminished.But, in the event she did not improve, he told her to seek medical attention in Florida.

Unfortunately, her condition did not improve.When Franco and her husband arrived at her sister's home in Sarasota on Monday night, she felt worse.She experienced a restless and sleepless night and did not feel well enough to leave her sister's house all day on Tuesday.By Wednesday, she was convinced that her problem was serious enough to warrant a trip to the emergency room at Sarasota Memorial Hospital.

The emergency room physicians did some initial tests in an effort to determine the cause of her jaundice.They also recommended that Franco see Douglas A. Kuperman, M.D., a local gastroenterologist.Franco did so, and explained to Dr. Kuperman that she recently had undergone a laparoscopic cholecystectomy.Doctor Kuperman performed an ultrasound, but he concluded that more tests would be needed to find out what was happening in her biliary system.

Those tests led to a diagnosis that there was a blockage in Franco's biliary system.A drain was inserted into her, which was attached to an external bag into which the excess bile produced by her system would flow.Doctor Kuperman brought another local physician, James Brock, M.D., into the case to assist him in assessing Franco's condition.Doctor Brock's review of the test results led him to conclude that during the laparoscopic cholecystectomy, part of Franco's common bile duct had been clipped and cut.Doctor Brock informed Franco that she would require major reconstructive surgery of her biliary system, and, between the two of them, they decided that she should return to Rhode Island so that Harold Wanebo, M.D., could do the surgery.As soon as Franco flew back to Rhode Island, Dr. Wanebo performed the reconstructive surgery, which was, by all accounts, successful.⁶

On May 21, 1996, Franco filed a medical malpractice complaint in the Superior Court for Providence County against Dr. Latina, alleging that he negligently performed the laparoscopic cholecystectomy and that he had failed to obtain her informed consent.A jury trial was held from October 15 to October 24, 2001.During trial, the plaintiff presented two expert witnesses, Dr. Brock and Abdool Rahim Moossa, M.D.Both physicians testified that the standard of care for performing a laparoscopic cholecystectomy demands the correct identification of the cystic duct before any clipping and cutting occurs.The defendant, on the other hand, did not present any expert testimony.Instead, he relied on an article published by Steven M. Strasberg, M.D. in 2000.In that article, Dr. Strasberg posited that the technique Dr. Latina used to locate the cystic duct when performing Franco's laparoscopic cholecystectomy was inherently flawed.⁷The defendant argued that even though this flawed technique was within the standard of care at the time of Franco's surgery, the inherent shortcomings of the procedure caused her injury, and thus he was free from negligence.

The jury apparently accepted Dr. Latina's argument because it returned a defendant's verdict.However, the trial justice granted Franco's motion for a new trial.In her decision, the trial justice found that the testimony of both of plaintiff's experts and Dr. Latina himself revealed that the standard of care required the conclusive identification of the anatomical structures to be cut.In light of that standard of care, and the defendant's admission that he mistakenly cut the common bile duct instead of the cystic duct, the trial justice ordered a new trial.

Doctor Latina timely appealed.Before this Court, he argued that the trial justice abused her discretion by discounting the "flawed technique" theory espoused in the Strasberg article.He also contended that certain testimony elicited from Dr. Brock on cross-examination indicated that, under certain conditions — which the witness termed hostile — the common bile duct could be cut despite the fact that the doctor operated within the standard of care.Franco v. Latina,840 A.2d 1110, 1112-13, 1114(R.I.2004)(Franco I).However, we affirmed, holding that because the testimony of both plaintiff's experts and Dr. Latina was that the standard of care required conclusive, unmistakable identification of the anatomical structures before they were cut, the trial justice's grant of a new trial was correct.Id. at 1112, 1114.Accordingly, the case was...