Malinou v. the Miriam Hosp.

• Decision Date: 24 June 2011
• Docket Number: No. 2009–87–Appeal.,2009–87–Appeal.
• Parties: Martin MALINOU, Individually and as Executor of the Estate of Etta E. Malinou and as Executor of the Estate of Sheldon Malinouv.The MIRIAM HOSPITAL et al.
• Court: Rhode Island Supreme Court

24 A.3d 497

Martin MALINOU, Individually and as Executor of the Estate of Etta E. Malinou and as Executor of the Estate of Sheldon Malinou

v.The MIRIAM HOSPITAL et al.

No. 2009–87–Appeal.

Supreme Court of Rhode Island.

June 24, 2011.

Martin Malinou, Pro Se.Scott D. Levesque, Esq., Michael G. Sarli, Esq., Providence, for Defendant.Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Chief Justice SUTTELL, for the Court.

The plaintiff, Martin Malinou,¹ appeals pro se from a Superior Court summary judgment in favor of the defendants, The Miriam Hospital (Miriam Hospital), Steven M. Kempner, M.D. (Dr. Kempner), Jean Mary Siddall–Bensson, M.D. (Dr. Siddall–Bensson), Lifespan Corporation, Coastal Medical, Inc. (Coastal Medical), Johanna LaManna, R.N. (Nurse LaManna), Randall S. Pellish, M.D. (Dr. Pellish), Rhode Island Hospital, Evelyn Asante, R.N. (Nurse Asante), Patricia Brown, R.N. (Nurse Brown), and Michael Capicotto, M.D. (Dr. Capicotto) (collectively defendants). This wrongful death and medical negligence action arises out of the medical care provided to the plaintiff's mother, Etta E. Malinou, during her stay at Miriam Hospital from her admission on January 10, 2003 to the evening she passed away on January 13, 2003. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After reviewing the record and considering the parties' written and oral submissions, we are satisfied that this appeal may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Procedural History

In January 2003, Etta E. Malinou was ninety-four years old and suffering from a number of health issues. She had a documented history of dysphagia, which is defined as difficulty in swallowing. Stedman's Medical Dictionary 554 (27th ed. 2000). Mrs. Malinou also suffered from dementia. Her medical condition required daily assistance, most of which was rendered by plaintiff. In 2002, Mrs. Malinou's condition deteriorated, and her healthcare providers discussed with plaintiff certain healthcare options, including hospice care. The plaintiff declined hospice care and indicated that he would care for his mother himself. The plaintiff also declined to authorize any alternative manner of nourishment for his mother, such as the placement of a gastric feeding tube. Mrs. Malinou was placed on a strict dysphagia diet, on which she remained until her death. The plaintiff was trained in dysphagia feeding and fed his mother most of her daily meals.

On January 10, 2003, Mrs. Malinou was brought to the Miriam Hospital emergency room with complaints of an “alteration in mental status.” She was admitted by defendant Dr. Capicotto, an employee of defendant Coastal Medical, and was treated for a presumed urinary tract infection as the source of her mental status change. According to plaintiff, Dr. Capicotto ordered a speech and swallow evaluation. After initial treatment, Mrs. Malinou's condition improved, and she continued to tolerate her normal dysphagia diet without difficulty. On January 11 and January 12, 2003, Mrs. Malinou was examined by defendant Dr. Kempner, a Coastal Medical employee. Doctor Kempner decided on January 12, 2003, that Mrs. Malinou “would likely be discharged” the next day, January 13, 2003.

According to plaintiff, he first became aware of a possible problem with his mother's medical condition on the evening of January 12, 2003, when he spoke with defendant Nurse Brown, a Miriam Hospital employee. The plaintiff stated in his deposition that Nurse Brown informed him that she heard crackling in Mrs. Malinou's lungs and that she would call defendant Dr. Pellish,² an on-call physician covering for Coastal Medical on the overnight shift of January 12 to 13, 2003. Nurse Brown was relieved by defendant Nurse LaManna, a Miriam Hospital employee, in the early morning of January 13, 2003. In monitoring Mrs. Malinou, Nurse LaManna noted that her urinary output was low and notified a physician of her findings.

On January 13, 2003, plaintiff was present in his mother's hospital room while she was being fed lunch by defendant Nurse Asante, an employee of Miriam Hospital. The plaintiff watched at his mother's bedside as the nurse fed her. At the time, plaintiff did not observe any difficulties in the feeding process. According to plaintiff, approximately five seconds after Nurse Asante finished feeding Mrs. Malinou, plaintiff noticed “a look of death” in his mother's eyes. Shortly thereafter, Mrs. Malinou became unresponsive. The medical staff responded and respiration was revived. Blood gas tests performed at the time indicated that Mrs. Malinou was in severe respiratory failure. The plaintiff stated that he was told that if his mother survived the episode, “there would be no quality to her life, [she would] basically [be] a vegetable.” Unsatisfied, plaintiff demanded that the tests be repeated. Second blood gas tests were performed, and the new results confirmed the original very grave prognosis. Mrs. Malinou's treatment team was “not clear [on] exactly what had happened,” but it believed that she suffered from respiratory failure with possible causes of aspiration, pulmonary embolus, or cerebrovascular accident. After discussions with his brother and further consultation with the medical staff, plaintiff decided against the use of “heroic measures” and agreed with the medical staff that life support should be removed.³ Mrs. Malinou passed away on the evening of January 13,2003.

Shortly thereafter, defendant Dr. Siddall–Bensson, a resident at Miriam Hospital, discussed with plaintiff the possibility of performing an autopsy on Mrs. Malinou. According to plaintiff, Dr. Siddall–Bensson told him that she was required by law to offer an autopsy, but that it was unlikely that an autopsy would be helpful. The plaintiff indicated in his deposition that, based on the information available to him at the time, he had been led to believe that his mother's death was the result of respiratory failure brought on by pneumonia, which had not been detected by earlier tests. The plaintiff did not request an autopsy and one was not performed. Doctor Siddall–Bensson certified Mrs. Malinou's death certificate, which listed respiratory failure caused by pneumonia as the cause of death.

On January 13, 2006, plaintiff filed a complaint against defendants, ⁴ alleging that negligent medical care in connection with his mother's stay at Miriam Hospital in January 2003 resulted in her death on January 13, 2003. Thereafter, the parties initiated discovery. On May 21, 2007, the Superior Court entered a scheduling order requiring that all fact discovery be concluded by September 15, 2007, that plaintiff disclose his expert witnesses by November 15, 2007, and that depositions of plaintiff's experts be concluded by March 15, 2008. Subsequently, plaintiff moved to amend the scheduling order on several different occasions. After hearings on plaintiff's first and second requests to amend the scheduling order, a Superior Court justice (motion justice) ⁵ granted each motion, ultimately extending the deadline for fact discovery to January 30, 2008, requiring that plaintiff's experts be disclosed by March 1, 2008, and extending the deadline for plaintiff's experts to be deposed to August 1, 2008.

On February 13, 2008, a hearing was held before the motion justice on plaintiff's third motion to amend the scheduling order. The plaintiff sought a two-month extension on factual discovery and on disclosure of his expert witnesses because he had not yet received certain medical records. Having already granted plaintiff's two prior extension requests, the motion justice expressed concern that she was “pushing the line on [her] discretion.” The motion justice decided that plaintiff had been given ample opportunity to conduct discovery and that the deadline for fact discovery would not be extended further; however, defendants still were required to answer any outstanding discovery requests. The motion justice also declined to extend the deadline for disclosure of plaintiff's standard of care experts. The only extension granted was a nineteen-day extension for plaintiff to disclose all causation experts by March 19, 2008.

Thereafter, plaintiff identified three expert witnesses: Theresa T. Buchanan, R.N. (Nurse Buchanan); Maureen Polsby, M.D. (Dr. Polsby); and Dennis C. Tanner, Ph.D. (Professor Tanner). On June 23, 2008, Dr. Polsby was deposed for several hours, after which the parties agreed to suspend the deposition until a later date. Difficulties with respect to scheduling Dr. Polsby's continued deposition led plaintiff to file a motion for a protective order to prevent the deposition of Dr. Polsby from being completed on July 18, 2008, the date selected by defendants. On July 1, 2008, more than three months after the March 19, 2008 deadline for disclosure of plaintiffs causation experts, plaintiff named an additional causation expert, Thomas Andrew, M.D. (Dr. Andrew). The defendants then moved to strike Dr. Andrew as an expert witness on the ground that plaintiff did not disclose him in a timely fashion.

A hearing on defendants' motion to strike and on plaintiff's motion for a protective order was held on July 16, 2008. The motion justice denied defendants' motions to strike Dr. Andrew as an expert witness, but ordered that, if his deposition was not concluded by August 8, 2008, his testimony would be precluded at trial. With regard to the completion of Dr. Polsby's deposition, the motion justice ordered that, if her deposition was not completed by July 31, 2008, Dr. Polsby's testimony also would be precluded at trial.⁶ Two days later, a different Superior Court justice assigned the case to a “date certain” trial date of ...