Marshall v. Tomaselli

• Decision Date: 06 May 1977
• Docket Number: No. 75-79-A,75-79-A
• Citation: 118 R.I. 190,372 A.2d 1280
• Parties: Olivia J. MARSHALL and Joseph Marshall v. Rosario V. TOMASELLI and Cyril J. Bellavance. ppeal.
• Court: Rhode Island Supreme Court

Page 1280

372 A.2d 1280

118 R.I. 190

Olivia J. MARSHALL and Joseph Marshall v. Rosario V. TOMASELLI and Cyril J. Bellavance.

No. 75-79-Appeal.

Supreme Court of Rhode Island.

May 6, 1977.

[118 R.I. 199] Charleson & Brill, Marvin A. Brill, Providence, Matthew J. Faerber, Newport, for plaintiffs.

Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, Providence, for defendant Rosario V. Tomaselli.

Hanson, Curran, Bowen & Parks, Kirk Hanson, David P. Whitman, Providence, for defendant Cyril J. Bellavance.

OPINION

BEVILACQUA, Chief Justice.

These civil actions were brought in Superior Court by a husband and wife alleging medical malpractice on the part of the defendant physicians. The cases were tried together before a jury in Superior Court. The defendants, at the conclusion of their case, moved for a directed verdict on all counts. The trialjustice granted the motion in part, directing a verdict for the defendant Dr. Tomaselli on both counts, negligence in treatment and failure to obtain the patient's knowing consent; ¹ and for the defendant Dr. Bellavance on the issue of negligence in treatment. He submitted one count, alleging failure on the part of Dr. Bellavance to obtain his patient's informed consent, to the jury. The jury returned a verdict in favor of this defendant and judgment was accordingly entered on October 1, 1974. The plaintiffs now appeal from the judgment and base their appeal on the trial justice's granting of the motion for directed verdicts. The plaintiff Olivia J. Marshall sustained the alleged injuries; her husband sued for consequential damages. Since recovery in the husband's case depends on the defendants' liability to the wife, we shall hereinafter treat her as the sole plaintiff.

In 1962 plaintiff consulted Dr. Bellavance regarding her left knee which was painful, swollen and unstable. After several months of treatment, he recommended that plaintiff enter the hospital and have a biopsy performed. In September of that year defendant performed the biopsy, and in addition removed a tumor, which was later found to be benign. As a result of the biopsy, Dr. Bellavance diagnosed plaintiff's condition as pigmented villonodular synovitis, a rare tumorous condition which is locally destructive to the structures associated with the knee joint and ultimately capable of destroying the entire joint. The knee condition improved somewhat after the biopsy, but then began to give plaintiff further trouble. On July 3, 1963, on the recommendation of Dr. Bellavance, plaintiff underwent a synovectomy (an extensive operation involving the removal of the soft tissues of the knee to prevent destruction of the joint); in addition, some bone spurs, and the lateral miniscus (part of the cartilage in the knee joint) were removed. Her recovery from this operation was complicated by the onset on July 8 of a severe staphylococcus infection and thrombophlebitis. As a result of the infection, plaintiff was placed in a private room, and on July 26, a hemovac system, consisting of tubes for irrigating and draining the knee joint, was surgically installed.

Doctor Bellavance went on vacation for the month of August and requested defendant Dr. Tomaselli to care for plaintiff. During this time, Dr. Tomaselli removed the drainage tubes from plaintiff's knee, and then placed the knee in a 'balanced suspension' apparatus so that it could be exercised. The plaintiff testified that there was no foot rest on the apparatus, and that the toe of her left foot was leaning on the bar of the apparatus with her foot twisted. Later, Dr. Tomaselli installed a foot rest, but plaintiff's foot remained crooked.

In October plaintiff's leg was placed in a cast by Dr. Bellavance and she was discharged from the hospital. He continued to supervise her recovery and in March 1964 the final cast was removed. Subsequently plaintiff complained of a crookedness in her foot and ankle; while she could move her ankle inward, she could not bring it outward. Doctor Savastano, a witness for defendant Dr. Tomaselli, examined plaintiff in April 1972 and December 1973. He found that plaintiff's knee was fused in thirty degrees of flexion with no motion whatsoever at the knee and that the left foot, due to totally inactive muscles, was inverted with the toes pointing downward and the sole pointing inward. The plaintiff sued defendants on the ground that these injuries were caused by their negligence.

On appeal, plaintiff claims that the trial justice erred in directing a verdict for defendants because plaintiff established a prima facie case of negligence, both directly and by means of the doctrine of res ipsa loquitur. In addition, plaintiff argues that the trial justice incorrectly permitted defendant Dr. Tomaselli to reopen his case to present further testimony after the close of all the evidence.

I

When a motion for a directed verdict is made at the close of all the evidence, the trial justice is under a duty to direct a verdict for the defendant if the evidence is insufficient in law to support a verdict in the plaintiff's favor. Simeone v. Prato, 82 R.I. 496, 111 A.2d 708 (1955); Rogers v. Sundlun, 54 R.I. 329, 172 A. 885 (1934); Cranston Print Works Co. v. American Tel. & Tel. Co., 43 R.I. 88, 110 A. 419 (1920). In considering such a motion, the trial justice must view the evidence in a light most favorable to plaintiff and give plaintiff the benefit of every reasonable inference following therefrpom, without weighing the evidence therefrom, without weighing the evidence witnesses. In reviewing his decision, this court is bound by the same rule. Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972); Priestly v. First Nat'l Stores, Inc., 95 R.I. 212, 186 A.2d 334 (1962); Antonakos v. Providence Institution for Sav., 94 R.I. 382, 181 A.2d 101 (1962). After carefully reviewing the record, we conclude that the trial justice did not err.

The plaintiff contends that she established directly a prima facie case of negligence. In order to sustain a cause of action for negligence the plaintiff is required to establish a standard of care as well as a deviation from that standard. This court has frequently stated that in medical malpractice cases expert evidence as to whether a phyician or surgeon used proper skill and diligence in treatment is necessary except where the lack of care is so obvious as to be within the layman's common knowledge. Wilkinson v. Vesey, supra; Nolan v. Kechijian, 75 R.I. 165, 64 A.2d 866 (1949); Coleman v. McCarthy, 53 R.I. 266, 165 A. 900 (1933); Bigney v. Fisher, 26 R.I. 402, 59 A. 72 (1904); Barker v. Lane, 23 R.I. 224, 49 A. 963 (1901). The physician's duty is not to cure, but to exercise the same degree of diligence and skill as physicians in good standing engaged in the same type of practice, in similar localities, ordinarily have and exercise in like cases. Wilkinson v. Vesey; Bigney v. Fisher, both supra. In the case at bar, as plaintiff concedes in her brief, no expert testimony was presented to show either the requisite standard of skill and care owed by defendants to plaintiff or a deviation from that standard. ²

The plaintiff, however, contends that expert testimony was unnecessary because defendants' lack of skill and care was so obvious as to be within the layman's common knowledge. We disagree. The plaintiff was afflicted with pigmented villonodular synovitis, a rare and serious condition which required major surgery in the form of a synovectomy. A review of the testimony of the two defendant physicians demonstrates the...