Oden v. Schwartz

• Decision Date: 16 May 2013
• Docket Number: No. 2011–167–Appeal.,2011–167–Appeal.
• Citation: 71 A.3d 438
• Parties: Paul ODEN et al. v. Carl SCHWARTZ, M.D.
• Court: Rhode Island Supreme Court

71 A.3d 438

Paul ODEN et al.

v.Carl SCHWARTZ, M.D.

No. 2011–167–Appeal.

Supreme Court of Rhode Island.

May 16, 2013.

David Morowitz, Esq., Providence, for Plaintiff.

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

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

OPINION

Justice INDEGLIA, for the Court.

In this medical malpractice action, the defendant, Carl Schwartz, M.D. (defendant or Dr. Schwartz), appeals from a Superior Court judgment in favor of the plaintiff, Paul Oden (Oden or plaintiff). On appeal, Dr. Schwartz argues that the trial justice erred in denying his motion for a new trial. Specifically, he asserts that the trial justice committed reversible error in (1) refusing to instruct the jury on intervening and superseding cause; (2) admitting certain testimony pertaining to Oden's cardiac arrest following surgery in August 2004; (3) ignoring relevant and material evidence on the issue of damages; and (4) instructing the jury on insurance. Additionally, Dr. Schwartz contends that G.L.1956 § 9–21–10(b) (mandating prejudgment interest at a rate of 12 percent on pecuniary damages in medical malpractice actions) is unconstitutional—an issue of first impression for this Court. ¹ After reviewing the record and considering the parties' written submissions and oral arguments, we affirm the judgment of the Superior Court.

IFacts and Travel

Oden, who was fifty-six at the time of trial, underwent open-heart surgery at age forty-nine for a mitral valve replacement ² at Rhode Island Hospital on January 26, 2004. Arun K. Singh, M.D. (Dr. Singh), a heart surgeon at Rhode Island Hospital, performed the surgery. Doctor Schwartz was the echocardiologist assisting Dr. Singh with that surgery.³

Following the surgery, at a follow-up examination in March 2004, Oden's cardiologist diagnosed him with severe aortic insufficiency (A.I.),⁴ caused by an errant suture stitched by Dr. Singh during Oden's January 2004 surgery. As a result, Oden was required to undergo a second open-heart surgery in August 2004, which was performed at Brigham and Women's Hospital. Immediately following that surgery, while in recovery, Oden suffered a cardiac arrest.

Oden then brought a medical malpractice action in the Providence County Superior Court against Rhode Island Hospital and Dr. Singh, alleging that he suffered damages attributable to their negligent conduct during his January 2004 surgery.⁵ On January 17, 2007, while discovery on that action was pending, Oden brought a separate medical malpractice action against Dr. Schwartz. That action was later consolidated with the action against Dr. Singh and Rhode Island Hospital. In his complaint against Dr. Schwartz, Oden alleged that he suffered injuries as a result of Dr. Schwartz's negligent conduct at his mitral valve replacement surgery in January 2004. Additionally, Oden's wife, Linda Oden, alleged a loss of consortium claim against Dr. Schwartz, pursuant to G.L.1956 § 9–1–41.

Just before the start of trial, Oden settled his claims against Rhode Island Hospital and Dr. Singh. On October 20, 2010—the first day of trial—Dr. Schwartz moved to amend his answer to assert an affirmative defense of intervening and superseding cause, in which he alleged that Dr. Singh's negligence was the superseding cause of Oden's injuries. The trial justice reluctantly granted that motion.⁶ A six-day jury trial then commenced. Below, we summarize the testimony and evidence presented.

ASummary of the Testimony

Two expert witnesses testified for Oden: Stuart Pett, M.D., a heart surgeon; and Justin D. Pearlman, M.D., an expert in the field of echocardiography. Oden also called Dr. Singh to testify on his behalf. Doctor Schwartz testified on his own behalf and also called Adam B. Lerner, M.D., an anesthesiologist, to testify for him. Additionally, Oden and his wife, Linda, testified.⁷ Because Dr. Singh performed the surgery at issue, we begin with his testimony.

Doctor Singh testified that he is board certified in general surgery, cardiac surgery, and thoracic surgery and that he has practiced at Rhode Island Hospital since 1975.⁸ Of the 15,000 heart surgeries he has completed since then, about 2,000 were mitral valve replacement surgeries, and approximately 800 were mitral valve repair surgeries. He stated that he has also performed approximately 2,000 aortic valve surgeries. He further testified that he has worked with Dr. Schwartz on hundreds of surgeries at Rhode Island Hospital since 1975.

Doctor Singh served as Oden's surgeon at his mitral valve replacement surgery in January 2004. At that surgery, he mistakenly stitched Oden's aortic valve, ⁹ which caused a leakage of that valve, referred to as “severe posteriorly directed [A.I.].” Consequently, Oden had to undergo a second open-heart surgery in August 2004. Doctor Singh stated that he was not aware of the A.I. until March 2004, when, at a follow-up examination, Oden's cardiologist ordered a routine echocardiogram.

In explaining this error, Dr. Singh testified that he depends upon his surgical team (whom he identified as his assistant surgeon, physician assistant, scrub nurse, anesthesiologist/ echocardiologist, and perfusionist) to cooperate and assist him while he performs a mitral valve replacement surgery. He explained that, during this type of surgery, he is unable to see behind the mitral valve to determine whether he has placed an errant suture in sewing the replacement mitral valve. Because of this, he further explained, the echocardiographer reviews an echocardiogram,¹⁰ which reveals “how the heart is functioning, how the valve is functioning, [and] how the overall heart function is.” Since he is neither an expert in echocardiography nor board certified in echocardiography, he relies on the echocardiologist's “[v]ery important” interpretation and evaluation of that testing, both before and during the open-heart surgery, which informs his ultimate decision to continue or end the surgery.

Doctor Singh recalled that, during Oden's surgery, Dr. Schwartz reviewed the results of the echocardiograph and informed him that the “valve function prosthesis was working normal[ly][—]like [it was] supposed to do.” When asked on direct examination whether “there [was] any change in Mr. Oden's aortic valve function” after he had replaced the mitral valve, he stated: “If I recall, there wasn't anything.” According to Dr. Singh, the mitral valve was not leaking, and “was functioning normal[ly] after the replacement.” In sum, he maintained that “[a]t the time of surgery” he did not have “reason to believe” that there was a new problem with either the mitral or aortic valve. In fact, he believed that “[i]t was a successful surgery with no complications.” He further acknowledged that “[h]ypothetically * * * if [he] became aware that Dr. Schwartz was not able to evaluate the heart by echocardiograph,” he would have asked him “to look for it and evaluate it properly or get help.”

Moreover, Dr. Singh acknowledged that if he had learned something “of medical consequence” during the surgery, he would have documented it in Oden's medical record. He then confirmed that Oden's medical record revealed that there were no problems whatsoever with the mitral valve replacement surgery.

On cross-examination, Dr. Singh's testimony changed somewhat regarding whether he was aware of any new problems involving Oden's aortic valve. He admitted that, “when Mr. Oden left the operating room [after Dr. Singh performed the January 2004 surgery], [he] w[as] aware that [Oden] had mild aortic regurgitation” (which he later clarified was synonymous with mild A.I.). He testified that, after learning this, he weighed a number of factors in deciding not to put Oden back on bypass. In an effort to impeach that inconsistent testimony, on redirect examination, Oden's counsel confronted Dr. Singh with his earlier deposition testimony. In that deposition, when asked whether he was “told by [Dr. Schwartz] that there was possibly more aortic regurgitation in Mr. Oden's heart after [he] performed [the] surgery than was present before [he] performed it,” Dr. Singh had responded, “[n]o, no.” Moreover, on redirect examination, he stated that, even if he had been told by Dr. Schwartz that A.I. was present, he would also have needed to know “the potential cause of the [A.I.].” He claimed, though, that at the time of the surgery, he knew the cause of the A.I. “most likely was distortion.”

Doctor Schwartz testified that he had a “vague memory” regarding the presence of A.I. during Oden's open-heart surgery, but that it was his “best recollection” that he advised Dr. Singh of the A.I. at the conclusion of the mitral valve replacement. He admitted that he failed to document the A.I. in the medical record. “[I]n a perfect academic world,” he testified, it would have been so documented. In any event, he stated that, he makes decisions in the operating room “in real time and not by coming back later to see what the [medical] record had showed.” He acknowledged that, in this case, he “did not do a totally detailed exam” of the aortic valve; however, he felt that the exam he had performed was “adequate” in determining that there was A.I., which he had communicated to Dr. Singh.

Doctor Schwartz explained that the surgeon is the head of the surgical team in the operating room, and, as such, makes decisions as to whether or not additional procedures will be performed on a patient. The standard of care dictates that he and other members of the surgical team must defer to the surgeon's decisions in this regard. Doctor Schwartz testified that he advised Dr. Singh, the head surgeon, that there was mild A.I. He further testified that Dr. Singh, having been given this information, ultimately decided “to proceed [to] get [Oden] off bypass [because] [Oden] ha[d] a very sick heart.” According to Dr. Schwartz, Dr. Singh further told him that it was just “[m]ild A.I.,” which he was “not...