Richardson v. Fuchs

• Decision Date: 06 April 1987
• Docket Number: No. 84-177-A,84-177-A
• Citation: 523 A.2d 445
• Court: Rhode Island Supreme Court
• Parties: Judith RICHARDSON v. Louis A. FUCHS & Orthopedic Specialists, Inc. 1 ppeal.

Page 445

523 A.2d 445

Judith RICHARDSON v. Louis A. FUCHS & Orthopedic Specialists, Inc. ¹

No. 84-177-Appeal.

Supreme Court of Rhode Island.

April 6, 1987.

Francis P. Castrovillari, Providence, for plaintiff.

Raobert W. Lovegreen, Gidley, Lovegreen & Sarli, Providence, for defendant.

OPINION

FAY, Chief Justice.

In this medical-malpractice action originally brought in Superior Court, the plaintiff appeals from the grant of a directed verdict to the defendants. The plaintiff claims that the trial justice erred in refusing to permit her expert witness to testify, and that in any event the evidence as presented entitled her to go to the jury. We affirm.

The pertinent facts are as follows: On the morning of June 7, 1975, plaintiff, Judith Richardson (Richardson), fell down the stairs in her mother's home. Complaining of pain in her right arm, she was taken to the emergency room at the Miriam Hospital. X rays were taken of her right shoulder, elbow, wrist, and skull. She was then examined by defendant, Dr. Louis Fuchs (Dr. Fuchs), who as the orthopedic surgeon covering the emergency room that day determined that she had a "transverse fracture of the midshaft of the right humerus"--a break straight across the bone extending from the shoulder to the elbow. Doctor Fuchs applied a coaptation splint to Richardson's upper arm to keep the bone in position. ² He then prescribed some medication for pain and instructed Richardson to have her arm checked at the hospital's fracture clinic later that week.

The next day Richardson experienced quite a bit of pain. Noticing that the splint was becoming loose as the swelling in her arm decreased, she went to Dr. Fuchs's office on the following day, June 9. At that time Dr. Fuchs tightened the splint and told her to make an appointment with the clinic to have it checked again. It is disputed whether Dr. Fuchs took any X rays of Richardson's arm when he tightened the splint. Richardson claims that he did not; however, Dr. Fuchs introduced an X ray into evidence that he testified was taken that day.

On June 18 Richardson went to the fracture clinic, having been in considerable pain during the preceding week. She was examined by Dr. Ronald C. Hillegass, another orthopedic surgeon, who confirmed the earlier diagnosis after taking another X ray. He applied a "sugar tong" cast to Richardson's upper arm instead of the coaptation splint, hoping thereby to remedy the slight angulation of the bone he had noted on the X ray. ³ Richardson's arm remained in this splint, which Dr. Hillegass readjusted on several occasions, until July 25, 1975, when it was removed and replaced by a sling. The sling was removed on August 14, 1975. In an X ray taken on September 5, 1975, Dr. Hillegass could still see the fracture line and told Richardson to return in six weeks for a checkup. Richardson did not return until May 28, 1976, at which time Dr. Hillegass noted that she had motion at the fracture site and was having pain in the arm and difficulty using it. X rays revealed a nonunion of the fracture, and Dr. Hillegass recommended that Richardson undergo surgery to correct it. Richardson did not contact Dr. Hillegass again.

On June 2, 1977, Richardson filed a complaint in Superior Court, alleging that Dr. Fuchs had negligently diagnosed and treated her fractured right arm and negligently failed to inform her of the consequences of such treatment. As a result, she alleged, she sustained severe and permanent injuries to her right arm.

During the course of trial, Richardson attempted to introduce expert testimony from Dr. John H. Heller, a former instructor of pathology and assistant professor of internal medicine at Yale University School of Medicine, concerning (1) the reasons why the bones in her arm did not unite and (2) the question of whether Dr. Fuchs had deviated from the standard of care followed by orthopedic surgeons in Rhode Island or similar localities when treating fractures of the midshaft of the humerus by applying a coaptation splint instead of a cast. Acknowledging that he was not qualified to testify as to the standard of care in Rhode Island, Dr. Heller attempted to testify as to the standard in Connecticut. The defendant objected, questioning his competence to so testify, and the trial justice conducted a hearing to resolve the issue. Finding that Dr. Heller based his claim of qualification upon conversations that he had had within the previous month with five orthopedists in Connecticut, the trial justice concluded that Dr. Heller was not personally familiar with the standard of care in Connecticut in 1975, sustained defendants' objection, and excluded Dr. Heller's testimony.

Doctor Hillegass next testified concerning his treatment of Richardson's arm, as did Dr. Richard Bertini, who had seen her in 1982 subsequent to an automobile accident in which she was involved. At the close of all of the evidence, the trial justice granted defendants' motion for a directed verdict, finding that Richardson had failed to prove through expert testimony that Dr. Fuchs had deviated from the standard of care provided by orthopedic specialists in Rhode Island to persons in her circumstances. Richardson claims error in the exclusion of Dr. Heller's testimony and the direction of a verdict against her.

I THE EXCLUSION OF DR. HELLER'S TESTIMONY

The determination of the competency of an expert witness to testify is within the discretion of the trial justice, the exercise of which we shall not disturb in the absence of clear error or abuse. Greco v. Mancini, 476 A.2d 522, 525 (R.I. 1984); Lacey v. Edgewood Home Builders, Inc., 446 A.2d 1017, 1018 (R.I. 1982). In making such a determination, the trial justice must take into account the natural tendency of the jury to place greater weight on the testimony of one qualified as an expert. Morgan v. Washington Trust Co., 105 R.I. 13, 18, 249 A.2d 48, 51 (1969). Accordingly, the expert witness must possess "special knowledge, skill or information about the subject matter acquired by study, observation, practice or experience," so that the testimony given will aid the jury in its search for the truth. Id.

Evidence concerning the question of whether a physician has used proper skill and diligence in diagnosing or treating a medical condition must be supplied by experts unless the lack of care is so obvious as to be within the layman's common knowledge. Young v. Park, 417 A.2d 889, 893 (R.I. 1980); Wilkinson v. Vesey, 110 R.I. 606, 613, 295 A.2d 676, 682 (1972). The expert must measure the care that was administered against the degree of care and skill ordinarily employed in like cases by physicians in good standing engaged in the same type of practice in similar localities. Schenck v. Roger Williams General Hospital, 119 R.I. 510, 515, 382 A.2d 514, 517 (1977); Wilkinson v. Vesey, 110 R.I. at 613, 295 A.2d at 682. Thus, to have been qualified to testify, Dr. Heller would have had to possess special knowledge about the relevant standard of care, acquired by "study, observation, practice or experience."

Doctor Heller had never been in private practice, nor did he claim to be an orthopedic specialist. His credentials, all acquired in a university setting, were, however, clearly impressive. In 1946 and 1947 he served in the Department of Pathology at Yale University School of Medicine. In 1948 and 1949 he was an assistant physician and from 1949 through 1954 an associate physician at Yale-New Haven Hospital. In 1951 and 1952 he was an assistant professor of internal medicine at Yale University School of Medicine, which position involved a dual appointment both in physiology and internal medicine. He also served as professor of interdisciplinary studies at the New England Institute until 1981, when he retired as professor emeritus. From 1973 to 1981 he was involved as coinvestigator with a professor of surgery at Yale in the development and clinical trial of new drugs to treat primary cancer of the breast and its metastasis to the bone and other organs.

It is evident from the record that Dr. Heller was well versed in the physiology of bone healing, having been involved over several years in a research project using radioactive calcium to measure the dynamics of bone healing in its earliest stages and the effects upon the process of various stimulants and retardants; having experimented in the use of radiation therapy to spot-treat fractures in patients with metastatic bone disease; and having lectured at the University of Connecticut on various aspects of bone healing.

However, when asked specifically upon what basis he claimed to be qualified to testify regarding the standard of care in Connecticut for the orthopedic treatment of fractures--the subject matter of his intended testimony--Dr. Heller testified to no such in-depth experience. ⁴ He cited discussions that he had had in the previous month with five board-certified orthopedic specialists in Connecticut and New Hampshire, varying in length from one-half hour to one and a half hours, concerning the various ways of treating fractures of the humerus and the pros and cons of each. In addition, he cited his personal experience in the hospital during the relevant period with patients with fractures, in setting approximately twelve fractures similar to Richardson's...