Opinion
C.A. No. PC 2012-4882
07-16-2015
ZOFIA GRZEGORZEWSKA, p.p.a. MATTHEW VIEIRA v. WOMEN & INFANTS HOSPITAL OF RHODE ISLAND; A.W.C.R.I. MEDICAL GROUP, INC. D/B/A WOMEN'S CARE; MICHAEL ECONOMOS, M.D.; JOHN AND/OR JANE DOE, M.D.; JOHN and JANE DOE, R.N.; AND JOHN DOE CORPORATION
ATTORNEYS: For Plaintiff: Amato A. DeLuca, Esq. For Defendant: Cassandra A. DeAngelis, Esq.; Angela L. Carr, Esq.; Katherine M. Willis, Esq.
DECISION LANPHEAR , J. Before the Court are Defendants Women & Infants Hospital of Rhode Island's (Women & Infant), A.W.C.R.I. Medical Group, Inc.'s (A.W.C.R.I.), and Dr. Michael Economos, M.D.'s (Dr. Economos) (collectively Defendants) Motions for Summary Judgment. Defendants have each moved that summary judgment be granted in their favor. They claim that because Plaintiff Matthew Vieira (Matthew), a handicapped child, failed to bring a medical malpractice action prior this third birthday, he is now foreclosed from instituting suit.
I
Facts and Travel
The underlying action was filed by Zofia Grzegorzewska (Ms. Grzegorzewska) on behalf of her minor son Matthew (collectively Plaintiffs). (Compl. ¶ 1.) Ms. Grzegorzewska presented to Women & Infants on the night of December 18, 2005, complaining of decreased fetal movement, and she was admitted for induction of labor. Id. ¶¶ 7, 8. For the duration of her time at Women & Infants, Ms. Grzegorzewska was under the care of Dr. Economos who delivered Matthew on December 19, 2005 via caesarean section. Id. ¶¶ 9, 10. Matthew weighed 4035 grams at birth and his APGAR scores were zero at one minute, zero at five minutes, and one at ten minutes. Id. ¶ 11. An endotracheal tube was inserted to maintain Matthew's airway, and chest compressions were started due to lack of a fetal heart rate. Id. On December 26, 2005, Matthew was transferred to Massachusetts General Hospital (MGH) and on January 2, 2006, an MRI showed he had a severe brain injury consisting of diffuse signal abnormality in the basal ganglia, thalamus, and supratentorial white matter and evolving global tissue loss. It was determined that this was consistent with the sequelae of profound hypoxic ischemic injury. Id. ¶¶ 12, 13.
APGAR is a test given immediately after birth to determine how well the baby tolerated the birthing process as well as how well the baby is doing outside the mother's womb. There are five categories used to determine the score: breathing effort, heart rate, muscle tone, reflexes, and skin color. For the breathing and heart rate categories, a score of zero indicates that the infant is not breathing and has no heart rate. A one in those categories indicates that breathing is slow or irregular and that the heart beat is less than 100 beats per minute. The final APGAR score is between one and ten. Seven, eight, or nine is normal, while any score below a seven requires medical attention. See http://nlm.nih.gov/medlineplus/ency/article/003402.htm (last visited on May 14, 2005).
The Plaintiffs allege that the Defendants failed to timely order a caesarean section during Ms. Grzegorzewska's labor and, as a result, Matthew suffered neurological injuries at birth. Matthew's current doctor provided an affidavit, explaining that Matthew suffers from a "severe brain injury . . . [which] is consistent with the sequel of profound hypoxic ischemic injury." (Dr. Krishnamoorthy Aff., Oct. 16, 2013.) Matthew's doctor also attested that he is severely injured and suffers from numerous physical and developmental delays, which require constant care and attention; furthermore, his doctor attested that his injuries and condition are permanent. Id.
Ms. Grzegorzewska brought suit on behalf of Matthew in 2012, alleging negligence and lack of informed consent against the various Defendants. The Defendants made a joint motion for summary judgment arguing that under G.L. 1956 § 9-1-14.1, suit had to be brought on or before December 19, 2008, i.e., within three years of Matthew's birth.
II
Standard of Review
When deciding a motion for summary judgment, the trial justice must keep in mind that it '"is a drastic remedy and should be cautiously applied."' Steinberg v. State, 427 A.2d 338, 339-40 (R.I. 1981) (quoting Ardente v. Horan, 117 R.I. 254, 366 A.2d 162, 164 (1976)). Thus, '[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law.'" Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Educ., 93 A.3d 949, 951 (R.I. 2014). However, only when the facts reliably and undisputably point to a single permissible inference can this process be treated as a matter of law. Steinberg, 427 A.2d at 340.
The party who opposes the motion for summary judgment "carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996); see also McAdam v. Grzelczyk, 911 A.2d 255, 259 (R.I. 2006). The summary judgment stage is "the put up or shut up moment in litigation." Jakobiec v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 226 (1st Cir. 2013) (internal citation omitted).
III
Analysis
A
Issue Presented
The Defendants claim that the instant case was not filed timely pursuant to § 9-1-14.1, which states:
"Notwithstanding the provisions of §§ 9-1-13 and 9-1-14, an action for medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice shall be commenced within three (3) years from the time of the occurrence of the incident which gave rise to the action; provided, however, that:The Defendants contend that because Matthew did not bring suit until he was six years old, the action is barred by the statute due to the fact that the injuries were evident at the time of his birth.
"(1) One who is under disability by reason of age, mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring the action within three (3) years from the removal of the disability.
"(2) In respect to those injuries or damages due to acts of medical, veterinarian, accounting, or insurance or real estate agent or broker malpractice which could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident which gave rise to the action, suit shall be commenced within three (3) years of the time that the act or acts of the malpractice should, in the exercise of reasonable diligence, have been discovered."
Matthew was born with severe brain injuries and claims that the resulting disability will never be removed. The Defendants have questioned the extent of Matthew's injuries, leaving Plaintiff's counsel to argue that Matthew may not survive to adulthood or may never be mentally competent, and his disability will thus never be removed. Therefore, as a result of his disability, Matthew is significantly limited by the statute of limitations; in fact, the statute may deprive him of any opportunity to recover by way of litigation.
Although Matthew's prognosis is in question, he is impaired, and the issue may not be resolved for some time. His lawyer, Attorney DeLuca, stated at the hearing: "[Matthew] can never bring the action . . . [h]e will never be out from under . . . [h]e can never bring it." (Hr'g Tr. 16, Aug. 28, 2013.)
The Defendants contend that Matthew had the ability to file suit during the first three years of his life. While it is not contested that the statute of limitations would have permitted suit brought during this period, Matthew's mother was a young, single parent of limited means, who had just given birth to a chronically handicapped child. His mother's ability to retain counsel, investigate the professionals' conduct, and initiate litigation was severely restricted by her primary objective of caring for her child.
Moreover, as a child, Matthew may only bring suit through his mother, but she failed to commence suit before his third birthday. Independently, Matthew never had—and may never have—the ability to file suit. If Matthew were not disabled, he would have been able to file suit independently from the time he turned eighteen until the age of twenty-one. See Dowd v. Rayner, 655 A.2d 679, 681-82 (R.I. 1995) (holding that a minor on whose behalf suit has not been brought has "up to three years after reaching the age of majority to initiate a suit"). However, where it is likely that Matthew will remain mentally disabled or will not survive until he reaches the age of majority, he is unjustly deprived of the opportunity to take advantage of the minority tolling provision. The Rhode Island Supreme Court has plainly held that § 9-1-14.1(1) "ensures that minors are not disadvantaged by their disability during minority." Dowd, 655 A.2d at 682 (emphasis added). The application of the minority tolling provision in the instant situation discriminates against Matthew on the basis of his permanent disability.
B
The Statute and its Construction
The applicable statute of limitations, set forth above, applies only to malpractice actions. Suit based on such an injury may be brought: (1) during the first three years after the loss; (2) three years after the malpractice could have been discovered with reasonable diligence; or (3) three years after the removal of the disability which would stay the customary statute of limitations. Sec. 9-1-14.1. The oddity of this statute is demonstrated by a review of our customary tolling statute, set forth in § 9-1-19, which extends the period for commencement of other litigation until the minor plaintiff reaches the age of majority.
In construing any statute, the Court first looks to a plain reading of the statute in order to determine both the statute's meaning and the legislative intent. Woonsocket School Comm. v. Chafee, 89 A.3d 778 (R.I. 2014). The first section of this statute establishes a three-year limitation for medical malpractice actions. This section is followed, and modified, by the two numbered provisos. The provisos, of course, change the effect of the law for any situation falling within a proviso. Bruzzi v. Bd. of Appeals of City of Pawtucket, 84 R.I. 220, 224, 122 A.2d 877, 879 (1956) ("It is well established with respect to provisos that, in the absence of a clearly disclosed legislative intent to the contrary, the operation thereof is usually confined to that section or portion of the statute which immediately precedes it or to which the proviso pertains").
When confronted with an issue of constitutional interpretation, "this Court's 'chief purpose is to give effect to the intent of the framers."' . . . . "We 'employ the well-established rule of construction that when words in the constitution are free of ambiguity, they must be given their plain, ordinary and usually accepted meaning."' . . . . Furthermore, '"[e]very clause must be given its due force,' meaning 'no word or section must be assumed to have been unnecessarily used or needlessly added."' . . . . "[W]e must 'presume the language was carefully weighed and its terms imply a definite meaning."' Chafee, 89 A.3d at 787 (internal citations omitted).
The first proviso, applying only to the disabled, provides "(1) One who is under disability by reason of age, mental incompetence, or otherwise, and on whose behalf no action is brought within the period of three (3) years from the time of the occurrence of the incident, shall bring the action within three (3) years from the removal of the disability." Sec. 9-1-14.1(1). The Defendants suggest that the ability to commence an action is turned on and off by a statutory spigot. Statutes of limitation do not normally function in such a manner, and this statute never declares that the opportunity to litigate will temporarily lapse. Rather, the express text of the statute indicates that the standard limitation of "commenced within three (3) years from the time of the occurrence" is modified by the proviso "within three (3) years from the removal of the disability." The words of the statute itself make clear that the statute is not turned on and off—only that the deadline is extended for a temporarily disabled child.
The statute has recently been upheld by our Supreme Court:
"With this background in mind, we now hold that § 9-1-14.1(1) provides a minor plaintiff in a medical malpractice action with two options. First, the minor's parent or guardian may file suit on the minor's behalf within three years of the occurrence or reasonable discovery of alleged malpractice. Alternatively, if the minor's parent or guardian fails to file suit on the minor's behalf within those three years, then the minor may file suit on his or her own behalf, but not until he or she reaches the age of majority. Upon reaching the age of majority, he or she has three years within which to file the action." Ho-Rath v. Rhode Island Hospital, 2015 WL 2381215 (R.I. May 19, 2015).In Ho-Rath, Yendee Ho-Rath was born with a genetic blood disorder. Her parents initiated suit twelve years after the birth. In a 3-1 decision, the Court stated that "If the parent or guardian fails to file suit on the minor's behalf, however, the three-year window opens upon the age of majority; this ensures that the minor is not permanently prejudiced by his or her parent or guardian's failure to timely assert his or her rights."
Unfortunately, the same cannot be said for Matthew's rights, given his significant disability and limited likelihood of survival. He may have no ability to recover simply because his parent failed to timely assert his rights.
C
Equal Protection
The Defendants' suggestion that disabled minors may not bring suit creates a significant distinction: disabled persons are treated differently under § 9-1-14.1. If Matthew will remain mentally incompetent even after he reaches the age of majority (if he survives until eighteen), he will not only be treated differently, he will also be deprived of his access to the court. Each of these issues raises significant constitutional implications.
1
Discrimination
In Boucher v. Sayeed, 459 A.2d 87 (R.I. 1983), the Rhode Island Supreme Court found legislation requiring mandatory, prompt fact-finding hearings for medical malpractice cases to be unconstitutional. While our High Court recognized that states may treat some classes of citizens differently, the classification and the rights should be carefully scrutinized. Id. at 91 (citing Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)). There are two common tiers of scrutiny. "Strict scrutiny is applied when a statute's differential treatment of a select class of persons either infringes upon fundamental rights or results in the creation of a suspect classification. Such discrimination can only be justified by a compelling state interest." Boucher, 459 A.2d at 91. Minimal scrutiny is applied elsewhere and considers only whether the differential treatment bears a reasonable or rational relationship to a legitimate state interest. Id.
Even though the Rhode Island Supreme Court applied the lower level analysis to the medical malpractice preliminary fact-finding hearing in Boucher, our High Court concluded that the legislation was unconstitutional. Here, two separate factors compel the application of the strict scrutiny analysis.
First, the statute of limitations creates several classifications of persons. The statute continues the limitation period for those who have disabilities which are removed, but the statute inadvertently leaves those minors whose disabilities are permanent in a disadvantaged position. While the disabled have not yet been declared to be a suspect classification under the United States Constitution, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 442-43 (1985) (holding that disability should be examined under rational basis), the Rhode Island Constitution expressly prohibits treating the handicapped differently. Article I, section 2 of our state Constitution states: "No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state. . . ." In short, as the United States Constitution forbids discrimination on the basis of race, in its Fourteenth Amendment (as interpreted by Regents of the Univ. of Cal., 438 U.S. 265, 303 (1978), the Rhode Island Constitution expressly forbids discrimination against the handicapped. It is logical and appropriate that any statute which discriminates on the basis of handicap should be strictly scrutinized for it to survive constitutional muster. The mentally disabled have a long "history of purposeful unequal treatment," and mere rational basis analysis can no longer suffice. City of Cleburne, 473 U.S. at 464 (quoting San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). The words from our state Constitution compel us to prohibit discrimination of the handicapped.
In his concurrence with the judgment and dissent in part, Justice Marshall, joined by Justices Brennan and Blackmun, noted that "the mentally retarded have been subject to a 'lengthy and tragic history."' City of Cleburne, 473 U.S. at 461 (quoting Regents of the Univ. of Cal., 438 U.S. at 303). The concurrence/dissent in City of Cleburne disagreed with the majority's rational basis analysis, and argued that "[t]he Equal Protection Clause requires attention to the capacities and needs of retarded people as individuals," and that it "requires us to do more than review the distinctions drawn by Cleburne's zoning ordinance as if they appeared in a taxing statute or in economic or commercial legislation." Id. at 456, 464.
A similar issue was discussed briefly by the Rhode Island Supreme Court in Dowd where the "plaintiffs contend that § 9-1-14.1 violates . . . equal protection . . . for minors." 655 A.2d at 681. In the case at bar, the issue is whether equal protection for the handicapped is violated. Whether Matthew is handicapped or permanently disabled are, at the very least, issues of fact deserving a trial.
Second, the challenged statute of limitations restricts the ability of certain individuals to have access to the courts. The Rhode Island Constitution states:
"Entitlement to remedies for injuries and wrongs—Right to justice. Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one's person. . . ." R.I. CONST. art. I, § 5.Section 9-1-14.1 deprives individuals suffering from permanent mental disability of their access to the courts and the remedies that flow from favorable decisions.
In Dowd, the Supreme Court reasoned that the Rhode Island Constitution's entitlement to remedies provision does not render § 9-1-14.1 unconstitutional per se. However, the constitutional provision clearly and expressly provides a constitutional right and thereby requires the application of strict scrutiny here. The statute permanently deprives a chronically impaired child from ever initiating suit independent of parental guardians. The deprivation of this right could not be more evident than in the case at bar where, if he is permanently handicapped (and thereby legally incompetent), Matthew will be forever barred from having recourse to the courts on his own.
Our Supreme Court has held that "a protected interest may arise when the legislation in question infringed on an expressly enumerated constitutional right . . ." thus triggering the strict scrutiny analysis. Cherenzia v. Lynch, 847 A.2d 818, 823 (R.I. 2004) (citing In re Advisory Op. to the House of Representatives, 519 A.2d 578, 582 (R.I. 1987)).
Each of these distinctions—that the state is treating handicapped individuals differently and that the state is depriving some individuals of access to the courts—compels the application of a strict scrutiny analysis. For the statute to survive, the classification must be intended to fulfill a compelling state interest.
The Supreme Court previously stated "no malpractice crisis existed in 1981," so this statute of limitations, inserted in 1984, was not "enacted as a rational response to a public-health crisis," requiring a limitation on plaintiffs proceeding with such actions. Boucher, 459 A.2d at 93. The Rhode Island Supreme Court also found that the existing rules sufficiently protected public health without the need for preliminary fact-finding. Id. Here, the pre-existing statute of limitations also protected health needs. It not only provided remedies for victims but assisted in ferreting out misdeeds. The challenged statute of limitations impairs these protections to the public.
In Boucher, 459 A.2d at 87, the Rhode Island Supreme Court reviewed the constitutionality of other changes in the medical malpractice statutory reforms. In 1976, during the proclaimed medical malpractice crisis, the legislature created mediation panels to predetermine certain cases. By 1981, the legislature replaced the panels with prompt fact-finding hearings by a Superior Court justice. The High Court reviewed the 1981 legislation, concluding "no medical malpractice crisis existed in 1981." Id. at 93. The Court "decline[d] to speculate about unexpressed or unobvious permissible state interests" and ruled the 1981 Act unconstitutional, even though the Court applied a mere rational basis analysis. Id. at 93. As there was no medical malpractice crisis in 1981, no compelling state interest existed in 1984 when mentally incompetent adults were deprived of their rights to access the courts.
The Defendants suggest (without proof) that the statute is reasonable in limiting the number of medical malpractice lawsuits filed. (Dr. Economos' Mem. 4, Oct. 7, 2013) (citing Dowd, 655 A.2d at 679). A more thorough review of Dowd displays the fallacy of this suggestion. First, in Dowd, the High Court performed a rational relationship analysis to determine if § 9-1-14.1 was unconstitutional because it placed minors suing doctors in a worse position than other tort defendants. Here, however, the issue is how § 9-1-14.1 affects permanently disabled individuals; thus, strict scrutiny, not rational basis, is the appropriate standard. Second, in Dowd, the Supreme Court acknowledged that a medical malpractice crisis existed in 1976 when the statute of limitations for all medical malpractice lawsuits was modified. The minority tolling provision amendment at issue here was not enacted until 1984. See P.L. 1984, ch. 236. Prior to 1984, statutes of limitations for all medical malpractice cases involving minors expired before the age of eighteen. The unintended consequence of the 1984 statute was to discriminate against those individuals with permanent disabilities by depriving them of the ability to enjoy the benefits of the tolling provision. In Dowd, our Supreme Court made clear that the purpose of this tolling provision was to "ensure that minors are not disadvantaged by their disability during minority." 655 A.2d at 682. For those minors whose disabilities will never be "removed," however, this provision excludes them and treats them differently. They will never be able to recover.
As the High Court aptly declared once before:
"This legislation confers salutary privileges while imposing unjustifiable disabilities upon arbitrarily selected classes of persons in violation of equal-protection standards. The plaintiffs have successfully overcome their burden and have rebutted the legislative presumption of constitutionality by demonstrating that the statute lacked any rational basis to justify the differential treatment contained therein." Boucher, 459 A.2d at 94.Hence, the discriminatory treatment of the most severely handicapped and eliminating their opportunity for recourse in the courts violates the Rhode Island Constitution.
D
Review of Similar Cases
A similar issue was presented to the Rhode Island Supreme Court in Dowd. In Dowd, the Court considered the constitutionality of § 9-1-14.1 and whether it failed to provide equal protection to minors. In that case, the plaintiffs argued that the statute put minors who sued doctors in a worse position than minors suing other tort defendants, as well as in a worse position than adults who sued doctors. The Court found, however, that § 9-1-14.1 "deters minors from bringing medical malpractice claims only if an action has been initiated on their behalf.' Dowd, 655 A.2d at 683 (emphasis in original). This limitation did not "jeopardize the rights of minors to have their claims adjudicated in court," and the Supreme Court held that, under rational basis review, the statute was constitutional. Furthermore, the Court found that it was a '"reasonable [limit] * * * on the parties' rights to have their claims adjudicated by the courts' and hence does not violate the open courts provision of article I, section 5 of the Rhode Island Constitution." Id. (quoting Kennedy v. Cumberland Engineering Co., 471 A.2d 195, 198 (R.I. 1984)). This case is distinguishable from the instant dispute, however, because those individuals with permanent disabilities are a suspect class and, therefore, require a high level of scrutiny when analyzing an equal rights violation.
Previously, in Bakalakis v. Women & Infants' Hospital, 619 A.2d 1105, 1106 (R.I. 1993), the Rhode Island Supreme Court held that a minor is not permitted under § 9-1-14.1 to amend a pending complaint to include new defendants more than three years after the injury occurred. The Court found that the general disability tolling provision in § 9-1-19 does not supersede the provision of § 9-1-14.1(a). Id. at 1107. The goal of the legislature was to limit "a minor's ability to initiate medical malpractice actions" because otherwise § 9-1-14.1(a) "would be unnecessary." Id. Again, however, the issue at stake in the instant controversy was not addressed in Bakalakis, and that case does not change the issues presented to this Court.
In Ho-Rath, 89 A.3d 806, 812 (R.I. 2014) (Ho-Rath I), our Supreme Court determined that cause was shown for two issues: (1) "whether, in accordance with § 9-1-14.1, medical malpractice claims may be brought on a child's behalf at any time before the child reaches the age of majority, and thereafter by the child within three years after attaining the age of majority," and (2) "whether parents may bring their derivative claims at whatever time the minor's negligence claim is pursued." As regards the first issue, the trial justice found that "medical malpractice claims must be brought on behalf of the minor within three years of the incident giving rise to the cause of action, or within three years after attaining the age of majority—but at no time in between. Id. This matter did not present the same constitutional issues that are at question here.
The High Court upheld a grant of summary judgment against a minor plaintiff who had missed the initial three year statute of limitations. Without any mention of permanence and noting that Yendee Ho-Rath may be able to sue within three years of reaching age eighteen, the court concluded that "the three-year window opens up upon the age of majority; this ensures that the minor is not permanently prejudiced by his or her parent or guardian's failure to timely assert his or her rights." Ho-Rath, Nos. 2012-208-A and 2012-211-A, slip op. at 14 (R.I., filed May 19, 2015.) Once again, the same cannot be said for Matthew, who may be permanently deprived of his right to sue because of his severe and permanent disability and handicap.
IV
Conclusion
While our High Court thoughtfully pronounced that § 9-1-14.1 was appropriately amended with the addition of the minority tolling statute because the plaintiffs would be able to initiate suit when they became young adults, such is not necessarily the case for Matthew. The intention of the minority tolling provision is to "ensur[e] that minors are not disadvantaged by their disability during minority," but the statute fails to consider those whose disabilities may never be removed. Dowd, 655 A.2d at 682. Not only does § 9-1-14.1 fail to consider those with permanent disabilities, it discriminates against them, potentially depriving someone like Matthew from ever achieving his day in court. Matthew deserves the opportunity to bring his claim in Superior Court, regardless of whether his mental disabilities will ever be removed. To close the courtroom door to Matthew based on § 9-1-14.1 would be unconstitutional. Thus, the Defendants' Motions for Summary Judgment are denied.
ATTORNEYS:
For Plaintiff: Amato A. DeLuca, Esq. For Defendant: Cassandra A. DeAngelis, Esq.; Angela L. Carr, Esq.; Katherine M. Willis, Esq.