Opinion
KC-2018-0774
09-20-2024
RONALD MADISON Plaintiff, v. MICHAEL P. BRADLEY, M.D.; SOUTH COUNTY ORTHOPEDICS & PHYSICAL THERAPY, INC.; SOUTH COUNTY HOSPITAL; JOHN/JANE DOE; AND JOHN DOE CORPORATION Defendants.
For Plaintiff: Michael Kiselica, Esq. Jennifer G. Puerini, Esq. For Defendant: Benjamin A. Lee, Esq. Paul F. Galamaga, Esq. Christine A. Stowell, Esq. Jeffrey G. Latham, Esq.
For Plaintiff: Michael Kiselica, Esq. Jennifer G. Puerini, Esq.
For Defendant: Benjamin A. Lee, Esq. Paul F. Galamaga, Esq. Christine A. Stowell, Esq. Jeffrey G. Latham, Esq.
DECISION
LICHT, J.
In this medical malpractice case, the Court held an evidentiary hearing to determine when Plaintiff Ronald Madison (Mr. Madison or Plaintiff) knew of or should have discovered his claims against Defendants Michael P. Bradley, M.D. (Dr. Bradley), South County Orthopedics &Physical Therapy, Inc. (South County Ortho), and South County Hospital (collectively referred to herein as Defendants) from a right hip arthroplasty that took place on September 25, 2013 (the September 2013 Surgery). Upon finding the accrual date of Mr. Madison's claims, this Court ascertains whether Rhode Island's statute of limitations bars Mr. Madison's claims and in turn decides the remaining issue in Defendants' Motion for Summary Judgment.
For the reasons set forth below, Plaintiff did not know of Defendants' wrongful conduct on or near the date of the September 2013 Surgery, and the discovery rule preserves Plaintiff's cause of action for medical malpractice stemming from the September 2013 Surgery, and as such Plaintiff's claim regarding the September 2013 Surgery is not barred by the statute of limitations.
I
Facts and Travel
A
Motion for Partial Summary Judgment Hearing and Evidentiary Hearings
On March 4, 2024, this Court heard argument on Defendants' Joint Motion for Partial Summary Judgment, and the Court determined that there was an outstanding issue of fact as to Mr. Madison's knowledge of Dr. Bradley's alleged malpractice and as to whether the discovery rule ought to apply. To resolve the issue of the statute of limitations' applicability, the Court required an evidentiary hearing pursuant to Sharkey v. Prescott, 19 A.3d 62 (R.I. 2011) and its progeny. The evidentiary hearing was required to determine when Mr. Madison knew of Dr. Bradley's alleged malpractice or when a reasonable person exercising reasonable diligence would have discovered Dr. Bradley's alleged malpractice.
Although Defendants' Motion for Summary Judgment was directed to all claims against them stemming from the two surgeries, at the June 27, 2024 Evidentiary Hearing, counsel for Dr. Bradley and South County Ortho clarified that the Motion for Summary Judgment was a Partial Motion for Summary Judgment for the surgery conducted on September 25, 2013 and not for claims regarding the August 26, 2015 surgery. See June 27, 2024 Evidentiary Hr'g Tr. at 3:3-4:2.
On June 27, 2024 and July 16, 2024, Mr. Madison testified as the only witness at the evidentiary hearing. Certain medical notes of his medical records were introduced as exhibits. The Court also heard arguments from the parties.
B
Relevant Evidence
On July 12, 2018, nearly five years after the September 2013 Surgery, Mr. Madison filed his Complaint against Defendants. See Docket. The Complaint contains various causes of action including a count of medical malpractice, a count of vicarious liability, and a count of negligent credentialing, among others. See generally Pl.'s Compl.
Mr. Madison first presented to Dr. Bradley at South County Ortho on September 9, 2013, with complaints of right hip pain and swelling. (Defs.' Mem., Ex. B Madison Dep. Tr. at 63:19-64:23.) At that appointment, it was determined that Mr. Madison needed a right total hip arthroplasty because conservative therapy had given him no relief. Id. at 66:8-16. On September 25, 2013, Dr. Bradley operated on Mr. Madison at South County Hospital. Id. at 71:14-17. When Mr. Madison awoke from the surgery, he noticed that his right foot was pronating to the right. Id. at 76:10-77:6; see June 27, 2024 Evidentiary Hr'g Tr. at 10:5-10; see also id. at 10:14-17, 15:8-17. During the June 27, 2024 Evidentiary Hearing, Mr. Madison testified that "[w]hen I woke up [from the September 2013 Surgery] my right leg was deformed. So that's what that was about. He was supposed to fix the hip and something happened." June 27, 2024 Evidentiary Hr'g Tr. at 10:5-10; see also id. at 10:14-17, 15:8-17.
In answering interrogatories, Mr. Madison had stated that after the September 2013 Surgery he met with Dr. Bradley, and Dr. Bradley told Mr. Madison that he was fine. (Defs.' Mem., Ex. C, Madison Answer to Interrog. No. 6.)
When asked during his deposition as to whether Mr. Madison recalled saying anything to Dr. Bradley after the surgery, Mr. Madison initially stated that he did not recall whether he spoke with Dr. Bradley. (Defs.' Mem., Ex. B Madison Dep. Tr. at 75:2-5.) Later during the deposition, Mr. Madison said that he told Dr. Bradley, "what the hell. Look at how my leg is now. It used to point straight ahead. Now it's out." Id. at 122:20-123:4. During the June 27, 2024 Evidentiary Hearing, Mr. Madison confirmed that he had a conversation with Dr. Bradley right after the September 2013 Surgery where he told Dr. Bradley that it was "BS." See June 27, 2024 Evidentiary Hr'g Tr. at 46:20-47:25. He further stated at the June 27, 2024 Evidentiary Hearing that he was unhappy with what happened and he expressed that unhappiness. Id. at 47:18-20. He said he told Dr. Bradley "that it was BS[,]" and he "expected to wake up and be normal." Id. at 47:20-21, 25.
During his deposition, Mr. Madison also testified that in his mind he believed that Dr. Bradley had done something wrong after the September 2013 Surgery. (Defs. Mem., Ex. B Madison Dep. Tr. at 80:4-7.) At his deposition, Mr. Madison testified that even after the day of the surgery, he continued to believe that Dr. Bradley had done something wrong. Id. at 80:8-10. At the June 27, 2024 Evidentiary Hearing, Mr. Madison was asked whether he "believe[d] something was done wrong during the first surgery in September 2013[,]" to which he responded "yes." June 27, 2024 Evidentiary Hr'g Tr. at 51:12-17.
In answering interrogatory number 24, Mr. Madison stated that he first suspected Dr. Bradley's negligence after an August 26, 2015 corrective surgery, after Dr. Bradley recommended that Mr. Madison get a second opinion. (Defs.' Mem., Ex. C, Madison Answer to Interrog. No. 24.) In Mr. Madison's Affidavit-submitted to the Court after his deposition- Mr. Madison attested that he was deposed almost four years after he answered his interrogatories and nine years after the September 2013 Surgery. (Pl.'s Mem., Ex. 4 Madison Aff. ¶ 17.) In his affidavit, Plaintiff also attested that his current memory and memory at the time of the deposition was not anywhere as fresh as it was when he answered his interrogatories. Id. ¶ 19. Although during the June 27, 2024 hearing, when asked whether his memory on this issue has been stable over the years, he responded in the affirmative. (June 27, 2024 Evidentiary Hr'g Tr. at 55:5-7.) He also stated that there were no misstatements at the time of his deposition and everything he said was true. Id. at 55:8-11.
After the September 25, 2013 total hip arthroplasty, Plaintiff attended various postoperative appointments with Dr. Bradley. See June 27, 2024 Evidentiary Hr'g Exs. 2-5. Even after the September 2013 Surgery, Mr. Madison continued experiencing hip pain and right foot pronation and kept going to Dr. Bradley for treatment. Defs.' Mem., Ex. B Madison Dep. Tr. at 76:12-77:6; see June 27, 2024 Evidentiary Hr'g Exs. 2-5. During those visits, Dr. Bradley noted that Mr. Madison was recovering well from the September 2013 Surgery. See id. Dr. Bradley never mentioned anything being wrong with the September 2013 Surgery and kept treating Mr. Madison's pain, including a cortisone injection. See June 27, 2024 Evidentiary Hr'g Ex. 6, May 16, 2014 Visit Note.
On July 13, 2015, Dr. Bradley noted that there was "possible aseptic loosening left femoral stem" and instructed Mr. Madison to undergo a bone scan which was performed on July 16, 2015. (Pl.'s Mem., Ex. 1 July 13, 2015 Medical Record at 3-4.) At the June 27, 2024 Evidentiary Hearing, Mr. Madison testified that after Dr. Bradley ordered the bone scan he "had suspicion in [his] mind [of something being done wrong], but [he] didn't tell the doctor that [he] thought he had messed it up. [He] knew there was something wrong, but [he] kept it to [him]self." (June 27, 2024 Evidentiary Hr'g Tr. at 20:15-21.) On July 27, 2015, Dr. Bradley and Plaintiff discussed the results of the July 16 bone scan, and, at that appointment, Dr. Bradley admitted that during the September 2013 Surgery he placed a stem that was too short. (Defs.' Mem., Ex. C, Madison Answer to Interrog. No. 6.) Dr. Bradley also told Mr. Madison that his only option would be a revision surgery. Id. On August 26, 2015, Dr. Bradley performed the revision surgery. Id. at No. 24.
On October 23, 2015, Dr. Bradley referred Mr. Madison to Derek Jenkins, M.D. (Dr. Jenkins) for a second opinion. (Defs.' Mem., Ex. C, Madison Answer to Interrog. Nos. 6, 24.) On November 17, 2015, Mr. Madison met with Dr. Jenkins. Id. at No. 6. After this initial visit, Dr. Jenkins suspected that the longer stem placed by Dr. Bradley during the August 26, 2015 surgery was loose and that Plaintiff's persistent pronation and pain was caused by the loosening of the stem. Id. On March 25, 2016, Dr. Jenkins performed a revision surgery of Plaintiff's right hip and during that procedure Dr. Jenkins encountered a "very severe proximal femur fracture." (Pl.'s Mem. in Obj., Ex. 2 Dr. Jenkins's Operation Notes at 1, 2.)
With his Memorandum in Objection to Defendants' Joint Motion for Summary Judgment (Pl.'s Mem. in Obj.), Mr. Madison submitted an affidavit from Charles N. Cornell, M.D. (Dr. Cornell). In his affidavit, Dr. Cornell attests that he has approximately forty years of experience as an orthopedic surgeon specializing in hip and knee replacement surgery. (Pl.'s Mem. in Obj., Ex. 3 Cornell Aff. ¶¶ 2, 4.) Dr. Cornell attests that "there was not any possible way that Mr. Madison or any reasonable patient could have known or suspected that an undersized stem was used absent the findings of the July 16, 2015 bone scan and the surgeon informing the patient of suspicion that the stem was undersized, which, according to the evidence in this case, did not occur until July 27, 2015." Id. ¶ 8.
II
Standard of Review
A
Summary Judgment
"Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously." Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I. 2013) (internal quotation omitted). "[S]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the Court 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 Education, 93 A.3d 949, 951 (R.I. 2014) (internal quotations omitted); see Super. R. Civ. P. 56. The moving party "bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (citation omitted). Then the burden shifts and, as reiterated by the Rhode Island Supreme Court:
"The party opposing summary judgment bears the burden of proving, by competent evidence, the existence of facts in dispute. The opposing party will not be allowed to rely upon mere allegations or denials in the pleadings but rather, by affidavits or otherwise the opposing party has an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Henry v. Media General Operations, Inc., 254 A.3d 822, 834 (R.I. 2021) (cleaned up, citations omitted).
In this case, the Defendants assert that Plaintiff's cause of action relating to the September 2013 Surgery is barred by the statute of limitations. The issue of whether a statute of limitations applies is a question of law. See Hanson v. Singsen, 898 A.2d 1244, 1248 (R.I. 2006). However, in Sharkey, our Supreme Court held that notwithstanding that when the cause of action accrues in a medical malpractice claim is a factual issue, the trial justice must find those facts after an evidentiary hearing. See Sharkey, 19 A.3d at 67.
III
Analysis
A
Application of the Statute of Limitations
Under Rhode Island law:
"Notwithstanding the provisions of §§ 9-1-13 and 9-1-14, an action for medical . . . malpractice shall be commenced within three (3)
years from the time of the occurrence of the incident that gave rise to the action; provided, however, that:
...
"(3) In respect to those injuries or damages due to acts of medical . . . malpractice that could not in the exercise of reasonable diligence be discoverable at the time of the occurrence of the incident that 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." G.L. 1956 § 9-1-14.1(3).
Our Supreme Court has held that, under Rhode Island Law, "the discovery date is the date that the plaintiffs knew or should have known of the 'wrongful act' that is the basis of their lawsuit." Bustamante v. Oshiro, 64 A.3d 1200, 1204 (R.I. 2013) (quoting Hanson, 898 A.2d at 1249) (emphasis added). The Supreme Court has "long made exception for an undiscoverable act of medical negligence[.]" Hanson, 898 A.2d at 1249 (citing Wilkinson v. Harrington, 104 R.I. 224, 237, 243 A.2d 745, 752 (1968)). "'An injury is latent and potentially undiscoverable when, exercising 'reasonable diligence' at the time of the injury, [a plaintiff] is unable to discover the wrongful act, neglect or default.'" Hanson, 898 A.2d at 1249 (quoting O'Sullivan v. Rhode Island Hospital, 874 A.2d 179, 185 (R.I. 2005)).
"Any analysis under the discovery rule employs an objective standard[.]" Bustamante, 64 A.3d at 1204. "'If a reasonable person in similar circumstances should have discovered that the wrongful conduct of the defendant caused [his or] her injuries as of some date before the plaintiff alleged that [he or] she made this discovery, then the earlier date will be used to start the running of the limitations period.'" Bustamante, 64 A.3d at 1204 (quoting Hanson, 898 A.2d at 1249). "[The] Court draws all reasonable inferences in the plaintiff's favor to determine whether, in the exercise of reasonable diligence, the plaintiff should have discovered the alleged act of malpractice." Bustamante, 64 A.3d at 1204 (quoting Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778, 784 (R.I. 2004)) (internal quotations and brackets omitted).
1 Whether Plaintiff had Actual Knowledge of the Alleged Malpractice
The first step in determining the application of the statute of limitations is determining whether Mr. Madison actually knew of the "wrongful act" that is the basis of his lawsuit. See Bustamante, 64 A.3d at 1204. Mr. Madison alleges that the basis of his claim of medical malpractice from the September 2013 Surgery against Dr. Bradley was his failure "to exercise the requisite degree of care and skill, and he negligently rendered medical and surgical treatment to Plaintiff . . . causing him to suffer and become afflicted with severe personal injuries and extreme pain and suffering." Compl. ¶ 9. Mr. Madison further alleges that the loosening of the femoral stem was not discoverable until after the July 16, 2015 bone scan. Compl. ¶ 11.
Mr. Madison was quite candid throughout his testimony, stating that he knew something was wrong as soon as he woke up from surgery. See June 27, 2024 Evidentiary Hr'g Tr. at 10:8-9, 13:13-15, 15:14-17, 18:11-12, 19:4-11. During the July 16, 2024 Evidentiary Hearing, the Court noted that there is a distinction between knowing something is wrong-for example, his foot being pronated to the right-and knowing the surgeon had done something. See July 16, 2024 Evidentiary Hr'g Tr. at 16:24-17:3; 20:2-8. This distinction is important in an analysis regarding the statute of limitations in medical malpractice cases.
At the June 27, 2024 Evidentiary Hearing, Mr. Madison was asked whether he "believe[d] something was done wrong during the first surgery in September 2013[,]" to which he responded in the affirmative. June 27, 2024 Evidentiary Hr'g Tr. at 51:12-17 (emphasis added). The question then becomes when he knew Dr. Bradley had done something wrong, because if he knew of the wrongful conduct three years prior to the filing of the Complaint on July 12, 2018, then the statute of limitations would bar his claim.
At the Evidentiary Hearing, the Court heard testimony from Mr. Madison. At various points during the June 27, 2024 Evidentiary Hearing, Mr. Madison's testimony was often unreliable. When he would answer a question, it was often unclear whether he fully understood the question being asked. Given Mr. Madison's age, memory of the September 2013 Surgery, and his impressions at that time from a surgery that took place eleven years ago, Mr. Madison's reliability is lacking. Therefore, although Mr. Madison testified in the affirmative at various points of the hearing regarding whether he knew something was wrong after the September 2013 Surgery when he noticed his foot pronating, this Court looks at all the evidence presented with the parties' memoranda in support of their positions to determine the timing of Mr. Madison's knowledge of the alleged malpractice.
Even though he stated to knowing that something was wrong when he saw his foot pronating to the right, he also testified that it was only after ordering the bone scan on July 13, 2015, where he had a "suspicion in [his] mind" regarding Dr. Bradley's alleged malpractice. Id. at 20:15-21. In his post-deposition affidavit, Mr. Madison attested that it was at the appointment with Dr. Bradley on July 16, 2015, where he stated he should have suspected malpractice from Dr. Bradley's alleged mis-sizing of the placed femoral stem. Pl.'s Mem. in Obj., Ex. 4 Madison Aff. ¶ 25.
Along with the aforementioned reasons, the Court is hard-pressed to believe that Mr. Madison personally knew of any wrongful conduct from the September 2013 Surgery prior to his suspicion being raised by ordering the bone scan on July 13, 2015 because he routinely met with Dr. Bradley even after the allegedly negligent surgery. At all those postoperative meetings, Dr. Bradley noted that Mr. Madison was progressing well. See Evidentiary Hr'g Exs. 2-5. Regarding the pain he had, Mr. Madison stated that it was no worse than the pain he had prior to the September 2013 Surgery. (June 27, 2024 Evidentiary Hr'g Tr. at 21:14-17.) The postoperative notes also demonstrate that Dr. Bradley continued to treat Mr. Madison for pain without sufficient explanation as to why the pain persisted even after the surgery. See Evidentiary Hr'g Exs. 2-6.
Another issue for the Court to consider is whether Mr. Madison's knowledge of the wrongful act regarding the foot being pronated is the wrongful conduct alleged in the Complaint. Although right after the surgery on September 25, 2013, Mr. Madison complained to Dr. Bradley that his foot was pronating to the right, the allegation of negligence in the Complaint is regarding the size of the implant connecting to the femoral stem which allegedly led to the loosening of the femoral stem, which along with the allegedly negligent medical treatment post-surgery, is the basis for his medical malpractice claim from the September 2013 Surgery against the Defendants. The Complaint also lists the postoperative care as being the basis for his malpractice claims against Dr. Bradley. Neither the pronation of his right foot nor the resulting pain is the "wrongful conduct" alleged in Mr. Madison's Complaint. As to the loosening of the implant, Mr. Madison stated that he had no way of knowing the anchor was loose until the bone scan. (June 27, 2024 Evidentiary Hr'g Tr. at 27:7-14.)
Therefore, viewing all the evidence, this Court finds that Defendants have not met their burden showing that Mr. Madison knew of the allegedly wrongful conduct from the September 2013 Surgery until some point after the July 16, 2015 bone scan, which falls within the statute of limitations.
2
Whether a Person Through Reasonable Diligence Could Have Discovered the Alleged Malpractice
After deciding that Mr. Madison did not know of his claims until after the bone scan, pursuant to the discovery rule, the Court must analyze whether a reasonable person exercising reasonable diligence would have discovered the claims. See Bustamante, 64 A.3d at 1204.
Defendants argue that the instant matter is analogous to Hanson, where our Supreme Court held that the statute of limitations barred the plaintiff from bringing suit. In Hanson, the Supreme Court reasoned that a reasonable person in plaintiff's situation-after receiving the defendantdoctor's explanation that there was nothing more he could do and the pain was all in plaintiff's head-would have sought a second opinion and should have discovered the alleged malpractice prior to the five years that elapsed before bringing suit. Hanson, 898 A.2d at 1246, 1249-50.
This Court views Hanson as distinguishable from the facts of the instant action because in Hanson the defendant-doctor told plaintiff there was nothing to do and that the pain was in her head. However, in the instant matter, Dr. Bradley continued to treat Mr. Madison for his postoperative pain, he always had issues with his hip, and Dr. Bradley provided other explanations as to why the hip continued to cause Mr. Madison pain. See Evidentiary Hr'g Exs. 2-5. According to the postoperative reports, Mr. Madison was reassured that everything was normal and that he was progressing well. See id. Mr. Madison, at the behest of Dr. Bradley, also tried a second surgery where Dr. Bradley found no wrongdoing from the first surgery and caused Mr. Madison no improvement. See Pl.'s Mem. in Obj. Ex. 4 Madison Affidavit ¶¶ 22-23. Dr. Bradley also treated Mr. Madison with a cortisone shot and diagnosed him with IT band syndrome which was a new diagnosis unrelated to the September 2013 Surgery. See Evidentiary Hr'g Exs. 6-7. Upon having all these continued explanations, the Court cannot say that a reasonable person exercising reasonable diligence would be put on notice of a potential claim from the September 2013 Surgery. It is wholly reasonable to rely on one's own doctor who has continued to provide explanations as to why pain continues post-surgery.
With his Memorandum in Objection, Mr. Madison presented an affidavit from Dr. Cornell saying that a reasonable person would not have known about the issues until the appointment with Dr. Bradley where the bone scan showed the implant was too small. (Pl.'s Mem. in Obj., Ex. 3 Cornell Aff. ¶ 8.) It can be reasonable that a person who presents to a doctor with pain and continues to receive treatment for pain after a surgery does not know that a wrongful act has occurred during the surgery. No reasonable diligence could be had if a doctor keeps saying that another issue not related to the surgery is causing the pain. Postoperative notes show that Dr. Bradley told Mr. Madison that his issues with pain could have been stemming from problems not related to the September 2013 Surgery. See Evidentiary Hr'g Exs. 2-7.
As stated above, Dr. Cornell attested that "there was not any possible way that Mr. Madison or any reasonable patient could have known or suspected that an undersized stem was used absent the findings of the July 16, 2015 bone scan and the surgeon informing the patient of suspicion that the stem was undersized which, according to the evidence in this case, did not occur until July 27, 2015." Pl.'s Mem. in Obj., Ex. 3 Cornell Aff. ¶ 8. Defendants have not provided any evidence to rebut this statement. Defendants solely rely on Mr. Madison's testimony and argument regarding the reasonable person standard. Defendants presented no evidence regarding what a reasonable person would have done given this situation. Based on the evidence presented, the Court finds that a reasonable person would not have discovered the alleged malpractice from the September 2013 Surgery until some point after the post-bone scan discussion on July 27, 2015. Therefore, having filed his Complaint on July 12, 2018, Mr. Madison has filed the Complaint within the three-year statute of limitations, and, as such, his action regarding the September 2013 Surgery is not time-barred.
IV
Conclusion
For all the reasons above, Mr. Madison did not know malpractice had occurred and it was not reasonable that he should have known that malpractice occurred on the day of or near the September 2013 Surgery. The statute of limitations on the alleged medical malpractice stemming from the September 2013 Surgery began to run after the July 16, 2015 bone scan indicating that there was loosening of the femoral stem. Plaintiff filed his Complaint on July 12, 2018, within the three-year statute of limitations as provided under Rhode Island law. Therefore, this Court DENIES Defendants' Partial Motion for Summary Judgment.
Counsel shall submit an appropriate order.