Opinion
C. A. WC-2019-0056
06-22-2020
MICHELLE PICKERING, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF FRED PICKERING v. DR. ROBERT MARCHAND, MD (ALIAS); SOUTH COUNTY HOSPITAL (ALIAS);ORTHO RHODE ISLAND (ALIAS); SOUTH COUNTY HOME HEALTH (ALIAS);SOUTH COUNTY HEALTH ORTHOPEDIC CENTER (ALIAS); JOHN DOE (ALIAS); JANE DOE (ALIAS)
For Plaintiff: Edward P. Manning, Jr., Esq. For Defendant: Jeffrey G. Latham, Esq.; William F. White, Esq.; Christine A. Stowell, Esq.
For Plaintiff: Edward P. Manning, Jr., Esq.
For Defendant: Jeffrey G. Latham, Esq.; William F. White, Esq.; Christine A. Stowell, Esq.
DECISION
TAFT-CARTER, J.
Before this Court for decision is Michelle Pickering's (Plaintiff) Motion for Second Amended Complaint; Robert Marchand, M.D. (Dr. Marchand) and Ortho Rhode Island's (collectively, Defendants) Motion to Dismiss; and South County Hospital, South County Home Health, and South County Health Orthopedic Center's (collectively, South County Defendants) Motion for Summary Judgment. Jurisdiction is pursuant to Super. R. Civ. P. 12(b)(6), 15(a), and 56.
I
Facts and Travel
This is a medical malpractice action arising from a surgery performed by Dr. Marchand on Fred Pickering (Mr. Pickering) on January 28, 2015. Am. Compl. ¶ 13. Plaintiff is the surviving spouse of Mr. Pickering and brings this action on behalf of herself and her late husband's estate. Id. ¶ 1.
On January 28, 2015, Dr. Marchand performed surgery on Mr. Pickering's right hip. Id. ¶ 13. The surgery was performed at South County Hospital. Id. Toradol was administered to Mr. Pickering during the surgery as part of the anesthesia package. Id. ¶ 16. Following the surgery, Mr. Pickering suffered renal insufficiency. Id. ¶ 17.
On February 12, 2015, Dr. Marchand performed a right hip incision and drainage on Mr. Pickering due to complications caused by the Toradol. Id. ¶ 18. Mr. Pickering was admitted to Newport Hospital with MRSA and Sepsis on February 13, 2015. Id. ¶ 19. It is alleged that the MRSA and Sepsis arose from the February 12, 2015 procedure. Id.
A year later, on February 4, 2016, Mr. Pickering underwent an additional surgery to his right hip. Id. ¶ 20. Mr. Pickering died on September 8, 2017. Id. ¶ 11.
On February 3, 2019, Plaintiff filed the original Complaint in this action. In the Complaint, Plaintiff alleged three causes of action: negligence, medical battery, and breach of contract. On June 14 and June 19, 2019, all named Defendants responded to the Complaint with motions for more definite statement. Thereafter, on November 15, 2019, Plaintiff filed a Motion to Amend the Complaint which was granted by rule of court on February 5, 2020.
On January 6, 2020, the South County Defendants filed a Motion for Summary Judgment and on January 7, 2020, Dr. Marchand and Ortho Rhode Island filed a Motion to Dismiss. A hearing was scheduled for April 20, 2020. Due to the COVID crisis, it was continued.
After these motions were filed, Plaintiff filed a Motion for a Second Amended Complaint seeking to add a wrongful death claim against all named Defendants, as well as additional allegations regarding the discovery of the act(s) giving rise to the medical malpractice claims.
On June 1, 2020, Plaintiff objected to all named Defendants' dispositive motions. All named Defendants filed reply memoranda on June 2, 2020. Also on June 2, 2020, Defendants filed memoranda objecting to Plaintiff's Motion for Second Amended Complaint.
The parties appeared before this Court via WebEx for a remote hearing on June 8, 2020. The Court heard the parties' arguments with respect to Plaintiff's Motion to Amend the First Amended Complaint followed by their arguments regarding the Motion to Dismiss and Motion for Summary Judgment. The Court now renders its decision.
II
Discussion
Plaintiff's proposed Second Amended Complaint differs from the First Amended Complaint in two respects. Pl.'s Mem. Supp. Mot. Sec. Am. Compl. at 2. First, it pleads the discovery of the acts giving rise to the medical malpractice claims with more specificity. Id. Second, it adds a claim for wrongful death. Id. Plaintiff urges this Court to grant its Motion for Second Amended Complaint and permit these amendments for several reasons.
Plaintiff argues that the amendments regarding the discovery rule should be permitted because all named Defendants have been on notice that Plaintiff intended to invoke the discovery rule since Plaintiff filed the original Complaint. Id. at 6. Plaintiff also argues that this amendment should be permitted because the Court has yet to rule on all named Defendants' dispositive motions, and the proposed Second Amended Complaint contains the factual underpinnings that more specifically put all named Defendants on notice regarding Plaintiff's intent to invoke the discovery rule. Id. at 5-6. As for the amendment pertaining to the wrongful death claim, Plaintiff argues that the amendment should be allowed because the claim is still within the statute of limitations provided in G.L. 1956 § 10-7-2. Id. at 4. Lastly, Plaintiff argues that the proposed Second Amended Complaint should be allowed because the named Defendants have not demonstrated any grounds of undue prejudice. Id. at 4, 7.
All named Defendants object to Plaintiff's Motion for Second Amended Complaint. Dr. Marchand and Ortho Rhode Island argue that the motion should be denied for undue delay, an absence of new evidence, and undue prejudice. As for undue delay, they argue that Plaintiff has not provided an explanation as to why the proposed Second Amended Complaint should be allowed now considering the fact that she was previously allowed leave to amend. Defs.' Mem. Obj. Mot. Sec. Am. Compl. at 1. Specifically, they submit that Plaintiff "does not have a good explanation for taking . . . over fifteen (15) months to attempt to fix a complaint that was outside of the three (3) year statute of limitations. . ." Id. at 3. Furthermore, they argue that Plaintiff should have realized at the time she filed the original Complaint and the Amended Complaint that the statute of limitations had run, and she had ample time from the time all named Defendants filed their Motion for More Definite Statement and the filing of the Amended Complaint to plead the discovery rule. As for the wrongful death claim, Dr. Marchand and Ortho Rhode Island object to the amendment because Plaintiff knew at the time of filing the original Complaint and the Amended Complaint that Mr. Pickering had died on September 8, 2017. Id. at 5. Thus, they argue, there is no justification for allowing amendment to add that claim now. Id. Lastly, Dr. Marchand and Ortho Rhode Island argue that they have suffered undue prejudice because they received notice of the instant action over one year after the statute of limitations had expired. Id. at 3-4.
The South County Defendants put forth numerous arguments in support of their objection to Plaintiff's Motion for Second Amended Complaint. They argue that the amendments should not be permitted because of undue delay, lack of compelling justification, res judicata, and dilatory motive. Defs.' Mem. Obj. Mot. Sec. Am. Compl. at 1. They argue that the motion is unduly delayed because Plaintiff filed the motion fifteen months after filing the original Complaint and six months after filing the Amended Complaint. Id. at 4. Moreover, according to the South County Defendants, Plaintiff does not explain why she amends to plead the discovery rule now when she had the opportunity to do so when she filed the original Complaint and the Amended Complaint. Id. at 6. They further object to Plaintiff's motion to amend to include the wrongful death claim because Plaintiff knew Mr. Pickering's date of death at the time she filed the original Complaint and the Amended Complaint, and Plaintiff does not offer a justification for proposing the amendment at this time. Id. at 5.
The South County Defendants further argue that Plaintiff's proposed Second Amended Complaint should be barred by res judicata. They submit that their dispositive motion was filed before Plaintiff filed the Motion for Second Amended Complaint and had the Court heard the motion for summary judgment on April 20, 2020, the Court would have granted it and Plaintiff's new claim for wrongful death would be barred because the claim arises from the same transaction or series of transactions as the medical malpractice claims. Id. at 9-10. Lastly, the South County Defendants argue that Plaintiff's counsel had dilatory motives and therefore the Motion for Second Amended Complaint should be denied. Id. at 9. To that point, they argue that Plaintiff's counsel misrepresented that it was necessary to continue the April 20, 2020 hearing because he could not participate in the hearing remotely. Id. However, according to the South County Defendants, Plaintiff's counsel requested the continuance to buy time to amend the complaint to save the case. Id.
Rule 15(a) of the Rhode Island Superior Court Rules of Civil Procedure (Rule 15(a)) pertaining to amendments to pleadings provides that:
"A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend the pleading at any time within twenty (20) days after the pleading is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Rule 15(a).
"The Rhode Island Supreme Court has made it clear that liberality in the allowance of amendments to pleadings is the order of the day." Robert B. Kent, Rhode Island Civil and Appellate Procedure, § 15:1 (2020). Moreover, Rule 15(a)
"declares that leave to amend shall be freely given when justice so requires; this mandate is to be heeded . . . If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962) (internal citation omitted).
Thus, the rule "'liberally permits amendment absent a showing of extreme prejudice.'" Kent, supra at § 15:1 (quoting Wachsberger v. Pepper, 583 A.2d 77, 78 (R.I. 1990); see also id. at § 15:3 ("Denial of leave to amend is warranted in the face of extreme prejudice to the opposing party or if the amendment would be futile.")).
The trial court justice is empowered to exercise his or her sound discretion in rendering a decision to grant or deny a motion to amend. However, "[the trial court justice] routinely should allow a party to amend his or her pleading." Barrette v. Yakavonis, 966 A.2d 1231, 1236 (R.I. 2009). Moreover, the trial court justice must state his or her reasons for refusal to grant leave to amend. See Kent, supra at §15:3.
This Court must address Plaintiff's Motion for Second Amended Complaint before all named Defendants' dispositive motions. See Medeiros v. Cornwall, 911 A.2d 251, 253 (R.I. 2006) (holding that trial court justice committed error by not considering motion to amend complaint before deciding motion for judgment on the pleadings). Amendments to pleadings are routinely allowed, and this Court must liberally apply Rule 15(a). See Kent, supra at § 15:1. The Rhode Island Supreme Court has "held on several occasions that 'amendments to pleadings are to be allowed with great liberality absent a showing of extreme prejudice. . ." Lomastro v. Iacovelli, 56 A.3d 92, 95 (R.I. 2012) (quoting Kuczer v. City of Woonsocket, 472 A.2d 300, 301 (R.I. 1984)). The burden of demonstrating extreme prejudice is borne by the party opposing amendment. Lomastro, 56 A.3d at 95. Furthermore, although a showing of undue delay is a basis upon which this Court may deny a motion to amend, such delay must create substantial prejudice to the opposing party. Id. at 96; see also Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15, 19 (1st Cir. 1979). Additionally, a prior opportunity to amend is a factor to consider when examining a motion to amend "but that circumstance does not have a talismanic significance." Nikitine v. Wilmington Trust Co., 715 F.3d 388, 390 (1st Cir. 2013) (citation omitted).
Here, the named Defendants have failed to demonstrate any prejudicial effect in allowing the amendment. Furthermore, the Plaintiff "ought to be afforded an opportunity to test [her] claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). This is not a case where Plaintiff has waited years to amend her Complaint or has engaged in questionable tactics to amend. See Nikitine, 715 F.3d at 391. Moreover, the South County Defendants' argument that Plaintiff's Amended Complaint is barred by res judicata is speculative and erroneous. This Court therefore concludes that the Motion for a Second Amended Complaint is granted.
This Court's ruling allowing the Second Amended Complaint now renders Dr. Marchand and Ortho Rhode Island's Motion to Dismiss and the South County Defendants' Motion for Summary Judgment moot. See Medeiros, 911 A.2d at 254 (citing Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002)).
III
Conclusion
This Court grants Plaintiff's Motion for Second Amended Complaint. The Motion to Dismiss filed by Dr. Marchand and Ortho Rhode Island is denied. The Motion for Summary Judgment filed by the South County Defendants is denied.