Paul ODEN et al. v. Carl SCHWARTZ, M.D.
No. 2011-167-Appeal.
Supreme Court of Rhode Island.
May 16, 2013.
71 A.3d 438
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
I
Facts 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
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.
A
Summary 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.
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
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 concerned about” because “[p]eople can live for many years with mild A.I. before they get symptomatic or have problems.” In response, Dr. Schwartz followed Dr. Singh‘s orders by “continu[ing] to take care of [Oden] and get [him] out of the operating room alive.” Without Dr. Singh‘s order for “more information,” Dr. Schwartz testified that he was not required to do anything more than advise Dr. Singh of any findings from the echocardiogram.
As stated above, Oden also called Dr. Pett, an expert in heart surgery, to testify regarding whether Dr. Singh and Dr. Schwartz deviated from the applicable standard of care in performing Oden‘s mitral valve replacement surgery in January 2004 and the consequences therefrom. Consistent with Dr. Singh‘s testimony, his review confirmed that, when Dr. Singh had stitched the newly-replaced mitral valve during surgery, he “went outside the field of where [the stitches] should have been.” In so doing, Dr. Singh negligently bound the adjacent aortic valve (located approximately two to four millimeters from the mitral valve). Because the medical record characterized the surgery as “being without incident,” Dr. Pett concluded that both doctors directly contravened the standard of care, which “absolutely required [them] to give a comprehensive accurate documentation” of any complications that arose during the surgery.
As had Dr. Singh, Dr. Pett testified that, following the replacement of the mitral valve, the surgeon depends upon the echocardiographer to evaluate the surgery, and, among other things, to “make sure that the valves are opening and closing okay.” According to Dr. Pett, the standard of care dictates that, during this evaluation, the echocardiographer must “always check the aortic valve” and inform the surgeon of any problems. If the aortic valve has been bound down or injured by an errant suture, the standard of care requires that the surgeon “fully evaluate[]
Doctor Pett further testified that, if Dr. Schwartz, in fulfilling his duty to evaluate Oden‘s heart during surgery, had informed Dr. Singh about the injured aortic valve, the standard of care would have required Dr. Singh to place him back on bypass to perform an inspection to determine the best course of action. According to Dr. Pett, as a result of the failure to diagnose and fix the injured aortic valve during the January 2004 surgery, Oden had to undergo a second open-heart surgery in August 2004 to replace his aortic valve. Indeed, he testified that “[i]f [the damage to Oden‘s aortic] valve had been addressed at the first surgery *** the second surgery wouldn‘t have been done.” He stated that the close proximity in time between the two surgeries (less than seven months) was “not optimal” because, at the time of the second surgery, Oden‘s tissues would still have been “quite swollen [and] fragile.” Consequently, this caused a situation where “getting the anatomy out [in the second surgery] [was] dangerous.” He further testified that shortly after the completion of the second surgery while still in recovery, Oden suffered a cardiac arrest, which required him “to be cardioverted or shocked back into a viable rhythm.”
Doctor Pett testified that Oden‘s risk of death had increased as a result of having received two artificial valves (the mitral and the aortic). Each valve has an approximate life of ten to fifteen years.11 Oden was forty-nine years old at the time of his surgeries; thus, he will eventually need to undergo additional surgery to replace both of them when he is between sixty and sixty-five years old.
Oden also called Dr. Pearlman, an expert in echocardiography, to testify. His testimony centered on the standard of care for echocardiographers during a mitral valve replacement surgery. He ultimately concluded that “Dr. Schwartz *** deviate[d] from th[at] standard of care in several regards.” Additionally, he testified that the aortic valve replacement surgery in August 2004 increased Oden‘s risk of blood clots, stroke, infections in the heart, and death.
He stated that, before a mitral valve replacement surgery, the echocardiographer must do a “completed study which takes stock of the function of the heart and the valves and gets detailed views on each valve *** to establish the baseline condition of the patient prior to [the mitral valve replacement].” After the mitral valve replacement, but before the surgery is complete, the echocardiographer must “make sure that [the replacement] was done reasonably well; that it was effective, and also *** rule out harm from the procedure.” In so doing, the echocardiographer “look[s] at the function of the heart, look[s] at the function of the replaced valve, and also look[s] at the nearby structures, including the aortic valve.” According to Dr. Pearlman, the echocardiographer also has a responsibility to communicate to the surgeon any changes he observes.
Consistent with the testimony of Dr. Pett, Dr. Pearlman testified that Dr. Schwartz deviated from the standard of care by failing to document the A.I. in Oden‘s medical record. Further, Dr. Pearlman took issue with Dr. Schwartz‘s
Doctor Lerner, the director of the cardiac anesthesia division at Beth Israel Deaconess Medical Center in Boston, testified for Dr. Schwartz. He testified that Dr. Schwartz met the standard of care required of an echocardiographer in conducting the test, in which he determined that there was A.I. He further testified that Dr. Schwartz met the standard of care by advising Dr. Singh of the A.I.; however, he stated that Dr. Schwartz fell short of the standard of care in failing to document the A.I. in the medical record. On cross-examination, he acknowledged that his opinion that Dr. Schwartz had followed the standard of care was based on Dr. Schwartz‘s deposition testimony, in which he stated that he had told Dr. Singh about the A.I. at the time of Oden‘s surgery.
Oden‘s testimony primarily centered on his claimed damages. The record reveals that he had some difficulty speaking due to a stroke he had suffered in March 2006. Because of this, the trial justice instructed the jury “that there‘s no claim *** over th[at] stroke ***” Oden confirmed that he was “not able to get on with his life” after the January 2004 surgery because, in its wake, he soon learned that he had to gear up for a second open-heart surgery. While still in recovery after the second surgery, he testified that he suffered a cardiac arrest, in which his “heart stopped.” At that point, a nurse used an “electronic shocker” to revive him. He recalled that this was “the wors[t] pain [he] ever felt.” He testified that he had experienced pain since the second surgery, including pain in his chest. Knowing that he will soon have to endure a third surgery “makes [him] sad” and affects his mood. He further testified that the risks associated with that looming surgery cross his mind often.
On cross-examination, Oden acknowledged that, after his second surgery, he told his cardiologist that he felt well, although he had some chest wall discomfort. Oden further acknowledged that, in December 2005, approximately sixteen months after the second surgery, his cardiologist had reported that he felt “excellent“—“[a]lmost too good.” Oden further testified that he continues to indulge in a “little bit of drinking” but that he does not get drunk. He acknowledged that before these surgeries he would sometimes drink “six beers” in a day, and that the next day “it could be two beers” or “three beers.” He further acknowledged that he continued to smoke cigarettes occasionally, although he “[didn‘t] really know” the quantity he smoked.
B
Jury Charge and Jury Verdict
At the conclusion of the testimony, the trial justice held a charging conference with counsel. At that conference, she addressed, among other things, whether she would issue a charge on intervening and superseding cause. After hearing arguments from counsel, she stated that she was “pretty sure” she would not do so.
“I want to speak about one other thing, and I find it‘s best to directly speak about this, to discuss it openly. My experience is that jurors are often tempted to speculate about things such as medical insurance or other types of insurance or benefits. Jurors also wonder about the attorneys[‘] fees, who pays them, how much they will be. Jurors also wonder about what might happen to a physician‘s insurance premiums. I am specifically instructing you that you must not consider any of these things in deciding the case or determining what amount, if any, you will award for damages. If you were to speculate about insurance[] or attorneys[‘] fees, how much they might be or who will pay them, then you would be speculating about things that are not part of the evidence, things that the law says you must not consider and things about which you could only be guessing. If you were to try to consider, compensate for, or adjust for any of these things, you would be ignoring your duties as jurors. Worse, you could very likely cause a result or outcome that you don‘t intend. The law and the [c]ourt have rules that govern these matters. They are not matters for jurors.”
Also, as she had previously indicated to counsel, she did not instruct the jury on intervening and superseding cause.
Immediately following the trial justice‘s charge to the jury, Dr. Schwartz objected to her failure to instruct on intervening and superseding cause, as well as the instruction on insurance. With respect to the insurance charge, he averred that “black letter law” dictates that interjecting the issue of “insured risk” into the case is forbidden. In response, the trial justice stated that she “always give[s] a cautionary instruction on insurances, insurance premiums, benefits, things like that.” Because there was “so much media coverage” on this subject, she deemed it “important to tell jurors that they mustn‘t consider” insurance as a factor in deciding the merits of the case. The trial justice reasoned: “It‘s a fact of life that everyone has insurance;” accordingly, she concluded that she had not “raised anything that the[] jurors don‘t know about.”
Before the jury retired to deliberate, Dr. Schwartz moved for judgment as a matter of law under
C
Posttrial Motions
After the verdict was announced, the trial justice conducted a hearing on Dr. Schwartz‘s
The trial justice denied both of Dr. Schwartz‘s
Next, the trial justice reviewed the testimony provided by Dr. Pearlman, whom she also considered to be credible. She found that his testimony was consistent with that of Dr. Pett, in which he stated that Dr. Schwartz did not properly investigate and document the A.I.
With respect to Dr. Singh, the trial justice found him “generally” not credible, and “not at all credible” when, on cross-examination, he suddenly recalled the details of a conversation he had with Dr. Schwartz in the operating room, in which he testified that he had learned of “some aortic insufficiency.” Further, the trial justice remarked, Dr. Singh‘s “motive to fabricate was obvious” and his “physical demeanor while on the witness stand only further impaired his credibility.”
Doctor Schwartz, the trial justice determined, “wasn‘t any more credible than Dr. Singh.” Indeed, she found his explanation about his failure to document the A.I. in the medical record, while otherwise discussing it with Dr. Singh, to be “quite lame.” Further, the trial justice found
The trial justice found Oden to be “credible enough,” since “[t]he medical records and common sense backed him up” when he testified about his pain, discomfort, anxiety, and sadness. She further found Linda Oden‘s testimony to be “quite credible,” stating that her testimony corroborated that provided by Oden.
Lastly, she examined Dr. Lerner‘s testimony. It appears that she did not make a specific finding on his credibility. She determined, though, that Dr. Lerner simply “assumed Dr. Schwartz was telling the truth” about reporting the A.I. to Dr. Singh.
The trial justice also ruled on Dr. Schwartz‘s objection to her failure to instruct the jury on intervening and superseding cause. In explaining her decision not to instruct the jury on this theory, the trial justice stated that “[Dr.] Singh‘s negligence could hardly be said to be independent such that it cut off Dr. Schwartz‘s antecedent negligence and took over as the sole proximate cause of the harm done, thus rendering [Dr.] Schwartz‘s negligence totally inoperative.” Further, the two doctors’ roles, she explained, were “inextricably intertwined” because they operated as part of a surgical team. As such, Dr. Singh‘s second act of negligence (failing to follow up with Dr. Schwartz concerning the A.I.) “was hardly independent of [Dr.] Schwartz‘s antecedent negligence” (failing to discover and investigate the A.I.).
The trial justice also concluded that she was “correct in cautioning the jury about insurance[] and attorneys[‘] fees.” “The average citizen is aware,” she explained, “that many patients have health or some other kind of insurance, *** that litigants have to pay legal fees, *** [and] that professionals, including physicians, are required to pay for liability insurance.” Moreover, since this instruction took only about thirty seconds of an over two-hour-long final instruction, she concluded that the charge concerning insurance and attorneys’ fees “hardly prejudiced [the] jury.”
She further determined that the “verdict does not shock the conscience.” In support of this finding, she maintained that, as a result of the two doctors’ negligence, Oden‘s life expectancy had been reduced and he “lost an important body part.” Moreover, she stated, his pain and suffering was “significant” and the “mental suffering attendant to knowing what he faces in the future as well as the knowledge of his reduced life expectancy would have to be substantial.”
Addressing Dr. Schwartz‘s constitutional challenge to the statutory prejudgment interest rate, she rejected his contention that the right to a jury trial triggers strict scrutiny; rather, she reasoned, the correct test to be applied was the rational basis test. Since awarding prejudgment interest promotes settlement and compensates plaintiffs for the loss of their money while cases are pending, she concluded that the statute passed constitutional muster under a rational basis analysis. Furthermore, she stated that having a uniform prejudgment interest rate “ensures certainty in the calculation of final judgments.”
Lastly, the trial justice explained that she did not err in permitting the jury to consider testimony concerning Oden‘s cardiac arrest following his second surgery. She stated that “[t]here was evidence that the second surgery was causally connected to Dr. Schwartz‘s negligence and that Mr. Oden‘s heart stoppage was merely a complication of that surgery.” She further concluded that Dr. Schwartz was not prej-
Ultimately, the trial justice concluded that “reasonable minds could have reached differing results with this evidence;” accordingly, she denied Dr. Schwartz‘s
II
Issues on Appeal
Doctor Schwartz raises a number of issues in support of his appeal. First, he contends that the trial justice erred in refusing to instruct the jury on the issue of intervening and superseding cause. Second, he argues that the trial justice erred by admitting evidence of Oden‘s cardiac arrest immediately following his second surgery. Third, he maintains that the trial justice ignored relevant and material evidence on the issue of damages. Fourth, he avers that the trial justice committed an error of law by instructing the jury on the issue of liability insurance. Lastly, he asserts that
III
Discussion
A
Instruction on Intervening and Superseding Cause
Doctor Schwartz first claims that the trial justice erred in refusing to instruct the jury on the issue of intervening and superseding cause. Doctor Schwartz argues that, even if he did not obtain sufficiently detailed views of the aortic valve in the echocardiogram, this negligence was trumped by Dr. Singh‘s failure to sufficiently evaluate the aortic valve at the time Dr. Schwartz alerted him to the A.I. Thus, Dr. Singh‘s negligence constitutes an independent intervening force sufficient to break the causal connection between Dr. Schwartz‘s antecedent negligence and the harm to Oden.
When this Court is called upon to review “issues pertaining to jury instructions, we do so de novo,” State v. Vargas, 991 A.2d 1056, 1060 (R.I. 2010). We emphasize that intervening and superseding cause is an affirmative defense. Estate of Fontes v. Salomone, 824 A.2d 433, 438 (R.I. 2003). Thus, Dr. Schwartz had the burden of proof to introduce sufficient evidence to form the basis for this instruction. See id. Our independent review of the record shows that he failed to do so.
“Intervening cause exists when an independent and unforeseeable intervening or secondary act of negligence occurs, after the alleged tortfeasor‘s negligence, and that secondary act becomes the
Although the trial justice allowed Dr. Schwartz to amend his answer on the first day of trial to assert an affirmative defense of intervening and superseding cause, the trial justice ultimately decided that she would not instruct the jury regarding this defense. We do not disagree with her decision in that regard because based on the facts of this case it would have been improper to so instruct the jury. In her decision denying Dr. Schwartz‘s motion for a new trial on this issue, she stated:
“[T]hese physicians were part of a surgical team whose duties and functions are intertwined[.] *** [E]ach owed an independent duty to [this] patient[.] *** There are plenty of things that can go wrong with something as complex as heart surgery. *** That one team member failed to perform as required shouldn‘t relieve the other team member of his duties. These physicians’ duties ran parallel. *** Even assuming [Dr.] Singh was negligent in not asking for more information, *** [Dr.] Singh‘s negligence could hardly be said to be independent such that it cut off Dr. Schwartz‘s antecedent negligence ***”
She further reasoned that, “if [Dr.] Schwartz was not required to anticipate [Dr.] Singh‘s negligence, [then] [Dr.] Singh was not required to anticipate [Dr.] Schwartz‘s negligent failure to perform the requisite studies and to alert him to any problems.” She continued, “[i]f anything, this is a situation in which one physician‘s duty includes guarding against the mistakes of another, even if those mistakes may be the result of negligence.” Since both Dr. Schwartz and Dr. Singh were operating as part of a surgical team, their “roles and responsibilities were inextricably intertwined.” As such, “to attempt to reduce an open heart surgery and the roles of the [doctors] to a question of who performed the last act *** makes no sense.” We agree.
An instruction on intervening and superseding cause is not proper in every case where there is harm caused by two negligent tortfeasors. It is the duty of the trial justice to decide, as a matter of law, whether the alleged negligence of the second tortfeasor was independent of the first tortfeasor. Thus, a jury instruction on intervening and superseding cause should only be given where the trial justice makes such a finding. Only if the trial justice determines that the negligence of the second tortfeasor (in this case, Dr. Singh) was independent of that of the first (in this case, Dr. Schwartz) must the jury be instructed to decide whether that independent negligence was foreseeable to the first tortfeasor. Based on our review of the record, we cannot say that the trial justice erred in this regard. Accordingly,
B
Admission of Testimony Pertaining to Oden‘s Post-Operative Cardiac Arrest
Doctor Schwartz next avers that the trial justice erred in allowing testimony pertaining to Oden‘s cardiac arrest following his second open-heart surgery. In support of this contention, he asserts that “there was no testimony from any witness competent to opine that Mr. Oden‘s post-operative cardiac arrest in August of 2004 had anything whatsoever to do with *** any act or omission on the part of Dr. Schwartz in connection with the surgery in January of 2004 ***.” Moreover, he further asserts that “the record [wa]s entirely devoid of any basis” for Oden‘s testimony that, as a result of the cardiac arrest, he experienced the “worst pain” of his life. Doctor Schwartz maintains that the cardiac arrest was nothing more than a consequence of Oden‘s “established longstanding nicotine and alcohol abuse.”
Refuting those contentions, Oden maintains that there was, in fact, expert testimony on this point. In support of this assertion, Oden cites Dr. Pett‘s testimony, in which he stated that “shortly after the completion of the [second] surgery, Mr. Oden arrested and needed to be cardioverted or shocked back into a viable rhythm. *** if his [aortic] valve had been addressed at the first surgery, *** the second surgery wouldn‘t have been done. *** [And he would have avoided] the [cardiac] arrest.”
We discern no error with respect to the trial justice‘s allowance of testimony regarding the post-operative cardiac arrest. Doctor Pett testified that there was a nexus between the cardiac arrest and the negligence of Dr. Schwartz in connection with the January 2004 surgery. We therefore conclude that there was enough evidence to suggest that a causal relationship existed between the cardiac arrest and Dr. Schwartz‘s negligence at the first surgery, such that the admission of testimony concerning the cardiac arrest was proper. See Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006). Moreover, we find Dr. Schwartz‘s argument that the cardiac arrest was a consequence of Oden‘s consumption of alcohol and nicotine to be unavailing. We agree with the trial justice that “there‘s absolutely no evidence to suggest that [his post-operative cardiac arrest] was caused by something independent of the *** second surgery itself.” In any event, Dr. Schwartz was able to make that argument to the jury, and the jury weighed that evidence accordingly. We are satisfied that the testimony concerning the cardiac arrest was proper.
C
Denial of Defendant‘s Request as to the Damage Award
Doctor Schwartz also ascribes error to the trial justice‘s denial of his request for a remittitur and his motion to vacate, alter, or amend the damage award, asserting that the jury verdict “fails to respond truly to the merits of the controversy, fails to administer substantial justice, and is against the fair weight of the evidence.” Doctor Schwartz contends that the jury verdict did not accurately respond to Oden‘s showing, or lack thereof, of any pain and suffering. As such, Dr. Schwartz asserts that the trial justice “overlooked the simple fact that, although Mr. Oden ‘faces additional high risk surgery,’ he would have [had] to face this surgery even if Dr. Singh had not sutured his aortic valve in January of 2004.” Since the ap-
Doctor Schwartz also contends that, “[e]ven if the [first] surgery *** had gone perfectly, Mr. Oden would still have suffered pain and suffering in his recovery from that surgery.” Thus, he asserts that the jury wrongly compensated Oden for his recovery from the January 2004 surgery. Moreover, Dr. Schwartz relies on Oden‘s medical records, which indicate that, after the first surgery, Oden “[d]enie[d] chest pain, shortness of breath ***. There have been no palpitations, lightheadedness, [or] dizziness ***.” Further, Dr. Schwartz points out that nothing in the medical records provided by his cardiologist indicates that Oden had expressed “any concern about the [im]pending surgery” after learning of the A.I. resulting from the initial surgery. Moreover, Dr. Schwartz underscores the fact that Oden‘s medical records after his August 2004 surgery note that Oden “is feeling great,” “feeling strong and back to his normal health,” and that he feels “almost too good.” These facts, he contends, belie Oden‘s claim for any pain or suffering damages.
Lastly, Dr. Schwartz avers that the jury‘s verdict was “based on sympathy and improperly reflects [Oden‘s] condition resulting from his stroke.” Although Oden never claimed that the stroke was related to either surgery, Dr. Schwartz asserts that the jury‘s verdict was wrought by misplaced sympathy. Oden appeared “frail and weak” on the witness stand, had difficulty speaking, and also had difficulty remembering events. Doctor Schwartz thus contends that the jury was overcome with sympathy for Oden, and, as a result, felt compelled to award him damages for his stroke, “which was not causally related to the alleged negligence in this case.”
“A trial justice may disregard an award of damages and grant a new trial *** ‘only if [that] award shocks the conscience or indicates that the jury was influenced by passion or prejudice or if the award demonstrates that the jury proceeded from a clearly erroneous basis in assessing the fair amount of compensation to which a party is entitled.‘” Murray v. Bromley, 945 A.2d 330, 333-34 (R.I. 2008) (quoting English v. Green, 787 A.2d 1146, 1150 (R.I. 2001)). Our review of a trial justice‘s decision to uphold the jury‘s damage award is the same as our review of a trial justice‘s decision on a motion for a new trial—that is, unless the trial justice overlooked or misconceived material evidence or was otherwise clearly wrong, we will leave the decision undisturbed. See Bonn v. Pepin, 11 A.3d 76, 78 (R.I. 2011) and Lennon v. Dacomed Corp., 901 A.2d 582, 590 (R.I. 2006) (examining whether a trial justice “overlook[ed] or misconceive[d] relevant evidence” in his decision to grant a remittitur).
We find Dr. Schwartz‘s criticism of the trial justice‘s failure to order a remittitur or a new trial to be meritless. In her decision denying these motions, the trial justice aptly performed her role in assessing the credibility of witnesses, weighing the evidence, and evaluating the propriety of the damage award. After first determining that the evidence was sufficient to establish Dr. Schwartz‘s negligence, she concluded that the damages award was satisfactory and that the “verdict does not shock the conscience.”
She credited Dr. Pett‘s testimony, in which he stated that Oden now faces a higher risk of complications and death in his third surgery because both of his
We acknowledge that there was conflicting evidence as to Oden‘s pain and suffering—the medical records indicated that he “felt well,” whereas Oden testified on direct examination regarding his pain, suffering, and mental anguish. While defense counsel capably confronted Oden with this seemingly incongruous evidence, the jury was ultimately charged with weighing it.
Furthermore, we cannot disagree with the trial justice‘s finding that Oden‘s stroke did not prejudice the jury. At the outset, we note that Oden never claimed that the stroke was in any way related to the valve replacement surgeries, nor did counsel advocate any such argument to the jury. As the trial justice indicated, “[t]here was evidence that he had recovered well from his surgeries.” As such, “[t]here is no reason to think that the jury did not consider this countervailing evidence.” Additionally, the fact that the jury rejected Linda Oden‘s loss of consortium claim further demonstrates that it was not unduly affected by sympathy for plaintiffs. Accordingly, we are satisfied that the trial justice correctly denied Dr. Schwartz‘s motion to vacate, alter, or amend the damage award.
D
Insurance Instruction
Doctor Schwartz next assails the trial justice‘s sua sponte instruction to the jury regarding insurance.16 He asserts that this instruction was an error of law in direct contravention of Rule 411 of the Rhode Island Rules of Evidence. We repeat that, when this Court is called upon to review “issues pertaining to jury instructions, we do so de novo.” Vargas, 991 A.2d at 1060. In so doing, “we examine the challenged portion in the context in which it was delivered to ascertain how a jury composed of ordinary, intelligent lay people would have understood the instructions.” State v. Sivo, 809 A.2d 481, 488 (R.I. 2002). In conducting this review, we first turn to the text and scope of Rule 411.
In pertinent part, Rule 411 states: “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully.” However, such evidence may be allowed “when offered for another purpose, such as proof of agency, ownership, or control, bias or prejudice of a witness, or when the court determines that in the interests of justice evidence of insurance or lack of insurance should be permitted.”
Although a trial justice‘s instructions are not “evidence,” we review her instruction on insurance under Rule 411 to determine whether it violated the spirit of the rule. It is well settled that the purpose of Rule 411 is “to discourage inquiry into a defendant‘s indemnity in a manner calculated to influence the jury. It is applicable only where, in all the circumstances, it cannot be reasonably con-
Here, the reference to insurance did not come about—as often happens—from counsel or from any of the testifying witnesses. Rather, in this case, the reference to insurance came directly from the trial justice during her closing instructions to the jury.
We are satisfied that the trial justice‘s insurance instruction was proper. Although neither party introduced evidence regarding insurance, the trial justice, who had a front-row seat to the trial proceedings, was not oblivious to the fact that the overall concept of liability insurance may have pervaded the minds of the jurors in this case. While Dr. Schwartz characterizes the trial justice‘s determination that the jurors were aware of insurance coverage as “speculative,” we would be hard-pressed to agree. The concept of liability insurance is a wholly familiar concept—from mandatory motor vehicle insurance coverage to the vigorous nationwide debate concerning medical insurance and medical liability, it can hardly be said that jurors are not thinking about liability coverage in one sense or another. Indeed, the Advisory Committee‘s Note to Rule 411 declares that “[t]he Rhode Island approach tempers the rule excluding evidence of liability insurance with a realistic view of contemporary society that recognizes the ubiquitous presence of insurance.”
Here, the trial justice‘s instruction simply addressed the reality that jurors often wonder about liability coverage, especially in instances where there is typically an insured risk, such as medical malpractice. The trial justice‘s instruction did nothing more than prohibit the jury from speculating about insurance coverage in its deliberations on the merits of the case—a prohibition that directly squares with the spirit of Rule 411. While the trial justice might more appropriately have refrained from using the phrase “a physician‘s insurance premiums” in her instruction, we cannot say that the use of this phrase so pervaded the minds of the jurors that they were rendered incapable of arriving at a fair and impartial verdict. Indeed, the instruction expressly told the jurors to completely ignore any assumptions or implications concerning insurance coverage—and it is well settled that “the members of the jury are presumed to follow the trial justice‘s instructions.” See State v. Clark, 754 A.2d 73, 80 (R.I. 2000) (quoting State v. LaRoche, 683 A.2d 989, 1000 (R.I. 1996)).
Moreover, as the trial justice pointed out, this instruction comprised about thirty seconds of the approximately two-hour-long instruction given to the jury. Examining the instruction in the context in which it was delivered, we agree with her that it “hardly prejudiced [the] jury.” For these reasons, we conclude that the trial justice did not err in instructing the jury with regard to liability insurance.
E
The Constitutionality of § 9-21-10(b)
Lastly, Dr. Schwartz contends that
At the outset, we emphasize that “this Court presumes that legislative enactments are valid and constitutional.” Mackie v. State, 936 A.2d 588, 595 (R.I. 2007) (citing Mosby v. Devine, 851 A.2d 1031, 1045 (R.I. 2004)). As such, we “exercise[] the ‘greatest possible caution’ in reviewing a challenge to a statute‘s constitutionality.”
With that in mind, we review Dr. Schwartz‘s constitutional challenge to
“In *** medical malpractice actions in which a verdict is rendered or a decision made for pecuniary damages, there shall be added by the clerk of the court to the amount of damages interest at the rate of twelve percent (12%) per annum thereon from the date of written notice of the claim by the claimant or his or her representative to the medical malpractice liability insurer, or to the medical or dental health care provider or the filing of the civil action, whichever first occurs.”
We cannot accept Dr. Schwartz‘s assertion that the right to a trial by jury in a civil case is a fundamental right and therefore subject to a strict scrutiny analysis.19 Doctor Schwartz has not cited a single case in direct support of this assertion. Indeed, our independent review of this issue reveals that prejudgment interest statutes, such as the statute at issue here, do not implicate a fundamental right but rather are likened to economic legislation, which is subject to a rational basis review. See Galayda v. Lake Hospital Systems, Inc., 71 Ohio St.3d 421, 644 N.E.2d 298, 303 (1994) (agreeing with the “overwhelming weight of authority that prejudgment interest statutes are rationally related to the legitimate goals of encouraging prompt resolution of disputes, and
We therefore examine whether the statute passes constitutional muster under a rational basis standard of review. As such, the statute will be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis” for the 12 percent prejudgment interest rate in medical malpractice actions. See Federal Communications Commission v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
This Court has consistently stated that prejudgment interest “is not an element of damages but is purely statutory, peremptorily added to the [compensatory damages] award by the clerk.” Metropolitan Property & Casualty Insurance Co. v. Barry, 892 A.2d 915, 919 (R.I. 2006) (quoting Barbato v. Paul Revere Life Insurance Co., 794 A.2d 470, 472 (R.I. 2002)). Moreover, “[t]he dual purpose of prejudgment interest is to encourage early settlement of claims and to compensate an injured plaintiff for delay in receiving compensation to which he or she may be entitled.”
We therefore cannot accept Dr. Schwartz‘s contention that the statute “operates to punish [a] [d]efendant for pursuing in good faith his [or her] right to a jury trial to resolve a fairly disputed claim.” Although Dr. Schwartz takes issue with the magnitude of the prejudgment interest awarded, we cannot say that this amount is not rationally related to a legitimate state interest of promoting settlement as well as compensating an injured plaintiff for the loss of the use of money to which he or she is legally entitled. See Blue Ribbon Beef Co. v. Napolitano, 696 A.2d 1225, 1229 n. 3 (R.I. 1997).
With respect to Dr. Schwartz‘s procedural due process argument—that the ministerial process in which the clerk of the court uniformly adds such interest deprives a defendant of his or her property without an opportunity to be heard—we likewise conclude that the statute passes constitutional muster. The fact that the prejudgment interest award is uniform, not discretionary, is both an expedient and efficient use of judicial resources. Moreover, as noted above, the statute rationally serves a legitimate government interest.
We are thus satisfied that the statute is constitutional. As we have previously stated, “payment of interest [is] an appropriate subject for legislative action,” and we cannot say that, even in today‘s economy, 12 percent is not a “reasonable measure of the loss sustained through delay in payment.” See Rhode Island Turnpike & Bridge Authority v. Bethlehem Steel Corp., 446 A.2d 752, 757 (R.I. 1982) (quoting Funkhouser v. J.B. Preston Co., 290 U.S. 163, 168, 54 S.Ct. 134, 78 L.Ed. 243 (1933)).20
IV
Conclusion
For the reasons stated above, we affirm the judgment of the Superior Court, to which we remand the record in this case.