*1 all respect complaint Superior of the Court with regarding ommendations documents, . save document numbered to the board. of which we hold at least “(d) who No member board privileged. also affirm order be We investigation may participated respect to the the board with records any hearing participate subsequent discipline. Concern- medical licensure and action taken the remainder attorney-client privilege Investigations remain board. shall Information Confidentiality Health Care hearings, and all initial in- confidential a Act, quash the order and remand we hearings, hearings vestigatory full documents, record determination which the board shall remain before confiden- any, attorney-client privi- if fall within the tial.’' and, lege, inspection, an in camera where previously interpreted another We redaction of records appropriate, a failing statute as to create testimonial personally found to identifiable confi- required fact that it privilege, despite the case dential health-care information. The a agency records of state to remain “confi- Superior is remanded to the dential.” Mallette v. Children’s Friend with this proceedings not inconsistent Service, (R.I.1995). 661 A.2d opinion. legislative of a Regardless clear intent protect privacy interests of certain glean privi- “a
parties, participate. we were hesitant to FLAHERTY did not Justice lege by implication” from the statute in of our need privileges to construe
strictly. Id. interpret §
We 5-37-5.2 an identical manner. in this The mere reference stat- investiga- ute to the confidential nature tory records of board of medical licen- discipline
sure and is insufficient create N. RILEY David statutory privilege. Despite Legisla- investigative intent ture’s make these confidential, records we do not think it is STONE, M.D., et al. William interpret privilege
wise to this as a statutory through implication. According- 2004-224-Appeal. No. § ly, we does not create hold 5-37-5.2 of Rhode Island. Supreme Court statutory af- privilege.10 We therefore firm the decision of the motion June
respect hospital’s assertion of under that statute. privilege
Conclusion reasons, affirm in foregoing For the we part. Concerning part and reverse we affirm the order peer-review privilege, that, holding as we do on argues privilege. even if we assert that 10. The also issue, plaintiff's sec- privi- we need not reach were were to find these records standing ondary leged, hospital assertion. would not have *3 Providence, for Plain- Maglio, E.
David tiff. White, Providence, De- F.
William fendant. C.J., WILLIAMS,
Present: SUTTELL, GOLDBERG, FLAHERTY, ROBINSON, JJ.
OPINION GOLDBERG, for Court.
Justice Riley (plaint David N. plaintiff, iff),1 ap- Supreme Court on before Riley, M. capacity of David individually as the father plaintiff suit and in his 1. The filed peal judgment jury from a on a verdict tion Doctor testi- is recommended.” Stone defendants, opinion, entered favor of the William fied that his the results of the (Dr. Stone) Stone, any University neurological M. M.D. MRI did not indicate dis- Foundation, Instead, Physicians (University Inc. or ease. based his examination of defendant), collectively personal and plaintiffs history, this medical mal- practice Specifically, opined swelling, action. Stone associ- (1) adenoids,3 assigns benign error to: the denial of ated illness, motion a new based what and indicated a viral such as a cold sinusitis, contended were erroneous instruc- which did not require (2) testing. tions and the exclusion from additional evidence *4 videotaped depositions of of and later, years Septem- More than two doctors’ notes of treating consulting and 1998, 19, plaintiff ber was with diagnosed physicians. herein, For the reasons stated nasopharyngeal The cancerous tu- cancer. judgment we affirm Superior the of the general mor located in same area was the Court.2 swelling adenoidal that Dr. Gold the 5, February noted on the 1996 MRI. On and
Facts Travel 1999, plaintiff malpractice filed a medical 24, undisputed January Superior against It is that on claim in Dr. Court Stone 1996, plaintiff University, employer.4 Dr. visited Stone’s office and Dr. Stone’s complaints legs. plaintiff receiving of weakness his alleged after Stone, results, neurologist, Doctor a ordered a the MRI Dr. negligently ser- Stone (MRI) Magnetic Imaging ies of Resonance failed follow-up neurology to schedule a tests, brain, including plaintiffs appointment MRI to perform to and failed the clin- plaintiff determine ical suffering whether was correlation that Dr. recom- Gold from neurological a disorder. The The plaintiff tests mended. contended that Dr. were at the performed Hospital. negligent Miriam Stone when failed to was (Dr. Gold, Gold), (ear, nose, Richard a to otolaryngologist M.D. radiolo- refer him an gist, prepared report physician) MRI and and testing the noted throat for farther hypertrophy negli- “evidence moderate of ade- and that swelling adenoidal * * gence delayed diagnosis, resulting noidal soft *. tissue This has been regimen described viral illness. Clinical correla- more treatment extensive because minor, damages parental hearing transcript for for loss of mine soci- or I, 5(a) ety companionship. Rule Article justice's findings gave conclusions Supreme Appellate of the Rules of Court Pro- challenged rulings. evidentiary rise to provides although cedure two or more Based on these deficiencies in the record be- parties may appeal, joint file a notice of each us, we fore decline to address those issues. party required pay prescribed filing to I, 3(b) Supreme fee Article Rule under lymph are an extension of node Adenoids 3.. Appellate Court Rules of Procedure. This an head tissue in area of the behind nose. party "[flailure Court has held that of a appeal tender fee renders its plaintiff's original complaint 4. The also Kirby Planning invalid.” Board Review named Gold Dr. Richard and the Miriam Middletown, (R.I.1993). of Because David Hospital plaintiff as defendants. The filed an pay filing did M. complaint amended to include William T. fee, appropriate party ishe not an before this M.D., Internists, Creighton, and East Side Court. Inc. as defendants. all these defen- plaintiff 2. We at the has failed note outset prior dants were dismissed to trial. provide the Court with the motion in li- Doctor Rudders testified plaintiff. for diagnosis. allega- late cancer standard that Dr. Stone breached University solely against were based tions regardless general, care physicians theory liability. on a vicarious to refer specialty, failing tried April case was On investigation further specialist for another Superior in the At before Court. However, the swelling. of the adenoidal trial, physical Dr. described his ex- Stone was justice ruled that Dr. Rudders amination of and testified about pre- to the notes permitted refer report noting the MRI Janecka, Duff Ivo M.D. pared by Dr. hypertrophy “moderate of adenoidal soft (Dr. Janecka),5 redacted. that she ordered insignificant. was He contended tissue” however, did, allow Rudders She had a clinical correla- performed that he the MRI results independently analyze hypertrophy when he tion of adenoidal give opinion, without reference analyzed examina- results This Janecka’s notes. Duffs history. personal tion and his has not been furnished with correlation, Dr. Stone con- Based detailing rationale record cluded that the inci- hypertrophy *5 justice’s ruling. a finding pose danger dental that did not a of presented The number defendant plaintiff. that expert witnesses who testified plaintiff videotaped presented The de- swelling the 1996 MRI had adenoidal on (Dr. Duff, Duff), position of Brian M.D. cancer; that to nasopharyngeal connection performed biopsy who that confirmed reasonable; and Dr. treatment was Stone’s plaintiffs nasopharyngeal cancer. tri- The question, MRI in examining that after justice portions al excluded certain of Dr. required Dr. not undertake Stone was however, deposition, holding Duffs that it testing further or treatment. expert testimony, that Dr. opinion was but evidence, justice At close of trial had an given Duff not within a Dr. was jury instructed the Stone degree certainty. of reasonable medical of duty degree “under the same use plaintiff The also submitted the video- commonly possessed skill and care (Dr. Kim, taped deposition of Daniel M.D. who profession other members Kim), jus- an trial otolaryngologist. The type practice engaged are the same of tice excluded certain of this video- * * plaintiff The taped deposition finding based on her objected requested to this instruction and give witness failed to an to a physician that a jury be informed certainty. reasonable care of a could held to the standard of be justice opin- The trial excluded Dr. Kim’s than specialty in a physician engaged MRI, likely more ion that 1996 brain duty physician his if the assumed own not, diagnosable than indicated a tumor justice The trial specialty. of that care procedures and his in- finding that request, this denied otolaryngologist would an have undertaken gave adequately covered struction she responsive question it to a because was in favor jury returned a verdict law. The have about what Stone should done. defendant, justice denied and the trial (Dr. Rudders, Rudders), new based plaintiffs motion for a trial Richard M.D. jury instructions oncologist, expert testified as a medical her conclusion an and radiology films 1996 surgeon is a head and neck reviewed 5. Doctor Janecka 6, 1998, plaintiff on October who examined (cit- proper the challenged were evidence are left to dence the fact-finder.” Id. Sweet, 415). appropriately was excluded. The ing R.I. at 333 A.2d at appealed.
Standard of Review on an passing appeal from the Jury Instructions —Standard of Care denial of a for a motion new trial based on Court, plaintiff assigns Before error alleged law, employs errors of justice’s trial concerning instruction novo de review to determine whether standard care that Stone owed legal committed error. Voto patient. contends that (R.I. Merandi, v. lato should instructed 2000). A granting decision Stone, jury that when Dr. a neurologist, denying or be new will not dis to perform decided the clinical correlation turbed or unless he she has overlooked swelling, adenoidal he as- misconceived material and relevant evi duty sumed the of an otolaryngolo- care dence or clearly wrong. otherwise was Id. gist. According plaintiff, after evidence, admissibility ex Stone concluded that the adenoidal swell- otherwise, pert opinion or “rests within insignificant probably caused sound discretion illness, by viral rendering he was care appeal will disturbed absent an otolaryngologist and the should abuse of that discretion.” Morra Har have evaluated care and defendant’s treat- (R.I.2002) rop, 791 A.2d (citing ment under the standard care of *6 242, v. Capalbo, State 433 A.2d 246-47 otolaryngologist. Benton,
(R.I.1981); 104, v. State 413 A.2d (R.I.1980)). 113 This Court has stated formulating jury When instruc expert testimony, that tions, “has a special justice no sta trial the adopt need not in evidentiary tus the of specific framework a tri language parties that the pro al,]” including a medical malpractice posed, case. as long “trial the fulfills Morra, 791 at 477. long A.2d As as the his her obligation charge jury or expert’s opinion given requi “is with the properly by framing the issues in a such degree certainty, of site that is de way ‘some that the instructions set ‘reasonably gree positiveness,’ of it matters what forth all of propositions of that law convey certainty words are used to or that to material of fact relate issues which ” the word ‘possibility’ was uttered.” v. support.’ evidence tends to Morinville Transp (quoting Id. v. Hemingway Colony Co-operative Sweet Newport Old Nation Inc., 348, 355, 411, Bank, 1218, (R.I.1987). ort, 114 R.I. 333 A.2d al 522 A.2d 1222 (1975)). 415 Although talismanic incanta It is well settled that this Court examines Court, tions have by jury been eschewed this “in as entirety instructions their expert witness must certain the in which of jury manner a opinions rise to ordinarily intelligent people offered the level of reason lay would have is, certainty, able medical Bowling, some de them.” Parrella v. understood (R.I.2002) of or gree positiveness probability and not A.2d (quoting 796 1101 Marini, (R.I. possibility. expert Id. If the has testified A.2d State 517 1994)). requisite degree positiveness, with the of single We do not examine sen “his or her is parts charge; admissible tences selective of the rather, weight issues relative evi- “the challenged portions of the must degree duty of they in a to render the same in the context which under examined possessed by that is Id. skill care were rendered.” in type the same physicians engaged case, in In Parrella, A.2d at In practice. concerning applicable stan struction nearly a approved identical a proper dard care was statement in a medi- jury instruction standard care jury The law. instructed the Accordingly, are malpractice case.6 we cal as follows: that, in when examined treating “In diagnosing, caring for and record, in the of the evidence however, under patient, physician a is not erroneous. instructions were duty degree to use same of skill commonly possessed by that is care II profession other members who Evidentiary Rulings engaged type practice are in same plaintiff assigns error to sev having regard the state due of scien- justice’s evidentiary rul eral of knowledge tific at the time of treat- jury’s from the consid ings excluded ment.” (Emphasis depositions and medical eration Sheeley Hospital, v. Memorial Kim’s It that Dr. video appears records. (R.I.1998), phy- this Court held that “a in deposition part and taped was redacted duty sician under to use por trial justice ordered redacted is expected care skill that of a reason- deposition videotaped tions of Duffs ably practitioner in competent the same office and notes records. Addition belongs, acting class which he or she alleges ally, plaintiff erred the same at or similar circumstances.” Id. precluded she Rudders from re when added.) Here, evi- ferring made Drs. Duff and notations presented suggesting dence was at trial respective office records. Janecka their plain- the care Stone undertook ad parties stipulated Because the tiff as an otolaryngologist. Doctor Stone medical records under mission these neurologist. is a evidence this case *7 803(6) Rule the Rhode Island Rules Stone, that Dr. on his established based Regularly Conduct Evidence—Records plaintiff plaintiffs per- examination of argues that the trial Activity—plaintiff ed history, sonal determined that the adenoi- justice by portions of the ordering erred dal swelling insignificant. up was It was records redacted. the to jury to determine whether Dr. this negligent. plaintiff provided Stone was His skill knowl- The has not edge as neurologist a board-certified were with a sufficient record address Court appellate relevant factors for in contentions or to the consider some his justice’s ex deciding his the trial reasons for plain- whether failure refer evaluate cluding responsi to a with this It is the specialist comported tiff the stan- evidence. this justice correctly bility appellant The furnish dard care. trial record, including the jury that Dr. was so much of the instructed the Stone with 1091, Bowling, practice at the time the doctor rendered 6. In Parrella v. 796 A.2d 1100 same (R.I.2002), having the Court found no discernible er- due in action the care involved following jury course, ror in instruction: "A doc- the regard, of state of medical required degree of tor is to exercise the same knowledge time care was ren- at the by practition- as that care and skill exercised dered.” ordinary competence engaged ers of in (if transcript, any) depositions, argued plaintiff rele- The that Dr. Kim testi- vant during exhibits introduced fied that it more pro- likely was than not that ceeding as mil enable the Court 1996 MRI a diagnosable to decide showed tumor as appeal. opposed benign issues raised to a finding We consis- and that tently “although that an he waffled and certain had incomplete declared facts added,” to be Kim record on it appeal “[made] over precludes meaningful bar, Pineda, slightly, regard however review this to form- Court. State (R.I.1998). opinion likely more When, here, that not” that as the 1996 MRI diagnosable, showed can- challenged decision on a cerous tumor. ruling is missing from the ap- record on peal, proper appellate impossible. review is responded only The defendant that not “Without a transcript, sufficient this Court did Dr. Kim opinion fail to render an perform ‘cannot meaningful review and owed, standard of care Stone but uphold [has] choice but “conceded, he also under oath that ” justice’s findings.’ Anjoorian v. Kilberg, Stone, not testifying against but sim- (R.I.2003) 836 A.2d (quoting In ply [gave] opinions general about the James, re Kimberly & 583 A.2d case, nature of the disease” naso- (R.I.1990)). pharyngeal carcinoma. The justice sided with defendant Deposition Doctor Kim’s a fair reading concluded that deposition testimony entire “indicates that argues requisite doctor’s lacks the improperly portions excluded of the video- certainty.”7 rec- Although she taped depositions of Dr. Kim. ognized that at times Dr. Kim attempted claims that deposition Dr. Kim’s was of- in terms of more probable than (1) fered to establish: the standard of care not, she found that places there were (2) for an otolaryngologist; and whether deposition says complete- which “he diagnosed mass cancer 1998 ex- ly the opposite.” Because these inconsis- isted as a diagnosable tumor in the 1996 tencies were resolved explained, MRI. The trial ordered the redac- declared, “on balance this tion of videotaped deposi- say Court cannot that Dr. Efim express did tion on grounds it was “not [an] degree of framed as proper opinion testimony” and * * * certainty allow would Kim, because Dr. an otolaryngologist, testimony.” admission of this give “cannot based on what Dr. *8 Stone should or not should in It apparent done is from our the review of capacity neurologist.” as a trial transcript justice ap- that portion deposition A likely diagnosable of Dr. Kim's was read than not a tumor versus to the and is included in the record benign lesion? before us: form, "Answer: in that Asked don’t have "Question: Okay. you Kim do Dr. have an opinion. opinion. an I cannot have an opinion degree to a "Question: reasonable of medical Why is that? certainty probably that is more than Well, only going "Answer: because we are education, upon your your training, based by findings. having M.R.I. Not seen your experience your review of the having patient, not seen the lesion in itself records in this case as to whether the mass person you.” not tell (Emphasis could with hypertrophy adenoidal shown on the added.) 15, February brain M.R.I. 1996 was more
1095 requisite mind; testimony with the expert opinion an proached open this task with longer Dr. Kim no positiveness, carefully deposi- degree considered the that she expert tes- opinion to render testimony “having given qualified tion Dr. Kim doubt;” in this that, in the about standard care timony benefit discretion, ex- of her sound she case. exercise testimony. portions of his cluded Deposition Dufifs 2. Doctor action, in any negligence In link adenoidal attempt In an malpractice, a claim of cluding medical MRI MRI with the swelling on 1996 care
plaintiff must establish a standard of plaintiff offered performed preponderance of the evi prove, Duff, deposition of Dr. who videotaped dence, the defendant deviated naso- performed a that confirmed biopsy of care. Morales v. Town standard pharyngeal cancer. as (R.I.2006). Johnston, 895 782 A.2d conceded, Dr. an give Duff declined to “In case tes malpractice expert a medical degree to a of medical opinion reasonable timony requirement prov is an essential testify at certainty and was never called to applicable the standard of care to the justice portions The trial excluded trial. defendant, ‘unless the lack of care is so ground of Dr. Duffs deposition layman’s as to be com obvious within testimony. proper expert opinion it was ” knowledge.’ Sheeley, mon 710 A.2d at single appeal, plaintiff refers to a Fuchs, On 523 (quoting Richardson deposition from Dr. Duffs (R.I.1987)). question competency A.2d alleges should not have been redacted: opinion of a an in a witness render case, trial, malpractice medical “Question: the mass that was seen Was addressed sound discretion of the February 1996 film in at least justice and will not be disturbed ab that the mass of part space the same sent clear ei'ror an abuse discretion. was located? 448). Richardson, (citing Id. at “Answer: Yes.” case, justice In this had concession deposition the benefit Dr. Kim’s testi give Duff refused mony, concluded that he did not render of medi- degree MRI to reasonable cer certainty, to see the relevance cal we fail tainty and ordered that resulted question or how its exclusion this be redacted. decline to dis deposition We re- Accordingly, we error. prejudicial holding. turb ject argument. reject plaintiffs argument likewise We 3. Doctors’ Notes that the trial committed reversible argues that the trial also failing error in to allow Kim to portions of improperly otolar- excluded about the standard of care that an Dr. Duff8 and Dr. Ja- records of owed. Once yngologist necka,9 otolaryngologist ’the whom concluded that the witness failed to render *9 and what was portion Septem- to be tissue pertinent [sic] ical adenoid 8. The of Duff’s [year man].” 1998 office note reads: ber then a old February prior of MRI's done “Review in last the and trial struck first 9. The nasapharyngeal reveals a soft tissue note: of Dr. Janecka's atyp- sentence quite which would be mass lesion [sic] employed Duff referred con- extent could be plaintiff. that that and atypical that it in being tends this evidence was ordered re- the statement about from records forty-two years dacted medical notwithstand- a man of old cannot be ing stipulation parties the that of by the the note so isolated from the balance Regularly attempt records constituted “Records of which to com- essentially is 803(6). Activity” Conducted under Rule in upon ment the tumor viewed whether According plaintiff, this evidence was the visible on is indeed same mass (1) offered: to link the mass certainly seen the the can 1996 M.R.I. This issue MRI; plaintiff’s 1996 MRI with experts. the 1998 It is explored through other (2) hyper- to establish that really adenoidal not treatment af- relevant the trophy forty-two-year-old male was forded Mr. 1998 for Duffs unusual and warranted with a follow-up diagnosis Riley’s of Mr. condition as of specialist. argues that the that 1998 office visit.” trial in ordering erred these rec- excluding The trial rationale in parties stip- ords redacted because the had is portions of Dr. Janecka’s records that ulated the records were business rec- follows: 803(6).10 ords in accordance with Rule requests Any “[Trial Justice]: This ruling subject of a redactions? limine, pretrial motion in and the tran (I % * # of script hearing is part Although record before Court. Oh, already “[Defendant’s Counsel]: jus transcript discloses that about, your Honor, talked rule al- tice excluded Dr. Duffs note on her based ready made on Dr. Duff to be redacted rule,” belief that it “violates we copies and we put into the chart ruling do not have or the basis and then the redaction of Dr. Ivo Janec- even a “opinion reference to what rule” the report, just ka’s report, page six of his justice, adverted. The trial portion, the first sentence mindful Dr. Duff had to ren refused sentence, paragraph last last leav- —the der an in this case declared: ing in all but references to remov- ing “The note does itself not indicate even films. That reference certainty agreed yesterday? has been (9-98 '96) reviewed; "(6) Regularly "MR there is a Records Conducted Ac- nasopharyngeal memorandum, record, mass on the '96 MR local- tivity. report, A nasopharynx. ized to the The latest MR form, acts, compilation, or data enhancing revealed an tumor fill- extensive events, conditions, opinions diagnoses, or nasopharynx extending through by, made at near the or or time dura; the clivus to the clival also involve by, per- information transmitted another pituitary tumor seen at and both knowledge, kept son with if the course carotids. Further extension is into visible regularly activity, of a conducted business perineural left the Meckel’s cave with inva- regular practice if it was sion V2. Patient was unaware tumor activity to make business the memoran- '96 films.” dum, compilation, report, record or data by Rhode Rules of Rule Island all as of the cus- shown witness, part provides: Evidence in relevant qualified todian or other unless following "The the source information or are excluded method rule, hearsay though even the declarant is preparation indicate circumstances available as a witness: lack of trustworthiness.” *10 ruling prohibit- justice’s to the trial put Just on the error Counsel]: “[Plaintiffs that he testifying your I it in Dr. Rudders to agree record mean, I medical records your upon I think redacted ruling, Honor. relied already placed forming opinion. the record that ob- in on Dr. jected to removing to reference physi- testified that a Doctor Rudders ex- Janecka’s conclusion that tumor test particular medical cian who orders a just rely rulings in 1996 isted finding in results a unrelated previously in the record. stated re- report for which the was condition Okay, Justice]: consistent with “[Trial quested, dealing with responsible “is prior rulings, requested the Court’s The testi- witness the results the test.” may plain- made over the redactions situation, in physician such a fied objection req- on the tiffs’ based absent “to the duty pursue finding to has a opinion testimony regarding those uisite longer any ques- point where there is ato reasonable of medi- opinions abnormality. tion” about certainty.” (Emphases cal to opined Rudders a reasonable Doctor Because there is no record of the trial certainty that the stan- degree of medical limine, justice’s pretrial ruling in we de- applied dard of care that to defendant We have not cline to decide this issue. to report MRI was on the 1996 based provided copy with a of the motion in been radiologist, up follow with the examine limine, counsel, arguments or the test, in the case film and Dr. ruling Duffs note that patient special- to a hypertrophy, refer admissibility also controlled the of Dr. Ja- area. ist for an examination affected in- necka’s records. deem the record We Rudders, plaintiff should According to Dr. appellate vague sufficient for review.11 A “an ENT doctor been referred to prior ruling in the to a reference record by en- nasopharynx examination court is plain- of no assistance to Rudders testified doscopy.” Doctor precluded are from passing upon tiff—we opinion, Dr. Stone’s treatment in his ordering the trial court’s rationale for with the plaintiff was not accordance redaction of records that fall within Rule physician of care of a applicable standard 803(6). Additionally, we decline to scour stan- circumstances and that the similar glean in an to attempt the record to one’s “nothing do with dard of care has justice’s thought process reasoning. specialty.” Testimony 4. Doctor Rudders’ Apparently, refused opin- Dr. that his plaintiff presented testimony allow Rudders Rudders, diagnos- a on- the 1996 MRI disclosed practicing hematologist ion that cancer, part on the based in hematol- able was cologist, who board-certified Dr. Janecka’s and Doc- stricken ogy, oncology. internal medicine telephone records and a conversa- gave expert opinion tor Duffs Rudders care, during he had with Janecka causa- tion respect with the standard permitted Doctor Rudders damages. plaintiff assigns trial.12 tion and express to reason- disagrees our did not dissent conclusion. doctor 11. The us, certainty. degree of medical on the of the record before able state reg- whether records of we decline address plaintiff suggests In his brief to this pursuant ularly activity, conducted admissible because, preserved by an offer of 803(6), issue was that this redacted Rule must be record, "pp. 227-264” of patient proof set forth on making a notation in *11 own examination of the error when she redacted of Dr. MRI without to videotaped reference the exclud- Kim’s Dr. Duffs deposi- and notes; ed concluded that mass I respectfully tions. most dis- diagnosable the 1996 MRI was a agree majority’s holding cancer. with the that the right appeal waived his to certain Although the issue of the authori evidentiary rulings because he to failed ty of a trial to order the redaction provide this Court a portion of the of otherwise admissible business records Although it record. is the of the gives us pause,13 pre this issue was not precludes this majority appel- that failure appellate served for Again, review. we review, late in transcripts the trial that provided have not with a been sufficient Court, jus- were to provided the trial record to evaluate the trial deci tice her for stated restated rationale sion in of the excluded evidence.14 disputed evidentiary each of the rulings. believe that the record that Ri- therefore Nevertheless, record discloses ley provided satisfactory is more than to extensively Dr. Rudders testified enable this Court to address issues about the standard of and gave care appeal. raised on expert opinion that Dr. Stone’s treatment fell below that measure and this negli
gence proximate was the cause of to harm plaintiff. jury testimony. rejected Appellate Waiver Review We are of the error on I, 10(b)(1) of Supreme Article Rule part excluding says of Appellate Court Rules Procedure certain was harmless. to appellant it is incumbent on provide parts this Court with “such Conclusion proceedings already ap- not on file as the herein, For reasons stated we affirm pellant necessary deems inclusion judgment Superior Court. The appellate record.” Our rules of waiver papers may in this case remanded important serve an function—the integrity Superior Court. process of the appellate would be under- if mined this Court were base its deci- FLAHERTY, dissenting part Justice conjecture speculation sions on instead concurring judgment. while relying on the us. But we record before I agree majority required provide with the a us party never were not proceedings instructions erroneous and that with the entire record of the Rather, party seeking did not commit reversible below. review limine, transcript. ap- we did file an dant’s motion in are unable pendix we are unable to locate this offer address this contention. ' proof. We will search the record substanti- I, argues admissibility party alleges. 13. The defendant ate that which Article Rule 17(a)(4) governed by Supreme § Appel- these records is G.L.1956 9- Rules of 19-27, charges places ap- late entitled "Evidence of for med- Procedure the burden on the hospital prescrip- pellant prepare separate appendix ical and services record, orthopedic appliances containing "any part tions and brief —Evidence required hospital including party transcript, medical records.” Be- to which the provided particular direct cause we have not been with the wishes to attention of the transcript record of the decision on defen- Court.” *12 argu- assess the adequate to than much of more only provide must “so this Court on appeal. he raises ments enable may required the record as alleged.” pass on the error this [C]ourt majority, the record According to the 1092, 1094 Kilberg, Anjoorian v. 836 insufficient the merits to assess (R.I.2003) v. Albert- (quoting Kalooski evidentiary rulings that five three of the (R.I. AG, 831, 833 Frankenthal 770 A.2d (1) redac- appeal: on challenges Riley 2001)). party’s provide A failure to by treatment note written tion of a “may record result part of the (2) Duff; of a note written the redaction (quoting Id. appeal.” (3) in a dismissal of the Janecka; ruling prohib- (R.I. Pineda, 858, 712 A.2d testifying State v. from ited Dr. Rudders 1998)). absolute, rule is not on to form sources he relied some of the always appellate major- review Apparently, and the waiver of expert opinion. appellate are able to of our depended expansive application on whether we ity’s has failure to pro Riley’s of the from meaningful in a review of waiver flows engage rules Pineda, of a motion in with a record Compare provide us ceedings below. (failure the redaction of limine that led to provide stenograph A.2d at 861 are, my There Duffs treatment note. proceedings pre court ic record of district hung peg. on this many hats opinion, too review), with State appellate cluded omission, majority sole (miss Because of this (R.I.1980) Udin, 419 A.2d right appeal Riley waived his holds our transcript “hampered ing portion in li- ruling on the motion only nevertheless inquiry,” but the record was mine, tangentially related also other but appeal). adequate to assess merits of provided us with rulings, though even has support To its decision rulings. As of these other complete record trial right to some of the appeal waived his below, evidentiary rul- the three outlined Anjoo- justice’s rulings, majority cites majority are by the ings deemed waived cases, In the rec- rian and Pineda. both transcripts in the discussed amply parties provided by respective ords review, and his for our Riley provided lacking that we were unable were so addressed on should have been arguments arguments merits of their assess the the merits. at appeal. Anjoorian, In 836 A.2d Duffs Note Doctor provide failed to this Court appellant jus- majority observes of the decision copy with a bench redacting her reason for tice stated that and therefore we were appealed, which he “ “ it ‘violates the was that jus- Dr. Duffs note whether ‘the unable evaluate then com- majority rule.’” the evidence and made tice considered all ” for that not have a basis that “we do Likewise ments a reasonable decision.’ ‘opinion a reference to what Pineda, ruling or even appellant A.2d at did I most adverted.” stenographic rule’ the furnish this Court with a however, because below, disagree, respectfully proceedings record of clear reasoning crystal is “absolutely way of had therefore we Indeed, her she restated hearing from the record. reviewing the decision six redacting the note on are rationale my opinion, these cases judge.” the course over separate rec- occasions because the to this case inapplicable trial.15 Riley furnished to this Court ord that proceed- motion in limine Furthermore, picture of the present a clear parties’ briefs both * * example, ruling
For when portion on the 1996 brain MRI *. He’s not videotaped deposition note, of Dr. Duffs expressing even in the note, jus- which he discusses this and he clarifies in his videotaped deposi- tice stated as tion follows: that he does not hold an opinion to a reasonable medi- “[t]he note itself does not indicate even a *13 * * cal certainty *. degree certainty[.] medical of U * if: * “ !|C [*] [*] “It is not even a Dr. Duff conclusion that records, “[I]t is unclear from the as well note, reaches in the context of that * * * testimony, as [Dr. Duffs] whether issue, important it is an obviously, for opinions these are that he held to the plaintiffs in the proved case and must be requisite degree certainty medical at of requisite degree to a medical certain- the time of (Emphas- his examination.” * * ty *. added.) es Later, Riley’s attorney when an made of- transparent “This is a attempt my proof fer of regarding of Dr. view, by plaintiff, through expert, Rudders, disputed portions he read the simply try to elevate statements of Dr. Duffs note into the In record. physicians, expressed to a rea- justice’s face prior of the ruling sonable degree certainty medical limine, motion attorney requested * * *. I will continue to exclude full, that Dr. Duffs note be admitted in treating reference to the matter in those arguing to the court: notes that were not stated to requi- “I think part these are * * degree site certainty medical *.” admitted, medical record and should be added.) (Emphases has, because the remainder of the record There is no doubt that it would have believe, been agreed both Dr. prudent been to furnish this * * Duffs and Dr. Janecka’s records *. Court with a record of the motion in li- mine related to Dr. Duffs note. “I would ask this Court to reconsider its very it is obvious from highlighted note, ruling on Dr. Duffs and also allow language justice excluded into evidence the note of Dr. Janecka.” this evidence because Dr. Duff failed request, denied this as well as opinion requisite degree state his to a attorney’s request Rudders be certainty. medical therefore cannot permitted disputed agree majority’s holding with the In portion doing, of the note. so she stat- record is insufficient and that there is no ed: way to opinion determine rule the what Duff, regard
“With to Dr. it is clear In my opinion, referred to. deposition testimony, from his as well as the rationale for the trial ruling is itself, language clearly the note that he is stated several times.16 This Court not expressing opinion admissible, about the na- itself has held that to be ture of the mass lesion that he observes doctor’s conclusions must be stated with ing; dispute there is no that the trial I am aware of no rule that would fault excluded this evidence because Dr. Duff's party justice's failure to offer citation note contained an that was not ex- specific support ruling. to a rule to her pressed degree in terms of a reasonable certainty. medical
HOI prior the Court’s “Okay, consistent with certainty,” and it has medical “reasonable may redactions requested specific rulings, to a rule. done so without citation (R.I. objection plaintiffs’ made over the Harrop, 791 A.2d Morra v. 2002) Lima, absent based on the (quoting State (R.I.1988)). to a opinions those testimony regarding certainty.” reasonable Note Doctor Janecka’s (Emphases note, Dr. Duffs ruling Unlike exchange, record before subject of a was not the Janecka’s note redac- request for defendants’ us includes motion, everything that took pretrial note, objection to tion justice’s re- with the place connection that, justice’s ruling record appears of this note *14 daction reasoning. Even of her clear statement difficulty I therefore have some before us. view, on-the- stringent this under the most majority’s conclusory state- accepting our re- exchange complies with record justice’s ruling on Dr. ment that “the trial appellate review. quirements * ** also controlled the ad- Duffs note of Dr. records.” missibility Janecka’s disagree with respectfully I therefore my necessary it is not to “scour opinion, this issue was majority’s holding that justice’s the record” determine in the “vague that a reference waived and redacting this record thought process ruling to a is of assistance prior record explicitly justice’s reasoning because the added.)17 (Emphasis plaintiff.” to the stated several times. justice incidentally The fact that the rul- consistency of that commented on example,
For ruled rulings is immaterial be- prior with testify could not about certain Rudders record that her cause she said on the portions of Dr. note because the Janecka’s note was because redacting reason for opinions note contained that were “not ex- “to a reasonable opinion it did not state an pressed degree to a reasonable medical Thus, we certainty.” degree of medical added.) fur- certainty.” (Emphasis She prior rulings to ascer- rely need not explained ther that “Dr. Janecka has not Therefore, I justice’s rationale. tain deposed, been and there has been no state- should have believe that the Court subject him given by ment to cross-exami- Riley’s appeal weighed the merits nation that he holds such an to a ruling. evidentiary this degree certainty.” reasonable medical She therefore ruled Testimony Doctor Rudders’ testify that Dr. Rudders could not about objectionable note. by Riley that fell final issue raised The majority’s decision is to the waiver subject prey of Dr. note was The Janecka’s ruling challenge his later when the court was consid- discussed permitted would not be to that Dr. Rudders ering presented what exhibits would be redacted the details of the counsel for defen- jury. point, At that with telephone and a conversation of the of- notes requested dants the redaction majority says Again note. Janecka. fending portion Janecka’s us with us Riley provide has failed to follows: justice responded The us, rulings in the record before ruling prior is not 17. The trial stated (i.e., ruling that is on the "rulings” one other prior plural, there is at least consistent Therefore, singular). even if one of the record. jus- “sufficient expert opinion testimony record to evaluate the tice’s decision.” Dr. Duff of both and Dr. that is Janecka in the expressed medical record or Specifically, majority states as fol- otherwise to a reasonable lows: certainty; transforming effect “In plaintiff sug- his brief to this Court nonexpert opinion testimony expert into gests preserved by that this issue was testimony. I believe that that is proof ‘pp. offer of set forth on 227- improper use the rule.” 264’ of trial transcript. did not an appendix file and we are justice’s reasoning support this of proof.” unable locate offer ruling pages, continues for several and she specifically outlines the deficiencies respectfully disagree with this assertion proffered testimony. Because took proof ap- because the offer of all steps necessary preserve pears in precisely pages the record on the appeal, majori- issue for believe that the Following proof, cited.18 this offer of Ri- ty should have addressed the merits of his ley’s attorney and opposing pre- counsel arguments. arguments concerning sented the admissi- bility of Dr. testimony. Rudders’ The trial
justice ruled favor of defendant and II in part stated as follows: Evidentiary Rulings begin
“Let me with Rule which experts’ opinion may reads the be based Notwithstanding majority’s holding hypothetical question, on a facts or data Riley right appeal has waived expert received at or about the issues, certain arguments believe that his hearing, or facts or data in evidence of a about the redaction of Dr. and Dr. Duffs type reasonably customarily relied analysis by Janecka’s records warrant upon by experts in particular field Riley’s appeal Court.19 The merits of re- and in forming opinions subject.” on the around volve his contention that these rec- outlining requirements After further of ords should have been admitted without Rule 703 of the Rhode Island Rules of parties stipulated redaction because the Evidence, stated: reports before trial that the were case, bottom,
“In this at rock plain- what business records. He further maintains seeking through expert tiff is to do ex- that the opinions contained within the doc- Rudders, pour reports amination of Dr. into is tors’ and notes were admissible majority Riley 18. The also faults for not fur- error harmless was of the doctor’s nishing separate ap- proof offer of in a testimony. Although other I believe this issue pendix. sixty pages of documents properly preserved appeal, agree was for brief, appended my opinion, are to his and in error, majority any, with the if pages his citation to the exact of the tran- harmless, and I further note that the sources script is sufficient. satisfy Dr. Rudders relied on the re- did quirements of Rule 703 of the Rhode Island Riley argues also that the trial erred they Rules of Evidence because were not "le- when she ruled that Dr. Rudders could not gally v. Biltmore Construc- sufficient.” Alterio portions the redacted of Dr. 307, 312, Corp., tion 119 R.I. 377 A.2d notes, well Duff’s Dr. Janecka’s as as (1977) (”[A]n expert's opinion must be substance of a conversation he had with Dr. legally predicated upon facts sufficient to began. majority Janecka after the trial conclusion.”). form a basis for his waived, deemed this issue to be but it notes error, ruling dicta that even if this was in requirements did not circumvent stated to the they because were that contained records certainty. admitting medical degree of justice did not exclude opinions). The trial Stipulation The Effect of they from evidence because the records justice’s ex- Riley argues that the trial hearsay, they did but because were and Dr. Janecka’s clusion of Dr. Duffs admit- requirements for comply with the treatment notes was error because Therefore, stip- opinions. ting medical stipulated that these records parties had propriety no effect on the ulation had at stipulation records. The were business rulings. these in part issue said as follows: * * * of the Doctors’ Records it Redaction to the medical records “As they deemed agreed also shall be asserts that the next records, and main- prepared business portions redacted erred when she ordinary tained in the course of busi- notes. He con- Duffs and Janecka’s ness, All other purposes of trial. following excerpt from Dr. tends that the objections, may interposed, be at tri- should have been Duffs treatment notes al, preserved, pre- are and this does not admitted: oth- parties seeking clude to admit prior MRI’s done Feb- “Review er records.” a soft tissue nasa- ruary reveals significant stipulation It is that this re lesion which pharyngeal mass [sic] parties’ right to raise “[a]ll served quite atypical to be adenoid would objections” stipulation at trial. The y.o.” a 42 what was then [for] tissue effectively hearsay objections by precluded that redacted He also asserts deeming the doctors’ notes to be authentic *16 admissible: notes were Janecka’s records, business but it did not affect the objections. parties’ right (9-98 '96) to raise other reviewed; there is “MR Apart language stip from the of this clear on '96 MR local- nasopharyngeal mass * * * ulation, parties’ conduct also demon Patient nasopharynx. ized to the they strates that did not intend this docu films.” of tumor on '96 was unaware stipulation admissibility. ment justice ruled that these state- The trial fact, Riley’s objected counsel himself to the they because were inadmissible ments Riley’s based on admission medical bills made to a reasonable opinions were not relevancy grounds, though even the bills certainty. Riley main- degree of medical stipulation.20 were covered More tains, however, opinions doctors’ over, parties agreed fact that the the mere certainty, requisite level of satisfied the requirements that the records satisfied doctor recited despite the fact neither 803(6) of the Rhode Island Rules Rule words, degree of medical “reasonable bearing has no on whether of Evidence Essentially contends that certainty.” requirements complied records with other rulings placed form over no admissibility. am aware of case substance. satisfying one rule of evi that holds that offer that when doctors It is well settled comply need to precludes dence opinions must opinions, their admissibility. expert their See requirements (R.I. degree of medi- Carde, 687, to a reasonable 692 be stated v. 612 A.2d Ouellette Morra, 808(6) See, 791 A.2d at e.g., 1992) certainty. of Rule cal (holding satisfaction objection. oppose this defendants did not 20. Counsel for
1104 477; 1091, proved v. Bowling, Parrella 796 A.2d the same mass that be cancerous (R.I.2002). testimony, 1099 In lieu of live equivocal in 1998. Given the nature of Dr. § G.L.1956 9-19-27 allows for admission of opinions, Duffs and Dr. Janecka’s would opinion through a medical documentation. justice’s rulings, affirm the trial and there- statute, however, “in way This relaxes holding. fore I concur in the Court’s requirements the minimum for the admis- competent testimony.”
sion of medical Co., Parrillo v. F.W. Woolworth 518 A.2d (R.I.1986). 354, Moreover, when such evidence is that a offered establish de- fendant’s acts or omissions caused the injury, “such must speak ‘probabilities’ in terms of rather ” Barbara B. HAYDON ‘possibilities.’ (quoting than Id. v. Sweet Inc., Hemingway 348, Transport, 114 R.I. (1975)). 355, 411, Although 333 A.2d
the admission of
opinions
does not
Leon
et
G. STAMAS
al.
hinge on the recitation of “talismanic”
2005-173-Appeal.
No.
words,
expert’s opinion
nevertheless
must be
stated with the
level of
Supreme
of Rhode Island.
(“the
Morra,
certainty.
tions’ Gallucci v. (R.I.1998)); Bailey accord Inc., Service, v. Cataldo Ambulance Mass.App.Ct. 832 N.E.2d 17-18 (2005) (admissibility of medical records containing expert opinion hinge does not ” words,’ ‘magic on the “recitation of but *17 must be stated with “sufficient clarity”). firmness Riley argues that the doctors’ state- ments met the level of certitude required for admission. Doctor Duffs Riley’s
statement that there was a mass in 1996 MRI is followed a statement may “it be that pro- has [the mass] * * gressed in size The use of the “may” uncertainty. term underscores his Doctor Janecka’s statements suffered simi-
lar says infirmities. His note that a mass
appeared Riley’s 1996 MRI and that presence was unaware of its at that indication, time. Yet there certainty, whether this mass is