                                                           Supreme Court

                                                           No. 2016-221-Appeal.
                                                           (WC 13-639)




Phil Bartlett et al.                   :

       v.                              :

Dr. David Coppe.                       :




        NOTICE: This opinion is subject to formal revision before
        publication in the Rhode Island Reporter. Readers are requested to
        notify the Opinion Analyst, Supreme Court of Rhode Island, 250
        Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
        3258 of any typographical or other formal errors in order that
        corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2016-221-Appeal.
                                                                     (WC 13-639)

       Phil Bartlett et al.                     :

              v.                                :

       Dr. David Coppe.                         :


                    Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

                                          OPINION

       Justice Robinson, for the Court. The plaintiffs, Phil and Natalie Bartlett, appeal pro se

from the Superior Court’s grant of summary judgment in favor of the defendant, Dr. David

Coppe, in this medical malpractice action. This case came before the Supreme Court for oral

argument on April 5, 2017, pursuant to an order directing the parties to appear and show cause

why the issues raised in this appeal should not be summarily decided. After a close review of the

record and careful consideration of the parties’ arguments (both written and oral), we are

satisfied that cause has not been shown and that this appeal may be decided at this time.

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

                                                    I

                                         Facts and Travel

       On September 16, 2014, plaintiffs filed an amended complaint, in which they contended

that Mr. Bartlett had been treated on a weekly basis by defendant for a “cellulitis ulcer” at the


                                                -1-
South County Hospital Wound Care Center between February 2, 2012 and June 21, 2012. The

amended complaint alleged that defendant breached the standard of care and was “negligent

during the period of treatment in failure to apply certain wound evaluation practices to evaluate

the lack of progress of ulcer healing commonly used by doctors providing treatment for this type

of condition.” The amended complaint went on to allege that defendant’s “practices” failed to

diagnose a “foot bone infection” that developed and that required “right foot bone amputation on

July 12, 2012.” The plaintiffs further alleged in their amended complaint that the “prolonged

period of treatment and necessity of amputation resulted in [Mr. Bartlett’s] inability to pursue

income production, significant unnecessary medical expenditures and prolonged period of

physical inactivity for a seventy five year old with significant physical mobility problems.” The

amended complaint also included an allegation that, as a result of Dr. Coppe’s alleged

negligence, Mrs. Bartlett was required to care for her husband’s wound after the amputation,

drive her husband to doctor’s appointments, and take full responsibility for household duties.

       During the course of discovery, plaintiffs answered one of defendant’s interrogatories

stating that they “[did] not plan or expect to use the services of an expert to testify in this

complaint.” However, after a lengthy discovery period, in a letter to defense counsel dated

December 16, 2015, plaintiffs identified a registered nurse, Lisa M. Burke, MSN, RN, CWOCN,

as their proposed expert witness. Nurse Burke is identified, in the documents attached to the

December 16 letter, as a “Certified Wound, Ostomy and Continence Nurse.” On March 25,

2016, defendant filed a motion to preclude plaintiffs from relying upon an expert witness at trial,

contending that plaintiffs failed to meet a discovery deadline with respect to the disclosure of

their expert witness and further contending that “the expert disclosed by [plaintiffs], Lisa Burke,

MSN, RN, CWOCN does not possess the necessary qualifications to render opinions regarding
                                               -2-
the applicable standard of care for a physician and surgeon.” On April 1, 2016, a justice of the

Superior Court heard argument1 on defendant’s motion. Following that hearing, the Court issued

an order precluding plaintiffs from relying on Nurse Burke as an expert because she “lacked the

necessary qualifications to provide opinions in this case relative to [plaintiffs’] allegations of

medical negligence against the Defendant, a physician and surgeon.”            The order further

instructed plaintiffs to “disclose qualified expert(s) * * * on or before May 1, 2016” or be

precluded from relying on expert witnesses in the case. The plaintiffs failed to meet that May 1,

2016 deadline. After a scheduling conference on May 6, 2016, the same Superior Court justice

issued a “Supplemental Scheduling Order,” stating that the Court had “sua sponte reconsidered

its prior ruling” with respect to Nurse Burke and had affirmed that ruling. The order further

noted that plaintiffs had “indicated that they had not contacted or retained any physician(s) to

serve on their behalf as expert(s) in this case and further had no intention to do so[.]”

Accordingly, the hearing justice precluded plaintiffs from relying on expert witness testimony in

the case.




1
        We note that we are unable to relate what occurred at that hearing, or at any other hearing
in this case, due to the fact that plaintiffs have not provided this Court with any transcripts. We
have previously commented as follows about the failure of a litigant to provide this Court with a
transcript of what transpired below:

                       “The deliberate decision to prosecute an appeal without
               providing the Court with a transcript of the proceedings in the trial
               court is risky business. Unless the appeal is limited to a challenge
               to rulings of law that appear sufficiently on the record and the
               party accepts the finding of the trial justice as correct, the appeal
               must fail.” Loppi v. United Investors Life Insurance Co., 126 A.3d
               458, 460 (R.I. 2015) (internal quotation marks omitted); see also
               Bailey v. Saunders, 151 A.3d 764, 764 (R.I. 2017) (mem.).

                                               -3-
       The defendant then filed a motion for summary judgment based on the principle that

expert testimony in a medical malpractice case is required to establish the standard of care,

deviation from the standard of care, and proximate cause. On June 20, 2016, plaintiffs filed an

objection to the hearing justice’s “decision to disqualify Lisa M. Burke as the plaintiff’s expert

witness.” After a hearing on June 24, 2016, defendant’s motion for summary judgment was

granted, and the hearing justice stated that any other pending motions were “deemed moot.” The

plaintiffs have appealed from that ruling.

                                                II

                                        Issues on Appeal

       Our review of plaintiffs’ statement and supplemental statement, both of which were filed

pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure, discloses

that plaintiffs contend on appeal that it was not “fair and just” or “equitable” that they were not

given an opportunity to “argue their factual evidence” or “the merits of their Complaint.” They

also aver that they were “turned into the Defendants in this matter due to the fact that they were

prevented from arguing the merits of their case * * *.” The plaintiffs further take issue with the

fact that, in their words, “at no time during Court hearings, has the Appellee been required by the

Court to challenge or dispute the Appellant’s alleged factual data supporting [his] alleged

negligence * * *.” Mr. and Mrs. Bartlett also posit that they intended to move forward with their

case, in the absence of expert testimony, “applying the Principle of Common Knowledge in

belief that the allegations [they] made * * * were not of a complex nature which could be




                                               -4-
understood by the average juror.” They further allege that the hearing justice who granted

defendant’s motion for summary judgment was biased.2



                                               III

                                      Standard of Review

         We conduct a de novo review of the granting of a motion for summary judgment.

Rodrigues v. DePasquale Building and Realty Co., 926 A.2d 616, 622 (R.I. 2007); see also

Walsh v. Lend Lease (US) Construction, 155 A.3d 1201, 1204 (R.I. 2017); Lynch v. Spirit Rent-

A-Car, Inc., 965 A.2d 417, 424 (R.I. 2009). It has been our consistent position that “[s]ummary

judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the

light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of

material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Walsh,

155 A.3d at 1204 (internal quotation marks omitted); see also Peloquin v. Haven Health Center

of Greenville, LLC, 61 A.3d 419, 424-25 (R.I. 2013); Sola v. Leighton, 45 A.3d 502, 506 (R.I.

2012).

         In opposing a motion for summary judgment, “the nonmoving party bears the burden of

proving by competent evidence the existence of a disputed issue of material fact and cannot rest

upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.”

Bellevue–Ochre Point Neighborhood Association v. Preservation Society of Newport County,

151 A.3d 1223, 1229 (R.I. 2017) (internal quotation marks omitted); see also Great American E

2
        In their Rule 12A statement and supplemental statement, plaintiffs reference a motion for
summary judgment which they claim they filed on May 18, 2016; they also state that that motion
was scheduled to be heard on August 22, 2016. The plaintiffs contend that the hearing justice
“str[uck] this document” and did not give them the opportunity to “discuss the data included in
this motion.” The record does not reflect that any such motion was ever filed by plaintiffs.
                                               -5-
& S Insurance Co. v. End Zone Pub & Grill of Narragansett, Inc., 45 A.3d 571, 574 (R.I. 2012).

Furthermore, we “will not hesitate to affirm a grant of summary judgment if the nonmoving

party fails to make a showing sufficient to establish the existence of an element essential to that

party’s case * * *.” Laplante v. Rhode Island Hospital, 110 A.3d 261, 264 (R.I. 2015) (emphasis

in original) (internal quotation marks omitted).



                                                   IV

                                             Analysis

       We note initially that, on appeal, plaintiffs did not raise an objection to the hearing

justice’s order precluding them from relying on Nurse Burke as an expert witness.3 Article I,

Rule 16(a) of the Supreme Court Rules of Appellate Procedure states that “[e]rrors not claimed,

questions not raised and points not made ordinarily will be treated as waived and not be

considered by the Court.”      See McGarry v. Pielech, 108 A.3d 998, 1004-05 (R.I. 2015).

Moreover, we have stated that “[e]ven when a party has properly preserved its alleged error of

law in the lower court, a failure to raise and develop it in its briefs constitutes a waiver of that

issue on appeal and in proceedings on remand.” Id. at 1005. Accordingly, any challenge to the

hearing justice’s ruling which precluded plaintiffs’ proposed expert witness—Nurse Burke—

from testifying has been waived and will not be considered by this Court.

       With respect to plaintiffs’ vigorously asserted contention on appeal that they were not

permitted to argue the facts of their case and that the grant of defendant’s motion for summary


3
       That argument is not included in the Bartletts’ Rule 12A statement or in their
supplemental statement. Additionally, it was conceded by Mr. Bartlett in the course of his pro se
presentation at oral argument that, on appeal, plaintiffs were not contesting the hearing justice’s
decision to preclude Nurse Burke’s testimony.
                                               -6-
judgment was in error, we refer to our ample precedent clearly reiterating that an expert witness

is required in a medical malpractice action. It has been our consistent holding that “[t]o recover

against a physician for medical malpractice, a plaintiff must demonstrate negligence on the part

of the physician * * * [by establishing] ‘a standard of care and prov[ing], by a preponderance of

the evidence, that the defendant deviated from that standard of care.’” Mandros v. Prescod, 948

A.2d 304, 310 (R.I. 2008) (quoting Riley v. Stone, 900 A.2d 1087, 1095 (R.I. 2006)); see also

Malinou v. Miriam Hospital, 24 A.3d 497, 509 (R.I. 2011). We have further stated that “[t]ime

and time again, we have required expert testimony * * * to establish deviation from the standard

of care when the lack of care is not so evident as to be obvious to a lay person.” Malinou, 24

A.3d at 509 (quoting Foley v. St. Joseph Health Services of Rhode Island, 899 A.2d 1271, 1277

(R.I. 2006)); see also Laplante, 110 A.3d at 265; Riley, 900 A.2d at 1095. The expert witness is

needed to “measure the care that was administered against the degree of care and skill ordinarily

employed in like cases by physicians in good standing engaged in the same type of practice in

similar localities.” Malinou, 24 A.3d at 509 (internal quotation marks omitted). As such, the

just-cited cases have made it amply clear that, for a plaintiff to prevail in a medical malpractice

action, an expert witness is essential, unless the deviation from the standard of care would be

clear to a layperson.

       In the instant case, plaintiffs indicated they had no intention of retaining another expert

witness, and the hearing justice thereafter precluded them from relying on any expert witnesses

in the case. Additionally, we do not agree with plaintiffs’ contention that the allegations of

malpractice which they made vis-à-vis Dr. Coppe “were not of a complex nature which could be

understood by the average juror.” By way of example, we have stated that such a non-complex

or obvious situation “might occur if a surgeon were to leave an instrument inside a patient.”
                                               -7-
Laplante, 110 A.3d at 265. The instant case involves a drastically different situation. Here,

plaintiffs allege that defendant breached the standard of care for treatment of a “cellulitis ulcer”

on Mr. Bartlett’s foot. This is certainly not the type of case in which defendant’s negligence

would be obvious to a layperson. Thus, plaintiffs’ claims could only have been established by

expert testimony; given the fact that plaintiffs were precluded from relying on expert testimony,

they were not able to establish an essential element of their case. See id. at 264. As such, no

material facts remained in dispute, and defendant was entitled to judgment as a matter of law.

See Walsh, 155 A.3d at 1204.

       Finally, plaintiffs have raised the issue of what they contend was bias on the part of the

hearing justice. However, plaintiffs did not move for the hearing justice’s recusal in Superior

Court. See Huntley v. State, 109 A.3d 869, 874 (R.I. 2015) (“Since the appellants neither moved

for recusal nor raised the alleged issue of bias on the record, we deem that argument to have been

waived.”). Moreover, our consideration of the alleged bias of the hearing justice and whether or

not that issue was raised on the record is certainly hampered by the fact that plaintiffs chose not

to submit any transcripts to this Court on appeal. As such, their appeal on this ground is

unavailing. See Loppi v. United Investors Life Insurance Co., 126 A.3d 458, 460 (R.I. 2015).

That being said, after our in-depth review of the record before us, we are unable to perceive any

evidence that the hearing justice was biased against plaintiffs or that she acted in any way that

would be incompatible with the interests of justice.

       Accordingly, there being no reversible error by the hearing justice evident in any of the

areas preserved on appeal in the instant case, we affirm her grant of the defendant’s motion for

summary judgment.



                                               -8-
                                              V

                                         Conclusion

       For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

We remand the record to that tribunal.



Justice Indeglia did not participate.




                                             -9-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Phil Bartlett et al. v. Dr. David Coppe.
                                     No. 2016-221-Appeal.
Case Number
                                     (WC 13-639)
Date Opinion Filed                   May 16, 2017

Justices                             Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

Written By                           Associate Justice William P. Robinson

Source of Appeal                     Washington County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For Plaintiff:

                                     Phil B. Bartlett, Pro Se
                                     Natalie Bartlett, Pro Se
Attorney(s) on Appeal
                                     For Defendant:

                                     Andrea L. Merolla-Simister, Esq.
                                     Michael G. Sarli, Esq.




SU-CMS-02A (revised June 2016)
