                                                        Supreme Court

                                                        No. 2012-208-Appeal.
                                                        No. 2012-211-Appeal.
                                                        No. 2012-212-Appeal.
                                                        No. 2012-214-Appeal.
                                                        (PC 10-4186)


    Jean Ho-Rath et al.              :

             v.                      :

Rhode Island Hospital et al.         :




       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. 2012-208-Appeal.
                                                                    No. 2012-211-Appeal.
                                                                    No. 2012-212-Appeal.
                                                                    No. 2012-214-Appeal.
                                                                    (PC 10-4186)


               Jean Ho-Rath et al.               :

                       v.                        :

          Rhode Island Hospital et al.           :


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


                                            OPINION

          Justice Goldberg, for the Court. These consolidated appeals, arising from a single

medical negligence case, came before the Supreme Court pursuant to an order directing the

parties to appear and show cause why the issues raised therein should not summarily be decided.

Before this Court are four appeals which arise from the entry of separate final judgments in favor

of certain defendants in this action. The judgments were entered after a Superior Court hearing

on motions to dismiss filed by four groups of defendants, in accordance with Rule 12(b) of the

Superior Court Rules of Civil Procedure. At issue in each appeal is the application of G.L. 1956

§ 9-1-14.1(1), an act that tolls the three-year statute of limitations for medical malpractice claims

when the person claiming injury is a minor.1 After hearing the arguments of counsel and




1
    In pertinent part, G.L. 1956 § 9-1-14.1 provides that

          “an action for medical * * * malpractice shall be commenced within three (3)
          years from the time of the occurrence of the incident which gave rise to the
          action; provided, however, that:
                                                 -1-
carefully examining the memoranda filed by the parties, we are of the opinion that cause has

been shown in part, and that some, but not all of the issues raised by these appeals may be

decided at this time, and that the remaining claims shall be assigned to this Court’s full argument

calendar. For the reasons set forth in this opinion, we vacate the Superior Court judgments

entered in favor of defendants Corning Incorporated and Quest Diagnostics, LLC. With respect

to the appeals and cross-appeals filed by the plaintiffs and defendants Rhode Island Hospital,

Miriam Hospital, Women & Infants Hospital, and each hospital’s associated medical

professionals, we direct that the questions raised by these appeals be assigned to the Court’s full

argument calendar.

                                         Facts and Travel

       On July 16, 2010, plaintiffs Jean and Bunsan Ho-Rath, individually and per proxima

amici Yendee Ho-Rath (collectively plaintiffs),2 filed suit against numerous defendants, alleging

negligence, lack of informed consent, corporate liability, and vicarious liability for injuries

sustained by their minor daughter Yendee, who was born on January 9, 1998, with alpha

thalassemia, a genetic blood disorder. The plaintiffs subsequently filed a 124-page, 78-count

amended complaint on September 17, 2010, naming twenty-four defendants and three John Doe


               “(1) One who is under disability by reason of age, mental incompetence,
       or otherwise, and on whose behalf no action is brought within the period of three
       (3) years from the time of the occurrence of the incident, shall bring the action
       within three (3) years from the removal of the disability.

               “(2) In respect to those injuries or damages due to acts of medical * * *
       malpractice which could not in the exercise of reasonable diligence be
       discoverable at the time of the occurrence of the incident which gave rise to the
       action, suit shall be commenced within three (3) years of the time that the act or
       acts of the malpractice should, in the exercise of reasonable diligence, have been
       discovered.”
2
  For the sake of clarity, the individual plaintiffs will be referred to by only their first names; in
so doing, we intend no disrespect.
                                                -2-
defendants.3 The gravamen of plaintiffs’ amended complaint is that, although testing for the

specific genetic disorder was performed on Jean, Bunsan, and Yendee’s older brother as early as

1993, defendants failed to correctly test, diagnose, and treat plaintiffs, resulting in Yendee

manifesting the debilitating genetic disorder at birth.

       On January 4, 2011, defendant Corning Incorporated (Corning) moved to dismiss

plaintiffs’ claims against it on the ground that such claims were time-barred by the statute of

limitations set forth in § 9-1-14.1.4     Specifically, Corning argued that Jean and Bunsan’s

individual loss of consortium claims—as well as the claims made on behalf of Yendee—were

not made within three years of the incident or occurrence giving rise to the suit. Corning also

cited to Dowd v. Rayner, 655 A.2d 679, 680 (R.I. 1995), in support of the argument that once a

medical malpractice action is filed on behalf of a minor, the complaint cannot then be amended

to add additional parties outside of the three-year statute of limitations. As a result, Corning

argued that all claims against it should be dismissed because the entity was not named in

plaintiffs’ original complaint.

       On February 8, 2011, defendants Rhode Island Hospital, Miriam Hospital, and four

associated medical doctors (collectively RIH defendants) filed a motion to dismiss Jean and

Bunsan’s derivative claims against those defendants.5 The RIH defendants argued that, although

a minor may benefit from the tolling provision found in § 9-1-14.1(1), the statute of limitations is

not tolled for the derivative claims of parents. Accordingly, the RIH defendants argued that the

3
 This opinion will discuss only the parties, facts, and travel that are relevant to the consolidated
appeals currently before this Court.
4
  The plaintiffs’ claims against Corning constitute counts 13 through 16 of the amended
complaint; significantly, Corning was not a named defendant in plaintiffs’ initial complaint.
5
 The plaintiffs’ claims against the RIH defendants make up counts 1 through 4, 37 through 40,
45 through 50, 65 and 66 of the amended complaint.
                                                -3-
parents’ claims for loss of services, companionship, comfort and consortium—although

derivative in nature—were time-barred based on the three-year statute of limitations for medical

malpractice claims set forth in § 9-1-14.1.

         The defendant Women & Infants’ Hospital, along with three associated medical

professionals (collectively W&I defendants), filed a motion to dismiss all claims contained in

plaintiffs’ amended complaint against those defendants on February 28, 2011.6 In this motion,

the W&I defendants argued that the statute of limitations for medical malpractice claims, found

in § 9-1-14.1(1)—in conjunction with plaintiffs’ failure to plead the applicable discovery rule

contained in § 9-1-14.1(2)—barred the parents’ claims as well as claims made on behalf of

Yendee. The W&I defendants further cited to Bakalakis v. Women & Infants’ Hospital, 619

A.2d 1105, 1107 (R.I. 1993), for the proposition that § 9-1-14.1(1) precludes Yendee from filing

a complaint on her own behalf once she reaches the age of majority because her parents filed a

claim on her behalf prior to that time.

         On April 13, 2011, Quest Diagnostics, LLC (Quest) moved to dismiss plaintiffs’ claims

against that entity.7 In this motion, Quest argued that the claims contained in the amended

complaint solely concerned the analysis of blood tests performed on Bunsan in December 1993,

and were therefore time-barred pursuant to the applicable statute of limitations set forth in § 9-1-

14.1(1).    Quest also argued—similar to the argument made by the W&I defendants—that

because an action had already been filed on Yendee’s behalf while she was a minor, she may not

benefit from the tolling provision found in § 9-1-14.1(1) and was therefore precluded from filing

suit on her own behalf even after she reached the age of majority.

6
  The claims against the W&I defendants constitute counts 5 through 8, 59 through 62, and 67
through 70 of the amended complaint.
7
    The counts contained in plaintiffs’ amended complaint against Quest are 17, 18, 19 and 20.
                                                -4-
         The aforementioned motions were heard together before a Superior Court justice on

June 27, 2011. In arguing against Rule 12(b) dismissal, plaintiffs posited that § 9-1-14.1(1)

suspends the statute of limitations for a minor filing medical malpractice claims up until three

years after the child reaches the age of majority. The plaintiffs also argued that, because the

parents’ claims are derivative, the statute of limitations for the parents’ loss of consortium claims

also are tolled along with the minor child’s underlying medical malpractice claims. Finally,

counsel for plaintiffs argued that § 9-1-19—the general disability tolling statute applicable to

causes of action other than medical malpractice—rather than § 9-1-14.1(1), would be the

operative statute in regard to defendants Corning and Quest, whose services strictly were limited

to laboratory testing and analysis.

         The trial justice rendered a bench decision on all motions on July 7, 2011. The trial

justice determined that all of plaintiffs’ claims, both direct and derivative, sounded in medical

malpractice and were therefore governed by § 9-1-14.1. Based on her reading of § 9-1-14.1(1),

the trial justice determined that two options were available to a minor seeking to commence a

medical malpractice action: either an action could be commenced on behalf of the child within

three years of the injury—or reasonable discovery of the injury—or the injured minor could

bring suit on his or her own behalf within three years of attaining the age of majority. The trial

justice therefore concluded that all of plaintiffs’ claims were time-barred, because those

allegations of injury had arisen more than three years before the action was commenced in 2010,

and because plaintiffs did not plead any applicable discovery rule which would account for such

delay.

         Specifically concerning Corning and Quest, the trial justice found that, because plaintiffs

added those entities more than three years after any testing or diagnosis which could give rise to



                                                -5-
a cause of action, the claims against those entities also were barred. Finally, the trial justice held

that the child retained the right to bring suit on her own behalf when she reached the age of

majority, and up to three years thereafter. Final judgments subsequently entered on behalf of

these defendants pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure. The

plaintiffs and Corning, Quest, and W&I defendants each filed a timely and separate appeal.

                                        Standard of Review

          “[T]he sole function of a motion to dismiss is to test the sufficiency of the complaint.”

Narragansett Electric Co. v. Minardi, 21 A.3d 274, 277 (R.I. 2011) (quoting Laurence v. Sollitto,

788 A.2d 455, 456 (R.I. 2002)). “In passing on a Rule 12(b) dismissal, this Court applies the

same standard as the trial justice.” Id. at 278 (citing Barrette v. Yakavonis, 966 A.2d 1231, 1233

(R.I. 2009)). “We thus are confined to the four corners of the complaint and must assume all

allegations are true, resolving any doubts in plaintiff’s favor.” Id. (citing Laurence, 788 A.2d at

456). This Court will affirm a trial justice’s grant of a Rule 12(b)(6) motion to dismiss “when it

is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the

defendant under any set of facts that could be proven in support of the plaintiffs claim.” Tarzia

v. State, 44 A.3d 1245, 1251 (R.I. 2012) (quoting Palazzo v. Alves, 944 A.2d 144, 149-50 (R.I.

2008)).

                                             Discussion

          In their respective appeals and cross-appeals, each party contends that the trial justice

incorrectly interpreted § 9-1-14.1(1).     The plaintiffs argue that, pursuant to § 9-1-14.1(1),

medical negligence claims may be brought on behalf of a minor at any time before the minor

attains the age of majority, at which point that minor—who is now an adult—has an additional

three years to bring suit on his or her own behalf. The plaintiffs also contend that, in accordance



                                                -6-
with § 9-1-41,8 the parents must bring all derivative claims at the same time that a child’s claims

are advanced, regardless of when the complaint is filed. On the other hand, Corning, Quest, and

the RIH and W&I defendants contend that the trial justice correctly dismissed Jean and Bunsan’s

derivative claims, but argue that she erred in interpreting § 9-1-14.1(1) to allow Yendee to bring

an action on her own behalf when she reaches the age of majority.

       Examining the parties’ arguments as a whole, this Court is confronted with two issues of

first impression: whether, in accordance with § 9-1-14.1(1), medical malpractice claims may be

brought on a child’s behalf at any time before the minor reaches the age of majority, and

thereafter by the child within three years after attaining the age of majority, or—as the lower

court ruled—medical malpractice claims must be brought on behalf of a minor within three years

of the incident giving rise to the cause of action, or within three years after attaining the age of

majority—but at no time in between. The second question presented—which depends on our

resolution of the first issue—is whether parents may bring their derivative claims at whatever

time the minor’s medical negligence claims are pursued, or whether—as the trial justice

concluded—parents must file all derivative claims within three years of the incident giving rise

to the cause of action, even if the child’s claims are not brought until sometime thereafter.

       In light of these important issues, we are satisfied that cause has been shown; the issues

presented in the consolidated appeals concerning the hospitals and medical providers shall be

assigned to this Court’s regular calendar for full briefing and argument.             Therefore, in

accordance with Article I, Rule 16 of the Supreme Court Rules of Appellate Procedure, each

appellant’s brief shall be due within forty days of the date of this opinion, followed by

8
  In pertinent part, § 9-1-41 states: “(c) Parents are entitled to recover damages for the loss of
their unemancipated minor child’s society and companionship caused by tortious injury to the
minor. (d) Actions under this section shall be brought within the time limited under § 9-1-14 or
9-1-14.1, whichever is applicable, for actions for injuries to the person.”
                                                -7-
responsive briefing.

          We next address whether the claims advanced against defendant corporations Corning

and Quest sound in ordinary negligence—and not medical malpractice—and are therefore

subject to the statute of limitations contained within § 9-1-19,9 rather than § 9-1-14.1(1). At the

July 7, 2011 hearing, the trial justice declared that all plaintiffs’ claims, both direct and

derivative, sounded in medical malpractice and therefore all were governed by § 9-1-14.1.10 On

appeal, plaintiffs argue that the claims against Corning and Quest do not sound in medical

malpractice, but are claims for ordinary negligence, and are therefore subject to the statute of

limitations contained in § 9-1-19. In response, defendants Corning and Quest cite Vigue v. John

E. Fogarty Memorial Hospital, 481 A.2d 1, 3 (R.I. 1984), for the proposition that plaintiffs’

claims against the laboratories are for medical malpractice and should therefore be subject to the

statute of limitations in § 9-1-14.1(1).

          In Vigue, this Court, when faced with determining whether an alleged tortious act—by a

nurse employed by a hospital—constituted ordinary negligence or medical malpractice, turned to

the legislative definition of the term medical malpractice. Vigue, 481 A.2d at 3. Medical

malpractice currently is defined in G.L. 1956 chapter 37 of title 5 as “any tort, or breach of

contract based on health care or professional services rendered, or which should have been

9
    In total, § 9-1-19 provides:

                  “Disability postponing running of statute. If any person at the time any
          such cause of action shall accrue to him or her shall be under the age of eighteen
          (18) years, or of unsound mind, or beyond the limits of the United States, the
          person may bring the cause of action, within the time limited under this chapter,
          after the impediment is removed.”
10
   The trial justice explained that “[w]hen, as here, the claims asserted against the medical
defendants challenge the quality, effectiveness, nature, or propriety of the professional services
rendered, such claims are subject to the applicable medical malpractice statute of limitations [in
§ 9-1-14.1].”
                                                -8-
rendered, by a physician, dentist, hospital, clinic, health maintenance organization or

professional service corporation providing health care services and organized under chapter 5.1

of title 7, to a patient * * *.”11 Section 5-37-1(8); Pierce v. Rhode Island Hospital, 875 A.2d 424,

427 n.1 (R.I. 2005). We are of the opinion that laboratories, such as Corning and Quest, are not

included within this definition.

       Examining the plain language of § 5-37-1(8), we are convinced that Corning and Quest

do not fall within the ambit of a physician, dentist, hospital, clinic, or professional service

corporation organized under G.L. 1956 chapter 5.1 of title 7.12 Moreover, because laboratories

are licensed pursuant to G.L. 1956 chapter 16.2 of title 23, Corning and Quest do not meet the

definition of health maintenance organizations within the definition of medical malpractice.13

Therefore, we are of the opinion that, in the absence of clear statutory language to the contrary,

the Legislature did not intend for negligence actions against laboratories to fall under the ambit

of medical malpractice. Accordingly, we are satisfied that the plaintiffs’ claims against Corning

and Quest sound in ordinary negligence and are therefore governed by the statute of limitations
11
   At the time Vigue v. John E. Fogarty Memorial Hospital, 481 A.2d 1 (R.I. 1984) was decided,
the statutory definition of medical malpractice, set forth in G.L. 1956 § 5-37.1-1(f), contained
language almost identical to the current definition of medical malpractice in G.L. 1956 § 5-37-
1(8). Consequently, chapter 37.1 of title 5 was subsequently repealed by our General Assembly
effective January 1, 1987, by P.L. 1986, ch. 301, § 2.
12
   Pursuant to G.L. 1956 § 7-5.1-2, professional service corporations organized under § 7-5.1-1
are statutorily limited to the following professions:

       “(i) Physicians; (ii) Dentists; (iii) Attorneys at law; (iv) * * *; (v) Professional
       engineers; (vi) Architects; (vii) Certified public accountants and licensed public
       accountants; (viii) Veterinarians; (ix) Chiropractors; (x) Podiatrists; (xi)
       Registered nurses; (xii) Optometrists; (xiii) Physical therapists; (xiv) Landscape
       architects; (xv) Land surveyors; (xvi) Opticians; (xvii) Physician assistants; (xviii)
       Psychologists; or (xix) Midwives or nurse-midwives.”
13
   Section 5-37-1(6) defines “[h]ealth maintenance organization” as “a public or private
organization licensed pursuant to the provisions of chapter 17 of title 23 or chapter 41 of title
27.”
                                               -9-
set forth in § 9-1-19. As a result, we vacate the final judgments entered in this case on behalf of

the defendants Corning and Quest.

                                           Conclusion

       For the reasons set forth in this opinion, we direct that the plaintiffs’ appeal, as well as

the appeals and cross-appeals of the RIH and the W&I defendants, be assigned to this Court’s

regular calendar for further briefing and argument.        Furthermore, because the plaintiffs’

allegations against the defendants Corning and Quest are not medical malpractice claims, the

judgments entered in favor of the defendant Corning and the defendant Quest are vacated. Those

cases may be remanded to the Superior Court for further proceedings.




                                              - 10 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:       Jean Ho-Rath et al. v. Rhode Island Hospital et al.

CASE NO:             No. 2012-208-Appeal.
                     No. 2012-211-Appeal.
                     No. 2012-212-Appeal.
                     No. 2012-214-Appeal.
                     (PC 10-4186)

COURT:               Supreme Court

DATE OPINION FILED: May 2, 2014

JUSTICES:            Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:          Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:    Providence County Superior Court

JUDGE FROM LOWER COURT:

                     Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                     For Plaintiffs: Amato A. DeLuca, Es q.

                     For Defendants: Robert P. Landau, Esq.
                                     Jeffrey S. Brenner, Esq.
