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Kenny v. Wepman6/19/2000
The defendant, Barry Wepman, M.D., has appealed from the order granting a motion for a new trial made by the plaintiff, Irene L. Kenny. This case came before the Supreme Court on May 8, 2000, pursuant to an order directing the parties to appear and show cause why the issues raised on appeal should not be summarily decided. After hearing the arguments of counsel for the parties and examining their memoranda, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be summarily decided.
The defendant served as plaintiff's treating ophthalmologist for many years. At plaintiff's annual checkup in June 1995, defendant suggested that she have surgery to remove a cataract in her left eye. On August 24, 1995, defendant performed the operation, during which a complication arose when a portion of the nucleus of the eye dislodged into the vitreous area of the eye. The defendant was unsuccessful in his attempts to remove the nuclear debris, and plaintiff lost all vision in her left eye after the operation.
The plaintiff filed the instant medical malpractice action on February 3, 1997. The plaintiff's complaint alleged that defendant was negligent in performing the surgery and that defendant had failed to gain her informed consent for the operation. As part of her negligence claim against defendant, plaintiff also asserted that defendant was negligent in recommending the surgery.
After a trial before a jury, a verdict was returned in favor of defendant on all counts. The plaintiff thereafter filed a motion for a new trial. In a written decision filed on July 16, 1999, the trial justice denied plaintiff's motion on the count alleging negligent performance of surgery. However, she granted a new trial on the allegations of negligent recommendation of surgery and lack of informed consent. The defendant appealed.
In passing upon a motion for a new trial, the trial justice acts as a "'thirteenth juror' in that he [or she] makes an independent appraisal of the evidence in the light of his [or her] charge to the jury." Kurczy v. St. Joseph Veterans Association, Inc., 713 A.2d 766, 770 (R.I. 1998) (quoting State v. Doctor, 690 A.2d 321, 329 (R.I. 1997)). In so doing, the trial justice can weigh the evidence, assess the witnesses' credibility, reject some evidence and draw reasonable inferences from the testimony and evidence in the record. Kurczy, 713 A.2d at 770. "This Court will affirm a trial justice's decision on a motion for a new trial as long as the trial justice conducts the appropriate analysis, does not overlook or misconceive material evidence, and is not otherwise clearly wrong." Morrocco v. Piccardi, 674 A.2d 380, 382 (R.I. 1996) (per curiam).
On appeal, defendant first argued that the trial justice was clearly wrong in granting a new trial on plaintiff's assertion that defendant negligently recommended surgery. He contended that the trial justice overlooked the testimony of his expert witnesses, who said that cataract surgery was warranted. We disagree.
The trial justice conducted a thorough analysis of the evidence in a thirteen-page written decision. After reviewing the medical records of defendant and the conspicuous dearth of documentation of plaintiff's vision complaints in those records, the trial justice found that plaintiff had no preoperative complaints concerning the vision in her left eye. In light of this evidence, the trial justice concluded that defendant's assertion that plaintiff complained of vision problems was unworthy of belief. Finally, she accepted the undisputed testimony of plaintiff's expert witnesses that the mere presence of a cataract does not justify surgery. There
Page 1 2 Rhode Island Personal Injury Attorneys
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