Joplin v. Cassin

252 A.3d 271

Pamela JOPLIN, Individually and in her capacity as Executrix of the Estate of Patricia A. Kinney, et al.

v.Kathleen A. CASSIN, M.D.

No. 2018-242-Appeal.

WC 13-384

Supreme Court of Rhode Island.

June 9, 2021

Michael P. Quinn, Jr., Esq., Timothy J. Grimes, Esq., for Plaintiff.

Derek M. Gillis, Esq., Francis A. Connor, III, Esq., for Defendant.

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

Chief Justice Suttell, for the Court.

The defendant, Kathleen A. Cassin, M.D. (Dr. Cassin or defendant), appeals from a Superior Court order granting a motion for a new trial in favor of the plaintiff, Pamela Joplin (Mrs. Joplin or plaintiff).¹ This medical malpractice action arises out of the death of Patricia A. Kinney, who lost her battle with ovarian cancer in 2014. Following six days of trial testimony and four days of deliberation, a jury found that Dr. Cassin breached the duty of care owed to Mrs. Kinney, but that this breach was not the proximate cause of Mrs. Kinney's death. The trial justice granted plaintiff's motion for a new trial, however, finding that the jury's verdict was against the fair preponderance of the evidence and failed to do substantial justice. For the reasons set forth in this opinion, we vacate the Superior Court's order, and we remand the case with instructions to reinstate the jury's verdict.

IFacts and Travel

In early 2011, Mrs. Kinney began experiencing dizziness and shortness of breath while engaging in normal daily activities, such as walking short distances. After conducting her own evaluation, Mrs. Kinney's primary care physician, Gloria Sun, M.D., referred Mrs. Kinney to James Smythe, M.D., a hematologist/oncologist. Doctor Smythe ordered various tests for Mrs. Kinney, including a computerized tomography (CT) scan of her chest, abdomen, and pelvis. Among other things, the CT scan revealed a complex pelvic mass on the left adnexa, which was likely ovarian-related. In response to this finding, Dr. Smythe ordered a pelvic ultrasound, which confirmed the presence of a left adnexal mass² that was predominantly cystic. Doctor Smythe reviewed his findings with Mrs. Kinney and referred her to Dr. Cassin for further gynecological evaluation.

Doctor Cassin is a board-certified obstetrician-gynecologist who has since 2004 limited her practice to gynecology—the surgical and medical care of women's reproductive organs. Mrs. Kinney had previously sought treatment from Dr. Cassin in the 1990s and early 2000s. In 1993, Dr. Cassin performed a total abdominal hysterectomy and removed Mrs. Kinney's left fallopian tube and left ovary due to endometriosis.³

On June 13, 2011, Mrs. Kinney visited Dr. Cassin's office for an initial consultation regarding the adnexal mass. In preparation for Mrs. Kinney's visit, Dr. Cassin reviewed the CT scan and pelvic ultrasound report. During the visit, Dr. Cassin performed a physical exam of Mrs. Kinney's pelvis and documented that an approximately five-centimeter firm, moderately tender mass was felt. In Mrs. Kinney's chart, Dr. Cassin noted that she suspected the mass was an "endometrioma in remnant or implant."⁴ Additionally, she noted that she had discussed the options of close follow-up with imaging versus surgery for a definitive diagnosis and that Mrs. Kinney had opted for surgery. Directly next to this note, Dr. Cassin also indicated that Mrs. Kinney's sister had died of ovarian cancer. Finally, Dr. Cassin recorded her treatment plan—Mrs. Kinney was to have a preoperative office visit on July 5, 2011, followed by surgery.

On July 13, 2011, Dr. Cassin operated on Mrs. Kinney at South County Hospital. Initially, Dr. Cassin attempted to remove the adnexal mass in one piece; however, a portion of the mass was adhered to the ureter. Doctor Cassin suctioned out the fluid contents of the mass, samples of which were later sent to the pathology department for analysis. Then, Dr. Cassin removed tissue samples from the mass, known as frozen sections, and immediately sent them to the pathology department of South County Hospital for review. After completing his initial analysis of the frozen sections, the pathologist, James Carlsten, M.D., called the operating room to inform Dr. Cassin that his initial impression was that the mass was an endometrioma ; however, he could not definitively rule out cancer. Doctor Cassin attempted to remove any remaining tissue that she could without damaging the ureter, but ultimately decided that there was a small piece of attached tissue that she could not safely remove. Prior to closing Mrs. Kinney's incision, Dr. Cassin inspected Mrs. Kinney's bowel and saw no signs of injury.

Following the completion of her surgery, Mrs. Kinney remained at South County Hospital for postsurgical observation. On July 14, 2011, while Mrs. Kinney was still admitted at South County Hospital, Dr. Cassin received a cytology report which indicated that the fluid collected from Mrs. Kinney's adnexal mass contained "[h]ighly atypical cells" that were "worrisome for a cystic neoplasm." Doctor Cassin understood this report to be an indication that Mrs. Kinney's mass may have been ovarian cancer rather than an endometrioma. While the final pathology report for the frozen sections was still pending, Dr. Cassin also had a discussion with Dr. Carlsten, during which Dr. Carlsten indicated that he suspected that Mrs. Kinney's mass was in fact cancerous, despite the initial frozen sections having been suggestive of an endometrioma.

Mrs. Kinney was discharged from South County Hospital on July 17, 2011. Three days later, Mrs. Kinney visited Dr. Cassin's office to have her surgical staples removed. During this visit, Dr. Cassin documented that Mrs. Kinney's incision looked good and that Mrs. Kinney was aware that the final pathology report was still pending. Doctor Cassin also scheduled a follow-up visit with Mrs. Kinney for the following week.

However, the next morning, Mrs. Kinney called Dr. Cassin to report that she was experiencing "copious wound drainage[.]" Doctor Cassin suspected that Mrs. Kinney might have a fistula⁵ and arranged to have her admitted to South County Hospital. At 10:15 a.m. on July 21, 2011, Allison McAteer, M.D., a general surgeon, admitted Mrs. Kinney to the hospital and discussed her care plan with Dr. Cassin. Later that same day, Dr. Cassin learned that the final pathology report indicated that Mrs. Kinney had clear cell adenocarcinoma, a rare form of ovarian cancer.

From July 21, 2011, to August 8, 2011, Mrs. Kinney remained at South County Hospital receiving treatment for her fistula. Although Dr. Cassin was not the admitting physician, she continued to visit Mrs. Kinney during her hospital stay. In addition to visiting Mrs. Kinney, Dr. Cassin also attended a meeting of the South County Hospital tumor board on August 2, 2011; her notes from this meeting indicate that the proposed care plan included starting chemotherapy once Mrs. Kinney was well enough to tolerate the treatment, as well as the possibility of a second surgery to remove the tumor. On August 31, 2011, Dr. McAteer informed Dr. Cassin that Mrs. Kinney would be transferred to Roger Williams General Hospital for further evaluation and possible surgery to repair the fistula, to be performed by Joseph Espat, M.D., a gastrointestinal oncologist.

On September 1, 2011, Dr. Cassin spoke to Dr. Espat and discussed Dr. Espat's care plan for Mrs. Kinney; she noted that Dr. Espat planned to perform surgery followed by chemotherapy to treat Mrs. Kinney's ovarian cancer. In addition, Dr. Cassin told Dr. Espat that she believed that Mrs. Kinney had residual tumor in her left lower quadrant. On September 7, 2011, Dr. Espat operated on Mrs. Kinney. After completing Mrs. Kinney's surgery, Dr. Espat informed Dr. Cassin that he "found no left lower quadrant mass" during the operation.

According to Dr. Cassin's notes, Dr. Cassin remained in contact with Mrs. Kinney through December 2, 2011. During this time, Mrs. Kinney was treated by several doctors, including Dr. McAteer, Dr. Sun, Dr. Smythe, and Dr. Espat; however, no additional surgery was performed to assess or treat Mrs. Kinney's ovarian cancer. In early 2012, CT scans revealed the presence of a four-centimeter complex mass in Mrs. Kinney's left adnexa. By April 2012, Mrs. Kinney's cancer was classified as metastatic, meaning that it had spread to other parts of her body. Mrs. Kinney died of ovarian cancer on November 25, 2014.

Prior to her death, Mrs. Kinney filed this civil action alleging that Dr. Cassin negligently performed a surgical procedure. Following Mrs. Kinney's death, the complaint was amended to reflect that Mrs. Kinney's daughter, Pamela Joplin, had been substituted as the representative of Mrs. Kinney's estate and to allege that Dr. Cassin

"negligently performed a surgical procedure and post-surgical follow-up, which failed to entirely remove or arrange to remove or have others remove cancerous tissue, failed to consult experts in oncology, resulted in the development of a fistula and led to several other complications and damage to organs, thereby causing Patricia A. Kinney to suffer and become afflicted with grave and severe personal injuries, extreme pain and suffering, and death."⁶

At trial, plaintiff argued that the standard of care required Dr. Cassin to refer Mrs. Kinney to a gynecologic oncologist prior to the July 13, 2011 surgery, because Mrs. Kinney had presented with multiple ovarian cancer risk factors. The plaintiff's expert witness, Julian Schink, M.D., testified that, if Mrs. Kinney's surgery had been performed by a gynecologic oncologist, the entire mass would have been removed, thus eliminating Mrs. Kinney's cancer, and Mrs. Kinney likely would not have developed a fistula. Additionally, plaintiff's expert witness testified that the postsurgery standard of care required Dr. Cassin to refer Mrs. Kinney to a gynecologic oncologist after the surgical pathology reports indicated that Mrs. Kinney's mass was cancerous.

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