Pamela Joplin, Individually and in her capacity as of the Estate of Patricia A. Kinney v. Kathleen A. Cassin, M.D.

June 9, 2021

Supreme Court

No. 2018-242-Appeal.
(WC 13-384)

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

v. :

Kathleen A. Cassin, M.D. :

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 (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court

No. 2018-242-Appeal.
(WC 13-384)

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

v. :

Kathleen A. Cassin, M.D. :

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

OPINION

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

1
Mrs. Joplin brought this action individually and in her capacity as executrix of the
estate of Patricia A. Kinney and on behalf of her siblings Michelle Kinney, Donald
Kinney, and Jason Kinney.

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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.

I

Facts 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

2
Throughout trial, the terms “adnexal mass” and “ovarian mass” were used
interchangeably. Given that the term “adnexal mass” is consistently used throughout
Mrs. Kinney’s medical records, we will use the term “adnexal mass” in this opinion.

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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.

3
Mrs. Kinney suffered from severe endometriosis. Prior to 1993, a colleague of Dr.
Cassin’s performed surgery to remove Mrs. Kinney’s right ovary and fallopian tube.
4
An endometrioma is a “mass of endometrial tissue” that is out of place within the
body. Stedman’s Medical Dictionary 641 (28th ed. 2006); Stedman’s Medical
Dictionary 611 (28th ed. 2006) (defining “ectopic” as “[o]ut of place[.]”).

-3-
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

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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.

5
During trial, a “fistula” was described as a hole in the bowel that allows contents
from the intestine to leak into the abdominal cavity.

-5-
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

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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

6
The plaintiff’s complaint also asserted claims against Dr. McAteer, South County
Hospital, and South County Hospital Healthcare System d/b/a South County
Hospital Center for Women’s Health. However, those claims were dismissed with
prejudice on March 15, 2016.

-7-
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.

Conversely, Dr. Cassin testified that she was not required to refer Mrs. Kinney

to a gynecologic oncologist for the initial surgery because Mrs. Kinney’s medical

history indicated that the mass was likely an endometrioma. Additionally, Dr.

Cassin testified that she had offered Mrs. Kinney the option of referral to a

gynecologic oncologist during her initial consultation, but Mrs. Kinney had elected

to have Dr. Cassin perform the surgery.

The defendant’s expert witness, Mary Susan Schilling, M.D., testified that Dr.

Cassin met the standard of care before, during, and after surgery. In support of this

position, Dr. Schilling testified that the intraoperative pathology report indicated that

the mass was consistent with an endometrioma and that, therefore, it was reasonable

-8-
for Dr. Cassin to rely upon those results. With regard to postsurgery care, Dr.

Schilling explained that, when Dr. Cassin learned that Mrs. Kinney did in fact have

cancer, Mrs. Kinney had already been admitted to South County Hospital under the

care of Dr. McAteer. Further, Dr. Schilling testified that, in July and August 2011,

Dr. Smythe, a medical oncologist, and Dr. Espat, a surgical oncologist, were both

involved in Mrs. Kinney’s care.

At the close of the evidence, the jury returned a verdict in favor of plaintiff on

the issue of negligence and for Dr. Cassin on the issue of proximate cause. The

plaintiff filed a timely motion for a new trial, arguing that the jury’s finding on

causation was unsupported by the evidence and failed to do substantial justice

between the parties.7 The defendant argued in opposition to the motion that there

were plausible interpretations of the evidence from which the jury could have found

that Dr. Cassin breached her duty of care but that said breach was not the proximate

cause of Mrs. Kinney’s death.

On May 25, 2018, a hearing was held at which the parties were given the

opportunity to present their arguments with respect to the motion for a new trial;

however, both parties elected to rest on their memoranda. The trial justice then

7
The plaintiff requested a new trial limited to the issues of causation and damages.
The trial justice, however, concluded that a retrial on the issue of causation and
damages alone would create substantial prejudice to defendant and might result in
jury confusion.

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issued a decision from the bench, wherein she explained that the “crux of this

controversy” was whether Dr. Cassin was required to involve a gynecologic

oncologist in Mrs. Kinney’s care. Based on her review of the record, the trial justice

held that “[t]he finding of fault without a finding of causation [was] illogical and not

based upon the credible evidence.” Further, she stated, “[h]ere, liability and

proximate cause are completely interwoven and make it logically impossible to find

fault without proximate cause.”

Thus, the trial justice granted plaintiff’s motion for a new trial. An order to

that effect was entered on June 11, 2018. Doctor Cassin filed a timely appeal,

bringing this case properly before us.

II

Standard of Review

This Court affords “great weight” to a trial justice’s ruling on a motion for a

new trial. Manning v. Bellafiore, 991 A.2d 399, 408 (R.I. 2010) (quoting Bajakian

v. Erinakes, 880 A.2d 843, 852 (R.I. 2005)). “When ruling on a motion for a new

trial, the trial justice acts as a superjuror and should review the evidence and exercise

his or her independent judgment in passing upon the weight of the evidence and the

credibility of the witnesses.” Id. (quoting Seddon v. Duke, 884 A.2d 413, 413 (R.I.

2005) (mem.)). After doing so, “the trial justice must uphold the jury verdict if [the

justice] determines that the evidence is evenly balanced or is such that reasonable

- 10 -
minds in considering the same evidence could come to different conclusions.” Aptt

v. Cedarz Medical and Cosmedics, Inc., 175 A.3d 484, 488 (R.I. 2018) (deletion

omitted) (quoting Bates-Bridgmon v. Heong’s Market, Inc., 152 A.3d 1137, 1143

(R.I. 2017)). However, a “trial justice may set aside a verdict when [the justice’s]

judgment tells him or her that it is wrong because it fails to respond truly to the

merits of the controversy and to administer substantial justice and is against the fair

preponderance of the evidence.” Manning, 991 A.2d at 408 (brackets omitted)

(quoting Murray v. Bromley, 945 A.2d 330, 333 (R.I. 2008)). Accordingly, “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.” Id. (quoting Murray, 945

A.2d at 334).

III

Discussion

On appeal, Dr. Cassin argues that the trial justice erred in granting plaintiff’s

motion for a new trial because “reasonable minds could come to different

conclusions about proximate causation when considering the evidence in this case.”

Doctor Cassin contends that plaintiff advanced three distinct theories of breach

during trial—the presurgery failure to refer Mrs. Kinney to a gynecologic oncologist;

the performance of the surgery; and the postsurgery failure to refer Mrs. Kinney to

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a gynecologic oncologist—and that the jury’s determination that plaintiff did not

satisfy her burden of proof with respect to causation was reasonable and supported

by the evidence at trial. Moreover, Dr. Cassin argues that the trial justice improperly

eliminated proximate cause as a separate and distinct element of negligence.

In granting plaintiff’s motion for a new trial, the trial justice explained that

“the determination of negligence by this jury necessitates a finding of causation

based upon the credible evidence on this trial record.” Further, she found that “[t]he

only conclusion that should be drawn from the facts and the evidence is that but for

Dr. Cassin’s negligence, the plaintiff would have survived her cancer.” In reaching

that conclusion, the trial justice reasoned that “[t]he testimony of Dr. Cassin as well

as the uncontradicted credible testimony of Dr. Schink establishes that if the standard

of care had been met and a [gynecologic] oncologist performed the surgery, Patricia

Kinney would have been cured because the mass would have been removed.”

Additionally, the trial justice found that the credible trial evidence established

that Mrs. Kinney was at a high risk of having ovarian cancer when she initially

presented to Dr. Cassin. She also noted that, during Dr. Cassin’s testimony, the

doctor had acknowledged “the precarious nature of the surgery” and the risks

involved. Moreover, the trial justice noted that Dr. Cassin “confirmed that patients

who have ovarian cancer and who are operated on by a [gynecologic] oncologist

have greater survival rates.”

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“While a trial justice need not reference all of the evidence elicited at trial,

[the trial justice] is required to reference enough for this Court to be satisfied that

[the justice] applied the correct standard.” King v. Huntress, Inc., 94 A.3d 467, 493

(R.I. 2014). Our review of the record indicates that, in the course of ruling on

plaintiff’s motion for a new trial, the trial justice discussed only the testimony of Dr.

Schink and Dr. Cassin. Moreover, the decision contained no reference to the

testimony of Dr. Schilling, nor did it address the multiple theories of breach of duty

that were presented at trial. Accordingly, “the trial justice failed to reference enough

evidence for this Court to be satisfied that [she] applied the correct standard.” King,

94 A.3d at 493.

For the purposes of our review, we are concerned neither with the credibility

of the expert witnesses nor with the weight of their testimony. These functions are

properly assigned to the jury in the first instance and to the trial justice in assessing

the motion for a new trial. When the trial justice overlooks or misconceives material

evidence, however, we are tasked with reviewing the evidence “in the light most

favorable to the prevailing party” to determine “if there is any competent evidence

to support the jury’s verdict[.]” Marcotte v. Harrison, 443 A.2d 1225, 1232 (R.I.

1982).

In the case under review, the record clearly demonstrates that plaintiff

advanced multiple theories of breach of duty. The crux of plaintiff’s cause of action

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was that Dr. Cassin failed to refer Mrs. Kinney to a gynecologic oncologist at various

stages of her treatment. Doctor Schink testified that Mrs. Kinney was at high risk

for ovarian cancer and that the standard of care required Dr. Cassin to refer her to a

gynecologic oncologist before the surgery on July 13, 2011. This was because a

gynecologic oncologist, unlike a gynecologist such as Dr. Cassin, would have the

training and experience to remove the entire mass. As Dr. Schink testified, “this is

what gynecologic oncologists do day in and day out, take these masses out.” Thus,

he stated, Dr. Cassin’s performance of the surgery on July 13, 2011, was a deviation

from the standard of care. He did acknowledge on cross-examination, however, that

Dr. Cassin engaged in the “appropriate medical practice” when she took frozen

samples during the surgery, and he agreed that surgeons often rely on frozen section

evaluations, as they have an accuracy rate ranging from “72 to 88” percent. Finally,

Dr. Schink was of the opinion that the standard of care required consultation with a

gynecologic oncologist on or after July 21, 2011, when Dr. Cassin received the final

pathology report indicating clear cell adenocarcinoma of the ovary.

In contradistinction, defendant’s expert witness, Dr. Schilling, testified that in

her opinion Dr. Cassin met the appropriate standard of care before, during, and after

the surgery. Doctor Schilling acknowledged that the results of imaging studies,

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including a CT scan and an ultrasound, as well as a CA-125 test,8 placed malignancy

on the differential, “but it was not at the top of [Dr. Schilling’s] differential.”

Nevertheless, she opined that, based largely on Mrs. Kinney’s known history of

endometriosis, Dr. Cassin was compliant with the standard of care. Specifically, Dr.

Schilling testified that Dr. Cassin explained to Mrs. Kinney appropriate treatment

options, including expectant management with close follow-up, exploratory

laparotomy for the surgical removal of the mass, and referral to a tertiary medical

center for further evaluation. According to Dr. Schilling, however, defendant was

not required to refer her patient to a gynecologic oncologist.

With respect to the surgery itself, Dr. Schilling also testified that Dr. Cassin

performed in compliance with the standard of care. Based upon her review of the

medical records, Dr. Schilling explained that Dr. Cassin made “a very reasonable

incision[,]” especially in light of Mrs. Kinney’s known history of diabetes. Doctor

Cassin then found “extensive adhesions” in her patient’s abdomen and “a mass

which very much looked like an endometrioma, which was her leading diagnosis.”

Doctor Schilling further testified that Dr. Cassin drained the mass of fluid and

resected portions of the mass for analysis by the hospital’s pathology department.

The pathology report of those frozen sections indicated that the mass was consistent

8
“CA-125” is the “[a]bbreviation for cancer antigen 125 and the test for it.”
Stedman’s Medical Dictionary 285 (28th ed. 2006). As explained by Dr. Schink at
trial, “CA-125 is a tumor marker” that “is commonly elevated in ovarian cancer[.]”

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with, and most likely was, an endometrioma. Doctor Schilling testified that it was

reasonable for Dr. Cassin to rely upon those results; although malignancy could not

be ruled out, the frozen section is consistent with the final pathology 70 to 85 percent

of the time. Doctor Schilling further opined that, in light of the frozen section

analysis and the patient’s medical history and “significant comorbidities,” it was

consistent with the standard of care for Dr. Cassin to not resect the entire mass, so

as to not compromise the patient’s ureter.

As for Dr. Cassin’s conduct after she received the final pathology report on

July 21, 2011, Dr. Schilling was never directly asked whether that conduct met the

standard of care. She did testify, however, that at that time Mrs. Kinney had been

readmitted to South County Hospital under the primary care of Dr. McAteer.

On the topic of causation, Dr. Schilling was neither asked nor did she offer

any opinion. Nor did defendant present any other witness to testify concerning the

proximate cause of Mrs. Kinney’s death. On the other hand, Dr. Schink asserted

that, if a gynecologic oncologist had performed the surgery, the cancer would have

been cured and Mrs. Kinney would have survived. So too, he opined, if Mrs. Kinney

had been referred to a gynecologic oncologist after the surgery, “[t]he patient would

have been taken to the operating room, the mass would have been removed, and in

all likelihood she would be alive today.”

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Doctor Schink also offered contradictory testimony, however, as set forth in

the following exchange:

“[PLAINTIFF’S COUNSEL:] What is it about ovarian
cancer that makes it, as you’ve just described, the type of
malignant disease that requires complete and total removal
in the initial surgery? Why does that make such a big
difference on patient survival?

“[DR. SCHINK:] Well, there are a number of factors. One,
the most important component to curing cancer is surgery,
is the surgical removal of the disease. With Stage 1
disease, it’s usually completely resected just by the
surgery. That in and of itself in Stage 1 disease cures 70
percent of patients. Furthermore, while it’s relatively
chemo responsive, in other words, we can shrink these
cancers with chemotherapy, the smaller the volume of
cancer, the better our chance that that chemotherapy will
completely cure it. And it’s really tied to the size of the
cancer that’s left behind. And it was established in the
early 1980s, late ’70s at Harvard by Tom Griffiths that if
you leave a tumor bigger than two centimeters behind, that
patient can’t be cured.”

According to Dr. Schink, a CT scan conducted thirteen days after the surgery

revealed a mass almost four centimeters in size, representing about 60 percent of the

mass before the surgery.

The jury verdict form contained two questions submitted to the jury regarding

negligence and proximate cause. The first was, “Do you find that the [p]laintiffs

have proven by a preponderance of the evidence that the [d]efendant Kathleen

Cassin, M.D. was negligent?”; the jury responded, “Yes.” And, the second was,

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“Was the negligence of Dr. Cassin a proximate cause of Patricia Kinney’s death

from ovarian cancer?”; the jury answered in the negative.

Thus, the record does not delineate upon what basis the jury found Dr. Cassin

negligent. The jury may have found that defendant acted consistently with the

standard of care before and during the surgery on July 13, 2011, but was negligent

in her postsurgery care. The testimony of Dr. Schink is instructive in this regard:

“[PLAINTIFF’S COUNSEL:] Do you have an opinion to
a reasonable degree of medical probability and certainty
as to what the standard of care required of Dr. Cassin as
soon as she learned that the mass that was left behind was
cancerous? Do you have an opinion as to what the standard
of care required?

“[DR. SCHINK:] Yes.

“[PLAINTIFF’S COUNSEL:] What did it require?

“[DR. SCHINK:] Consultation with a gynecologic
oncologist.”

Viewing the entirety of the evidence, therefore, in the light most favorable to

Dr. Cassin, the prevailing party, we conclude that there is competent evidence to

support a conclusion that Dr. Cassin’s negligence was her failure to refer Mrs.

Kinney to a gynecologic oncologist after July 21, 2011, when the final pathology

report definitively determined that Mrs. Kinney suffered from ovarian cancer, yet

such negligence was not a proximate cause of her death because by that point in time

Mrs. Kinney’s cancer was incurable.

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Our review of the record reveals that the trial justice overlooked material

evidence in concluding that “liability and proximate cause are completely

interwoven” in this case. “In malpractice suits where the negligence complained of

consists of an act of omission, as in the instant case, causation is frequently difficult

to ascertain and prove.” Gianquitti v. Atwood Medical Associates, Ltd., 973 A.2d

580, 593 (R.I. 2009) (quoting Schenck v. Roger Williams General Hospital, 119 R.I.

510, 517, 382 A.2d 514, 518 (1977)). However, despite the difficulty of ascertaining

causation, the plaintiff still bears the burden of establishing “that there was a causal

relation between the act or omission of the defendant and the injury to the plaintiff.”

Schenck, 119 R.I. at 514, 382 A.2d at 516-17.

During this complex medical-malpractice trial, the jury heard conflicting

evidence regarding whether Dr. Cassin had breached her duty of care before, during,

or after the July 13, 2011 surgery. Moreover, the jury also heard evidence that Mrs.

Kinney was actively being treated by other doctors during the time of each alleged

breach. While plaintiff presented multiple theories regarding the allegation that Dr.

Cassin had breached the standard of care, the trial justice’s new-trial decision

considered only whether Mrs. Kinney would have been cured of her cancer if a

gynecologic oncologist had performed the initial surgery.

The trial justice failed to discuss, much less consider, the testimony of Dr.

Schilling, or to allow for the possibility that the jury might credit Dr. Schilling’s

- 19 -
opinion that Dr. Cassin performed the surgery in accordance with the standard of

care, but, nevertheless, might also conclude that she was negligent in her

postoperative treatment by not referring Mrs. Kinney to a gynecologic oncologist to

remove the portion of the mass that Dr. Cassin had left behind. As a result, the trial

justice did not consider Dr. Schink’s testimony that the mass left behind was

approximately four centimeters and that “if you leave a tumor bigger than two

centimeters behind, that patient can’t be cured.”

“A trial justice cannot ‘merely substitute his [or her] judgment for that of the

jury which was equally reasonable,’ and if [the trial justice] does so, that decision

must be set aside.” Aptt, 175 A.3d at 489 (brackets omitted) (quoting Kasegian v.

Mottram, 95 R.I. 183, 185, 185 A.2d 450, 452 (1962)).

“It is the jury, not the court, which is the fact-finding body.
It weighs the contradictory evidence and inferences,
judges the credibility of witnesses, receives expert
instructions, and draws the ultimate conclusion as to the
facts. The very essence of its function is to select from
among conflicting inferences and conclusions that which
it considers most reasonable. * * * That conclusion,
whether it relates to negligence, causation or any other
factual matter, cannot be ignored. Courts are not free to
reweigh the evidence and set aside the jury verdict merely
because the jury could have drawn different inferences or
conclusions or because judges feel that other results are
more reasonable.” Tennant v. Peoria & P.U. Ry. Co., 321
U.S. 29, 35 (1944).

Given the evidence presented in this case, it is our opinion that reasonable

minds in considering such evidence could have come to different conclusions on the

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question of whether the plaintiff had met her burden of establishing that Dr. Cassin’s

breach was the cause of Mrs. Kinney’s death. See Schenck, 119 R.I. at 514, 382 A.2d

at 516-17. Accordingly, we conclude that the trial justice erred by replacing the

jury’s determination with her own. See Aptt, 175 A.3d at 489.

IV

Conclusion

For the reasons set forth in this opinion, we vacate the order of the Superior

Court. The case is remanded to the Superior Court with instructions to reinstate the

jury’s verdict and enter judgment in accordance with that verdict.

Justice Goldberg, Justice Lynch Prata, and Justice Long did not participate.

Justice Flaherty participated in the decision and authored the concurring and

dissenting opinion but retired prior to its publication.

Justice Flaherty, concurring and dissenting. I can accept and will concur

with the majority’s opinion that the trial justice erred when she concluded that

“liability and proximate cause [were] completely interwoven” and that, in doing so,

she conflated the breach and causation elements of negligence. However, it is my

opinion that this case should be remanded to the Superior Court for a rehearing on

the plaintiff’s motion for a new trial, with instructions to the trial justice to consider

causation in light of the multiple theories of liability advanced by the plaintiff.

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The majority succinctly concludes that there was competent evidence to

support a finding that Dr. Cassin’s negligence was her postsurgery failure to refer

Mrs. Kinney to a gynecologic oncologist, but that such negligence was not a

proximate cause of Mrs. Kinney’s death. This is so, the majority reasons, because

by that point in time her cancer was incurable. It is apparently the majority’s

rationale that, because the trial justice did not assess that particular theory of liability

when ruling on plaintiff’s motion for a new trial, this Court does not have the benefit

of understanding why the trial justice found that “liability and proximate cause

[were] completely interwoven” in this case. Therefore, “the trial justice failed to

reference enough evidence for this Court to be satisfied that [she] applied the correct

standard.” King v. Huntress, Inc., 94 A.3d 467, 493 (R.I. 2014).

I write separately, however, because it is my opinion that plaintiff should not

bear the burden for any error that the trial justice may or may not have made when

she decided the motion for a new trial. Although there may have been a sufficient

record to support a finding of negligence without proximate cause, the trial justice

also may have been well within her discretion to reject that theory, and it is not the

function of this Court to make those determinations that are more properly suited to

the trial justice. See Gomes v. Rosario, 79 A.3d 1262, 1267 (R.I. 2013) (“This Court,

reading an inanimate transcript, is not well positioned to weigh evidence or

determine credibility.”); State v. Lynch, 854 A.2d 1022, 1033 (R.I. 2004) (“The trial

- 22 -
justice enjoys a ringside seat at the trial[.]”) (brackets omitted) (quoting State v.

Werner, 830 A.2d 1107, 1113 (R.I. 2003)).

The plaintiff “may or may not be entitled to a new trial.” Cappuccilli v.

Carcieri, 174 A.3d 722, 740 (R.I. 2017) (Goldberg, J., concurring and dissenting).

“The plaintiff is however, deserving of a decision, after a rehearing,” id., that

addresses the multiple theories of liability that the plaintiff introduced at trial so that

this Court may be satisfied that the trial justice “applied the correct standard.” King,

94 A.3d at 493; see State v. Golembewski, 808 A.2d 622, 625-26 (R.I. 2002) (case

remanded to Superior Court for rehearing on motion for a new trial because trial

justice failed to “set out in some reasonable manner the material factual evidence[,]

* * * direct or circumstantial, upon which [the trial justice’s] ruling [was] based”).

I therefore dissent from the holding of the majority in this case that vacates

the order of the Superior Court and remands the case with instructions to reinstate

the jury’s verdict. I would instead remand this case to the Superior Court for a

rehearing on the plaintiff’s motion for a new trial, with instructions to the trial justice

to both consider the plaintiff’s multiple theories of liability and whether there was

sufficient evidence of causation presented by the plaintiff under each theory of

liability.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Pamela Joplin, Individually and in her capacity as
Title of Case Executrix of the Estate of Patricia A. Kinney, et al v.
Kathleen A. Cassin M.D.
No. 2018-242-Appeal.
Case Number
(WC 13-384)

Date Opinion Filed June 9, 2021

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

Written By Chief Justice Paul A. Suttell

Source of Appeal Washington County Superior Court

Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter

For Plaintiff:

Michael P. Quinn, Jr., Esq.
Timothy J. Grimes, Esq.
Attorney(s) on Appeal
For Defendant:

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

SU-CMS-02A (revised June 2020)