Better Jury Confusion than Expert Testimony Exclusion: R.I. Supreme Court

The potential to confuse a jury does not outweigh the probative value of expert witness testimony, unless that testimony is of marginal relevance and extremely prejudicial, the Rhode Island Supreme Court has ruled.

In Antonio Ribeiro v. The Rhode Island Eye Institute, et al., R.I. Supreme Court, May 20, 2016, the state Supreme Court found that the trial judge in this medical malpractice case erred in excluding testimony because of his concern over confusing the jury about the difference between standard of care and causation expert testimony.

In Ribeiro, Antonio Ribeiro alleged that his optometrist, Dr. Martin Newman, misdiagnosed his blurred vision, causing near total loss of vision in his right eye.

Ribeiro first went to see Newman in August 2004 after having experienced blurred vision. Newman performed five separate diagnostic tests, including ordering an Optical Coherence Tomography (OCT) scan, a diagnostic test Newman had only been using for some months.

Newman testified that the OCT scan confirmed his diagnoses of Central Serous Retinopathy (CSR), a condition that normally resolves on its own. Newman said that he told Ribeiro to return in six to eight weeks, the usual time needed for CSR to resolve itself.

About six weeks later, Ribeiro's vision worsened, and he returned to see Newman in October 2004. Newman again diagnosed Ribeiro with CSR, but as the symptoms had not resolved on their own, he referred Ribeiro to an ophthalmologist, Dr. Timothy You. A retinal specialist, You diagnosed Ribeiro with a retinal detachment. Ribeiro underwent surgery three days later, but the detachment had caused irreparable damage. Ribeiro lost most of the vision in his right eye.

Ribeiro sued Newman and his employer, Rhode Island Eye Institute, for breaching the standard duty of care because Newman failed to diagnose the detached retina on his initial visit in August 2004, resulting in permanent vision loss. Ribeiro presented an optometrist expert witness, Dr. David Greenstein, O.D., to testify that Newman deviated from the standard of care, and an ophthalmologist expert witness, Susan Bressler, M.D., who was to testify to the causes and consequences of Ribeiro's detached retina.

Bressler's testimony became critically important after Greenstein testified that, "… to a reasonable degree of medical probability, the August OCT showed a detached retina, but the October OCT showed CSR." All parties were in agreement that this was a medical impossibility (and probably not what Greenstein intended to say).

The defendants, Rhode Island Eye Institute and Newman, objected to Bressler's testimony, arguing that her causation testimony was a "fix" for Greenstein's testimony, and that the jury might use an ophtalmologist, Bressler, to evaluate whether or not an optometrist, Newman, breached the standard of care, which would be improper, given the differences between the two professions.

Ribeiro responded with an offer of proof that Bressler would only testify about causation, that the initial OCT scan in August 2004 showed that his vision could have been saved had he received surgery at the time, and that the later OCT scan in October 2004 showed that his vision was irrepairable.

The trial judge decided not to rule on the defendants' objection, instead allowing Bressler to testify and allowing the defendants to object to any potential standard-of-care testimony. The defendants again raised concerns about jury confusion, seeking to confine Bressler's testimony to hypothetical questions. Ribeiro argued that Bressler's interpretations of the August and October OCT scans were necessary to show how Ribeiro's eye progressed between the two scans and to meet his burden on causation.

After what the state Supreme Court called a "merry-go-round" of arguments, the trial judge ruled that, depending on the defendants' cross-examination of Bressler, the court may permit Ribeiro on redirect examination to have Bressler testify as to the prolonged nature of Ribeiro's eye injury (its chronic nature, or "chronicity").

When Bressler came to testify, she opined that it was more likely than not that Ribeiro's vision would have been restored to 20/20 with eyeglasses if Dr. Newman had immediately referred him to a retinal specialist. She explained that "every moment of delay … would lead to a much poorer prognosis."

Ribeiro then asked Bressler about the October 25 OCT scans, to which the defendants objected. After another two rounds of complicated arguments as what the trial justice's final ruling had been, the trial justice ruled that Ribeiro could not ask Bressler about the October OCT scans nor about Dr. You's records, unless defendants first broached the subject on cross-examination.

The defendants never broached the subject, so Bressler was never allowed to testify that the delayed diagnosis caused the vision loss. The jury found that Newman had deviated from the standard of care, but that "… his deviation was not the proximate cause of Ribeiro's injury."

Both sides filed posttrial motions, with Ribeiro moving for a new trial, arguing that the trial judge erred when he restricted Bressler's testimony. The trial judge found that, if there was any error, it was harmless because Bressler's testimony was limited "only to the extent that she intended to talk about Mr. Ribeiro's condition in October, two months after anything could have been done to prevent his permanent vision loss."

The R.I. Supreme Court disagreed that the error was harmless. It found that the trial justice excluded Bressler's testimony regarding the October OCT scan because he believed it was irrelevant and that it risked confusing the jury about the difference between standard of care and causation expert testimony.

The state Supreme Court, however, found that Ribeiro needed to show not only a deviation from the standard of care, but also prove what happened as a result: the loss of vision. The potential to confuse the jury did not outweigh the probative value of Bressler's testimony about the October OCT scan, and the trial judge's jury instructions were more than adequate to allay any concerns.

The Supreme Court vacated the trial court's decision and remanded.