May 2, 2022

The Rhode Island Supreme Court held in its February 22, 2022 opinion in a Rhode Island medical malpractice case in which a premature baby received total parenteral nutrition (TPN) through a peripheral intravenous line (IV) in her left foot that escaped the IV line and was instead going into the surrounding tissue causing injury: “After careful consideration, it is apparent to us that defense counsel’s directive to the jury to send a message to WIH that it should continue to take in the sickest children in all probability prejudiced the jury and rendered the jury unable to properly apportion liability … It is apparent that the defendant’s closing argument was calculated to arouse the passions of the jury and was likely to “cause[] influential prejudice in the minds of the jurors which rendered them incapable of reaching a fair and impartial verdict[.]” Id. Therefore, the trial justice was clearly wrong in denying the plaintiffs’ motion for a new trial.”

On August 9, 2013, the plaintiffs filed a Rhode Island medical negligence action against Women & Infants Hospital of Rhode Island (WIH), alleging that WIH deviated from the appropriate standard of care by failing to properly perform and document assessments of their baby’s IV site. At the conclusion of a three-week jury trial, the defense attorney made the following statement during closing argument:

“[DEFENSE COUNSEL:] * * * So, ladies and gentlemen, by your verdict, please tell [WIH] and their NICU to continue to take in the sickest kids, the youngest —”

The plaintiffs’ counsel immediately objected, stating, “Whoa, whoa, whoa.”

The trial justice immediately sustained the objection. Defense counsel continued to speak, and the following colloquy took place:

“[DEFENSE COUNSEL]: Take in newborns —

“[PLAINTIFFS’ COUNSEL]: I —

“THE COURT: Sustained.

“[DEFENSE COUNSEL]: And send Autumn away from this courtroom the same way she came in * * *.”

The jury returned a defense verdict, and the plaintiffs appealed.

Improper Jury Argument

The Rhode Island Supreme Court stated that determining whether counsel’s argument to the jury warrants granting a new trial involves a three-step analysis: (1) whether counsel’s comments were improper and an attempt to appeal solely to the prejudice and passion in the minds of the jurors; (2) whether the jury was influenced by the improper remarks; and (3) whether, if the jury was so influenced, the improper references were dissipated by a curative instruction. The Rhode Island Supreme Court further stated ” a new trial is warranted where counsel, in closing argument, directs the jury to consider the consequences of their verdict.”

The Rhode Island Supreme Court stated in the case it was deciding: “Here, the comments made by WIH exceeded the proper bounds of closing argument and were plainly improper. Defense counsel, in no uncertain terms, directed the jury to send a message. He specifically asked the jury to, by their verdict, “tell [WIH] and their NICU to continue to take in the sickest kids” and newborns. This comment was calculated to prejudice the jury against plaintiffs and bring about “exaggerated sympathy” for WIH … we conclude that the trial justice erred in finding that WIH’s closing argument did not result in prejudice to plaintiffs. The trial justice herself found that defense counsel’s closing argument was “certainly over the top[,]” and “he went to the line—perhaps over it—in his argument.” She characterized the argument as “forceful and colorful[.]” However, the trial justice then proceeded to find that the argument “did not influence the jury because * * * the weight of the evidence supports the verdict.””

“The trial justice failed to properly perform the second step in determining whether counsel’s closing argument warrants a new trial. At that point, her function was to determine whether the jury was influenced by the improper remarks, not whether the weight of the evidence supported the verdict … The question is whether the trial court, and this Court, can have confidence that the jury’s verdict was not influenced by WIH’s improper remarks … Based upon the record before us, we do not have such confidence. Moreover, the trial justice’s admonitions to the jury were insufficient to neutralize the prejudicial effect of defense counsel’s comments … it is apparent to us that defense counsel’s directive to the jury to send a message to WIH that it should continue to take in the sickest children in all probability prejudiced the jury and rendered the jury unable to properly apportion liability … Therefore, the trial justice was clearly wrong in denying the plaintiffs’ motion for a new trial.”

Source Baker v. Women & Infants Hospital of Rhode Island, No. 2019-489-Appeal.

If you or your child may have been injured as a result of medical malpractice in Rhode Island or in another U.S. state, you should promptly find a Rhode Island medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you and your child in a medical malpractice case, if appropriate.

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