deviation standard in Rhode Island

2011Rule 56(e) of the Superior Court Rules of Civil Procedure states that this proof may be presented in the form of an affidavit “made on personal knowledge * * * set[ting] forth such facts as would be admissible in evidence, and * * * showfing] affirmatively that the affiant is competent to testify to the matters stated therein.” In an action for wrongful death, as in any negligence action, “a plaintiff must ‘establish a standard of care as well as a deviation from that standard.’ ” Boccasile v. Cajun Music Limited, 694 A.2d 686, 689 (R.I.1997) (quoting Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.

2007It is incumbent on the Plaintiff "`to establish a standard of care as well as a deviation from that standard.'" See Sousa v. Chaset , 519 A.2d 1132 , 1135 (R.I. 1987) (quoting Marshall v. Tomaselli , 118 R.I. 190 , 196 , 372 A.2d 1280 , 1283 *Page 8 (1977)).

2011Rule 56(e) of the Superior Court Rules of Civil Procedure states that this proof may be presented in the form of an affidavit “made on personal knowledge * * * set[ting] forth such facts as would be admissible in evidence, and * * * showfing] affirmatively that the affiant is competent to testify to the matters stated therein.” In an action for wrongful death, as in any negligence action, “a plaintiff must ‘establish a standard of care as well as a deviation from that standard.’ ” Boccasile v. Cajun Music Limited, 694 A.2d 686, 689 (R.I.1997) (quoting Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.

2002In a medical malpractice action, as in any other negligence action, “a plaintiff must ‘establish a standard of care as well as a deviation from that standard.’” Boccasile v. Cajun Music Ltd., 694 A.2d 686, 689 (R.I.1997) (quoting Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.1987)).

2007It is incumbent on the Plaintiff "`to establish a standard of care as well as a deviation from that standard.'" See Sousa v. Chaset , 519 A.2d 1132 , 1135 (R.I. 1987) (quoting Marshall v. Tomaselli , 118 R.I. 190 , 196 , 372 A.2d 1280 , 1283 *Page 8 (1977)).

2007It is incumbent on the Plaintiff "`to establish a standard of care as well as a deviation from that standard.'" See Sousa v. Chaset , 519 A.2d 1132 , 1135 (R.I. 1987) (quoting Marshall v. Tomaselli , 118 R.I. 190 , 196 , 372 A.2d 1280 , 1283 *Page 8 (1977)).

1997Moreover, a plaintiff must “ ‘establish a standard of care as well as a deviation from that standard.’ ” Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.1987) (“[expert testimony is needed to explain * * * what proper procedures and alternatives are available to a physician * * * [and] why the procedures followed by the defendant physi *690 cian were negligent, and not legitimate, alternatives”); see also Schenck v. Roger Williams General Hospital, 119 R.I. 510, 514 , 382 A.2d 514, 516-17 (1977) (“[i]n any negligence action, such as a medical malpractice ease, it is the plaintiff’s burden to establi

1997Moreover, a plaintiff must “ ‘establish a standard of care as well as a deviation from that standard.’ ” Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.1987) (“[expert testimony is needed to explain * * * what proper procedures and alternatives are available to a physician * * * [and] why the procedures followed by the defendant physi *690 cian were negligent, and not legitimate, alternatives”); see also Schenck v. Roger Williams General Hospital, 119 R.I. 510, 514 , 382 A.2d 514, 516-17 (1977) (“[i]n any negligence action, such as a medical malpractice ease, it is the plaintiff’s burden to establi

2021See Almonte v. Kurl, 46 A.3d 1, 17 (R.I. 2012) (“It is a general rule that * * * ‘a plaintiff must establish a standard of care as well as a deviation from that standard.’”) (quoting Malinou v. Miriam Hospital, 24 A.3d 497, 509 (R.I. 2011)).

2012The Proximate Cause Requirement and Expert Testimony On appeal, plaintiffs contend that the trial justice erred in granting defendants’ Rule 50 motion for judgment as a matter of law; they point to the fact that Dr. Kurl had testified during her deposition (which testimony was read into the record at trial) that, if Mr. Almonte had been committed, “he would have been involuntarily committed/or 72 hours to the psychiatric facility.” (Emphasis added.) It is a general rule that, in a wrongful death action, as in any action sounding in negligence, “a plaintiff must establish a standard of care as

2012Joseph Health Services of Rhode Island, 899 A.2d 1271, 1277 (R.I.2006); Boccasile v. Cajun Music Limited, 694 A.2d 686, 689 (R.I.1997).

2011Joseph Health Services of Rhode Island, 899 A.2d 1271, 1277 (R.I.2006).

1978The deviation standard was set out in Viti v. Zoning Board of Review, 92 R.I. 59 , 166 A.2d 211 (1960) and articulated in Lincoln Plastic Products Co. v. Zoning Board of Review, 104 R.I. 111 , 242 *382 A.2d 301 (1968), where we stated that an applicant for a deviation from lot line regulations must show that relief is necessary for the enjoyment of the permitted use sought to be served.

1978The deviation standard was set out in Viti v. Zoning Board of Review, 92 R.I. 59 , 166 A.2d 211 (1960) and articulated in Lincoln Plastic Products Co. v. Zoning Board of Review, 104 R.I. 111 , 242 *382 A.2d 301 (1968), where we stated that an applicant for a deviation from lot line regulations must show that relief is necessary for the enjoyment of the permitted use sought to be served.

1996Bamber v. Zoning Board of Review , 591 A.2d 1220 (R.I. 1991); Gara Realty, Inc. v. Zoning Board of Review of South Kingstown , 523 A.2d 855 (R.I. 1987); See also Viti v. Zoning Board of Review . 92 R.I. 59 , 64-65. 166 A.2d 211 (1960).

1992Gara Realty Inc. v. Zoning Board of South Kingston, 523 A.2d 855 (R.I. 1987); DeStefano v. Zoning Board of Review of Warwick, 122 R.I. 241 , 246, 405 A.2d 1167 , 1170 (1979).

1998Accordingly, rather than have relied exclusively upon our earlier case holdings in Richardson v. Fuchs, 523 A.2d 445 (R.I.1987); Young v. Park, 417 A.2d 889 (R.I.1980); and Schenck v. Roger Williams General Hospital, 119 R.I. 510 , 382 A.2d 514 (1977), the trial justice should have considered the admissibility of Dr. Brand’s testimony in light of G.L.1956 § 9-19-41 and Rule 702 of the Rhode Island Rules of Evidence.

1997In that regard, “expert testimony is required to establish deviation from the standard of care when the lack of care is not so evident as to be obvious to a lay person.” Richardson v. Fuchs, 523 A.2d 445, 450 (R.I.1987).

2021See Almonte v. Kurl, 46 A.3d 1, 17 (R.I. 2012) (“It is a general rule that * * * ‘a plaintiff must establish a standard of care as well as a deviation from that standard.’”) (quoting Malinou v. Miriam Hospital, 24 A.3d 497, 509 (R.I. 2011)).

2021See Almonte v. Kurl, 46 A.3d 1, 17 (R.I. 2012) (“It is a general rule that * * * ‘a plaintiff must establish a standard of care as well as a deviation from that standard.’”) (quoting Malinou v. Miriam Hospital, 24 A.3d 497, 509 (R.I. 2011)).

2009Boccasile v. Cajun Music Ltd., 694 A.2d 686, 689-90 (R.I.1997); see also Riley v. Stone, 900 A.2d 1087, 1095 (R.I.2006); Sheeley, 710 A.2d at 164 . 14 “Expert *595 testimony is needed to explain * * * what proper procedures and alternatives are available to a physician * * * [and] to show why the procedures followed by the defendant physician were negligent, and not legitimate, alternatives.” Sousa v. Chaset, 519 A.2d 1132, 1135 (R.I.1987).

2003“In order to prove negligent inspection and testing a plaintiff must establish a standard of care with respect to inspection and testing and the defendant’s deviation from that standard.” Scittarelli v. Providence Gas Co., 415 A.2d 1040, 1043 (R.I.1980).

2002Since “the alleged negligence involves the professional skill and judgment of a nurse, expert testimony must be presented to establish the prevailing standard of care, a breach of that standard, and that the nurse’s negligence, if any, was the proximate cause of the patient’s injury.” Id. at 690 (quoting Ramage v. Central Ohio Emergency Services, Inc., 64 Ohio St.3d 97 , 592 N.E.2d 828, 834 (1992)).

1987See Schenck v. Roger Williams General Hospital, 119 R.I. 510, 521 , 382 A.2d 514, 520 (1977)(cardiologist competent to testify concerning patient’s psychiatric problems allegedly caused by negligent misdiagnosis); Lantini v. Daniels, 104 R.I. 572, 578 , 247 A.2d 298, 301 (1968)(physician, not a specialist in psychiatry, competent to testify on the question of petitioner's mental condition as it affected his ability to return to work). 7 .

1987See Schenck v. Roger Williams General Hospital, 119 R.I. 510, 521 , 382 A.2d 514, 520 (1977)(cardiologist competent to testify concerning patient’s psychiatric problems allegedly caused by negligent misdiagnosis); Lantini v. Daniels, 104 R.I. 572, 578 , 247 A.2d 298, 301 (1968)(physician, not a specialist in psychiatry, competent to testify on the question of petitioner's mental condition as it affected his ability to return to work). 7 .