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High court upholds malpractice verdict

08:49 AM EDT on Tuesday, June 9, 2009

By Tracy Breton

Journal Staff Writer

PROVIDENCE — The Rhode Island Supreme Court on Monday upheld a $500,000-medical malpractice verdict against Barrington urologist Jacques G. Susset.

The case against Susset was brought by Woon Kam Youngsaye, 57, of Cumberland, who suffered from kidney disease and eventually had to undergo a kidney transplant.

Statutory interest at the rate of 12 percent per year will be added to the $500,000 jury verdict which, according to Youngsaye’s lawyer, Mark Mandell, will bring the entire award to more than $900,000.

According to court papers, Youngsaye was treated by Susset in 2000 and complained in her Superior Court lawsuit that he was negligent in the medical care he provided to her.

One of the issues that arose in the case was Susset’s failure to produce certain diagnostic reports relating to Youngsaye and office notes he composed during one of her visits, just before she had to be hospitalized at the direction of her primary care doctor. Once hospitalized, she suffered kidney failure.

Susset testified that he dictated notes for every patient visit and did not know what happened to the ones he composed for the visit at issue in Youngsaye’s lawsuit. The Supreme Court, in a decision written by retired Chief Justice Frank J. Williams, said that Susset offered contradictory statements about what happened to the diagnostic reports that he didn’t produce.

Superior Court Judge Alice B. Gibney instructed jurors that in their deliberations, they could consider whether relevant evidence had been destroyed. “Under certain circumstances, spoliation of evidence may give rise to an adverse inference that the missing or spoliated evidence would have been unfavorable to the position of the party unable to produce it. A showing of bad faith is not required before the jury will be permitted to draw this inference,” Gibney said.

She told the jurors in the 2007 trial: “Spoliation of evidence may be innocent or intentional or somewhere in between.”

Susset’s lawyer claimed in his appeal that Gibney’s instruction to the jurors resulted in prejudice to Susset and asked that a mistrial be declared and the case be retried before another jury. Gibney refused to declare a mistrial.

Williams, writing for a unanimous court, said that the instructions given by Gibney as a whole “did not so prejudice the jury as to warrant reversal.”

In 2007, Susset, 82, found himself in trouble with the Board of Medical Licensure and Discipline after the Special Investigations Unit of Blue Cross complained that he was using the Blue Cross member number of his sister-in-law to fill prescription medications for another relative.

The initial complaint was brought by the relative whose member number was being misused. The board said Susset was not a treating physician for either of the relatives at issue and had no medical records for either of them. The board reprimanded Susset, placed him on probation for two years, directed him to complete a board-directed ethics program and required him to pay a $1,000 administrative fee.

The board, in its published consent order, said that Susset had “admitted to these actions … and has discontinued these prescribing behaviors.”

tbreton@projo.com

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