501 F.2d 806 (D.C. Cir. 1974), 72-1056, Rose v. Associated Anesthesiologists

Docket Nº:72-1056, 72-1063, 72-1910, 72-1911.
Citation:501 F.2d 806
Party Name:George W. ROSE, Jr., etc., et al. v. ASSOCIATED ANESTHESIOLOGISTS et al., Appellants. George W. ROSE, Jr., etc., et al., Appellants, v. WASHINGTON HOSPITAL CENTER et al. George W. ROSE, Jr., an infant By and Through his father and next friend, George W. Rose v. Arcadius H. HAKIM et al., Appellants. George W. ROSE, Jr., an infant By and Through his
Case Date:June 25, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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501 F.2d 806 (D.C. Cir. 1974)

George W. ROSE, Jr., etc., et al.

v.

ASSOCIATED ANESTHESIOLOGISTS et al., Appellants.

George W. ROSE, Jr., etc., et al., Appellants,

v.

WASHINGTON HOSPITAL CENTER et al.

George W. ROSE, Jr., an infant By and Through his father and next friend, George W. Rose

v.

Arcadius H. HAKIM et al., Appellants.

George W. ROSE, Jr., an infant By and Through his father and next friend, George W. Rose, Appellant,

v.

Arcadius H. HAKIM et al.

Nos. 72-1056, 72-1063, 72-1910, 72-1911.

United States Court of Appeals, District of Columbia Circuit.

June 25, 1974

Argued Jan. 24, 1974.

J. Harry Welch, Washington, D.C., and Denver H. Graham, Washington, D.C.,

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for appellants in Nos. 72-1056 and 72-1910.

J. Joseph Barse, Washington, D.C., for appellants in Nos 72-1063 and 72-1911 and appellee Rose in No. 72-1056.

John L. Laskey, Washington, D.C., with whom Diane M. Sullivan, Washington, D.C., was on the brief for appellee Washington Hospital Center.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is a medical malpractice action which was brought by plaintiffs, an infant and his father, against three defendant entities: Dr. Hakim, an ear, nose and throat surgeon; a number of physicians in partnership as anesthesiologists (Associated Anesthesiologists); and the Washington Hospital Center (Hospital).

The grisly facts are set forth in the opinion of the District Court filed November 10, 1971. 1 It suffices here to say that a simple operation upon a small boy resulted in severe permanent brain damage. He must live the rest of his life-- presumptively, until 2027, for his life expectancy has not been shortened-- with cortical blindness; an affected sense of touch precluding use of the Braille system; functional accomplishments in both upper and lower extremities of a mere infant; a mind that functions well and must learn through listening; and total dependence on others.

Fearful of what might result if the jury found against them, the surgeon, who paid $95, 000, and the partnership, which paid $175, 000, 2 entered into settlements. These were approved by the trial court, at the request of plaintiffs and the settling defendants, but without the consent of the Hospital.

The case proceeded against the Hospital and resulted in jury verdicts awarding the infant $265, 000 and the father $29, 777.25. At the same time the court, without a jury, tried the cross-claims of the settling defendants against the Hospital for indemnification or contribution. 3 The jury was not informed of the fact or amount of the settlements, and was excused whenever evidence related solely to the cross-claims. On the cross-claims the court found that the brain damage was proximately caused by the negligence of the Hospital's servants and defective equipment in its intensive care unit. The court found that the surgeon and firm were not negligent and did not contribute to the brain damage. These findings are not clearly erroneous and are accepted on appeal.

The issues before us relate to the amounts that may be recovered from the Hospital by plaintiffs and by settling defendants on the cross-claims.

1. Hospital's right to a Snowden credit that takes into account the settlements with the other (non-liable) defendants

On November 17, 1971, the District Court denied the Hospital's claim for a credit on the verdict because of the amounts received by plaintiffs in the settlements with persons held not to be tortfeasors. It viewed those payments by the settling defendants, as in legal effect, from collateral sources. That theory was rejected by this court on December 10, 1971, in Snowden v. D.C. Transit System, 147 U.S.App.D.C. 204, 454 F.2d 1047 (1971). Accordingly, the record was remanded to the District

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Court for reconsideration. On July 24, 1972, the District Court held that Snowden required the court to credit in full the amounts received in settlement. This operated to cancel any liability of the Hospital to the father, and to reduce its liability to the infant to $25, 000. 4

The District Court was correct in holding that our Snowden opinion rejects the 'collateral source' or 'gratuity' theory and requires that the Hospital receive a credit against the verdict that takes into account the amounts received in settlement.

Plaintiffs urge on appeal that this result is not correct since on the facts there was not a single injury but multiple injuries, separate and independent, and that the amounts received in settlement were not for the same injury as those covered by the...

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