Drevenak v. Abendschein, 98-CV-1097.

• Decision Date: 24 May 2001
• Docket Number: No. 98-CV-1097.,98-CV-1097.
• Citation: 773 A.2d 396
• Parties: Lucinda DREVENAK, Appellant, v. Walter ABENDSCHEIN, M.D., Appellee.
• Court: D.C. Court of Appeals

773 A.2d 396

Lucinda DREVENAK, Appellant, v. Walter ABENDSCHEIN, M.D., Appellee.

No. 98-CV-1097.

District of Columbia Court of Appeals.

Argued February 10, 2000.

Decided May 24, 2001.

Allen T. Eaton, Washington, DC, for appellant.

Michael T. Wharton, Annapolis, MD, with whom Brian J. Nash and Marian L. Hogan, Baltimore, MD, were on the brief, for appellee.

Before RUIZ, REID and GLICKMAN, Associate Judges.

REID, Associate Judge:

After a bench trial in this medical malpractice matter, which involved a total knee joint replacement and allegations of improperly treated infection, the trial court rendered judgment in favor of appellee, Dr. Walter Abendschein. Appellant Lucinda Drevenak filed a timely appeal, alleging that: (1) the trial court used the wrong legal standard in assessing the expert testimony, and thus, based its judgment on "unsupported" testimony rather than "well-validated, documented and supported testimony"; (2) "the trial court did not utilize the correct standards of Frye¹ and Daubert² in evaluating the defendant's expert testimony"; and (3) many of the trial court's findings were clearly erroneous, specifically, those relating to the existence of a "sinus" and "sinus tract" in Ms. Drevenak's knee. Ms. Drevenak attributed the alleged errors to the trial judge making extensive findings months after trial, without the benefit of a trial transcript. Finding no error; holding that the Frye admissibility of evidence standard does not apply to an evaluation of the sufficiency of the evidence in this jurisdiction; and concluding that the evidence at trial is sufficient to support the trial court's judgment, we affirm.

FACTUAL SUMMARY

The record on appeal shows that, in March 1993, Ms. Drevenak was a 5' 4", 72-year-old senior citizen, weighing around 210 pounds, who suffered from severe degenerative osteoarthritis in her right knee. Twenty years earlier a surgical procedure, known as "a high tibial osteotomy," had been performed on the knee to remove bone and straighten her leg, but the knee continued to degenerate through the years, resulting in pain and instability. Consequently, she was advised to undergo total knee replacement surgery, which Dr. Abendschein performed on March 10, 1993.³ There were no complications during or after the surgery, and Ms. Drevenak began some physical therapy while she was still in the hospital. However, medical records, at the time of Ms. Drevenak's discharge from the hospital, reflected the presence of "a small area of draining sinus in the distal aspect of the knee."⁴ Following her hospital discharge, Ms. Drevenak continued with physical therapy. On March 26, 1993, approximately two weeks after surgery, a therapist was assisting Ms. Drevenak in her exercises. After Ms. Drevenak had ascended some steps, she was in the process of descending them when she suddenly sat down and her knee split open.⁵ Examination revealed an open patellar tendon rupture, which Dr. Abendschein diagnosed as "a traumatic rupture." That same day, Dr. Abendschein reattached the tendon, and did a "complete debridement of the knee with pulsatile lavage." He saw no sign of infection.⁶ After surgery to reattach the tendon, Ms. Drevenak apparently was sent to the Carriage Hill Nursing Center in Silver Spring, Maryland. While she was there, a culture was taken on April 9, 1993 of the fluid draining from her right knee. The laboratory report showed "staphylococcus aureus, heavy growth" and "streptococcus, Beta Hemolytic, Presumptive Group A ... moderate growth."⁷ When Ms. Drevenak saw Dr. Abendschein on April 9, 1993 for the removal of sutures, he noted that the "incision [from the knee replacement surgery] is angry but not cellulitic...."⁸ He concluded that there was no significant infection.

Dr. Abendschein examined Ms. Drevenak's knee again on April 12, 1993. He detected no sign of cellulitis or deep infection, but there was some drainage from the knee and the incision was "irritated." Because of the April 9th culture, Dr. Abendschein suspected a superficial infection and prescribed the antibiotic, Augmentin, and an antiseptic solution for daily cleaning of the wound. Another examination by Dr. Abendschein took place on April 23, 1993; he noted: "The patient has a serous draining sinus but no evidence of infection in her knee. She is continued on Augmentin for the present time and betadine dressings." Dr. Abendschein saw "no sign of excessive swelling, pain, [or] tenderness."

During the period of her recovery from the patellar tendon rupture, Ms. Drevenak fell on April 29, 1993, hurt her left hip, and "sustain[ed] an avulsion of the patella tendon" or a second rupture in her right knee. She was admitted to Sibley Memorial Hospital on the same day. Dr. Abendschein called in an infectious disease consultant who ordered cultures and prescribed intravenous antibiotics.

Ms. Drevenak's second rupture was repaired on May 4, 1993, apparently without incident.⁹ Later, after further examination and diagnosis of her left hip condition, Ms. Drevenak also received a total left hip replacement on May 25, 1993. She remained in Sibley Memorial Hospital until June 8, 1993, when she was discharged to the National Rehabilitation Hospital. With respect to her knee, the following entry appears in the Sibley Memorial Hospital record:

Her knee did well. The incision had closed, and she was placed in a specially constructed double-upright long-leg brace.

She was kept on antibiotics through her course for both the previous knee cultures.... All of this was directed by the Infectious Disease specialist.

Upon her discharge from the National Rehabilitation Hospital, a record entry regarding examination at admission specified: "Incisions were clean without drainage." Ms. Drevenak continued rehabilitation at the National Rehabilitation Hospital until July 1, 1993, the date of her discharge.¹⁰ At the time of her discharge, the National Rehabilitation records stated: "The patient regained good range of motion in her knee on the right and was able to learn to ambulate with partial weight bearing on the left." After evaluating Ms. Drevenak on July 1, 1993, Dr. Abendschein made the following notation:

The patient is evaluated for her right total knee replacement and her left total hip replacement. X-rays show good position of the left total hip replacement, she is having no problem whatsoever. She has no pain in the right knee, she has a 20 degree flexion lag but is able to perform SLR exercises, she has 90 degrees of flexion. X-rays show good position of the prosthesis and good position of the patella indicating the patellar tendon mechanism is still intact. She is continued in the use of the brace and will be re-evaluated in two months.

After her discharge from the National Rehabilitation Hospital, Ms. Drevenak returned to her home in West Virginia. On July 7, 1993, she was admitted to the City Hospital in Martinsburg, West Virginia, due to fever, redness and tenderness of the right leg. Hospital records stated: "The right leg incision showed a large area of erythema [redness] with warmth and tenderness. There was a small open area draining a small amount of pus." The impressionistic diagnosis was: "Cellulitis and/or infection of right knee prosthesis." Although a culture was taken, it "was lost by a combination of laboratory and nursing error." On July 8, 1993, Ms. Drevenak was transferred to Sibley Memorial Hospital.

Upon examining Ms. Drevenak following her return to Sibley Memorial Hospital, Dr. Abendschein concluded that her right knee was infected. She was given intravenous antibiotics, and Dr. Abendschein performed arthroscopic surgery and irrigation on July 8th and 12th. Moreover, on July 12th, cultures of fluid were taken from Ms. Drevenak's knee. When improvement did not occur, cultures of knee fluid again were taken, and Dr. Abendschein removed the knee prosthesis on July 19th, noting:

The patient has undergone two arthroscopies with vigorous debridement and still has a recurrent effusion of the knee. The last culture was negative but the fluid was clearly purulent and the components were removed and she was placed in a spacer with an immobilizer.

After her discharge in early September 1993, Ms. Drevenak eventually returned to West Virginia. Her health continued to decline, and in late 1993 and early 1994, she had a range of medical problems relating to the knee and hip; and other medical conditions, including non-insulin dependent diabetes mellitus. Medical records also show that Ms. Drevenak's problems with right knee infection persisted into 1996.

On March 8, 1996, Ms. Drevenak filed suit against Dr. Abendschein, alleging negligence, medical malpractice, with respect to her total right knee replacement. In essence, Ms. Drevenak maintained that Dr. Abendschein failed to recognize and properly treat the symptoms of deep infection that caused her patellar tendon to rupture twice, and ultimately forced the removal of her right knee prosthesis. Two months after a bench trial, extending approximately one week in March 1998, the trial court summarized its findings and conclusions over a two-day period, without the benefit of a trial transcript. Subsequently, judgment was rendered in favor of Dr. Abendschein. Ms. Drevenak made no post-trial motion, but filed a timely notice of appeal.

ANALYSIS

Ms. Drevenak's arguments on appeal are directed toward the trial court's assessment of the expert evidence presented, and its findings pertaining to sinus and sinus tract drainage. In particular, she maintains, in essence, that her experts were superior to those of the defense because, consistent with Frye and Daubert, supra, her experts supported their opinions with scientific publications. Before addressing Ms. Drevenak's specific contentions, we set forth a summary of the pertinent expert testimony, and the trial court's findings and conclusions. Then we reiterate the general applicable standard of review....