Burke v. Scaggs, No. 03-CV-188.

• Decision Date: 27 January 2005
• Docket Number: No. 03-CV-188.
• Citation: 867 A.2d 213
• Parties: Brendan F. BURKE, M.D., Appellant, v. Steven SCAGGS, et. al., Appellees.
• Court: D.C. Court of Appeals

867 A.2d 213

Brendan F. BURKE, M.D., Appellant, v. Steven SCAGGS, et. al., Appellees.

No. 03-CV-188.

District of Columbia Court of Appeals.

Argued October 19, 2004.

Decided January 27, 2005.

Alfred F. Belcuore for appellant.

Kim M. Keenan, with whom Jack H. Olender, Harlow R. Case and Karen E. Evans, Washington, were on the brief, for appellees.

Before TERRY, RUIZ and GLICKMAN, Associate Judges.

RUIZ, Associate Judge.

The legal issue presented in this matter is whether a plaintiff in a medical malpractice action fails to establish a prima facie case when his experts differ as to the applicable standard of care. We hold that a discrepancy between experts as to the standard of care will not defeat the plaintiff's prima facie case for malpractice. We further hold that by failing to request a special verdict form, the appellant has forfeited the right to assert that the individual jurors may have relied on different theories of liability in reaching their verdict for the plaintiff. We therefore affirm the judgment entered on the jury's verdict.

I.

This case resulted from injuries which occurred during the birth of appellees' daughter, Haley, on June 27, 1998. The appellant, Dr. Brendan F. Burke, was the attending obstetrician. During the birthing process, a condition known as "shoulder dystocia" presented itself. This condition occurs when the baby's anterior shoulder becomes stuck behind the mother's pubic bone after the head has been delivered. Mr. Scaggs, who was present for the delivery, testified that at the time this complication was discovered, a pall came upon the delivery room, and the situation became tense. Dr. Burke maintains that, upon discovering the complication, he applied "gentle traction" to Haley's head and shoulder area,¹ employed the "McRoberts maneuver,"² and then applied suprapubic pressure to Mrs. Scaggs.³

Haley now suffers from severe brachial plexus injuries.⁴ Haley has undergone a number of surgeries in an attempt to assuage the harsh effect of these injuries. Nevertheless, Haley remains physically handicapped for life, unable to supinate⁵ her hand so as to undertake those little things in life which many take for granted: the ability to button one's own clothing, hold a cup, use a toothbrush, or tie one's shoes.

The Scaggs filed suit against Dr. Burke in 2000, alleging that he was negligent in delivering Haley. Although Dr. Burke was alleged to have been negligent in a number of ways, he challenges only the sufficiency of the expert testimony on whether his use of traction in delivering Haley fell below the applicable standard of care. In support of their claim that the doctor's use of traction was negligent, the Scaggs presented two expert witnesses to testify as to the applicable standard of care. The first, Dr. James Anderson, had been a board-certified practicing gynecologist and obstetrician for over a third of a century. Dr. Anderson testified that Dr. Burke had violated the standard of care "by not going through the proper maneuvers to disimpact the shoulder and by putting traction on the head." Dr. Anderson also maintained that "traction to disimpact the shoulder is below the standard of care. It is not a maneuver to be used to resolve shoulder dystocia." Even though the medical records from the birth noted that only "gentle" traction had been employed, Dr. Anderson opined that "gentle traction becomes excessive in this kind of a setting without the obstetrician even realizing it. No traction is appropriate."

The plaintiffs' other expert witness as to the standard of care was Dr. James O'Leary, who is also board-certified in obstetrics and gynecology. Although he had retired from the active practice of medicine, Dr. O'Leary continued to teach obstetrics, and has published a book on shoulder dystocia. Dr. O'Leary was of the opinion that Haley's injuries were the result of "excessive traction or pulling on Haley's head after the head had been delivered and the shoulder was stuck." Dr. O'Leary was more permissive than Dr. Anderson as to the use of traction during delivery. He would allow gentle traction, but only after unsuccessful attempts to employ alternative maneuvers, and "only if you put the mother in the McRoberts position and somebody is pushing down above the pubic bone." Thus, he was of the opinion that gentle traction was sometimes permissible, but as a last option during the delivery and only when used in conjunction with other simultaneous procedures.

Appellant moved for judgment as a matter of law at the close of the appellees' case, claiming that the evidence as to the correct standard of care concerning the use of traction "[was] contradictory between the two expert witnesses." Specifically, appellant argued that because Dr. Anderson would never permit traction, and Dr. O'Leary would allow it in some circumstances, "the jury [was] going to be left with the need to speculate as to what is exactly the standard of care." The court denied the motion, ruling that "there is certainly enough in this case to let the jury have it." The jury ultimately returned a general verdict for the plaintiffs and awarded damages in the amount of $850,000.00.

II.

A.

Judgment as a matter of law is proper "[i]f during a trial by jury [the plaintiff] has been fully heard with respect to [a claim], and there is no legally sufficient evidentiary basis for a reasonable jury to have found" in the plaintiff's favor. Super. Ct. Civ. R. 50(a)(1); see also Abebe v. Benitez, 667 A.2d 834, 835-36 (D.C.1995)

. Since the court is not the trier of fact in a jury trial, in deciding whether judgment is appropriate, the judge "must take care to avoid weighing the evidence, passing on the credibility of witnesses, or substituting its judgment for that of the jury." Carter v. Hahn, 821 A.2d 890, 892 (D.C.2003) (quoting Abebe, 667 A.2d at 836 (internal quotations and citations omitted)). "Thus, `[a] verdict may be directed only if it is clear that the plaintiff has not established a prima facie case.'" Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1097 (D.C.1994) (quoting Clement v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C.1993)). "In reviewing a directed verdict, we `view the facts, as the trial court was required to, in the light most favorable to the non-moving party.'" Id. (quoting Washington v. A & H Garcias Trash Hauling Co., 584 A.2d 544, 545 (D.C.1990)).

In a medical malpractice action, there are three elements a plaintiff must show to establish a prima facie case: "(1) the applicable standard of care; (2) a deviation from that standard of care by the defendant; and (3) a causal relationship between that deviation and the plaintiff's injury." Talley v. Varma, 689 A.2d 547, 552 (D.C.1997); see Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984)

; Kosberg v. Washington Hosp. Ctr., Inc., 129 U.S.App. D.C. 322, 324, 394 F.2d 947, 949 (1968). The applicable standard must be nationally recognized. See Morrison v. MacNamara, 407 A.2d 555, 560 (D.C.1979) (rejecting the "locality rule," and requiring that a physician's actions be adjudged by a national standard of care). Establishing the standard of care is essential to a prima facie case of negligence because physicians are not expected to be perfect and "do not and cannot guarantee results," Meek, 484 A.2d at 581; they are liable in negligence only when their behavior falls below that which would be undertaken by a reasonably prudent physician, and there is a causal link between this behavior and the injury suffered.

B.

Appellant argues that he was entitled to judgment as a matter of law at the end of the plaintiffs' case because their evidence was insufficient to present a prima facie case with respect to the applicable standard of care. Specifically, appellant contends that because plaintiffs' two experts disagreed on whether traction was ever a proper response to shoulder dystocia, they failed to present evidence of the applicable standard of care against which Dr. Burke's actions were to be assessed. We disagree and conclude that the trial court did not err in denying the motion for judgment as a matter of law and permitting the entire case to go to the jury.⁶ Even if we assume that Doctors O'Leary and Anderson opined as to differing standards of care,⁷ it has long been recognized with respect to expert testimony — as with the testimony of other witnesses — that the assessment of credibility is for the jury, and "the jury may assign a preference to one item of testimony over the other...." Kosberg, 129 U.S.App. D.C. at 325,394 F.2d at 950. In Kosberg, the plaintiff's two expert witnesses in a medical malpractice action differed in their opinions as to what caused the decedent's death. See id. at 324, 394 F.2d at 949. The United States Court of Appeals for the District of Columbia Circuit reversed the trial court's grant of a directed verdict in favor of the defendants, holding that "conflicts in the testimony of witnesses, including expert witnesses, called by a party are not necessarily fatal to his case." Id. at 325, 394 F.2d at 950. Kosberg is binding precedent dispositive of the issue raised by the appellant in the instant case. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971)

.

If we were to address the issue anew, we would come to the same conclusion, and hold that different opinions of expert witnesses as to the standard of care presented by the plaintiff do not defeat a prima facie case and are properly submitted to a jury, just as differing opinions of experts by opposing parties are submitted for the jury's evaluation.⁸ Determining the applicable standard of care is a question of fact for the jury. See Ray v. American Nat'l Red Cross, 696 A.2d 399, 404 (D.C.1997)

("[T]he jury, informed by expert testimony where appropriate, determines what the applicable standard of care is in a particular case.") (citing Washington v. Washington Hosp. Ctr., 579 A.2d 177, 183 (D.C.1990)). In a medical malpractice action, because the...