Capitol Hill Hosp. v. Jones, 86-629.

• Decision Date: 13 October 1987
• Docket Number: No. 86-629.,86-629.
• Citation: 532 A.2d 89
• Parties: CAPITOL HILL HOSPITAL, et al., Appellants, v. Anna L. JONES, Appellee.
• Court: D.C. Court of Appeals

532 A.2d 89

CAPITOL HILL HOSPITAL, et al., Appellants, v. Anna L. JONES, Appellee.

No. 86-629.

District of Columbia Court of Appeals.

Argued April 28, 1987.

Decided October 13, 1987.

Richard W. Boone, Washington, D.C., for appellants. Vicki J. Hunt, Arlington, Va., also entered an appearance for appellants.

William C. Burgy, with whom Karl N. Marshall and Kate S. Barfield, Washington, D.C., were on the brief for appellee.

Before MACK, FERREN and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

Appellants, Capitol Hill Hospital and Dr. Samuel Kleiman, appeal from an adverse medical malpractice jury verdict. Appellants' principal contentions, in the order presented to us, are 1) the verdict was coerced by the trial court's improper Winters charge; 2) the jury's award of $100,000 solely for pain and suffering was excessive and based on insufficient evidence; and 3) the trial court improperly refused to apply the "locality" rule to determine the standard of care applicable to a physician serving as a "house officer" in a District of Columbia hospital. We affirm.

I. The Facts

The decedent, Malachi Jones, was a terminally ill diabetic with numerous complications including loss of kidney function. He was admitted to Capitol Hill Hospital on September 28, 1985 for a sudden drop in blood pressure resulting from dialysis treatment. Upon his arrival, he was placed on supplemental oxygen administered through a nasal cannula by order of his primary physician, Dr. Hernandez. On the morning of October 11, 1985, without consulting any doctor, an unidentified hospital respiratory therapist reduced Jones' supplemental oxygen.¹ Early that evening, Jones complained of shortness of breath and was seen at approximately 6:30 P.M. by the "house officer," Dr. Kleiman.² Dr Kleiman theorized that Jones' shortness of breath was due not from too little oxygen but paradoxically from too much. Therefore, the doctor decided to take Jones completely off supplemental oxygen for one hour to test his theory. He made this decision without consulting Dr. Hernandez. At 7:00 P.M., Dr. Kleiman went off duty. At approximately 7:30 P.M., supplemental oxygen was terminated by the hospital staff pursuant to Dr. Kleiman's order. Family members testified that during the period until Jones went into cardiac arrest at 8:15 P.M.,³ Jones had substantial difficulty breathing and asked and reached for an oxygen mask which was lying on his bed.⁴ Family members tried in vain to get the hospital staff to resume the supply of supplemental oxygen.

Decedent's wife brought suit against appellants. Her survival action⁵ for Jones' pain and suffering during the 45 minute period between the termination of oxygen and cardiac arrest was submitted to the jury on the basis that Dr. Kleiman committed medical malpractice both in deciding to turn off the oxygen supplement and in making that decision in a non-emergency situation without consulting the patient's primary physician. The jury returned a verdict of $100,000.

II. The Winters Charge

Appellants assert that the jury verdict was invalid because the trial court's jury instructions coerced a verdict. We review the totality of the circumstances to determine whether a verdict is the product of coercion. Wilson v. United States, 419 A.2d 353, 356 (D.C. 1980).

In this case, the jury did have some difficulty reaching a verdict. After approximately two hours of deliberation, the jury sent out a note asking, in essence,⁶ 1) what would happen in the event of a hung jury, and 2) for instructions on how to proceed if they found only one defendant negligent. The trial court reinstructed the jury on vicarious liability and reread Standardized Civil Jury Instructions for the District of Columbia, No. 1-4 (rev. ed. 1981), on the duty of the jurors to deliberate. Three and one half hours later the jury announced that it was deadlocked. Over appellants' objection, the trial court gave the jury the anti-deadlock Winters charge.⁷ Less than one hour later, the jury foreperson announced that the jury had reached a unanimous verdict for appellee in the amount of $100,000. However, upon a poll of the jury, it was revealed that although the jurors were unanimous as to liability, they disagreed as to the amount and some jurors had not even decided upon any sum.⁸ The court recognized that the jury apparently had not understood that they had to agree upon liability and the exact amount of damages for there to be a unanimous verdict; therefore, despite appellants' motion for a mistrial, the trial court instructed the jury⁹ and asked them to resume their deliberations. The jury thereafter returned with unanimous agreement on the sum of $100,000.

Appellants first contend that the trial court in effect gave two Winters charges when it sent the jury back after the second note. While we have held in the criminal context that the giving of two "Winters instructions" crosses the line into the forbidden area of jury coercion, Epperson v. United States, 471 A.2d 1016 (D.C. 1984), even assuming that this holding applies in civil cases,'¹⁰ it is clear that this case is distinguishable. Here, the first note only requested instruction on the consequences of deadlock. The trial court took the jury at its word and did not give an anti-deadlock instruction at that time; rather it merely repeated the standard duty to deliberate instruction. After the second note, the trial court gave the only antideadlock instruction in this case, after which the jury reached unanimity on liability. The third episode was merely a clarification as to the need for unanimity on damages as well as liability.

Appellants further contend that even if there was no abuse of discretion in giving the Winters charge, the trial court coerced the jury when it sent the jury back after the jury poll revealed that the verdict was not unanimous on damages. For support, appellants cite Thompson v. United States, 354 A.2d 848, 850 (D.C. 1976), for the proposition that at least in a criminal case, a trial court which has already given the Winters charge is "skating on thin ice" if it sends the jury out another time after it receives a report that no verdict has been reached after a reasonable time. In Thompson, however, this court found no abuse of discretion. In this case we find even less reason to question the discretion of the trial court. In civil cases there can be a second trial on damages. In the totality of the circumstances, there was here no abuse of discretion in sending the jury back after it clearly expressed unanimity on liability, particularly when the non-unanimity on damages appears to have been a result of misunderstanding rather than dissention among the jury.¹¹

III. The Damages Award

Appellants contend that the damages award was not supported by sufficient evidence of conscious pain and suffering as a matter of law. To the contrary, under Doe v. Binker, 492 A.2d 857, 861 (D.C. 1985), the existence of pain and suffering could be inferred from the circumstances surrounding the decedent's death, which in this case were sufficient to permit the jury to make reasonable inferences. Three family members testified about Jones' breathing difficulties, his concern over his condition, and his attempts to resort to a useless oxygen mask during the 45-minute period after the oxygen was turned off.¹²

Appellants also contend that even if appellee's pain and suffering evidence was sufficient to go to the jury, the damage award of $100,000 was so excessive "as to shock the conscience," requiring a new trial or a substantial remittitur. Davis v. Abbuhl, 461 A.2d 473, 475 n. 4 (D.C. 1983) (citations omitted).¹³ Appellants made a motion for a new trial or for remittitur which was denied by the trial court. We are particularly reluctant to substitute our judgment for that of the trial judge who was present at and observed the entirety of the four-day trial. We give his decision not to disturb the verdict substantial weight and will reverse only for an abuse of discretion.¹⁴ Id., 461 A.2d at 475; see also 2 S. SPEISER, Recovery for Wrongful Death, § 9:4 at 9-10 (2d ed. 1975); 1 M. MINZER, at § 1.32[1][a]. While the parties cite cases granting both higher or lower amounts for pain and suffering to bolster their contentions about this verdict, we have said that excessive verdicts should not be measured strictly on a comparative basis. Rather:

Each case in this area necessarily rises or falls on its own facts and the trial court in ruling on the question of whether or not a jury verdict is excessive must determine on the totality of facts before it whether it was the result of passion, prejudice, or mistake.

May Department Stores v. Devercelli, 314 A.2d 767, 775 (D.C. 1973). Therefore, while in the context of the cases cited to us, this verdict may have been at the high end of the permissible spectrum, our review of the evidence in the record does not show that the trial court abused its discretion denying appellants' motion for a new trial or for remittitur.

IV. Standard of Care

At trial, appellee's sole expert witness was Dr. Kravis, a board certified family practice physician from Pennsylvania. Appellants first contend they were entitled to judgment because Dr. Kravis failed to establish the proper standard of care expected of Dr. Kleiman. They invoke the socalled "locality rule," by which the conduct of members of the medical profession is to be measured solely by the standard of conduct expected of other like members of the medical profession in the same locality or the same community, rather than a national standard. The trial court refused to give such a limiting instruction.

In Morrison v. MacNamara, 407 A.2d 555 (D.C. 1979), we said that the "locality rule" has no relevance to medical practice in the District of Columbia. However, as that case dealt with a nationally certified medical laboratory, we only were called upon to rule at that time that a national standard of...