Convit v. Wilson, No. 07-CV-585.

Citation980 A.2d 1104
Decision Date17 September 2009
Docket NumberNo. 07-CV-646.,No. 07-CV-671.,No. 07-CV-585.
PartiesRafael Jacinto CONVIT & Washington Brain & Spine Institute, P.C., Appellants/Cross-Appellees, v. Eileen WILSON, Appellee/Cross-Appellant.
CourtCourt of Appeals of Columbia District

Alfred F. Belcuore, Washington, and Andrew H. Baida, with whom Steven A. Hamilton and Matthew D. Banks were on the brief, for appellants/cross-appellees.

Bruce J. Klores, Washington, with whom Thomas W. Mitchell was on the brief, for appellee/cross-appellant.

Before REID, GLICKMAN, and THOMPSON, Associate Judges.

REID, Associate Judge:

This is a medical malpractice action in which Eileen and Frederick Wilson, husband and wife, filed a two-count complaint against Dr. John Barrett, and against appellants/cross-appellees, Washington Brain & Spine Institute, P.C. ("WBSI") (Dr. Barrett's employer) and Dr. Rafael Jacinto Convit. Mr. Wilson alleged that Dr. Barrett and Dr. Convit's negligent treatment and care caused him to suffer severe and permanent neurologic injuries.1 Mrs. Wilson claimed loss of consortium. Prior to trial, Mrs. Wilson entered into a settlement agreement (only with Dr. Barrett) regarding the loss of consortium claim; she released Dr. Barrett from the lawsuit, without prejudice, in exchange for $4,050,000.00. WBSI and Dr. Convit declined to settle and proceeded to trial. The jury found them jointly and severally liable and awarded Mr. Wilson $20,109,000.00 on his negligence claim (Count I) and Mrs. Wilson $2,500,000.00 for her loss of consortium claim (Count II).

WBSI and Dr. Convit filed post-verdict motions for judgment as a matter of law, or in the alternative, for a new trial. The trial court denied the motions on all grounds, with the exception of WBSI's and Dr. Convit's request that the jury verdict be reduced as a result of the settlement agreement signed by Mrs. Wilson and Dr. Barrett. As to the judgment relating to the loss of consortium claim and the $2,5000.000.00 award of damages, the trial court determined that WBSI was entitled to a pro tanto credit and Dr. Convit a pro rata credit, and that the $1,550,000.00 in excess funds from Mrs. Wilson's $4,050,000.00 settlement with Dr. Barrett should be applied to WBSI's joint and several liability of $20,109,000.00 on the negligence claim, thus reducing its liability to $18,559,000.00. Dr. Convit remained jointly and severally liable for the $20,109,000.00 negligence damages award.

On appeal, WBSI argues that the trial court erred when it determined that Mrs. Wilson's settlement with Dr. Barrett did not extinguish both the negligence and loss of consortium claims against WBSI, the vicariously liable employer. Dr. Convit contends, in part, that Mrs. Wilson produced insufficient evidence to prevail on the negligence claim against him, because "Dr. Barrett's failure to remove the shunt when Mr. Wilson was hospitalized the day after Dr. Convit's surgery constituted a superseding cause that relieved Dr. Convit of any liability." Both WBSI and Dr. Convit generally argue, in the alternative, that if this court rejects their primary arguments, the court should hold that in light of Dr. Barrett's settlement, the trial court erred by failing to grant them a 50% pro rata credit and reduction of the total amount of the jury's verdict as to both counts of the complaint. Mrs. Wilson cross-appeals on the ground that the trial court erred in calculating the settlement credits due WBSI and Dr. Convit.

We reverse the trial court's reduction of WBSI's liability for the award of damages on Mr. Wilson's negligence claim, but we affirm its judgment in all other respects.

FACTUAL SUMMARY

The record shows that the events leading to Dr. Barrett's settlement and the jury verdict in this case began in early 1999 when Mr. Wilson began experiencing memory loss and gait problems. Dr. Mohammed Moussavian, a neurologist at Kaiser Permanente ("Kaiser"), referred him to Dr. Barrett, a neurosurgeon, and on December 2, 1999, Mr. and Mrs. Wilson met with Dr. Barrett. Dr. Barrett determined that Mr. Wilson was suffering from obstructive hydrocephalus2 due to compression and obstruction in the aqueduct of Sylvius;3 Dr. Barrett recommended that Mr. Wilson allow him to place a ventriculoperitoneal ("VP") shunt4 into Mr. Wilson's right ventricle to clear the obstruction.5 Mr. Wilson agreed to the procedure.

Dr. Barrett performed the operation at the Washington Hospital Center on December 8, 1999. To insert the VP shunt, Dr. Barrett cut a hole in the bone of Mr. Wilson's skull that was about the size of a dime; cut through the dura (a thick lining underneath the bone); placed a ventricular catheter (part of the plastic tubing) through the brain into the right ventricle; and threaded the peritoneal end of the catheter underneath the skin down to Mr. Wilson's abdomen.6

During a second surgical procedure on December 11, 1999, necessitated because the initial tubing proved to be too short, Dr. Barrett inserted a longer catheter because "as the spinal fluid was draining down into the peritoneum, the ventricles became smaller [retracted] ... and the [existing] catheter was lodged in the brain[;] it did not quite reach the ventricle." With two or three non-absorbable nylon sutures, Dr. Barrett anchored the reservoir to Mr. Wilson's head, closed the galea layer (the layer of skin under the scalp) with absorbable zero vicryl sutures, and stapled the skin closed.

At a follow-up appointment on February 22, 2000, Mrs. Wilson alerted Dr. Barrett to a little red scab that had formed over the posterior aspect of the incision. Dr. Barrett pushed on the wound to check for pain, tenderness, or other indications of an infection. He found none. Dr. Barrett told Mrs. Wilson that the scab would heal and recommended that Mr. Wilson put neomycin ointment, a triple antibiotic, on his head three times a day. Mr. Wilson followed Dr. Barrett's instructions; the scab eventually fell off. When Mr. and Mrs. Wilson returned to Dr. Barrett's office on April 18, Dr. Barrett noticed that the wound under the scab had dehiscence;7 the size of the wound was about a quarter of an inch long. He could see the edge of the VP shunt reservoir.

Dr. Barrett wanted Mr. Wilson to consult with a plastic surgeon to discuss covering over the wound, and he contacted Dr. Moussavian on April 27. He "asked Dr. Moussavian to arrange a plastic surgery consultation." He did not request that Dr. Moussavian have the plastic surgeon proceed with an operation to cover the open wound.

On May 10, 2000, Dr. Convit received a referral marked urgent from Dr. Moussavian stating that Dr. Barrett wanted Dr. Convit to perform a flap procedure on Mr. Wilson's exposed VP shunt. Two days later, Dr. Convit met with Mr. and Mrs. Wilson at his office in the Washington Hospital Center. Mrs. Wilson told Dr. Convit that Mr. Wilson "had the shunt in [his head]; that the opening wouldn't close, and it had been open for five months." Based on his examination of the wound, Dr. Convit believed it showed no clinical signs of infection and that he could safely cover the wound by performing a flap procedure.8 However, before performing the flap procedure, Dr. Convit sent Mr. Wilson back to Kaiser for a preoperative evaluation, which included a complete blood count, and a surgery clearance. Mr. Wilson's white blood count showed no signs of a hidden infection; Kaiser cleared Mr. Wilson for the flap procedure on May 17.

On May 18, Dr. Convit still found no clinical signs of infection. He took pictures of the wound and then performed the flap procedure. During the course of the surgery, Dr. Convit "debrided the tissue around the shunt ... and then mobilized the tissues to cover it." He also found some permanent sutures that he removed; they were embedded in the scar tissue around the exposed reservoir of the shunt. Sometime later that day, Dr. Convit released Mr. Wilson from his care.

The next morning, May 19, Mr. Wilson suffered a generalized seizure. He was taken to Calvert Memorial Hospital, and later, to the Washington Hospital Center. Upon his arrival at the Washington Hospital Center, Mr. Wilson was "severely comatose, unable to respond." Doctors placed an emergency shunt into Mr. Wilson's left ventricle to relieve pressure from his brain because the right shunt was blocked. A few days after the procedure, Mrs. Wilson saw Dr. Barrett who told her that Mr. Wilson's condition was caused by the flap procedure; he believed that during the procedure, "Dr. Convit kinked the tubing in behind the ear[.]" But, Dr. Barrett reassured her that he could "straighten that out" by placing "another shunt in on the [left] side and connect[ing] it to the ... one [on the right side]."

On May 25, Dr. Barrett replaced the emergency shunt with a permanent left VP shunt. He left the nonoperational right shunt in because he did not find any signs of infection in the multiple cerebral spinal fluid samples drawn from the left lateral ventricle and he wanted to avoid the risk of removing the right shunt. On May 28, doctors performed a lumber puncture which showed abnormality in Mr. Wilson's white blood cell count. On May 29, doctors tested spinal fluid from the right shunt; it showed evidence of yeast called candida, and staph epidermidis, a bacteria. On May 29, Dr. Edward Aulisi removed the right and left shunts.

Upset by the treatment doctors provided Mr. Wilson at the Washington Hospital Center, Mrs. Wilson had him transferred to Johns Hopkins Hospital on June 26. From that point forward, Dr. Williams took over as Mr. Wilson's neurosurgeon. Mr. Wilson remained at Johns Hopkins for about five and a half weeks. He did not regain consciousness while there. Due to her inability to pay for her husband's medical care, Mrs. Wilson took him home and cared for him herself. Mr. Wilson eventually regained consciousness but remained bed ridden suffering from neurological problems.9

Mr. and...

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