Deramus v. Donovan, Leisure, Newton

• Decision Date: 27 July 2006
• Docket Number: No. 00-CV-1679.,00-CV-1679.
• Citation: 905 A.2d 164
• Parties: Jody DERAMUS, Appellant v. DONOVAN, LEISURE, NEWTON & IRVINE, et al., Appellees.
• Court: D.C. Court of Appeals

905 A.2d 164

Jody DERAMUS, Appellant v. DONOVAN, LEISURE, NEWTON & IRVINE, et al., Appellees.

No. 00-CV-1679.

District of Columbia Court of Appeals.

Submitted July 31, 2003.

Decided July 27, 2006.

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W.O. Dillard, Jackson MS, of the Mississippi Bar, pro hac vice, and J. Christopher Ide, Alexandria, VA were on the brief for appellant.

Paul Terrence O'Grady was on the brief for appellee.

Before RUIZ, Associate Judge, and TERRY and SCHWELB, Senior Judges.^*

TERRY, Senior Judge:

After the death of her husband Frank Deramus in 1991, appellant Jody Deramus filed suit in federal court against Jackson National Life Insurance Company ("Jackson National") for failing to disclose that her husband had tested positive for the human immunodeficiency virus ("HIV") during a medical examination administered through the company three years earlier.¹ Appellant retained a law firm, appellee Donovan, Leisure, Newton & Irvine ("Donovan"), to represent her in that lawsuit.²

After receiving an unfavorable decision in her federal case, and after taking Donovan's advice not to file suit against her husband's local physicians³ for failing to detect the virus earlier, appellant noted an appeal to the Fifth Circuit and, soon thereafter, filed this legal malpractice action against Donovan in the District of Columbia. In the case against Donovan, only one of Mrs. Deramus' several claims made it to the jury, namely, her allegation that the firm engaged in malpractice by advising her to drop her suit in a Mississippi state court against her husband's local doctors. The jury returned a verdict in favor of Donovan, and Mrs. Deramus noted this appeal.

Before this court Mrs. Deramus maintains that the trial court erred in failing to give the jury an instruction on the Mississippi statute of limitations, which the jury requested during its deliberations, and incorrectly granted summary judgment in favor of Donovan on two of her other claims. We reject all of her arguments and affirm the final judgment.

I

As part of the application process for supplemental life insurance coverage from Jackson National, Frank and Jody Deramus underwent separate medical examinations in April 1988. The results of both examinations were forwarded to Jackson National's medical director, Dr. Lewis Stewart, Jr. Shortly thereafter, Mr. Deramus was notified that the additional coverage he sought had been denied for undisclosed medical reasons. Eighteen months after undergoing the examination, Mr. Deramus was hospitalized at the Johns Hopkins Medical Center in Baltimore, Maryland, where he was diagnosed as HIV-positive.⁴ In June 1991 Mr. Deramus died as a result of complications related to HIV.⁵

Appellant subsequently hired Donovan to represent her in a suit alleging that Jackson National negligently failed to disclose to her husband that he was HIV-positive in 1988. The suit claimed generally that Jackson National had a fiduciary duty to Mr. Deramus to inform him of his medical condition. On September 29, 1995, the United States District Court for the Southern District of Mississippi granted summary judgment in favor of Jackson National, holding that the insurance company did not owe a duty to Mr. Deramus under Mississippi law.⁶ Appellant took an appeal to the Fifth Circuit, but the District Court's decision was affirmed. Deramus v. Jackson Nat'l Life Insurance Co., 92 F.3d 274 (5th Cir.1996).⁷

After the notice of appeal was filed, but before the case was briefed and argued in the Fifth Circuit, appellant dismissed Donovan as her counsel and filed this legal malpractice action against the firm in the Superior Court of the District of Columbia. In her amended complaint she alleged, inter alia, that Donovan was negligent when it (1) advised her to drop the wrongful death suit against her husband's local doctors; (2) failed to seek certification of the issues decided by the United States District Court in Mississippi to that state's Supreme Court; and (3) failed to include the testing laboratories and the insurance company's agent and physician among the parties allegedly liable for her husband's death. Appellant sought $16 million in compensatory and punitive damages.

Donovan in due course filed a detailed motion for partial summary judgment; responsive pleadings were filed, and a hearing was held on February 24, 2000. The next day, February 25, the trial court entered an order granting summary judgment for Donovan on all claims except those concerning whether or not it had engaged in legal malpractice by advising Mrs. Deramus to dismiss her medical malpractice suit against the local physicians in the Mississippi state court. Appellant's motion for reconsideration of this order was denied on May 9, 2000, in a one-sentence order. A motion for "reconsideration and/or clarification" of the May 9 order was denied on October 11, 2000.⁸

Trial on this sole remaining issue began several months later. What occurred next was a trial within a trial, i.e., a medical malpractice trial to determine whether Donovan was negligent when it advised appellant not to sue her husband's local doctors. It was first necessary to determine whether any medical malpractice had occurred, for if Mr. Deramus' local physicians were not negligent in failing to diagnose his HIV status, then no damage could have resulted from Donovan's advice not to sue them. Under Mississippi law, which was the operative law at the trial below, one cannot recover damages in a medical malpractice case simply because of a diminution in the chance of recovery. Rather, damages are allowed only when the failure of a physician to render the required level of care results in the loss of a reasonable probability of substantial improvement in the patient's condition. See, e.g., Singleton v. Stegall, 580 So.2d 1242, 1246 (Miss.1991); Clayton v. Thompson, 475 So.2d 439, 445 (Miss.1985). After considering the evidence, the jury found that Donovan was not negligent in advising appellant to refrain from suing her husband's local physicians. Judgment was entered for Donovan, and Mrs. Deramus noted this appeal.

II

Appellant argues that the trial court erred by refusing to instruct the jury on the applicable statute of limitations in Mississippi for a wrongful death action after the jury requested such information during its deliberations. She asserts that her right to a fair trial was compromised by the court's failure to give the jury this information. This argument is without merit.

In February 1992 appellant voluntarily dismissed, without prejudice, her wrongful death suit in Mississippi against her husband's local physicians.⁹ She alleged in the instant case that she did so in reliance on the advice she received from attorneys at Donovan, who told her that she could refile the claim when her federal case against Jackson National was over. However, appellant never requested that her wrongful death complaint be refiled until after the applicable statute of limitations had expired; consequently, she was barred from refiling that complaint.¹⁰ See MISS CODE ANN. § 15-1-36(1) (2002) ("no claim in tort may be brought against a licensed physician ... for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered").

During deliberations, the jury sent a note to the trial judge asking what the statute of limitations was for a wrongful death case in Mississippi in October 1991. After a discussion with counsel for both parties, the judge ruled that the jurors would not be instructed on that point because they had heard conflicting expert testimony on that issue during trial; instead, they would be directed to rely only on what they remembered from the testimony about when the statute of limitations would expire. During the trial, one expert testified that the appropriate statute of limitations in this case would be measured from the date of Mr. Deramus' death. Another expert testified, on the other hand, that the applicable statute of limitations started to run "two years from the date of the incident or when the plaintiff knew or should have known, or reasonably knew, of the incident." Counsel for appellant never objected to the trial judge's failure to give an instruction on the statute of limitations.

"A trial court has broad discretion in fashioning appropriate jury instructions, and its refusal to grant a request for a particular instruction is not a ground for reversal if the court's charge, considered as a whole, fairly and accurately states the applicable law." Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 625 (D.C.1986) (citations omitted). This court will reverse only for an abuse of that discretion. E.g., Edwards v. United States, 721 A.2d 938, 944 (D.C.1998); Talley v. Varma, 689 A.2d 547, 550 n. 1 (D.C.1997). Moreover, "[t]hose errors raised for the first time on appeal are not grounds for reversal unless `it is apparent from the face of the record that a miscarriage of justice has occurred.'" Mark Keshishian & Sons, Inc. v. Washington Square, Inc., 414 A.2d 834, 839-840 (D.C.1980) (citation omitted); see Miller v. Avirom, 127 U.S.App. D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967) ("review will normally be confined to matters appropriately submitted for determination in the court of first resort").

The judge's failure to instruct the jury on this issue was not erroneous, nor did it prejudice appellant's right to a fair trial. The jury was confused about a subject that appellant's counsel acknowledged was irrelevant to the ultimate issue in the case, since the statute of limitations would have expired under either interpretation of the law before appellant sought to refile her case in state court against the local physicians.¹¹ The...