Drs. Groover, Christie & Merritt v. Burke

• Decision Date: 08 March 2007
• Docket Number: No. 04-CV-1115.,No. 05-CV-546.,No. 04-CV-1116.,No. 05-CV-545.,04-CV-1115.,04-CV-1116.,05-CV-545.,05-CV-546.
• Citation: 917 A.2d 1110
• Court: D.C. Court of Appeals
• Parties: DRS. GROOVER, CHRISTIE & MERRITT, P.C., and William L. Higgins, M.D., Appellants, v. Sharon K. BURKE, Appellee.

917 A.2d 1110

DRS. GROOVER, CHRISTIE & MERRITT, P.C., and William L. Higgins, M.D., Appellants, v. Sharon K. BURKE, Appellee.

No. 04-CV-1115.

No. 04-CV-1116.

No. 05-CV-545.

No. 05-CV-546.

District of Columbia Court of Appeals.

Argued October 26, 2006.

Decided March 8, 2007.

Alfred F. Belcuore, Washington, for appellants.

Patrick A. Malone, with whom Raymond B. Herschthal was on the brief, Washington, for appellee.

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

GLICKMAN, Associate Judge:

This is an appeal by Drs. Groover, Christie and Merritt, P.C. ("GCM"), and William L. Higgins, M.D., from an adverse judgment in a medical malpractice action brought by Sharon K. Burke. The two main issues are whether the trial court should have excluded expert testimony of a GCM radiologist because Ms. Burke did not designate him as an expert witness in pretrial discovery, and whether the court should have applied Maryland law to cap the award of non-economic damages.¹ We conclude that only the latter claim entitles appellants to relief.

I. Factual Background

In December 1999, Sharon Burke, a forty-year-old citizen of Maryland, began experiencing dizziness and numbness in her arms and legs. Ms. Burke consulted Dr. Stuart Goodman, a neurologist in Clinton, Maryland. Dr. Goodman ordered magnetic resonance imaging (MRI) studies of Ms. Burke's brain. Dr. Gary Staples, a GCM radiologist in Clinton who wrote the report interpreting the MRI films, identified multiple sclerosis as the most likely diagnosis.

Ms. Burke's condition did not improve. She returned to Dr. Goodman in July 2000 complaining of severe headaches in addition to the continuing numbness in her limbs. Dr. Goodman ordered a second MRI scan to be performed by GCM. This time the scan was analyzed by Dr. William Higgins, another GCM radiologist. Dr. Higgins's report, which was co-signed by Dr. Staples, again identified multiple sclerosis as the most likely explanation for Ms. Burke's problems. The report did not mention that the July MRI scan revealed evidence of blockage in Ms. Burke's right carotid artery, which placed her at high risk of a stroke. According to his subsequent testimony, Dr. Higgins attributed the evidence of blockage to "turbulent flow" in the artery and dismissed it as "artifactual." Dr. Higgins reached that conclusion without ordering confirmatory tests or comparing the July scan to the December scan.

Over the next several weeks, Ms. Burke reported to Dr. Goodman that she had begun slurring her speech and having memory problems. Dr. Goodman told Ms. Burke that the two MRI scans indicated that she might have multiple sclerosis. Although he ordered additional tests to rule out arthritis, Lyme disease, and other potential diagnoses, Dr. Goodman did not suspect that Ms. Burke was suffering the effects of arterial blood clots.

On September 18, 2000, at the suggestion of her mother, Ms. Burke sought a second opinion from Dr. David Moore, a neurologist in the District of Columbia. After reading Ms. Burke's two MRI reports, which GCM faxed to him, Dr. Moore told her that she potentially had multiple sclerosis. Dr. Moore asked to see Ms. Burke's MRI films, which Ms. Burke's mother obtained from GCM and personally delivered to Dr. Moore the following day.

A few days before Ms. Burke's next scheduled appointment with him on October 18, 2000, Dr. Moore asked a radiologist at the Washington Hospital Center to help him interpret her MRI results. The radiologist told him that the July scan indicated a possible blockage of the right carotid artery. Consequently, Dr. Moore told Ms. Burke on October 18 that the scan showed signs of "mini strokes." Believing, however, that Ms. Burke was not in imminent danger because her symptoms had not worsened, Dr. Moore did not prescribe anti-clotting medication or other preventive measures. Instead, he ordered ultrasound imaging of Ms. Burke's carotid arteries and other tests to determine her risk of suffering further strokes.

On the morning of October 23, 2000, the day the additional tests were to be conducted, Ms. Burke suffered a massive stroke at her home in Maryland. She was treated at Prince George's County Hospital, where doctors determined that the stroke was caused by clots in her right carotid artery that likely had formed over a period of several months. Ms. Burke subsequently was transferred to the National Rehabilitation Hospital in the District of Columbia for intensive stroke rehabilitation and then to Washington Hospital Center for treatment of blood clots in her leg and a hysterectomy. Ms. Burke suffered severe and permanent cognitive and physical impairments as a result of her stroke.

In December 2001, Ms. Burke commenced a medical malpractice action in Superior Court against Dr. Moore and his employer, the Neurology Center, P.A. Ms. Burke thereafter filed a separate malpractice action in Superior Court against Dr. Goodman, Dr. Higgins, and GCM. (Ms. Burke sought to hold the Neurology Center and GCM vicariously liable for the negligence of their employees.) The two actions, which were consolidated, went to trial in March 2004. The jury exonerated Dr. Moore but found Dr. Goodman and appellants jointly and severally liable for malpractice in failing to diagnose and treat the blockage in Ms. Burke's right carotid artery before she suffered her disabling stroke. The jury awarded nearly $5.8 million in damages, including $2 million for Ms. Burke's "non-economic" losses.² The trial court denied appellants' post-trial motions, including their request that the non-economic damages be reduced in accordance with Maryland law, and this appeal followed.

II. Dr. Staples's Expert Testimony

Appellants assert that the trial court abused its discretion by admitting over objection certain expert testimony of Dr. Staples despite Ms. Burke's failure to designate him as an expert witness in pretrial discovery. Appellants argue that the court's error warrants a new trial. We disagree.

A. Background

Prior to trial, Ms. Burke deposed Dr. Staples regarding Dr. Higgins's July 2000 MRI report. Dr. Staples testified that he himself had signed the report only as a proofreader, and that he had not personally reviewed or interpreted the July films. Upon then being shown those films at the deposition, Dr. Staples said that Ms. Burke's right internal carotid artery appeared to be "blocked or occluded," with "ischemia of brain supplied by the artery." Asked to compare the July scan with the December scan, Dr. Staples saw "areas of probably [sic] infarction in the brain." Ms. Burke designated this deposition testimony in the parties' joint pretrial statement as evidence she intended to offer at trial. In that same statement, appellants listed Dr. Staples as a defense witness and objected to the introduction of his deposition testimony solely on the ground that it would be "cumulative of testimony provided in open court."

At trial, Ms. Burke called Dr. Staples as a witness in her case-in-chief. Before Dr. Staples took the stand, appellants' counsel objected to Ms. Burke's attempt "to use Dr. Staples as an expert witness by getting him to compare [MRI] films that he did not read officially." In the ensuing colloquy, Ms. Burke's counsel represented that he would ask Dr. Staples, "what did you see when you looked at the July film, what did you see when you looked at the December film?" Appellants' counsel said "that's fine," and the objection appeared to be resolved. When Ms. Burke's counsel thereafter asked him about the July 2000 MRI scan, Dr. Staples testified without objection that "it looked like there was some abnormal signal in the right internal carotid artery which may be due to narrowing or decreased altered flow. And it would make me wonder about ischemia in the brain." Dr. Staples also acknowledged having stated at his deposition that the findings were "suspicious for an occlusion of the internal carotid artery on the right with subsequent ischemia of brain supplied by that artery."

Ms. Burke's counsel then asked Dr. Staples for his "global view" of Ms. Burke's condition, "putting together" the December and July MRI studies. At that point, appellants' counsel objected that the question impermissibly called for expert witness testimony, given that Dr. Staples first compared the two sets of films at his deposition and not as part of his "doctor-patient relationship" with Ms. Burke.³ Ms. Burke's counsel responded that Dr. Goodman would testify that he had discussed the MRI results with Dr. Staples in July 2000 (which Dr. Staples did not recall doing). The court instructed Ms. Burke's counsel to frame the question differently, and he then asked Dr. Staples what he would have told Dr. Goodman, hypothetically speaking, if they had discussed how the December and July films "looked side by side." Appellants' objection was overruled and Dr. Staples answered that he would have told Dr. Goodman what he said at his deposition, namely, that Ms. Burke's brain tissue was "probably" infarcted in certain areas due to blood clots or arterial blockage. Had Dr. Goodman sought his recommendation, Dr. Staples continued, he would have called for additional tests "to see if it really was an occlusion or just an area of turbulence or [if there was] some other reason for [the] decreased or abnormal signal in that carotid artery," and also "to find out what these peripheral brain lesions were." Dr. Staples conceded that it would be important to find out whether there was an occlusion because "it could possibly cause her further stroke[s]."⁴

B. The Discovery Violation and Its Significance

Rule 26 (b)(4) of the Superior Court Rules of Civil Procedure requires parties "to disclose, in their answers to interrogatories, the relevant `facts known and opinions held' by the expert witnesses" whom they expect to call at trial. Gubbins v. Hurson, 885 A.2d 269, 276-77 (D.C.2005). "The pretrial disclosure...