DURPHY v. KAISER FOUNDATION HEALTH PLAN

• Decision Date: 31 July 1997
• Docket Number: No. 94-CV-1136,No. 94-CV-851,94-CV-851,94-CV-1136
• Citation: 698 A.2d 459
• Parties: Frank DURPHY, Elizabeth Durphy, Appellants, v. KAISER FOUNDATION HEALTH PLAN OF MID-ATLANTIC STATES, INC., Appellee.
• Court: D.C. Court of Appeals

698 A.2d 459

Frank DURPHY, Elizabeth Durphy, Appellants, v. KAISER FOUNDATION HEALTHPLAN OF MID-ATLANTIC STATES, INC., Appellee.

Nos. 94-CV-851, 94-CV-1136.

District of Columbia Court of Appeals.

Argued April 22, 1996.

Decided July 31, 1997.

APPEAL FROM SUPERIOR COURT, STEFFEN W. GRAAE, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Lawrence S. Lapidus, Washington, DC, with whom Anthony G. Newman, and Jack A. Gold, Bethesda, MD, were on the brief, for appellants.

Alfred F. Belcuore, with whom Joseph Montedonico, and Scott D. Austin, Washington, DC, were on the brief, for appellee.

Before WAGNER, Chief Judge and SCHWELB and KING, Associate Judges.

WAGNER, Chief Judge.

Appellants, Frank Durphy and his wife, Elizabeth Durphy, filed a medical malpractice action against Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser) alleging that Kaiser's physician employees negligently failed to diagnose timely and treat properly Mr. Durphy's osteomyelitis, a bone infection, as the result of which Mr. Durphy's right foot had to be amputated. Mrs. Durphy sued for loss of consortium resulting from Kaiser's negligence. Kaiser denied the allegations of negligence and contended that any injuries and damages sustained by Mr. Durphy resulted from his own contributory negligence in failing to comply with conditions essential for the care of his diabetic condition. The jury returned a verdictfor the Durphys in the amount of $2 million.

Kaiser filed a motion for judgment notwithstanding the verdict, contending that the evidence established as a matter of law that Mr. Durphy's contributory negligence was a proximate cause of the loss of his foot. Alternatively, Kaiser requested a new trial or remittitur on the grounds that: (1) the verdict was against the weight of the evidence; (2) the verdict was excessive; and (3) the trial court failed to address adequately Kaiser's claim that the Durphys exercised their peremptory challenges in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Concluding that the evidence showed that Mr. Durphy was contributorily negligent as a matter of law, the trial court granted Kaiser's motion for judgment notwithstanding the verdict. The court granted Kaiser's motion for a new trial on the alternative ground that the verdict was "clearly against the overwhelming weight of the evidence" and that it had failed to address adequately Kaiser's Batson challenge.

The Durphys argue on appeal that: (1) the evidence raised a jury question on contributory negligence and whether any such negligence proximately caused Mr. Durphy's injury; (2) the trial court abused its discretion in granting a new trial because there was ample evidence that Mr. Durphy's contributory negligence, if any, was not related causally to the loss of his foot; and (3) the trial court erred in granting a new trial based upon its review of the Batson issue because Kaiser failed to meet its burden in the first instance and failed to preserve the issue for purposes of its motion for new trial. We hold that the trial court erred in granting Kaiser's motions, and reverse and remand for reinstatement of the jury's verdict and further proceedings consistent with this opinion.

I. Factual Background

At the time relevant to this case, Mr. Durphy was a forty year old patient of Kaiser's health care plan and had been since 1978. In 1985 he was diagnosed with diabetes. Mr. Durphy testified that on March 24, 1988, he was seen by Dr. Anthony Boakye, an internist at Kaiser's North Capitol Street facility. At that time, he complained to Dr. Boakye of severe pain in his right foot, which he thought was broken, and requested an x-ray. Dr. Boakye noted swelling in Mr. Durphy's leg, but he concluded that his pain was caused by venous insufficiency, and he did not arrange for an x-ray.¹ The Durphys' medical expert, Dr. Robert Tanenberg, a board-certified internist and endocrinologist, testified that Dr. Boakye's failure to order an x-ray to determine Mr. Durphy's condition, given the patient's symptoms and medical history, breached the standard of care.

It was not until August 1988 that an x-ray of Mr. Durphy's foot was taken at Kaiser. The x-ray showed that Mr. Durphy had a condition known as Charcot foot, which involves destruction of the bones due to nerve damage. The x-ray report also indicated that osteomyelitis, an infection in the bone, should be ruled out. Another x-ray was taken on September 4, 1988 which indicated that Mr. Durphy had a "superimposed infection," and the radiologist recommended a bone scan to address her concern that osteomyelitis might be present. Between September 4 and September 23, 1988, Kaiser's physicians examined Mr. Durphy on seven separate occasions. Mr. Durphy testified that he returned to the clinic so frequently because he was in constant pain and experiencing fever and headaches, and his condition was not improving.

Dr. Lya Karm, an internist employed by Kaiser, testified that she examined Mr. Durphy on September 6, 1988 and that she diagnosed his condition as cellulitis, an infection of the soft tissue, although she was concerned that he might have osteomyelitis.² Dr. Karm recommended that Mr. Durphy see a podiatric surgeon to debride or cut away the dead tissue around the infectedarea of his foot in order to determine whether the infection had entered the bone. Although Mr. Durphy complied with this instruction, Dr. Karm did not obtain the results of the procedure from the podiatrist who performed it. Dr. Karm also testified that at the time she saw Mr. Durphy in September, she did not have the x-ray report from the examination two days earlier or his medical records of his intervening treatment since she last examined him in July 1988. Dr. Martin Raff, the Durphys' infectious disease expert, testified that the standard of care required immediate hospitalization at that time instead of continued outpatient treatment with oral antibiotics.

On September 24, 1988, suffering from swelling, drainage, chills and fever, Mr. Durphy went to Washington Adventist Hospital where he was admitted and remained for a five-day stay, during which he was under the care of Kaiser's physicians. He was treated with intravenous antibiotics and released on September 28, 1988. However, there was expert testimony that the standard of care required four to six weeks of intravenous antibiotic treatment to prevent the infection from advancing, not just five days. One of the Durphys' physicians, Dr. Rabin, testified that if the four to six week intravenous antibiotic treatment had been provided, Mr. Durphy's osteomyelitis could have been cured and his foot could have been saved. Both Dr. Raff and Kaiser's expert, Dr. Robert Ratner, testified that the applicable standard of care required four to six weeks of antibiotic treatment. Dr. Rabin further testified that Kaiser's failure to comply with that standard of care proximately caused the loss of Mr. Durphy's foot.

There was evidence that one of Kaiser's physicians ordered a bone scan when Mr. Durphy entered Washington Adventist Hospital, but one of Kaiser's other doctors cancelled it. Dr. Rabin stated that an x-ray report dated October 15, 1988 recommended that Mr. Durphy have a bone scan to determine the presence of osteomyelitis, but no bone scan was taken at that time or at any time before January 1989 when Mr. Durphy's foot was amputated. Dr. Rabin testified that Kaiser's failure to perform a bone scan to determine the presence of osteomyelitis was a breach of the standard of care and a substantial factor causing the loss of Mr. Durphy's foot. Dr. Robert Tanenberg testified that the failure to perform a bone scan was a substantial factor in causing Mr. Durphy to lose his foot because it delayed treatment, and the delay was critical. Both Drs. Rabin and Tanenberg testified that osteomyelitis was present by September 1988 and that Kaiser's failure to treat it in accordance with the standard of care between that time and early November 1988 proximately caused the amputation of Mr. Durphy's foot.

On November 1, 1988, Mr. Durphy was seen by Dr. Stephen Shapiro, an orthopedic surgeon with Kaiser, who testified that Mr. Durphy had a large ulcer on his foot, about three centimeters in diameter, but that it was not infected. Dr. Shapiro testified that he placed a "total contact" cast on Mr. Durphy to redistribute the weight in order to allow the ulcer to heal. Dr. Shapiro testified that he discussed with Mr. Durphy the seriousness of his condition, explaining that if the cast did not work, surgery might be required and that he might lose his foot. Mr. Durphy testified that no one explained that to him. Dr. Shapiro admitted that casting does not cure osteomyelitis once the bone becomes infected. Dr. Shapiro examined Mr. Durphy a week later, on November 8, 1988, and determined that the ulcer was getting better and had decreased by two-thirds its previous size. However, Dr. Rabin testified that since Mr. Durphy was on some degree of antibiotics, it tended to suppress the infection which made him appear better when Dr. Shapiro saw him. Dr. Rabin testified that the inadequate dosages of antibiotics taken orally, as prescribed for Mr. Durphy, might slow the progression of the disease, but it would not cure it.³

Dr. Shapiro testified that he wanted to put another cast on Mr. Durphy, but Mr. Durphy would not allow it. According to Dr. Shapiro, Mr. Durphy attributed his resistance to business reasons or how his customers wouldperceive him. However, Mr. Durphy testified that he did not permit Dr. Shapiro to replace the cast on November 8, 1988, because his foot had been bleeding and dripping inside the cast and had not improved. Mr. Durphy promised to return in two days to have the cast reapplied, but never returned. Mr. Durphy testified that he...