Garvey v. O'Donoghue

• Decision Date: 09 September 1987
• Docket Number: No. 84-1636.,84-1636.
• Citation: 530 A.2d 1141
• Parties: Diane R. GARVEY, et al., Appellants, v. J. Morgan O'DONOGHUE, M.D., et al., Appellees.
• Court: D.C. Court of Appeals

530 A.2d 1141

Diane R. GARVEY, et al., Appellants, v. J. Morgan O'DONOGHUE, M.D., et al., Appellees.

No. 84-1636.

District of Columbia Court of Appeals.

Argued January 6, 1987.

Decided September 9, 1987.

John McNally, for appellants. James E. Joyner, Washington, D.C., was on brief, for appellants.

Benjamin W. Glass III, with whom Joan E. Jennings and Brian C. Shevlin, Arlington, Va., were on brief, for appellees.

Before PRYOR, Chief Judge, and MACK and NEWMAN, Associate Judges.

PRYOR, Chief Judge:

This is an appeal from a jury verdict in favor of appellees against Diane R. Garvey and her husband, Vincent M. Garvey, in a medical malpractice suit alleging that Mrs. Garvey developed tinnitus¹ as a result of appellees' negligent prescription and administration of the antibiotic Tobramycin.² Appellants argue that the trial court made three erroneous evidentiary rulings of such magnitude that any one of the errors, but certainly all three taken together, constitutes reversible error. Specifically, appellants argue that (1) relevant portions of the Physicians' Desk Reference as well as the manufacturer's packaging inserts for the drug Tobramycin should have been admitted into evidence; (2) appellants' expert, who qualified as an expert in pharmacology, should have been allowed to testify as to the proper dosage and duration of treatment with the drug Tobramycin; and (3) the treating physicians'"diagnoses" of tinnitus contained in appellant Mrs. Garvey's medical records should have been admitted through appellants' medical expert. While we agree the trial court's evidentiary rulings were erroneous, in whole or in part as discussed infra, in light of the other evidence in the record before us, we find the errors to be harmless. Accordingly, we affirm.

I

In early March 1980, Diane Garvey, a first-year nursing student, sought medical treatment from Dr. J. Morgan O'Donoghue for a sore throat. Dr. O'Donoghue referred her to Dr. Gary Burch, an ear, nose, and throat specialist, who diagnosed her condition as a strep infection. On March 11, 1980, because her symptoms had not improved, Mrs. Garvey was admitted to Georgetown University Hospital complaining of a severe sore throat, severe abdominal tenderness, and high fever. During the first full day after her admission, Mrs. Garvey's temperature rose to 104.7 degrees Fahrenheit.

While hospitalized, Mrs. Garvey was under the care of several physicians, including Dr. J. Morgan O'Donoghue, an internist, Dr. Charles T. Gerber, a specialist in obstetrics and gynecology, and Dr. Joseph W. Giere, Mrs. Garvey's obstetrician and gynecologist since 1975, all appellees in this case. Her doctors determined she was suffering from a left tubo-ovarian abscess seven centimeters in size. This diagnosis was later confirmed by sonography.

Throat and vaginal cultures taken around the time of Mrs. Garvey's admission to the hospital indicated that several antibiotics, including Tobramycin, would be effective against the offending organism, Beta Streptococcus Group A. Two potent antibiotics, Tobramycin (Nebcin-Lilly) and Cefoxiitin (Mefoxin-MSD) were administered intravenously for fourteen days; Tobramycin was administered in an initial dose of 80 mg. followed by 60 mg. every eight hours for the remaining thirteen days of Mrs. Garvey's hospitalization. During this time, Mrs. Garvey showed steady improvement. Blood tests were conducted at least twice to monitor for side effects from the antibiotic; however, the last monitoring was conducted eight days before administration of the drug was concluded. At no time during her hospitalization did Mrs. Garvey complain of hearing loss, hearing impairment, or unusual sounds in her ears. She was released from the hospital on March 27, 1980.

Mrs. Garvey testified she first noticed a "sound" in her ears a few weeks after being discharged from the hospital, but could not recall with certainty mentioning it to any physician before February 1981 when she told Dr. Giere.³ She was examined and treated by two ear, nose, and throat specialists, neither of whom testified at trial. The only evidence presented at trial that Mrs. Garvey suffered from tinnitus was her own testimony and that of her expert medical witness. She tried several methods of minimizing or covering the distracting sound including playing a radio at night, leaving the television on, and finally purchasing a "tinnitus masker" in the summer of 1984.

At trial, Mrs. Garvey sought to show that Tobramycin is a highly toxic drug and that more suitable, less dangerous drugs were available. In addition, she attempted to show that both the dosage level and the duration of treatment with the drug exceeded the recommended standards for a person of her size.

Appellants presented the testimony of two expert witnesses. The first was Nicholas Criares, M.D., a board certified obstetrician and gynecologist, who had been employed since 1978 by the State of New York and served at the Bronx Psychiatric Center. Dr. Criares indicated that he had last performed gynecological surgery sometime between 1976 and 1978 and that he had never prescribed Tobramycin to a patient. Dr. Criares was qualified as an expert in the field of obstetrics and gynecology and in the treatment of gynecological diseases, specifically with antibiotic therapy.

Appellants' second expert was Linwood Tice, D.Sc., a retired Dean of the Philadelphia College of Pharmacy, where he had taught various subjects including chemistry and pharmacology from 1938 through his tenure as dean until his retirement in 1975. During his career, Dr. Tice engaged in clinical research on aminoglycosides, the group of drugs to which Tobramycin belongs. He retired two years before Tobramycin was placed on the commercial market. Dr. Tice was qualified by the court as an expert in pharmacology.

Both Dr. Criares and Dr. Tice had reviewed Mrs. Garvey's medical records. Both experts testified that Tobramycin belongs to a group of drugs called aminoglycosides which have well-known nephrotoxic and ototoxic properties; that is, use of the drug in too high a dosage or over an extended period of time can cause kidney damage that is reversible and damage to the eighth cranial nerve (affecting hearing) that is irreversible. The ototoxicity of Tobramycin manifests itself in a variety of ways including hearing loss and ringing in the ears. Both experts testified that appropriate dosage is a function of the weight and renal health of the patient, that use of the drug should not exceed ten days, and that the patient should be monitored to detect signs of nephrotoxicity and ototoxicity. Dr. Criares stated that in his opinion the proper standard of care for treatment of a tubo-ovarian abscess is antibiotic therapy, but that because Mrs. Garvey's condition was not life-threatening, Tobramycin was not the appropriate antibiotic to use. In addition, Dr. Criares testified that in his opinion Mrs. Garvey suffered from tinnitus caused by the improper administration of Tobramycin while under the care of appellees.

II

A.

At trial, appellants made repeated attempts to introduce into evidence both the pages of the Physicians' Desk Reference (PDR) dealing with the drug Tobramycin and the drug manufacturer's package insert on Tobramycin.⁴ Although appellants' experts, Dr. Criares and Dr. Tice, were allowed to make specific reference to the PDR, the trial court refused to place either document before the jury, finding that each was inadmissible hearsay. On appeal, appellants provide three arguments in the alternative for the admissibility of both documents. We treat each argument separately.

Appellants first contend that the documents are admissible as data reasonably relied upon by experts in forming their opinions. In general, an expert witness may testify on the basis of data that is not itself admissible if the data is of a type reasonably relied upon by experts in the particular field in forming their opinions or inferences on the subject. FED.R.EVID. 703; L.C.D. v. District of Columbia ex rel. T.-A.H.D., 488 A.2d 918, 921 n. 8 (D.C. 1985). It is clear, then, that the PDR and the package insert pertaining to Tobramycin may be used as a basis for expert testimony if the expert relied on them in forming an opinion. If, however, the evidence is proffered, only as a basis for expert testimony the document itself is not admissible. FED.R.EVID. 703. In this instance, although both experts indicated they did review the PDR in preparing their testimony, the record before us is unclear as to whether either relied on the PDR in reaching an opinion.

Appellant next argues that the PDR can be characterized as a publication prepared for and relied upon by physicians and pharmacologists and is, therefore, admissible as an exception to the hearsay rule. FED.R.EVID. 803(17).⁵ Typically the publications covered by this exception to the hearsay rule are lists containing readily verifiable information such as telephone directories, price lists and the like. This exception is recognized in this jurisdiction. Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968) (mortality tables admissible as evidence of life expectancy); Reilly v. Cullinane, 53 App.D.C. 17, 287 F. 994 (1923) (same).⁶ In the instance of the PDR, interwoven among its factual statements are statements that correctly can be classified as directions, opinions, suggestions, and recommendations. Thus, it would be error to receive such as evidence, on that basis, of the truth of the matters asserted therein. Rosario v. New York City Health & Hospital Corp., 87 A.D.2d 211, 450 N.Y. S.2d 805 (1982), cited with approval by Spotts v. Reidell, 345 Pa.Super. 37, 497 A.2d 630 (1985), appeal denied, (1986) (injection of Sotradecol).

Finally, appellant argues that regardless of whether the PDR is admissible for the truth of the information contained therein, it is admissible as evidence of the applicable standard of care for administration...