Harris v. Cafritz Memorial Hospital, 9710.

• Decision Date: 20 September 1976
• Docket Number: No. 9710.,9710.
• Citation: 364 A.2d 135
• Parties: Annie Mae HARRIS et al., Appellants, v. CAFRITZ MEMORIAL HOSPITAL et al., Appellees.
• Court: D.C. Court of Appeals

Page 135

364 A.2d 135

Annie Mae HARRIS et al., Appellants, v. CAFRITZ MEMORIAL HOSPITAL et al., Appellees.

No. 9710.

District of Columbia Court of Appeals.

Argued March 11, 1976.

Decided September 20, 1976.

King David, Washington, D. C., for appellants.

F. Wainwright Barnes, Washington, D. C., for appellee Cafritz Memorial Hospital.

Thomas J. Scanlon, Washington, D. C., for appellee Basdeo Balkissoon, M.D.

Before KERN, GALLAGHER and MACK, Associate Judges.

PER CURIAM:

This is a medical malpractice action in which the trial court directed a verdict in favor of appellees (defendants) at the close of appellants' (plaintiffs') case in chief. On appeal, appellant argues that the court erroneously refused to invoke the doctrine of res ipsa loquitur. We affirm.

Appellant Ms. Annie Mae Harris instituted this action for her five-year-old son Michael to recover damages for injuries to the child's hand and thigh allegedly resulting from treatment provided by appellees, Dr. Basdeo Balkissoon and Cafritz Memorial Hospital. Michael was taken to Cafritz Hospital on July 17, 1972, after his left hand was severely burned by scalding water. He remained in the hospital and received treatment for the burn from Dr. Balkissoon. Seventeen days after his admission, a skin graft was performed on his hand with a segment of skin which had been removed from his thigh. The child continued to receive treatment and therapy until he was discharged from the hospital on September 10, 1972. At that time, appellant was instructed to bring Michael back to the hospital approximately twice a week for physical therapy, and an appointment with Dr. Balkissoon was made for one week later. Appellant did not take the child back to the hospital for therapy, nor did she return to Dr. Balkissoon, despite repeated phone calls from his office.¹ Michael received no further treatment until he was taken to Children's Hospital for a rash eight months later. There, doctors discovered that the skin between his fingers had grown together, making him unable to move his hand, and that keloids, or excessive scar tissue, had formed on his thigh.

At trial, appellant's evidence consisted of her own testimony and testimony from her mother, her niece and Dr. Balkissoon. Appellant first testified that when Michael left Cafritz Hospital, his hand was in a splint which did not separate his fingers, that his hand had not healed, and that he could move his fingers. Appellant's fifteen-year-old niece testified that the baby's hand was not in a splint and his fingers were "stuck together" when he came home from the hospital. Appellant's mother testified that the baby's hand was in a splint which did not separate the fingers and that she thought the keloids had also formed at that time. The next witness, Dr. Balkissoon, testified that he used the "open treatment" in dealing with skin loss, that the child's hand had not completely healed when he was discharged, but that it was in good condition, the skin separating the fingers had not healed improperly, and the child's thigh was healing well. He also stated that he instructed appellant, among other things, to remove the splint intermittently and to allow the child to move and flex his hand. The doctor attributed the condition of the hand to Michael's failure to receive continued treatment or physical therapy and to neglect at home. Appellant was then recalled and contradicted her earlier testimony, stating that the child's hand had completely healed when she took him home from the hospital and was in an immobile condition, similar to that at the time of trial.

At the close of appellant's evidence, the trial court granted appellees' motion for a directed verdict on the ground that appellant had failed to provide any evidence of the "standard of care" applicable to the treatment challenged and had failed to show that the child's injury was caused by such treatment. Appellant contends that expert testimony was not required because the doctrine of res ipsa loquitur is applicable.

In a medical malpractice case, expert testimony establishing a failure to meet the appropriate standard of care² is unnecessary if the evidence is sufficient to allow application of the doctrine of res ipsa loquitur. Smith v. Reitman, 128 U.S. App.D.C. 352, 389 F.2d 303 (1967); Quick v. Thurston, 110 U.S.App.D.C. 169, 290 F. 2d 360 (1961); W. Prosser, Handbook of The Law of Torts § 39 at 227 (4th ed. 1971). Under that doctrine, the jury is permitted to infer negligence if the consequences of professional treatment are those which ordinarily would not occur when due care is exercised. Lathon v. Hadley Memorial Hospital, D.C.App., 250 A.2d 548, 549 (1969); Burke v. Washington Hospital Center, 154 U.S.App.D.C. 253, 254, 475 F. 2d 364, 365 (1973); Brown v. Keaveny, 117 U.S.App.D.C. 117, 118, 326 F.2d 660, 661 (1963). Where laymen can say, as a matter of common knowledge and observation, that the type of harm would not ordinarily occur in the absence of negligence, the jury is allowed to infer negligence without expert testimony being presented. Haven v. Randolph, 161 U.S.App.D.C. 150, 151, 494 F.2d 1069, 1070 (1974); Prosser, The Law of Torts, supra at 227.³ However, if a case involves the merits and performance of scientific treatment, complex medical procedures, or the exercise of professional skill and judgment, a jury will not be qualified to determine whether there was unskillful or negligent treatment without the aid of expert testimony.⁴ As a basis for invoking the doctrine of res ipsa loquitur in this type of situation, the plaintiff must at least present some expert opinion that the event will not usually occur if due care is used. Raza v. Sullivan, 139 U.S.App.D. C. 184, 186-87, 432 F.2d 617, 619-20 (1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971); Smith v. Reitman, supra, 128 U.S.App.D.C. at 353, 389 F.2d at 304; Quick v. Thurston, supra, 110 U.S.App.D.C. at 172, 290 F.2d at 363; Bardessono v. Michels, 3 Cal.3d 780, 91 Cal.Rptr. 760, 478 P.2d 480, 485 (1970); Prosser, The Law of Torts, supra at 227 n. 1.

When viewed in the light most favorable to appellant, the evidence in this case shows that the child's hand and thigh may have healed improperly at the time he...