MOATTAR v. FOXHALL SURGICAL ASSOCIATES

• Decision Date: 30 April 1997
• Docket Number: No. 94-CV-1389,94-CV-1389
• Citation: 694 A.2d 435
• Parties: Vida MOATTAR, Appellant, v. FOXHALL SURGICAL ASSOCIATES, Richard P. Derosa, Appellees.
• Court: D.C. Court of Appeals

694 A.2d 435

Vida MOATTAR, Appellant, v. FOXHALL SURGICAL ASSOCIATES, Richard P.Derosa, Appellees.

No. 94-CV-1389.

District of Columbia Court of Appeals.

Argued February 7, 1996.

Decided April 30, 1997.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, STEPHEN F. EILPERIN, J.

Gary S. Freeman, with whom Jack H. Olender, Harlow R. Case and Dan L. Gray, Jr., Washington, DC, were on the brief, for appellant.

David A. Levin, with whom Douglas K. Schrader, Annapolis, MD, was on the brief, for appellees.

Before WAGNER, Chief Judge, and KING, Associate Judge, and BELSON, Senior Judge.

WAGNER, Chief Judge:

The issue presented in this medical negligence case is whether the trial court may remove from the jury's consideration a claim for future loss of earnings where the plaintiff can adduce evidence sufficient to support a finding, to a reasonable degree of medical certainty, that she will die prematurely as a result of defendants' negligence. The case arises out of a claim for medical malpractice in which appellant, Vida Moattar, alleged that the eight month delay by appellee, Dr. Richard DeRosa, in diagnosing and treating her breast cancer caused her permanent injuries and damages and would probably result in her premature death. The trial court precluded Ms. Moattar's expert from testifying at trial regarding the present value of her future loss of earnings, concluding that the issue was not ripe for consideration until her cancer actually recurred or until her death. The trial court also instructed the jury that another jury in a future case would decide what damages would be awarded to Ms. Moattar or her heirs in the event that her cancer recurred. The jury awarded Ms. Moattar $150,000 to compensate her for damages through the time of trial. Concluding that the jury's inexplicable failure to award Ms. Moattar any damages for future mental anguish and embarrassment constituted a clear miscarriage of justice, the trial court granted her motion for a new trial for damages to the extent related to future noneconomic damages. However, the court adhered to its earlier ruling, to exclude from the new trial any consideration of future economic losses. Pursuant to D.C.App. R. 5, this court granted Ms. Moattar's application to determine "whether a jury should consider claims for future loss of earnings in a personal injury action where the plaintiff can demonstrate that because of defendant's negligence her life expectancy will probably be drastically reduced." We answer this question in the affirmative.

I.

The evidence at trial showed that in November of 1989, Ms. Moattar went to see her gynecologist who found a lump in her right breast, which ultrasound confirmed as a solid nodule. The radiologist who performed the ultrasound recommended a biopsy of the mass. The gynecologist referred Ms. Moattar to the appellees, Dr. Richard DeRosa and Foxhall Surgical Associates, P.C. (Surgical Associates) for treatment. Dr. DeRosa was an agent or employee of Surgical Associates. In December of 1989, Ms. Moattar saw Dr. DeRosa, who concluded, without a biopsy, that the lump was benign. Although Dr. DeRosa saw Ms. Moattar twice after her initial visit, he still failed to biopsy the lump or to order an ultrasound of it. In August of 1990, Ms. Moattar was diagnosed with breast cancer in the right breast and underwent a mastectomy, breast reconstruction surgery, and chemotherapy.

At trial, Ms. Moattar presented two expert witnesses, a Board Certified general surgeonand a Board Certified internist specializing in oncology, who both testified that it was "more likely than not" that she would not survive another four years. Ms. Moattar, a thirty-nine year old professional employed by the U.S. Department of Education and single mother of a two year old son, was prepared to offer testimony of an economic expert to establish the present value of her future economic loss given her diminished life expectancy.

Just before the trial commenced, Dr. DeRosa and Surgical Associates filed a motion in limine requesting the trial court to preclude Ms. Moattar from introducing evidence concerning her diminished life expectancy and future economic losses. Before ruling on the motion, the trial court allowed Ms. Moattar's counsel to address these issues in opening statement. Subsequently, during trial, reasoning that because of the degree of uncertainty concerning whether Ms. Moattar would have a recurrence of cancer and to avoid what it deemed to be prejudice, the trial court ruled that the issue of Ms. Moattar's economic loss due to her reduced life expectancy could not be presented to the jury. Therefore, the trial court ordered a separate trial on the issue pursuant to Super. Ct. Civ. R. 42 at such time as Ms. Moattar either experienced a recurrence of the cancer or died as a result of it. The trial court instructed the jury in that connection that

if Ms. Moattar's cancer recurs and threatens her with an early death, then another jury, not you, will decide what damages she or her heirs should be awarded that stem from that recurrence.

The trial court also instructed the jury that Ms. Moattar's claim for future general damages would be annuitized over the years of her life, rather than paid in a lump sum, and that those payments would cease upon her death. The court gave the following instruction:

What you are to decide with respect to damages is what Ms. Moattar has already suffered and, . . . what future physical pain, mental anguish, embarrassment, inconvenience, discomfort, disfigurement and humiliation Ms. Moattar will probably suffer in the future, assuming that she would live to a normal life expectancy that is to the age you conclude Ms. Moattar would live had Dr. DeRosa treated her according to the standard of care expected of him.

[O]n the jury verdict form you'll be asked to [put down] a dollar figure that you calculate for her future damages, assuming Ms. Moattar lives out her normal life expectancy, and every year of her life Ms. Moattar will have a guaranteed annuity for the amount you determine.

In other words, for her future damages, she will receive the dollar amount you decide on divided by the number of years you decide is her normal life expectancy and the pay out would end whenever Ms. Moattar, in fact, dies. And the reason for that is that obviously you don't suffer any more pain and suffering . . . if, in fact you have died.

The jury found in favor of Ms. Moattar on the issue of liability and awarded her as damages to the date of its verdict, the sum of $150,000. It awarded Ms. Moattar no future damages for her noneconomic losses. In response to a special interrogatory on the verdict form, the jury found that Ms. Moattars normal life expectancy would have been forty years, absent the physician's negligence.

Ms. Moattar filed a motion to certify to this court under D.C.Code § 11-721 the question raised by the trial court's rulings removing the issue of economic loss due to reduced life expectancy and ordering that the verdict be annuitized rather than in a lump sum.¹ She also filed a timely motion for anew trial on the issue of damages and renewed her motion to certify the contested rulings on damages to this court. Subsequently, contending that the trial court had left her with no final judgment and no right to appeal, Ms. Moattar filed a petition for a writ of mandamus with this court seeking an order directing the trial court to grant a new trial on the issue of damages. One day later, the trial court entered its memorandum opinion and order holding that the jury's failure to award non-economic damages was "a miscarriage of justice," ordering a new trial on that issue, and certifying to this court pursuant to D.C.Code § 11-721(d) the two contested issues, the ripeness of the claim of future economic loss and the restriction of the verdict to an amount for an annuity rather than a lump sum. This court denied the request for a writ of mandamus, but granted the petition to appeal the trial court's ruling on the "ripeness" of her future economic damages claim.

II.

Ms. Moattar argues that the trial court erred in removing from the jury's consideration her claim for future economic loss due to her diminished life expectancy. Dr. DeRosa and Surgical Associates argue that the trial court properly refused to submit the issue of loss of future earnings to the jury where there was no sign of a recurrence of cancer by the time of trial. They take the position that her claim is a premature attempt to recover damages under the Survival Statute (D.C.Code § 12-101) and Wrongful Death Statute (D.C.Code § 16-2701).²

A claim for damages for loss of future earnings resulting from injuries suffered due to the negligence of others is a cognizable element of damages during the life of the injured party. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C. 1979). Here, we are dealing with loss of earnings recoverable by the injured party in a medical negligence case, not in a survival action. See Monias v. Endal, 330 Md. 274, 623 A.2d 656, 659 (1993). The prevailing view is to allow recovery for economic losses based on a plaintiff's lifespan if unaffected by the injury resulting from the defendant's negligence. Burke v. United States, 605 F. Supp. 981, 989 (D.Md. 1985) (citations omitted). As this court stated in Barriteau, this element of damages represents "the amount that the injured party would have earned but for the injury." 399 A.2d at 567 n. 6. The allowance for such recovery is consonant with the principal purpose for compensatory damages in such cases, which is to make the victim whole. See id. at 566.

The allowance of future economic losses resulting from diminished life expectancy is not a premature attempt to recover wrongful death and survival damages, as Dr. DeRosa and Surgical Associates contend, but an element of damages recoverable by the injured party during her lifetime where properly proved. See ...