Nelson v. McCreary

• Decision Date: 22 May 1997
• Docket Number: No. 95-CV-1541.,95-CV-1541.
• Citation: 694 A.2d 897
• Parties: Ernest NELSON, Jr., Appellant, v. Maurice L. McCREARY, M.D., Appellee.
• Court: D.C. Court of Appeals

694 A.2d 897

Ernest NELSON, Jr., Appellant, v. Maurice L. McCREARY, M.D., Appellee.

No. 95-CV-1541.

District of Columbia Court of Appeals.

Argued January 28, 1997.

Decided May 22, 1997.

John E. Carter, for appellant.

Robert J. Farley, for appellee.

Before SCHWELB and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.

SCHWELB, Associate Judge:

In this action for medical malpractice brought by Ernest Nelson against Maurice L. McCreary, M.D., the jury returned a verdict in Dr. McCreary's favor. On appeal, Mr. Nelson contends, inter alia, that the trial judge erred by declining to instruct the jury on a significant part of the plaintiff's theory of the case. We agree, reverse the judgment, and remand the case for a new trial.

I. THE FACTS

In 1985, physicians discovered that Mr. Nelson was suffering from cancer of the rectum. The progress and size of the tumor required highly invasive surgery. In what we shall call Operation No. 1, Mr. Nelson's surgeons removed the tumor, resectioned the bowel, sutured the anus shut, crafted an opening (called a colostomy) on the left side of Mr. Nelson's abdomen, and reattached the bowel to the new opening. They completed the operation by attaching a colostomy bag to the new opening to collect waste materials passing through Mr. Nelson's bowel.

In August 1989, Mr. Nelson consulted Dr. Maurice McCreary about a hernia that had developed near the site of the colostomy. Dr. McCreary recommended an operation to repair the hernia. He suggested that the colostomy be resited on the right side of Mr. Nelson's abdomen. Dr. McCreary explained to Mr. Nelson that if the colostomy was not resited in this manner, there would be a greater likelihood that the hernia would recur. Mr. Nelson nevertheless requested that the colostomy remain on the left side.

On September 7, 1989, Dr. McCreary performed Operation No. 2. He repaired the hernia with Marlex mesh, a surgical webbing material, and resited the colostomy a little higher on the left side of Mr. Nelson's abdomen. Complications ensued, however, and Dr. McCreary recommended further surgery to remedy a bowel obstruction.

On September 22, 1989, Dr. McCreary performed Operation No. 3. During the operation, he discovered that the surgical webbing had adhered to the surrounding tissue and appeared to be constricting the colostomy. Dr. McCreary attempted to release the Marlex mesh surrounding the colostomy. He completed the operation by enlarging the tunnel from the abdominal wall until it had the size of two adult fingers.¹

Despite Operation No. 3, Mr. Nelson's condition continued to deteriorate. On October 13, 1989, he checked himself into the hospital. At this time, he was complaining of abdominal pain, seepage from the colostomy wound, vomiting, and weight loss.

On October 26, 1989, Dr. McCreary performed Operation No. 4. He discovered that the Marlex mesh appeared to be harboring an infection that was causing Mr. Nelson's continued illness. Dr. McCreary removed a portion of the Marlex mesh. He then moved the colostomy to the right side of Mr. Nelson's abdomen, making an opening which was the size of three adult fingers.²

Soon thereafter, Mr. Nelson developed an infection on the left side of his abdomen near the site of his previous colostomy. Mr. Nelson consulted with Dr. Jerome Canter, who recommended yet another operation. On July 30, 1990, in Operation No. 6, Dr. Canter opened Mr. Nelson's abdomen once again. He discovered that portions of the small bowel had adhered to the mesh and to the incision. Dr. Canter cut away the adhesions, dissected the bowel from the mesh and from the incision, resectioned the bowel around the scar tissue, and removed as much of the remaining Marlex mesh as he could. Dr. Canter also determined that a segment of Mr. Nelson's colon had been left at the site of the old colostomy during the previous surgery, and that a nearby hole in the small bowel was causing the infection around the site of the old colostomy. He removed the piece of colon and repaired the hole to prevent further complications.

On June 1, 1993, Mr. Nelson brought this action against Dr. McCreary for professional negligence. He alleged in his complaint that Dr. McCreary was negligent in using the Marlex mesh, in failing to inform Mr. Nelson about the potential complications that might arise from the use of Marlex mesh, and in failing to remove all of the Marlex mesh during Operation No. 4.³ At the conclusion of the trial, the jury returned a verdict in Dr. McCreary's favor. Mr. Nelson filed a timely notice of appeal.

II. THE "THEORY OF THE CASE" INSTRUCTION

After the parties had completed the presentation of their evidence, Mr. Nelson's attorney tendered to the court proposed instructions reflecting the plaintiff's various theories of negligence. One of these theories was that in connection with the use of the Marlex mesh, Dr. McCreary violated the applicable standard of care by failing to make a large enough tunnel through the abdominal wall to permit waste material to drain through, and that this failure caused or contributed to Mr. Nelson's subsequent illness. The parties disputed at trial, and continue to dispute on appeal, whether the plaintiff's theory in this regard was supported by expert testimony. The trial judge ruled that it was not. We disagree.

A. Dr. Abrams' testimony.

Mr. Nelson's expert witness, Alan Abrams, M.D., testified in support of this very theory. He stated that

the colostomy basically was not working because the exit through the abdominal wall and through the skin was too narrow, and it was oblique. In other words, as it came through the rectum itself, the tunnel was too narrow to allow stuff to come through.

* * * * * *

Q. Okay. And how do you know ... that it the colostomy was too tight and that it was oblique, as you put it?

A. Because that's what Dr. McCreary describes in his admission or operative notes when Mr. Nelson came in the hospital the second time.

Mr. Nelson's counsel then specifically asked Dr. Abrams whether Dr. McCreary had performed the surgery in conformity with the applicable standard of care when he left an exit tunnel which was too narrow. Dr. Abrams' response was direct and to the point:

Q. In connection with placing the Marlex mesh on both sides of this muscle and doing it in such a way, as you described it, that the opening was insufficient to allow anything to pass through it, can you tell us whether or not you have an opinion as to whether or not that would comply or would not comply with the standard of care for a reasonably prudent physician?

A. Yes, I have an opinion.

Q. What is that opinion?

A. I believe that it is not.

Subsequently, during a lengthy colloquy with counsel regarding proposed instructions, the judge, after originally remembering Dr. Abrams' testimony correctly, was persuaded by defense counsel to change his mind:

THE COURT: Well you know — as I understood the testimony of your expert — no, no, you're right, he did say that he failed to make the opening wide enough and that was a violation of the standard of care.

MR. CARTER (COUNSEL FOR THE PLAINTIFF): That was one of the major parts of the case, Your Honor, talking about the colostomy and —

MR. FARLEY (COUNSEL FOR THE DEFENDANT): I take exception if Your Honor is going to instruct on that because that is not my recollection of the testimony, that he said it is a deviation from the standard of care not to have made these openings wide enough.

THE COURT: Actually you are correct, you are correct, he said that the openings were not made large enough, he said that. He did not say that was a violation of the standard of care.

After the attorneys debated further and adhered to their differing recollections, the judge reiterated his agreement with the defense:

The problem with Dr. Abrams' testimony is that he did say that it was too small, no question about it, and he did say that the size of the opening in fact led to the obstruction in the stenosis, yes he did.

But when he talked about the violation of the standard of care he talked about the use of the Marlex mesh and the way it was used, the technique used and that was the violation of the duty of care.

He did not say that the size, to my recollection, that the size of the hole was a violation of the standard of care.

MR. CARTER: Your Honor, I think that is what he said in — and the defendant himself even admitted it under cross examination.

THE COURT: Admitted what?

MR. CARTER: He said that the size of the hole was too small and —

THE COURT: Counsel, I'm agreeing with you, I'm absolutely agreeing with you. The defendant said it was too small, your witness said it was too small, neither your witness nor the defendant said that it was a violation of the duty of care.

In light of his ultimate recollection of the record, which was indisputably contrary to the portions of Dr. Abrams' testimony which we have quoted,⁴ the judge declined to instruct the jury on this aspect of Dr. Nelson's theory of the case. The judge did instruct in some detail on the plaintiff's other theories of negligence.

B. Legal analysis.

"A trial court has broad discretion in fashioning appropriate jury instructions, and its refusal to grant a request for a particular instruction is not a ground for reversal if the court's charge, considered as a whole, fairly and accurately states the applicable law." Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 625 (D.C.1986) (citations omitted). This court has held, however, that an informed choice among permissible alternatives, which is the essence of an appropriate exercise of discretion, requires that the judge's determination "be based upon and drawn from a firm factual foundation." Johnson v. United States, 398 A.2d 354, 364 (D.C.1979). Accordingly, "it is an abuse of discretion if the stated reasons do not rest upon a sufficient factual predicate." Id.; see also In re J.D.C., 594 A.2d 70, 75 (D.C.1991). In the present...