Pannu v. Jacobson, No. 04-CV-303.
| Decision Date | 19 October 2006 |
| Docket Number | No. 04-CV-303. |
| Citation | 909 A.2d 178 |
| Parties | Sardul S. PANNU and Surinderjit G. Pannu, Appellants, v. Jeff JACOBSON, M.D., Neurological Surgery Group, and Washington Brain and Spine Institute, P.C., Appellees. |
| Court | D.C. Court of Appeals |
Marc Fiedler, Washington, DC, for appellants.
Brian J. Nash, Towson, MD, with whom Leonard W. Dooren, was on the brief, for appellees.
Before REID and KRAMER, Associate Judges, and NEWMAN, Senior Judge.
After a jury trial in this medical malpractice matter, which involved lower back surgery and allegations of improper surgical technique, the jury rendered a verdict in favor of appellees, Dr. Jeff Jacobson, the Neurological Surgery Group, and the Washington Brain and Spine Institute, P.C. Appellants, Dr. Sardul S. Pannu and his wife, Surinderjit G. Pannu appealed, alleging that the trial court erred in declining to give the proposed modified version of STANDARDIZED CIVIL JURY INSTRUCTION FOR THE DISTRICT OF COLUMBIA, § 5.03 (rev. ed. 2005) (hereinafter Instruction 5-3), which the appellants had specifically requested. Appellants maintain that the proposed instruction — "a reasonable doctor under the standard of care changes [his][her] conduct according to the circumstances or according to the danger [he] [she] knows, or should know, exists"; and that "as the danger increases, a reasonable doctor under the standard of care acts more carefully" — was a significant part of their theory of the case which was supported by evidence from expert witness testimony. We conclude that the trial court did not err by refusing to give the precise wording of the requested instruction, because it contained phrasing which could have confused the jury regarding the applicable law. Nevertheless, it was incumbent upon the trial court to give the jury a fair and accurate statement of the law of negligence, in the context of a medical malpractice case involving neurological surgery. And, the failure of the trial court to give an instruction consistent with the legal principles set forth in this opinion constituted an erroneous exercise of discretion. Furthermore, we hold that the error was not harmless and thus constituted an abuse of discretion. Consequently, we reverse the judgment of the trial court and remand this case for a new trial.
The record on appeal shows that in April 2000, Dr. Pannu was a sixty-four-year-old chemistry professor with a history of lower back pain. Dr. Pannu consulted with Dr. Jacobson, who, after performing several diagnostic tests, recommended that Dr. Pannu undergo a decompressive lumbar laminectomy and a partial discectomy. Dr. Jacobson believed that Dr. Pannu was suffering from lumbar stenosis, a narrowing of the spinal channel, which compresses the nerves traveling through the lumbar spine to the legs. The surgery was intended to excise the posterior arch of the vertebrae, known as the lamina, and an intervertebral disc in order to relieve compression of the nerves of the spine.1
The surgery took place on June 9, 2000 at Suburban Hospital in Bethesda, Maryland. While working to remove the lamina from the lower portion of one of the lumbar vertebrae, known as L5, using manual bone-cutting instruments called rongeurs, Dr. Jacobson inadvertently nicked the dura, the tough fibrous membrane covering the spinal cord; and created a one millimeter tear in it, apparently a relatively common complication of such surgery. Through the hole in the dura Dr. Jacobson could see the arachnoid, a thin, delicate, cobweb-like membrane that lies beneath the dura and encloses the spinal cord; however, no cerebrospinal fluid was leaking out and no nerves had been damaged.
Dr. Jacobson then moved to the upper portion of L5 and attempted to continue using the rongeurs. However, the fact that Dr. Pannu's dura was thinner than normal and very nearly stuck to the underside of the lamina made it difficult to separate the dura adequately from the bone. Dr. Jacobson determined that a high-speed, turbine, hand-operated drill would be an equally effective way of thinning the lamina to a thickness that would allow him to pick away the remaining bone with special instruments. He fit the drill with a five-millimeter burr, tested it, and used a small piece of cotton, known as a cottonoid, to protect the already exposed dura.2 Since he could not place the cottonoid between the dura and the bone due to the inadequate spatial conditions, Dr. Jacobson laid the cottonoid on the exposed dura next to the bone and proceeded to drill, with one hand operating the drill and one hand operating the suction instrument.
As Dr. Jacobson continued to perform the surgery, his drill encountered a piece of bone of uneven consistency, which caused the drill to jump and land in the dural sac between the bone and the cottonoid near the area which had already been torn. The drill severed several of Dr. Pannu's nerves, specifically those responsible for bowel and bladder control. Dr. Jacobson removed the nerves from the drill, put them back in the dural sac, sutured it closed, placed fibrin glue over it, and continued on with the operation, the remainder of which was successful.
Dr. Pannu lost bladder and bowel function and has no hope of regaining them.3 Consequently, Dr. Pannu's life revolves around the time and labor intensive processes that he must undergo in order to urinate and defecate. He must catheterize himself every four hours in sterile environments to guard against urinary tract infections; he wears a diaper due to his total inability to control his bowels, and often must manually disimpact himself.
Dr. Pannu's injuries have caused him to suffer episodes of depression. He retired from his position as a tenured professor of analytical chemistry at the University of the District of Columbia due to his embarrassment over his inability to control his bowels. His social life has deteriorated as well as his intimacy with his wife. Appellants filed a medical malpractice action against appellees. Dr. Pannu sought compensatory damages for the loss of his bowel and bladder functions, and Mrs. Pannu claimed damages due to loss of consortium. The jury returned a verdict in favor of defendants/appellees.
Dr. Pannu presents only one issue on appeal: whether the trial court erred in refusing to give a modified version of STANDARDIZED CIVIL JURY INSTRUCTION 5-3, which would have expressed appellants' theory of the case that, in a medical malpractice action, as the danger increases, a proportional change in conduct is required. Appellants contend that the trial court had no discretion as to whether or not to give the instruction because there was sufficient evidence in the record to establish a factual predicate for it. They cite testimony from medical experts from both parties, as well as the trial judge's conclusion that they had laid a factual predicate to substantiate their claim. They insist that no other instruction given by the trial judge adequately explained the legal principle that negligence is a relative concept and that consequently, the jury did not receive a complete and accurate set of instructions on the applicable law.
Appellees counter that the requested instruction was correctly refused because it is most appropriately given in general negligence cases, whereas it can be confusing to jurors in a medical malpractice suit. Appellees argue that in cases that do not involve expert witnesses, juries are expected to be able to draw upon their life experiences to determine what it means to "act more carefully" in a dangerous situation. However, they assert that juries are not expected, nor should an instruction tell them, to determine on their own what it might mean for a neurosurgeon to act more carefully during a surgery that involves working millimeters away from the spinal cord. Instead, they contend, juries are expected to listen to the expert testimony and conceptualize an understanding of the appropriate standard of care from what they believe was the most credible testimony. They assert that the jury was free to believe the appellants' expert testimony concerning what Dr. Jacobson needed to do to be more careful, but that an instruction telling the jury that Dr. Jacobson had to act more carefully would invite jury speculation. Moreover, they argue that judges retain some discretion in refusing requested jury instructions when it involves a legal, not factual, question. Finally, appellees contend that an overview of the complete set of jury instructions given by the trial judge reveals that he did provide a fair and accurate explanation of the law.
Before discussing the legal issue presented, and the arguments of the parties, we set forth pertinent background information. Then we articulate applicable legal principles.
Most of the trial testimony involved medical experts who were presented by both parties to explain to the jury what the appropriate national standard of care was in 2000 for a board-certified neurosurgeon performing the type of lower back surgery Dr. Jacobson had conducted on Dr. Pannu. Each side called two independent medical experts, and Dr. Jacobson testified for the defense. The testimony covered acceptable surgical techniques, equipment, and personnel used for the procedure including: the drill versus manual bone-cutting instruments; the type of drill; the size of the drill bit; the direction and motion of the drill; various items which could protect the dura during surgery; the use or non-use of an assistant as an extra pair of hands to help protect the dura; and the use of two hands versus one hand while operating the drill.
Dr. George Gruner and Dr. Lawrence F. Marshall, the medical experts for the appellants, each testified that Dr. Jacobson should have been more careful during the operation. At the time of the trial, Dr....
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