Quin v. George Washington Univ.

• Decision Date: 03 October 1979
• Docket Number: No. 13883.,13883.
• Citation: 407 A.2d 580
• Parties: Diana S. QUIN et al., Appellants, v. The GEORGE WASHINGTON UNIVERSITY et al., Appellees.
• Court: D.C. Court of Appeals

Page 580

407 A.2d 580

Diana S. QUIN et al., Appellants, v. The GEORGE WASHINGTON UNIVERSITY et al., Appellees.

No. 13883.

District of Columbia Court of Appeals.

Argued April 26, 1979.

Decided October 3, 1979.

Barry J. Nace, Washington, D. C., with whom Richard S. Paulson, Washington, D. C., was on the brief, for appellants.

Denver H. Graham, Washington, D. C., for appellees.

Before KELLY, GALLAGHER and FERREN, Associate Judges.

GALLAGHER, Associate Judge:

This appeal raises questions concerning the propriety of a res ipsa loquitur instruction in a medical malpractice case. Appellant Diana Quin, wife of the deceased patient, brought a wrongful death and survival action¹ against decedent's surgeons, Drs. Shorb and Knoll, and the George Washington University Hospital (the Hospital). The jury returned a verdict in favor of the Hospital and both doctors. On appeal, Mrs. Quin relies principally upon the trial court's failure to grant the requested res ipsa loquitur instruction. However, she advances additional claims of error which, she asserts, also warrant reversal: (1) the trial court improperly curtailed cross-examination of the defendant physicians² and (2) the court erroneously refused to admit two medical journal articles into evidence to impeach Dr. Knoll's testimony.³ We affirm.⁴

I.

Mr. Quin entered the George Washington University Hospital for surgical removal of his spleen. The splenectomy was recommended by Mr. Quin's physician after tests revealed a condition known as hypersplenism. Hypersplenism involves an enlarged spleen which if left in the body destroys platelets in the blood, and creates a risk of excessive bleeding. Dr. Shorb performed the operation, assisted by Dr. Knoll who was a chief resident in surgery at the time.

Following surgery, Mr. Quin's condition was stable, and his post-operative recovery appeared normal. That evening, five hours after the operation, Mr. Quin was found in a state of respiratory arrest. Medical personnel began resuscitation efforts. At this point, Mr. Quin manifested signs of abdominal hemorrhaging, and he was prepared for exploratory surgery. The surgeons' notes, prepared after the exploratory surgery, indicated massive hemoperitoneum (3 to 4 liters of blood in the abdominal cavity). The notes identified an "open hole in the splenic vein" as the source of hemorrhage, "although the vessel had been previously adequately ligated at the previous procedure." The splenic vein was religated, and Mr. Quin was closed up.

Mr. Quin continued to bleed after the exploratory operation, so the surgeons performed a second exploration. At this time, they discovered a laceration of the dome of the liver, one of the known side effects of pulmonary resuscitation, which was treated. Mr. Quin's condition continued to deteriorate and he died of liver failure due to extensive blood loss resulting from abdominal hemorrhaging.

At trial the expert medical testimony focused on the meaning of the post-operative notes, specifically the phrase "open hole in the splenic vein." Appellant's experts, Drs. Golkin and Barrick, testified that the phrase referred to the end of the vein. In their view, the surgeons had improperly ligated major splenic vessels, and the suture ligature had slipped off. Both doctors opined that the injury would not have occurred if standard operating procedure had been followed. As Dr. Golkin testified at his deposition, he could not envision a properly tied suture coming loose. Neither had ever heard of a spontaneous rupture of the splenic vein following a splenectomy.

Dr. Knoll, on the other hand, testified that his notes described the intima or inner walls of a ruptured vein, not the end. It was apparently his position that a spontaneous rupture of the vein took place due to a weakened vessel wall. There was some testimony, however, that pressure caused a "blowout" of the vein. Drs. Shorb and Knoll referred at trial to several medical journal articles on which they based their opinions that a spontaneous rupture could occur. Although slippage of a tie and spontaneous ruptures are both "uncommon events," it was Dr. Knoll's opinion that a ligature slippage was less likely to happen.

At the close of all the evidence, appellant requested that the case be submitted to the jury under the doctrine of res ipsa loquitur, along with the direct evidence of negligence. The trial court denied appellant's requested res ipsa loquitur instruction. The doctrine was not applicable, in the court's view, because "it cannot be said that the defendant in fact had exclusive control of the instrumentality of the injury, since the instrumentality of the injury is not in fact known." As the court stated, "while Mr. Quin's death may have been caused by profuse bleeding from the splenic vessel, the cause of that bleeding is not known inasmuch as there is conflicting evidence on that point."

Since we find insufficient evidence in the record to invoke res ipsa loquitur, the trial court's failure to instruct the jury was not reversible error.

II.

The doctrine of res ipsa loquitur, when applicable, permits the jury to infer negligence from the mere occurrence of an accident. As stated in an early decision, the happening itself "affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Kerlin v. Washington Gas Light Co., 110 F.Supp. 487, 489 (D.D.C. 1953), citing Scott v. London & St. Katherine Docks Co., 3 H&C 596, 159 Eng.Rep. 665 (1865). See also Evans v. Byers, D.C. App., 331 A.2d 138, 140 (1975). When properly invoked in a medical malpractice case, res ipsa loquitur supplies evidence that the defendant physician failed to meet the requisite standards of care and skill. See, e. g., Smith v. Reitman, 128 U.S.App.D.C. 352, 353, 389 F.2d 303, 304 (1967). The doctrine, therefore, helps the plaintiff overcome two difficulties often encountered in medical malpractice cases: (1) inability to obtain favorable expert testimony and (2) inability to explain the events causing injury, and prove specific acts of negligence by the defendant-doctor. See Comment, The Application of Res Ipsa Loquitur in Medical Malpractice Cases, 60 Nw.U.L.Rev. 852 (1966).

This court permits the plaintiff in a proper case to rely upon both res ipsa loquitur and proof of specific acts of negligence. Levy v. D.C. Transit System, Inc., D.C.Mun. App., 174 A.2d 731, 732-33 (1961). As we stated:

Though some evidence may tend to show the specific cause of an accident, a plaintiff should not be deprived of the benefit of the doctrine if after his case in chief is in, the true cause is still left in doubt or is not clearly shown. [Id. at 733, quoting from Lindsey v. D.C. Transit Co., D.C.Mun.App., 140 A.2d 306, 308-09 (1958); emphasis in original.]

This rationale would appear applicable to a medical malpractice case.

In a medical malpractice case, as in negligence cases generally, res ipsa loquitur applies where the consequences of professional treatment (1) ordinarily do not occur in the absence of negligence,⁵ (2) are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) are not due to any voluntary action or contribution on the part of the plaintiff. Sullivan v. Snyder, D.C.App., 374 A.2d 866, 867-68 (1977).

It has been said that "ordinarily" is the key concept of res ipsa loquitur. Raza v. Sullivan, 139 U.S.App.D.C. 184, 432 F.2d 617, 620 (1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971). At the threshold, plaintiff must demonstrate that the injury ordinarily does not occur when due care is exercised. Harris v. Cafritz Memorial Hospital, D.C.App., 364 A.2d 135, 137 (1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977). Due to the "great variety of infections and complications which, despite all precautions and skill, sometimes follow accepted and standard medical treatment," an inference of negligence in a malpractice suit cannot be based solely on the fact that an adverse result follows treatment. Quick v. Thurston, 110 U.S.App.D.C. 169, 172-73, 290 F.2d 360, 363 (1961). There must be a basis in the record or in common experience to warrant the inference. See, e. g., Smith v. Reitman, supra at 353, 389 F.2d at 304.

This court has stated that res ipsa loquitur applies only when a layman can infer negligence as a matter of common knowledge. See, e. g., Lathon v. Hadley Memorial Hospital, D.C.App., 250 A.2d 548 (1969). However, in line with recent trends, this narrow application of the doctrine has been discarded. We acknowledged in Harris, supra at 137-38, that the probability of negligence may also be established by expert opinion, and in some cases by the overall evidence (including testimony of the defendant-physician). As we stated:

[I]f 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. 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. [Id. at 137; citations omitted.]

See also Raza v. Sullivan, supra (testimony of oral surgeon that wisdom tooth extractions do not, if accepted procedures are observed, normally result in jaw bone fractures warranted application of res ipsa loquitur).⁶

Thus, if an expert can say as a matter of expert knowledge that the injury does not ordinarily occur unless caused by negligence the jury should be permitted to infer negligence from the occurrence.

Since the likelihood of abdominal hemorrhaging after a splenectomy is not common knowledge, this case required expert testimony to supply a foundation for the doctrine. Drs. Golkin and Barrick, appellant's expert...