Robinson v. WASHINGTON INTERN. MEDICINE

• Decision Date: 19 September 1994
• Docket Number: No. 92-CV-1461.,92-CV-1461.
• Citation: 647 A.2d 1140
• Parties: Johnnie Mae ROBINSON, Appellant, v. WASHINGTON INTERNAL MEDICINE ASSOCIATES, P.C., et al., Appellees.
• Court: D.C. Court of Appeals

647 A.2d 1140

Johnnie Mae ROBINSON, Appellant, v.WASHINGTON INTERNAL MEDICINE ASSOCIATES, P.C., et al., Appellees.

No. 92-CV-1461.

District of Columbia Court of Appeals.

Argued November 10, 1993.

Decided September 19, 1994.

Dominique D. Michel, with whom William E. Artz, Arlington, VA, was on the brief, for appellant.

Alfred F. Belcuore, Washington, DC, with whom Stephen L. Altman and Vicki J. Hunt, Fairfax, VA, were on the brief, for appellees.

Before FARRELL and KING, Associate Judges, and MACK, Senior Judge.

WARREN R. KING, Associate Judge:

In this medical malpractice action, trial courtplaintiffJohnnie Mae Robinson("Robinson"), daughter and administratrix of the estate of Lela Jones("Jones"), seeks reversal of a judgment in favor of appelleesWashington Internal Medicine Associates, P.C. and Dr. Merril Stock(collectively "Dr. Stock").Robinson contends the trial judge erred in instructing the jury on contributory negligence, maintaining there was insufficient evidence to support that defense.Further, Robinson contends the trial judge, in giving the instruction, erred in not also instructing that the only acts of the decedent which could be considered contributorily negligent were those acts contemporaneous to the alleged negligent acts attributed to Dr. Stock.

Among his other arguments in support of the judgment, Dr. Stock contends that appellant was obligated to request a special verdict in order to preserve the issues presented in this appeal.In short, Dr. Stock contends that because no special verdict was sought, Robinson cannot demonstrate that the verdict rested on the assertedly erroneous contributory negligence instructions.For the reasons stated in Part II.A. and Part III. of this opinion, and in the concurring opinion of Judge Farrell, we hold that there is no basis for reversal in this case.

I.

Robinson brought survival and wrongful death actions, alleging negligent follow-up care by Dr. Stock, after he performed a lower endoscopic examination of the colon of 82-year-old Lela Jones.On the morning of January 24, 1991, Dr. Stock performed the endoscopy to determine whether Mrs. Jones was suffering from gastrointestinal bleeding.Shortly after recovering from the procedure, some two hours later, Jones was given written instructions by Dr. Stock to "promptly" report to him any "unusual bleeding, vomiting, pain, fever or other reactions" to the examination.In addition, Dr. Stock told Jones that she would probably experience some gas discomfort.Dr. Stock instructed Jones to call him the following morning to report how she was feeling.Thereafter, Jones was discharged and she returned home.

Later that day, Jones telephoned Robinson, her daughter, complaining that she was not feeling well.In response, Robinson directed Jones's great-granddaughter, who was approximately 23 years old at the time, to attend to Jones until Robinson could do so herself later in the day.When the great-granddaughter arrived, Jones told her that she was suffering from abdominal cramps.Thereafter, Robinson and Jones's granddaughter arrived, finding that Jones was still experiencing stomach cramps, which persisted throughout the evening and night.At no time that day or evening, or during the night, or early morning hours of the next day, did Jones, or anyone on her behalf, inform Dr. Stock, or any other medical personnel, of Jones's condition.

At approximately 9:00 a.m. the following morning, Robinson telephoned Dr. Stock as he had directed.Dr. Stock testified that Robinson reported only that Jones was experiencing gas discomfort and he recommended that decedent take some over-the-counter remedies to provide relief.On the other hand, Robinson testified that she informed Dr. Stock that her mother had been experiencing abdominal pain and had been "spitting up."

At approximately 3:00 p.m., Robinson again called Dr. Stock and informed him that Jones had a fever, had been vomiting and experiencing severe abdominal cramps, and had not urinated that day.Dr. Stock directed that Jones be immediately taken to an emergency room.Robinson then began to assist Jones in getting dressed, during the course of which Jones experienced a heart attack; she was pronounced dead at approximately 5:00 p.m.The cause of death was later determined to have been acute peritonitis as a result of a perforation of Jones's large bowel that occurred during the endoscopy.

At trial, Robinson's expert witnesses conceded that the perforation itself was not the result of negligent treatment, but was a known risk of the examination.The only negligence attributed to Dr. Stock was his asserted failure to properly respond during the course of the 9:00 a.m. telephone call.In his defense, Dr. Stock contended that Jones herself was negligent in not following the post-endoscopy instructions.Specifically, he argued that Jones failed to inform him of the severity of her symptoms.Dr. Stock's expert also testified that even if the decedent has been immediately treated as a result of the 9:00 a.m. conversation, she could not have been saved.On the other hand, Robinson's experts testified that at that stage Jones's condition was reversible with corrective surgery.

Over appellant's objection, the trial judge instructed the jury on contributory negligence.Robinson contended that such an instruction was improper because there was no evidence that Jones, as opposed to Robinson who placed the call, had been negligent during the course of the 9:00 a.m. telephone call.Further, Robinson, although preserving her objection to the giving of the contributory negligence instruction, requested that the trial judge instruct the jury that the only conduct that could be considered as being contributorily negligent was the asserted failure to inform Dr. Stock, during the 9:00 a.m. telephone call, of the true nature of Jones's condition—not any antecedent failure of Jones to follow instructions.The trial judge denied that request but advised that Robinson was free to make the point during closing argument.¹

During deliberations, the jury sent two separate notes to the court, the second of which stated: "some of our concern is equal negligence by majority vote.Where do we go from here?"In response, the trial judge reinstructed the jury on the theories of negligence, contributory negligence, and causation, directing the jury to resume deliberation.Soon thereafter, the jury returned a general verdict in favor of Dr. Stock.This appeal followed.

II.

This appeal raises a question that has never been expressly decided by this court: whether a plaintiff who failed to request a special verdict (or a general verdict accompanied by interrogatories) in a negligence action, where the defense denies negligence and also asserts the affirmative defense of contributory negligence, is estopped from challenging an adverse verdict on the ground that there was error in the giving of the affirmative defense instruction.In resolving that question, we look for guidance in our cases considering analogous issues.

A.

In District of Columbia v. White,442 A.2d 159, 164-66(D.C.1982), we reversed a judgment entered after a plaintiff's verdict in a negligence action where the jury was instructed on alternative theories of liability, and one of the theories was held by the court to be based on insufficient evidence.We reasoned that it was impossible to determine whether the verdict was based on a permissible or impermissible theory because the jury did not specify which theory or theories formed the basis for its verdict.Id. at 165.We concluded under those circumstances there was a possibility that the jury may have relied on the impermissible theory in reaching its verdict.Id. at 165-66(citations omitted);see alsoDistrict of Columbia v. Jackson,451 A.2d 867, 873-75(D.C.1982)(remanding for new trial on damages).

Nine years later, this court narrowed the White rule in Nimetz v. Cappadona,596 A.2d 603(D.C.1991).In Nimetz, as in White, there were several possible theories of negligence that the jury considered, at least one of which was hotly contested on sufficiency of evidence grounds.Id.596 A.2d at 605-06.To guard against the problem presented in White,plaintiff requested that the jury be given a special verdict form that would require it to specify which theory or theories formed the basis for any verdict reached.Id.,596 A.2d at 604.The defendant objected, the trial judge denied the request, and the jury thereafter returned a general verdict in favor of the plaintiff.Id.

On appeal, defendant conceded that there was sufficient evidence to support the verdict with respect to five of the six theories of liability; however, we held that the trial court erred in its instructions with respect to the sixth theory.Id. at 605-06.Under White, that determination would seemingly have called for a reversal of the judgment.Declining to reverse, however, we"adopted the rule that a defendant who fails to request a special verdict form in a civil case will be barred on appeal from complaining that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury."Id. at 608.The court reasoned that "from the perspective of the most efficient use of the judicial system, it would clearly have been preferable for defendant's counsel to have acquiesced in (and the trial judge to have granted even over objection)plaintiff's counsel's request for a special verdict form....Our courts are overburdened, and a plaintiff should not have to endure a second trial when the rules of procedure provide a remedy....The litigants bear the responsibility to request or submit special verdict forms."Id. at 607-08(emphasis added; citations and internal quotation omitted).Also holding that the rule announced would apply to that case, we affirmed the judgment that had been entered in...