Snyder v. George Washington University, No. 02-CV-1395.

• Decision Date: 12 January 2006
• Docket Number: No. 02-CV-1395.
• Citation: 890 A.2d 237
• Parties: Cheri SNYDER, Appellant,<SMALL><SUP>1</SUP></SMALL> v. GEORGE WASHINGTON UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

890 A.2d 237

Cheri SNYDER, Appellant,¹ v. GEORGE WASHINGTON UNIVERSITY, Appellee.

No. 02-CV-1395.

District of Columbia Court of Appeals.

Argued June 15, 2004.

Decided January 12, 2006.

Joseph Ryland Winston, Richmond, VA, with whom Donald L. McClure, Sr., and

Julia Williams, Washington, DC, were on the brief, for appellant.

Larry D. McAfee, Chantilly, VA, with whom James P. Gleason, Jr., Rockville, MD, was on the brief, for appellee.

Before WASHINGTON, Chief Judge,² RUIZ and GLICKMAN, Associate Judges.

WASHINGTON, Chief Judge:

Appellant Leroy Saunders ("Saunders") appeals the trial court's entry of a directed verdict in his medical malpractice case against George Washington University ("GWU") on the grounds that he failed to establish his prima facie case. Saunders contends that the testimony of his expert witness, Dr. Oswald Hoffler ("Dr. Hoffler"), was sufficient to establish that GWU's breach of a national standard of care proximately caused his injuries. In addition, Saunders argues that the trial court abused its discretion in failing to admit the deposition of another expert witness, Dr. William J. Brownlee ("Dr. Brownlee"), whose testimony, he claims, was sufficient to prove both causation and the national standard of care. Because Dr. Hoffler's testimony established the national standard of care and a breach of that standard, and because Dr. Brownlee's improperly-excluded testimony adequately established causation, we conclude that Saunders established a prima facie case of negligence, and, thus, the trial court erred in directing a verdict against him. Consequently, we reverse and remand for a new trial.

I.

Saunders filed a complaint for medical malpractice against GWU on September 7, 1999. The complaint alleged that the hospital, through its interventional radiologists and other medical employees, negligently treated Saunders before, during, and after an angioplasty procedure. Specifically, the complaint charged GWU with: (1) negligence in failing to timely diagnose and treat the retroperitoneal bleed which caused his paralysis; (2) failing to obtain informed consent to perform the angioplasty; and (3) failing, after the angioplasty, to consult with a vascular surgeon where evidence suggested that a bleeding complication was likely to occur.

A. Dr. Brownlee's Deposition Testimony

In the course of the discovery process, GWU deposed Saunders' expert witness, Dr. Brownlee, for the purpose of discerning the nature and substance of his anticipated trial testimony. During his testimony, Dr. Brownlee was questioned on and addressed GWU's alleged breach of a national standard of care on several different occasions:

Q: Is that a breach of the standard of care, that the stick caused this bleed in the retroperitoneal area, or is that a natural complication of placing a femoral stick?

A: That's a natural complication of placing the stick. The breach of the standard of care is not in the stick, itself, and not in the formation of bleeding from the stick. The breach is from the lack of recognition of the complication occurring with the manifestation of symptoms. (R. 386-87).

. . .

A: [Saunders] got what we call in general surgery a silent bleed. The reason I can tell you we are familiar with this is because in hernia surgery we know that we can sometimes stick the femoral vessel. We know if we stick the femoral vessels you can get a retroperitoneal bleed from it.

Q: Is that a breach of the standard of care?

A: To stick them?

Q: When you stick them?

A: No. To not recognize that you've got a bleeding patient is a breach of the standard of care. The Heparin only augments the fact of the hematoma formation. The breach comes in that he has complaints that should be evaluated, the fact that he is showing that he's bleeding and he's not being properly evaluated.

Q: Do you have a criticism of the fact that the patient was on Heparin to begin with at this point in time?

A: No. The criticism [is] that you do not recognize he's bleeding and you continue him on Heparin. That's kind of a subset. It's a breach in terms of maintaining him on Heparin on a bleeding patient.

. . .

Q: When should a CAT scan have been done on the 28th or the 29th?

A: The 28th ideally, the 29th absolutely. I'm saying the 29th absolutely because what you are doing, you're transfusing a man between the 28th and the 29th, and you're only bringing him up from 6.8 to 7.9, and if I am not mistaken he's gotten two units of blood. (R. at 393).

. . .

Q: So it's fair to say, at least my understanding of your opinion is that silent bleeds or spontaneous bleeds are known complications of femoral sticks?

A: Correct.

Q: And the fact that that occurred isn't a breach of the standard of care. The breach of the standard of care is the fact that they didn't, for lack of a better term, catch it and investigate it quick enough?

A: Correct. Failure to recognize. (R. at 400-01).

. . .

Q: So is it your opinion, I believe you've already given this testimony on September 27th, 1996, with a PTT reading of over 100 seconds the Heparin should have been discontinued at that point, 9/27/96?

A: Yes, that hour. This is in the evening hour, this is some six or eight hours or maybe longer after the procedure, the invasive procedure is done. (R. at 428).

Dr. Brownlee also rendered his opinion at least four times on the issue of causation:

Q: What effect would doing a CAT scan on the 28th, and if not the 28th the 29th, what effect would that have had on the outcome here?

A: To a reasonable degree of medical probability, it would have prevented the compression of the lumbricals and the causation of his cord infarct. (R. at 394).

. . .

Q: If the CAT scan had been done on the 29th and the CAT scan showed the bleed/hematoma, would the outcome have been averted, the outcome being paralysis from the legs down?

A: To a degree of medical probability, it would have been averted or at least to a lesser extent in terms of the loss. The loss would have been less. (R. at 397).

. . .

Q: Okay. So, once again, would some action at that point to evacuate the hematoma or give him additional blood, would that be meaningful at that point?

A: Giving him additional blood would not help him, but evacuating the hematoma may help curtail the advancement of the process. (R. at 433).

At another point, in regard to causation, Dr. Brownlee stated that had Saunders been drained on an earlier date, his paralysis would have been less severe. (R. at 409).

During the deposition, GWU did not raise any objections to the doctor's qualifications to render expert opinions on causation or the applicable standard of care. Although Saunders had planned to call Dr. Brownlee as an expert during the trial, Dr. Brownlee died before he could testify for Saunders in court. Because Dr. Brownlee was no longer available to testify, Saunders sought to introduce Dr. Brownlee's deposition testimony under Super Ct. Civ. R. 32(a)(3)(A), which permits the deposition of a witness to be used at trial in the event of that witness' untimely death. In a joint pretrial statement filed on April 22, 2002, Saunders gave notice of his intention to offer Dr. Brownlee's deposition into evidence at trial.

At trial, however, GWU objected to the admission of Dr. Brownlee's deposition on the ground that the doctor was not "qualified as an expert familiar with the standard of care" in accordance with this court's ruling in Hawes v. Chua, 769 A.2d 797 (D.C.2001).³ After reviewing the contents of the deposition during a brief recess, the trial court agreed that Saunders had failed to lay an adequate foundation during the course of the deposition to establish that Dr. Brownlee possessed the expertise necessary to testify about the national standard of care. Although GWU never specifically objected to the admissibility of Dr. Brownlee's causation testimony, the court ruled that Saunders had failed to lay a sufficient foundation for the admission of that testimony as well. Concluding that "we're in the same situation with respect to either the standard of care or causation," the trial court ruled that Dr. Brownlee's deposition was inadmissible.

B. Dr. Hoffler's Trial Testimony

Once the trial court excluded Dr. Brownlee's deposition, Dr. Hoffler became Saunders' sole expert designated to testify regarding the national standard of care and the cause of his paralysis. Following voir dire, GWU moved to exclude Dr. Hoffler on the ground that, like Dr. Brownlee, Dr. Hoffler had not demonstrated familiarity with the national standard of care.⁴ Although the trial court expressed concern about Dr. Hoffler's competence to testify regarding either the national standard of care or causation, the court nevertheless allowed him to testify. The court reserved the right, however, to strike Dr. Hoffler's testimony in the event that it exceeded the bounds of his qualifications.

During direct examination, Dr. Hoffler testified as to the standard of care and the breach of that standard at least three times:

Q: Okay. What, if anything, should [the physician] have done in your opinion?

A: Well, he should have called somebody for help because this patient was bleeding. People do not bleed after getting femoral sticks, as you called them. They don't bleed. They bleed if you have them full of anti-coagulants, so they won't stop. But bleeding is non-happening.

Q: What else should have been done in this situation, if anything?

A: Well, they — do you wish me to think about the other — speak of the writing on the page?

Q: Whatever there you think is significant that you rely on?

A: It's a sign of danger. It's a sign of a complication. A patient has a procedure done that normally doesn't upset the patient's condition. You do these and people do not have pain and weakness at all. You have to have them lie down for an hour. Put pressure over the area where you stuck the needle and usually they can get up and go home afterwards.

Q: Okay....