Stager v. Schneider, 84-833.

Docket NºNo. 84-833.
Citation494 A.2d 1307
Case DateJune 28, 1985
CourtCourt of Appeals of Columbia District

William E. Nelson, with whom Sherlee S. Nelson was on the brief for appellants.

David A. Levin, with whom Andrew E. Vernice was on the brief for appellee.

Before NEWMAN and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.

NEWMAN, Associate Judge:

This appeal arises from rulings made by the trial court in a medical malpractice action where the jury verdict was for the defendant, Dr. Schneider. Mrs. Stager contends that Judge Goodrich erred in three separate areas: (1) by submitting an issue of contributory negligence to the jury; (2) in his rulings denying her requests for instructions: (a) that a physician has a duty to inform a patient of test results, and (b) one on calculus of risks; (3) by giving two instructions to which she objected: (a) that expert testimony was needed to establish each element of her claim, and (b) a missing witness instruction; and (4) in evidentiary rulings including: (a) prohibiting her experts from testifying as to the adequacy of certain hospital policies, and (b) that if Stager put on a witness competent to testify about the adequacy of those policies, Dr. Schneider would be permitted to show that she had settled her claim against the hospital. Mr. Stager claims that Judge Mencher erred in ruling that he had no claim for loss of consortium since he was not married to Mrs. Stager until approximately three months after the alleged negligent conduct of Dr. Schneider.

We Old that the trial judge erred in submitting contributory negligence to the jury as well as in other rulings, requiring that we reverse the jury verdict as to Mrs. Stager. We hold that under the facts presented in this case, the motions judge erred in ruling that Mr. Stager could not properly assert a claim for loss of consortium. We remand for a new trial.

I Facts

Mrs. Stager and her husband sued Dr. Schneider, alleging that he negligently failed to inform her (or her attending physician) of 4 spot or shadow he saw on x-rays taken of her lung. The x-rays were taken at Capitol Hill Hospital (C.H.H.) as part of an examination prior to an out-patient operation to be performed by Dr. Wein. Mr. Stager claimed loss of consortium.1

The underlying facts in this case are basically undisputed. They were stated by the trial judge as follows:

Prior to March 3, 1980, plaintiff consulted with Dr. Arthur B. Wein, an orthopedic surgeon, regarding bilateral foot problems. As a result of Dr. Wein's examination of her feet, Dr. Wein and plaintiff agreed that he would perform surgery on her feet, one foot at a time, to be scheduled on different dates at the Ambulatory Surgery Unit at Capitol Hill Hospital. It was plaintiff's specific request that the surgery be performed at an ambulatory surgical unit. The surgery was subsequently scheduled for March 4, 1980. At some time prior to March 3, 1980, Dr. Wein (or someone acting on his behalf) telephoned Capitol Hill Hospital and arranged for the standard pre-operative testing to be done upon Mrs. Stager at the hospital. That testing was to include a chest x-ray. It is undisputed that the sole purpose, insofar as the Hospital was aware, for the x-rays and other testing was in preparation for the contemplated surgery. On or about March 3, 1980, Mrs. Stager visited the Hospital and the ordered pre-operative diagnostic testing was completed, including the chest x-ray. The chest x-ray was read and interpreted, in the normal course of business, by defendant Hans H. Schneider, M.D. In Dr. Schneider's report of the x-ray he noted an area of slightly increased density in the apex of the right lung. He stated that this could represent an area of localized infiltration, and recommended comparison with previous films or follow-up films. On the morning of March 4, 1980, plaintiff cancelled the planned surgery due to illness. Plaintiff was not subsequently operated on by Dr. Wein, and she never returned to Capitol Hill Hospital. Neither plaintiff nor Dr. Wein was made aware of Dr. Schneider's findings in the x-ray report. In December of 1980, plaintiff underwent a routine chest x-ray at the request of her family physician at which time an abnormality was disclosed and the plaintiff diagnosed as having a malignant tumor on her right lung. In February, 1981, she underwent surgery for removal of the tumor at George Washington University Hospital.

Order, May 22, 1984, at 1-2.2

II Contributory Negligence3

Mrs. Stager's mother died of lymphosarcoma in 1945, and her half-sister died of lung cancer in 1972. Mrs. Stager, as a result, had a heightened sensitivity to cancer risk which caused her to get annual chest x-rays for ten years prior to 1980. She was always informed of the results of these x-rays; they had all been negative. Neither Mrs. Stager nor Dr. Wein was informed by Dr. Schneider of the results of the x-ray done on March 3, 1980; neither of them contacted Dr. Schneider seeking to obtain the results. Dr. Schneider contends these facts present a jury issue of whether Mrs. Stager had a duty to call and obtain the x-ray result and if so, a jury could then find her failure to do so contributory negligence, barring her claim. Mrs. Stager contends that as a matter of law, her failure to seek the x-ray results from Dr. Schneider was not contributory negligence, relying on Morrison v. MacNamara, 407 A.2d 555 (D.C. 1979), and other cases.

Contributory negligence is the failure to act with the prudence demanded of an ordinary reasonable person under like circumstances. Byas v. Dorsey, 89 U.S. App.D.C. 403, 192 F.2d 613 (1951); RESTATEMENT (SECOND) OF TORTS § 464 (1977). Put another way, "[t]he plaintiff is required to conform to the same objective standard of conduct, that of the reasonable person of ordinary prudence under like circumstances" (footnote omitted). W. PROSSER & W. KEETON, THE LAW OF TORTS § 65 at 453 (5th ed. 1984). Thus, the standard is an objective one. The doctrine of contributory negligence "[i]n its essence, . . . is an expression of the highly individualistic attitude of the common law, and its policy of making the personal interests of each party depend upon his own care and prudence." Id. at 452, 192 F.2d 613. A reasonable person need not go through life timidly, seeking to guard against that which is only remotely probable and not to be feared except by the overly cautious.

"As a general proposition, a plaintiff is not bound to anticipate negligent conduct on the part of others. Rather, he may assume that others will fulfill their duties." J. DOOLEY, MODERN TORT LAW § 4.18 at 115 & n. 1 (1982); see Morrison v. MacNamara, 407 A.2d 555, 565-68 (D.C. 1979). "Ordinarily, a patient can rely on a doctor's informing her if the results of a test are positive." Ray v. Wagner, 286 Minn. 354, 176 N.W.2d 101, 104 (1970). See United States v. Reid, 251 F.2d 691 (5th Cir. 1958); Union Carbide & Carbon Corporation v. Stapleton, 237 F.2d 229, 232-33 (6th Cir. 1956); James v. United States, 483 F.Supp. 581 (N.D.Cal. 1980); Betesh v. United States, 400 F.Supp. 238 (D.D.C. 1974); Dornak v. Lafayette General Hospital, 399 So.2d 168 (La. 1981); see generally Morrison v. MacNamara, supra; Annot., 100 A.L.R.3d 723 (1980); Annot., 49 A.L.R.3d 501 (1973); Annot., 50 A.L.R.2d 1043 (1956); Note, 21 CLEV.ST.L.REV. 58 (1972).

Although at times the doctrines overlap, [a] clear distinction should be made between the doctrine of contributory negligence which operates as a defense when a party knows or by the exercise of ordinary care should have known a particular fact or circumstance, and assumption of risk, which operates only when the party actually knows the full scope and magnitude of the danger and thereafter voluntarily exposes himself to it.

Sierra Pacific Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892, 894 (1961) (original emphasis). It is in areas such as are at issue here that the principles of the two doctrines overlap. Morrison v. MacNamara, supra, 407 A.2d at 568 n. 11.

The trial judge sought to distinguish our holding in Morrison v. MacNamara, supra. In his post-trial Order denying Mrs. Stager's motion for a new trial, the trial judge relied on such cases as Skar v. City of Lincoln, Nebraska, 599 F.2d 253 (8th Cir. 1979); Somma v. United States, 180 F.Supp. 519 (E.D.Pa. 1960); Fall v. White, 449 N.E.2d 628 (Ind.Ct.App. 1983); Vergie M. Lapelosa, Inc. v. Craze, 44 Md.App. 202, 407 A.2d 786 (1980); Marlow v. Cerino, 19 Md.App. 619, 313 A.2d 505 (1974); Ray v. Wagner, supra; Mecham v. McLeay, 193 Neb. 457, 227 N.W.2d 829 (1975); and Flynn v. Stearns, 52 N.J.Super. 115, 145 A.2d 33 (1958). The trial court's reliance on these cases was misplaced. Skar, Somma, and Fall primarily deal with issues of contributory negligence based or a patient's deliberate concealment or other wrongful failure to provide the physician relevant information. Fall, Mecham and Flynn deal with patients' failure to follow instructions and/or failure to complete the prescribed course of treatment.

Lapelosa and Marlow, both from the Maryland Court of Special Appeals, deal with patients' delay in undergoing medical procedures when the delay rendered the procedures more risky. In Lapelosa, the court analyzed the issue as being one of contributory negligence. In Marlow, it analyzed the issue in the framework of primary negligence and proximate causation.

In Ray v. Wagner, the patient had a pap smear taken in connection with obtaining a contraceptive device. The test showed possible malignancy. The doctor made a number of unsuccessful attempts to contact the patient to inform her of the test results. A jury could find that these attempts were unsuccessful because "plaintiff gave the doctor somewhat misleading information as to her status, she had no phone at the address where she lived, and did...

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