Stokes v. Children's Hosp., Inc., Civ. A. No. 90-0137.

• Citation: 805 F. Supp. 79
• Decision Date: 04 November 1992
• Docket Number: Civ. A. No. 90-0137.
• Parties: Anthony A. STOKES, Plaintiff, v. CHILDREN'S HOSPITAL, INC., Defendant.
• Court: U.S. District Court — District of Columbia

805 F. Supp. 79

Anthony A. STOKES, Plaintiff, v. CHILDREN'S HOSPITAL, INC., Defendant.

Civ. A. No. 90-0137.

United States District Court, District of Columbia.

November 4, 1992.

R. Kenneth Mundy, Karen E. McDonald, Mundy, Holt & Mance, P.C., Washington, D.C., for plaintiff.

Gary Brown, Washington, D.C., for defendant.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This matter is before the Court pursuant to defendant Children's Hospital's post-trial Rule 50(b) motion for entry of judgment as a matter of law. After considering defendant's motion, plaintiff's opposition, and defendant's reply, we hold that plaintiff failed to present sufficient evidence to support a reasonable finding of negligence and causation and, therefore, grant defendant's motion.

I. Background

This action arose out of a medical malpractice suit brought by plaintiff Anthony Stokes. On July 27, 1978, when plaintiff was thirteen years old, he experienced seizures and fainting and was taken to Group Health Association, Inc. ("GHA"). While in GHA's offices, plaintiff had two further seizures. The GHA treating physicians referred plaintiff to the Children's Hospital for further neurological tests, including a computer assisted tomoscope ("CAT scan") and a cerebrospinal fluid tap.

At Children's Hospital, Mr. Stokes was evaluated by several doctors, including Dr. Myriam Davis, a consulting neurologist called in to perform a follow-up neurological evaluation. Dr. Davis noted a heart murmur and an orbital bruit, a murmur over the carotid and ophthalmic arteries, and ordered a CAT scan, an EEG, and a cardiac evaluation. Dr. David Brallier, a radiologist at Children's Hospital, performed the CAT scan and reported the results as normal. Mr. Stokes was discharged the following day from Children's Hospital with a diagnosis of unknown etiology.

Following his discharge from the hospital, plaintiff was treated by GHA for a period of five years with daily dosages of dilantin, an anti-convulsive drug. Plaintiff had five seizures during that time. In 1988, after another four seizures, plaintiff underwent another CAT scan at Howard University Hospital, which revealed a large arteriovenous malformation ("AVM")¹ of approximately six centimeters. Because of its size, the AVM was deemed inoperable and plaintiff was put on proton beam radiation therapy. The results of that therapy are still undetermined.

Plaintiff filed suit, alleging that defendant Children's Hospital was negligent in failing to diagnose and treat the AVM in 1978. Plaintiff also named GHA as a defendant, and GHA joined the GHA treating physicians Dr. Morris Osborne and Dr. Judith Hogg as third-party defendants.

Plaintiff's theory, with respect to Children's Hospital, was two-fold. First, plaintiff alleged the CAT scan revealed an AVM of two centimeters and that Dr. Brallier, the hospital radiologist, had violated the standard of care in interpreting the scan as normal. Second, plaintiff maintained that Dr. Davis, the consulting neurologist, had violated the standard of care in failing to order a follow-up CAT scan and arteriogram. This failure, according to plaintiff, prevented an early detection of the AVM and possible surgery to obliterate the AVM.

The case went to trial before a jury on June 22, 1992, which resulted in a deadlock on July 6, 1992, at which time the Court declared a mistrial. Before the case was submitted to the jury, we granted the directed verdict motions to dismiss defendants GHA and the GHA doctors, but denied defendant Children's Hospital's motion for a directed verdict. Defendant Children's Hospital timely filed this motion for entry of judgment as a matter of law following the trial. This Court held a hearing on the motion on October 16, 1992.

II. Discussion

A. Jurisdiction

Judgment as a matter of law is appropriate when, at the close of all evidence, the court finds the evidence is so one-sided that the moving party must prevail as a matter of law. Fed.R.Civ.P. 50(b); Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 827 (D.C.Cir.1988), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989). A court must order a new trial, however, "if reasonable minds could differ about the facts." 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2537 (1971 & Supp.1992).

Plaintiff argues that entry of judgment as a matter of law is procedurally inappropriate for three reasons. First, plaintiff contends that the former denial of defendant's motion for a directed verdict stands as the law of the case, preventing this Court from considering defendant's subsequent motion for entry of judgment as a matter of law. We find plaintiff's argument to be groundless. The Court is not bound by its denial of a motion for directed verdict in considering the post-trial motion. "The court may expressly reserve decision on the motion for directed verdict but it will be deemed to have reserved decision even if it has denied the motion." Id.

Plaintiff argues, secondly, that the Court may not grant defendant's motion after remarking to the jury, in response to a question from the jury, that there was some evidence on both sides regarding the standard of care. Again, plaintiff's argument that such comment serves as the law of the case is without any support. This comment is far short of a finding that a standard of care has been shown by sufficient evidence.

Finally, plaintiff has suggested that the Court lacks jurisdiction to consider defendant's motion after a mistrial was declared. Rule 50(b), however, clearly states that "if no verdict was returned, the court may, in disposing of the renewed motion, direct the entry of judgment as a matter of law or may order a new trial." Fed. R.Civ.P. 50(b) (emphasis added). See also Noonan v. Midland Capital Corp., 453 F.2d 459, 462 (2d Cir.1972), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 333 (1972) (ruling for defendant as a matter of law after the jury twice reported itself deadlocked); Gonzalez v. Avon Prods., Inc., 648 F.Supp. 1404, 1407 (D.Del.1986), aff'd, 822 F.2d 53 (3d Cir.1987) (ruling that jury's failure to reach a verdict in this case did not bar defendant's motion); Street v. Hedgepath, 607 A.2d 1238, 1244 (D.C.App. 1992) (holding that express language of Rule 50 gave trial court jurisdiction to grant motion after mistrial declared).

For the above reasons, this Court therefore has jurisdiction to consider defendant's motion for entry of judgment.

B. Legal Claims

In moving for entry of judgment, it is well settled that defendant must show that a jury could not reasonably find that plaintiff has satisfied every element of its claim. In a malpractice claim, plaintiff must prove, by a preponderance of the evidence, three elements: 1) the applicable standard of care; 2) that this standard has been violated; and 3) that there is a causal relationship between the violation and the injury. See, e.g., Kosberg v. Washington Hospital Center, Inc., 394 F.2d 947, 949 (D.C.Cir.1968); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C.App.1979). Ordinarily, in establishing these elements, plaintiff must provide expert testimony on all three elements, unless the matter is wholly in the realm of "ordinary human knowledge." Canterbury v. Spence, 464 F.2d 772, 791-92 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). In ruling upon defendant's motion for entry of judgment, the Court is required to give plaintiff the benefit of every legitimate inference unless it is clear that reasonable men could reach but one conclusion. Corley v. B.P. Oil Corp., 402 A.2d 1258, 1263 (D.C.1979). See also Richardson, 857 F.2d at 827.

In the case at hand, defendant Children's Hospital contends that judgment as a matter of law is appropriate because plaintiff's case against the hospital is deficient on all three grounds. Specifically, defendant alleges that plaintiff's expert witness has failed to show that either Dr. Brallier, the hospital radiologist, or Dr. Davis, the consulting neurologist, deviated from an established standard of care or that such deviation caused plaintiff injury.

1. Standard of Care

Plaintiff's only testimony at trial with respect to both standard of care and causation was presented by one expert witness, Dr. Nagbhushan Rao, a neurologist affiliated with the D.C. General Hospital and Howard University who had performed several diagnostic tests on Mr. Stokes following the discovery of the AVM in 1988. Defendant alleges that Dr. Rao failed to provide sufficient evidence of the standard of care applying to either Dr. Brallier or Dr. Davis. We agree.

With regard to Dr. Brallier, plaintiff attempted to show that Dr. Brallier's failure to detect an AVM in the CAT scan violated the standard of care used in interpreting CAT scans in 1978. Dr. Rao testified to this standard of care in only one interchange:

"Q. Do you have an opinion based upon a reasonable degree of medical probability as to whether the standard of care was observed or violated by Children's Hospital on July 28th, 1978, in the reading of Anthony Stokes's CAT scan?

"A. I believe the standard of care was violated because the CAT scan was abnormal — to me."

Defendant contends that Dr. Rao failed to establish a standard of care because he never established an objective medical standard, but instead gave only his personal opinion.² As stated above, Dr. Rao answered "I believe ... the CAT scan was abnormal — to me."

Defendant also maintains that Dr. Rao failed to establish that, under the prevailing standard of care, most doctors would have detected the AVM. On cross-examination, Dr. Rao was asked:

"Q. And is it your testimony more than half of the competent radiologists who looked at that CAT scan in 1978 ... would have interpreted that as showing an AVM?

"A. No. More than fifty percent doesn't mean a thing ... But also probably close to half would interpret it that this is not normal.

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"Q. Meaning

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