WILLIAMS v. WASHINGTON HOSP. CENTER

• Decision Date: 20 December 1991
• Docket Number: No. 89-849,89-849
• Citation: 601 A.2d 28
• Parties: Arthur P. WILLIAMS, et al., Appellants, v. The WASHINGTON HOSPITAL CENTER, Appellee.
• Court: D.C. Court of Appeals

601 A.2d 28

Arthur P. WILLIAMS, et al., Appellants, v. The WASHINGTON HOSPITAL CENTER,Appellee.

No. 89-849.

District of Columbia Court of Appeals.

Argued March 5, 1991.

Decided December 20, 1991.

Appeal from the Superior Court, District of Columbia, Frederick H. Weisberg, J.

Marc Fiedler, with whom Patrick M. Regan and Mark J. Brice, Washington, D.C., were on the brief, for appellants.

Angus R. Everton, Baltimore, Md., with whom Brian J. Nash, Washington, D.C., was on the brief, for appellee.

Before ROGERS, Chief Judge, FARRELL, Associate Judge, and MACK, Senior Judge.

MACK, Senior Judge:

Appellants Arthur P. and Gloria E. Williams brought this action against the Washington Hospital Center (WHC) alleging medical malpractice growing out of WHC's failure to diagnose and treat Mr. Williams' medical condition. After a jury trial, the verdict was entered for WHC and the trial court denied appellants' motion for a new trial. In this court, appellants argue that concealment by appellee until the last day of trial that evidence critical to their case was lost, and the trial court's refusal to give a negative inference instruction regarding that loss, caused such substantial prejudice as to deny them a fair trial. We agree with appellants that, under the particular circumstances of this case, they were denied a fair trial. We remand for a new trial.

I

The "particular circumstances" to which we allude are graphically illustrated by a familiar quotation:

A little neglect may breed great mischief . . . for want of a nail the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost.¹

The circumstances began in January 1987, when appellant Arthur Williams, a cement mason, was struck in the eye while "chipping cement."² A few days later he began to experience pain along with flashes and black dots in his peripheral vision. He went to the eye clinic at the Washington Hospital Center where he was examined by Dr. Cheryl Mitchell, a second-year resident.³ Dr. Mitchell performed a series of tests and examinations on appellant's eye but was unable to locate any foreign object. She discharged him with the warning to come back if the pain or other symptoms persisted. The pain and spots disappeared and for several months appellant suffered no problem with his eye.

Some five months later, while driving his car, appellant was involved in an automobile accident and suddenly realized that he could not see out of the previously injured eye. An ophthamologist discovered a cataract and a partially detached retina. An x-ray revealed the presence of a foreign body in the eye. A retinal specialist performed surgery to remove the cataract and repair the detached retina, at the same time extracting a small, sharp, metallic foreign body from the eye. After the surgery, the eye worsened, requiring two additional operations. Today, Mr. Williams is considered visually impaired and is no longer able to work as a cement mason.

Appellants filed suit against the Washington Hospital Center, contending that the failure of the examining doctor to discover the object when Mr. Williams was first injured proximately caused his visual impairment. Specifically, they claimed that Dr. Mitchell failed to perform a schleral depression examination which would have shown the presence of the foreign object. Mr. Williams testified that he did not remember the doctor performing a procedure consistent with that of a schleral depression examination and that there was no notation of such an examination in his medical record.

Appellee contended at trial that the foreign body removed from appellant's eye was not present when appellant was examined. It argued that the object entered the eye at some point after the original injury. Employing a "footprint defense," appellee presented evidence designed to show that the presence of a foreign object would have left a tell-tale track or "footprint" in the eye, such as bleeding or inflamation, readily visible during the examination. Thus, the "absence of a footprint" (no indication of blood or discoloration) could lead to the inference that no foreign body was present in the eye when Dr. Mitchell examined appellant.

Appellee also argued that, even if the foreign object had been in Mr. Williams' eye at the time of the initial examination, its location in the eye was such that a scleral depression examination would not have revealed its presence. Although Dr. Mitchell could not remember doing so, she testified that it was her usual practice to perform a scleral depression and she did not, as general rule, note such information in the medical record.

On the last day of trial, appellants' expert witness, called out of order for convenience purposes, was ready to testify. For the first time appellee's counsel revealed that the foreign object — the subject of the footprint defense — was missing. Proffers were made that after surgery, the foreignobject that was removed was taped to appellant's medical record. It became part of the discovery material that was requested by appellants, used by them during the deposition process, and thereafter left in the custody of WHC to be available to both parties at trial. During the time between discovery and trial, one of the WHC doctors removed the object from the record, taped it to a 3 x 5 card, and took it to one of the hospital labs for testing. This action was taken after counsel had expressly instructed appellee that no such testing should be done, particularly without informing appellants. While in the lab, the 3 x 5 card and the object were lost. Appellee's counsel discovered the loss at the beginning of trial but did not inform appellants or the court.

Claiming that the missing object was a vital part of their argument, appellants' counsel moved for a default judgment which was denied by the court. Counsel then requested an adverse inference instruction. Finding no gross negligence or bad faith on the part of appellee, the court refused. It stated that appellants did not suffer any specific prejudice and the loss of the object was conceivably more damaging to appellee. The court agreed only to instruct the jury that a piece of evidence, intended for use by both sides, had been in appellee's care and was lost.⁴

II

Appellants contend that the trial court erred by refusing to give a negative inference instruction to mitigate the prejudice they suffered due to appellee's loss of crucial evidence. They argue that WHC's failure to preserve evidence within its exclusive control demonstrated "bad faith" thus requiring such a sanction.

Appellants rely on this court's recent decision in Battocchi v. Washington Hosp. Center, 581 A.2d 759 (D.C. 1990), which established the controlling law regarding the loss of evidence in a civil case. In Battocchi, we announced a standard by which a trial court could determine whether an adverse inference instruction is an appropriate remedy. Analyzing the doctrine of spoliation, we distinguished the situation where destruction of the evidence is not intentional or deliberate but rather a "failure to preserve evidence." Id. at 765-67. Acknowledging, however, that this jurisdiction accepts the rule that a fact-finder may be permitted to draw an adverse inference from the failure of a party to preserve evidence within his exclusive control, we held that in certain situations the trial court is required to give the instruction. Id. at 766-67. "[U]pon a finding of gross indifference to or reckless disregard for the relevance of the evidence to a possible claim, the trial court must submit the issue of lost evidence to the trier of fact with corresponding instructions allowing an adverse inference." Id. at 767. Where the negligence is not intentional or reckless, the court is accorded discretion in determining whether to give an adverse inference instruction and we will not disturb its decision absent an abuse of that discretion. Id.

In Battocchi, because the trial court did not make express findings on the issue of negligence, this court was unable to apply the standard.⁵ In the instant case, however, the trial court made specific findingsregarding the degree of fault underlying appellee's loss of the evidence. In its order denying appellants' motion for a new trial, the court stated that appellee's loss of the object "was not the result of willful or bad faith loss or destruction, and it was not intended to gain a tactical advantage" over appellants. The court found that the central issue at trial was performance of the scleral examination and that evidence concerning the object was merely a "side issue." Moreover, the court concluded that appellants could have used stipulated evidence of the size and shape of the object and declined to do so. The court concluded that "for many of the same reasons, an 'adverse inference' instruction in the context of this case would have been both illogical and unfairly prejudicial to the defendant."

A review of the instant record compels the opposite conclusion. Appellee's behavior constitutes precisely the type of willful and reckless disregard towards the preservation of relevant evidence within its exclusive control that the instruction is designed to remedy. Id. at 766; see also Alexander v. National Farmers Org., 687 F.2d 1173, 1205-06 (8th Cir. 1982), cert. denied, 461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983); Washington Gas Light Co. v. Biancaniello, 87 U.S.App.D.C. 164, 167, 183 F.2d 982, 985 (1950). The object was lost after litigation had commenced, after it was used during the deposition process, and after the parties agreed that appellees would maintain custody of it for use during trial. When Dr. Glew, the chairman of Opthamology at WHC, informed defense counsel that he wanted to test the object to discover its metal content, he was expressly told not to do so. Counsel specifically informed Dr. Glew that such testing was "destructive testing" that...