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HAVEN v. RANDOLPH

May 18, 1972

Roy C. HAVEN, Jr., et al., Plaintiffs,
v.
Judson G. RANDOLPH, M.D., et al., Defendants


Flannery, District Judge.


The opinion of the court was delivered by: FLANNERY

This case involves a claim of medical malpractice filed by minor plaintiff through his mother against the child's pediatrician, the operating surgeon and Children's Hospital. The matter now comes before the court on motions for directed verdicts proffered by each of the three defendants. Before ruling on these motions the court states for the record that it now modifies its previous rulings in regard to plaintiffs' Exhibits 33(a) through (g) in which it excluded from evidence all brochures and medicine package inserts proffered by plaintiffs, as being irrelevant. The court now admits into evidence that part of plaintiffs' Exhibit entitled "Retrograde Aortography." This Exhibit will be admitted into evidence over the various objections of the defendants previously noted and will be identified as plaintiffs' Exhibit 33(f)(1). Thus, the court has considered this document as well as other oral and physical evidence in reaching its decision. Moreover, although the remaining brochures and medicine package inserts are not formally in evidence, because counsel for plaintiffs has referred to them extensively in his argument and cross-examination, the court has considered these documents as well.

 At the outset, the court notes that in considering the merits of a motion for a directed verdict the court must view the evidence in the light most favorable to the plaintiffs. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S. App. D.C. 117, 406 F.2d 653 (1968); Lord v. Lencshire House, Ltd., 106 U.S. App. D.C. 328, 272 F.2d 557 (1960). However, where the evidence presented by the plaintiffs is so weak that to submit it to a jury would be to allow them to speculate as to a defendant's negligence, a defense motion made at the conclusion of the plaintiffs' evidence should be granted. Law v. Virginia Stage Lines, Inc., 144 U.S. App. D.C. 115, 444 F.2d 990 (1971).

 Plaintiffs allege two instances of negligence. First, plaintiffs assert that defendants were negligent in the performance of the testing operation, and second, plaintiffs assert that defendants were negligent in not fully advising the parents of the minor plaintiff of all of the possible dangers involved in the proposed medical procedures, before the parents gave their consent for the operation i.e., the so-called "doctrine of informed consent". The court quotes from plaintiffs' pretrial statement:

 COUNT I -- NEGLIGENCE

 
Defendant Randolph was negligent in his treatment of the minor plaintiff:
 
1. In performing a retrograde femoral arteriogram on said child when the same was not necessary in light of the child's physical condition and/or when the risks of such procedure greatly outweighed the benefits expected to be derived therefrom.
 
2. In using Winthrop Hypaque 50 per cent radiopaque medium (hereinafter referred to as "Hypaque 50%") in repeated test procedures.
 
3. In using Hypaque 50% on the minor plaintiff at all because of said child's medical history and physical condition.
 
4. In using Hypaque 50% in excessive dosages.
 
5. In using Hypaque 50% in repeated injections during the same procedure.
 
6. In failing to use Hypaque 50% according to manufacturer's specifications and warnings.
 
7. In failing to apprise himself of the proper use, technique, precautions, dosages, dangers and contraindications of Hypaque 50% in procedures he used on the minor plaintiff and/or once having apprised himself thereof, in ...

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