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August 3, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Henry F. Greene, Trial Judge

Rogers, Chief Judge, and Steadman and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

This appeal and cross-appeal arise from a jury verdict in a medical malpractice action against the Washington Hospital Center (WHC or the hospital) in favor of LaVerne Alice Thompson, a woman who suffered permanent catastrophic brain injury from oxygen deprivation in the course of general anesthesia for elective surgery. Appellants, the mother and daughters of the injured woman, challenge the trial court's grant of summary judgment in favor of the defendant hospital on their claims for loss of consortium with Ms. Thompson. As we are bound by precedent holding such claims uncognizable in this jurisdiction, we affirm this aspect of the judgment without further Discussion. *fn1

On its cross-appeal, WHC challenges the denial of its motion for judgment notwithstanding the verdict, asserting that the opinion of the plaintiffs' expert -- who testified that WHC had deviated from the standard of care by failing to supply a carbon dioxide monitoring device that would have permitted early detection of Ms. Thompson's oxygen deprivation -- lacked an adequate factual basis. WHC further contends that the court abused its discretion in refusing to declare a mistrial as a result of a conversation during a bench conference between the plaintiffs' expert and two jurors, one of whom was hearing-impaired and communicated through interpreters using sign language Finally, WHC asserts that the trial court erred in calculating a credit against the jury verdict reflecting a mid-trial settlement between the plaintiffs and certain other defendants, arguing that the hospital was entitled to a pro rata credit, or at least a pro-tanto credit in the full amount of the settlement (not merely that portion received by LaVerne Thompson). For the reasons discussed below, none of these contentions is persuasive, and we affirm the judgments of the trial court.

I. The Facts

On the morning of November 7, 1987, LaVerne Alice Thompson, a healthy 36-year-old woman, underwent elective surgery at the Washington Hospital Center for an abortion and tubal ligation, procedures requiring general anesthesia. At about 10:45 a.m., nurse-anesthetist Elizabeth Adland, under the supervision of Dr. Sheryl Walker, the physician anesthesiologist, inserted an endotracheal tube into Ms. Thompson's throat for the purpose of conveying oxygen to, and removing carbon dioxide from, the anesthetized patient. The tube, properly inserted, goes into the patient's trachea just above the lungs. Plaintiffs alleged that instead Nurse Adland inserted the tube into Thompson's esophagus, above the stomach. After inserting the tube, Nurse Adland "ventilated" or pumped air into the patient while Dr. Walker, by observing physical reactions -- including watching the rise and fall of the patient's chest and listening for breath sounds equally on the patient's right and left sides -- sought to determine if the tube had been properly inserted.

At about 10:50 a.m., while the surgery was underway, surgeon Nathan Bobrow noticed that Thompson's blood was abnormally dark, which indicated that her tissues were not receiving sufficient oxygen, and reported the condition to Nurse Adland, who checked Thompson's vital signs and found them stable. As Dr. Bobrow began the tubal ligation part of the operation, Thompson's heart rate dropped. She suffered a cardiac arrest and was resuscitated, but eventually the lack of oxygen caused catastrophic brain injuries. Plaintiffs' expert testified that Ms. Thompson remains in a persistent vegetative state and is totally incapacitated; her cardiac, respiratory and digestive functions are normal and she is not "brain dead," but, according to the expert, she is "essentially awake but unaware" of her surroundings. Her condition is unlikely to improve, though she is expected to live from ten to twenty years.

Ms. Thompson's mother, Alma D. Washington, as next friend and conservator of Ms. Thompson's estate, brought a medical malpractice action on her behalf against Nurse Adland, Dr. Walker, Dr. Bobrow, Associated Anesthesiologist Services, P.C. (Adland's and Walker's employer), Washington Hospital Center, and Medlantic Health Care Group, Inc., a corporation affiliated with WHC. In addition, Alma Washington, in her individual capacity, Devin Michelle Thompson (through her father Michael Thompson) and Toyia Green, Ms Thompson's daughters, sought damages for loss of consortium with Ms. Thompson. Finally, Michael Thompson, Ms. Thompson's estranged husband, asserted a claim for loss of spousal consortium. The defendants asserted no cross-claims or third-party complaints.

The plaintiffs alleged that Adland and Walker had placed the tube in Thompson's esophagus rather than her trachea, and that they and Dr. Bobrow had failed to detect the improper intubation in time to prevent the oxygen deprivation that caused Thompson's catastrophic brain injury. WHC, they alleged, was negligent in failing to provide the anesthesiologists with a device known variously as a capnograph or end-tidal carbon dioxide monitor which allows early detection of insufficient oxygen in time to prevent brain injury.

The defendants moved successfully for partial summary judgment on the authority of Pleasant v. Washington Sand & Gravel Co., supra note 1. The trial court also dismissed the claims against Dr. Bobrow without prejudice. Earlier, the plaintiffs had voluntarily dismissed the claims against Medlantic Health Care Group. Midway through the plaintiffs' case in chief, defendants Nurse Adland and Dr. Walker, and their insurer, settled the claims of all the plaintiffs against them. Thus, the case proceeded to the jury on Ms. Thompson's personal injury claim and her husband's loss of consortium claim against WHC alone. The jury returned a verdict of $4.586 million for Ms. Thompson and $63,000 for her husband, Michael Thompson.

II. Washington Hospital Center's Claim on Cross-Appeal

A . Standard of Care

On its cross-appeal, WHC first asserts that the plaintiffs failed to carry their burden of establishing the standard of care and that the trial court therefore erred in refusing to grant its motion for judgment notwithstanding the verdict. *fn2

A trial court may enter a judgment notwithstanding the verdict "only when, viewing the evidence and reasonable inferences in the light most favorable to the party who secured the jury verdict, no juror could reasonably reach a verdict for the opponent of the motion." District of Columbia v. White, 442 A.2d 159, 163 n.9 (D.C.1982), quoting Webster v. M. Loeb Corp., 400 A.2d 319, 320 (D.C.1979). On appeal from a denial of the motion, our inquiry replicates that of the trial court. See Ceco Corp. v. Coleman, 441 A.2d 940, 944 (D.C.1982) (denial of directed verdict). See also Oxendine v. Merrell Dow Pharmaceuticals, 506 A.2d 1100, 1103 (D.C. 1986) (review of grant of judgment notwithstanding verdict).

In a negligence action predicated on medical malpractice, the plaintiff must carry a tripartite burden, and establish: (1) the applicable standard of care; (2) a deviation from that standard by the defendant; and (3) a causal relationship between that deviation and the plaintiff's injury. Ornoff v. Kuhn & Kogan, Chartered, 549 A.2d 728, 731 (D.C.1988); Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 623-24 (D.C.1986). Because these issues are "distinctly related to some science, profession, or occupation," District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987), expert testimony is usually required to establish each of the elements, Psychiatric Inst., supra, 509 A.2d at 623-24 & n.6; Meek v. Shepard, 484 A.2d 579, 581 & n.4 (D.C.1984); Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C.1980), except where the proof is so obvious as to lie within the ken of the average lay juror, see, e.g., Washington Hosp. Center v. Martin, 454 A.2d 306, 309 (D.C.1982); Harris v. Cafritz Mem. Hosp., 364 A.2d 135, 137 (D.C.1976) (per curiam), cert. denied, 430 U.S. 968, 97 S. Ct. 1650, 52 L. Ed. 2d 359 (1977).

Generally, the "standard of care" is "the course of action that a reasonably prudent with the defendant's specialty would have taken under the same or similar circumstances." Meek, supra, 484 A.2d at 581. With respect to institutions such as hospitals, this court has rejected the "locality" rule, which refers to the standard of conduct expected of other similarly situated members of the profession in the same locality or community, see Capitol Hill Hosp. v. Jones, 532 A.2d 89, 93-94 (D.C.1987), in favor of a national standard. Morrison v. MacNamara, 407 A.2d 555, 565 (D.C.1979). Thus, the question for decision is whether the evidence as a whole, and reasonable inferences therefrom, would allow a reasonable juror to find that a reasonably prudent tertiary care hospital, *fn3 at ...

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