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September 4, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Frederick H. Weisberg, Trial Judge

Ferren, Steadman and Farrell,* Associate Judges.

The opinion of the court was delivered by: Steadman

The plaintiff in this litigation suffered permanent paralysis as a result of misdiagnosis of her ailment. She brought a malpractice action against the two appellants, one the medical group that was treating the plaintiff and the other a laboratory which improperly conducted a blood test. A jury found both appellants negligent. The principal issue in these consolidated appeals is whether the trial court erred in refusing to hold either appellant solely responsible for the judgment, either by way of indemnification or superseding cause as a matter of law, and instead imposing on each appellant an equal, fifty percent contribution to the judgment. We affirm.


On June 30, 1986, Pari Ahmadi, the plaintiff below and appellee in the instant appeals, came to the Neurology Center (the "NC") with a history of numbness in her lower extremities and other symptoms. She was about thirty years old. Her first NC physician, Dr. Elliott Wilner, performed an examination which led him tentatively to conclude that Ahmadi suffered from a spinal cord lesion caused either by (1) vitamin B-12 deficiency; *fn1 (2) multiple sclerosis ("MS"); or (3) mass lesion from a tumor or ruptured disk.

To narrow the diagnosis, Wilner ordered various tests, including a vitamin B-12 level test to rule out B-12 deficiency. Although Wilner was quickly able to exclude the tumor or ruptured disk alternatives, he could not so easily exclude either MS or B-12 deficiency by the other tests that the NC administered. Since the NC did not have the capability to perform the vitamin B-12 level test on Ahmadi, blood was drawn on July 7 and sent to the National Health Laboratories (the "NHL") for such a test. The NHL conducted the B-12 test on July 8. Because of an admitted error in the testing methodology, the NHL technicians incorrectly reached a normal-range finding, *fn2 which was accordingly reported to Dr. Wilner and the NC on July 11.

On July 8, Ahmadi had been admitted to George Washington University Hospital ("GW") by another NC physician, Dr. Phillip Pulaski, for further workups due to increased symptomatology. On admission, a GW resident ordered a second vitamin B-12 level test, unaware of the first apparently normal result which had not yet been reported to Wilner and the NC. The hospital staff never carried out the new test, and Pulaski testified that he relied on the normal-range result of the NHL's test to rule out B-12 deficiency; he thereby made the probable diagnosis of MS. *fn3 Pulaski did admit, however, that her symptoms were consistent not only with MS but also with B-12 deficiency.

Ahmadi marginally improved with outpatient treatment by the NC's Dr. Richard Edelson from the end of July to November, when she worsened again. The NC again ruled out vitamin B-12 deficiency without conducting a new B-12 level test, instead suggesting risky drug treatment for MS. Finally, in February, while on a trip to see her sister in California, Ahmadi suffered a serious bladder infection for which she went to see Dr. Bruce Spertell at Stanford University Medical Center. Over the next few days, she became much weaker, and, on the verge of paralysis, went to Stanford on an emergency basis, again seeing Dr. Spertell. Spertell diagnosed B-12 deficiency even before the results of a new B-12 test came back at a dangerously low level. Ahmadi has remained paralyzed from the waist down ever since.

Ahmadi brought suit against the NC for negligence and medical malpractice; against the NHL, for negligent failure to perform the B-12 test properly and for falsely reporting a normal result; and against GW for negligence in failing to complete a second B-12 test and failure to diagnose. The jury exonerated GW, but found for Ahmadi as against the NC and NHL, rendering a $10 million verdict against both. Previously filed cross-claims for contribution and indemnity by each liable defendant against the other were argued in a bench hearing. The trial court ruled that while each was entitled to contribution of 50% from the other, neither was entitled to indemnification under District law. The NC has since settled its share of the judgment with Ahmadi.


In its appeal, the NC challenges the trial court's refusal to order the NHL to indemnify it for its half share of liability for Ahmadi's injuries. The NC argues that indemnification by the NHL is required as a matter of law.

At common law, there existed no right of contribution between joint tortfeasors who contributed to a single injury, and until the passage of specific statutes about twenty years ago, the great majority of American courts followed this rule. The District of Columbia, however, was one of nine American jurisdictions to come to the contrary Conclusion without legislation. W. PROSSER, D. DOBBS, R. KEETON, & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 50, at 336-37 (5th ed. 1984) (hereafter "PROSSER"). In Knell v. Feltman, 85 U.S. App. D.C. 22, 174 F.2d 662 (1949), the court rejected the common law rule and permitted contribution in such circumstances.

Thus, ordinarily, when two tortfeasors jointly contribute to harm to a plaintiff, both are potentially liable to the injured party for the entire harm. As between themselves, however, through the principle of contribution, they share equally *fn4 in satisfaction of the judgment. *fn5 See Group Health Ass'n v. District of Columbia General Hosp., 540 A.2d 1104 (D.C. 1988); Ceco v. Coleman, 441 A.2d 940 (D.C. 1982). Such equal contribution by the NHL and NC was what the trial court ordered here, from which they both appeal.

Under certain circumstances, however, a trial court may require that one of the two tortfeasors bear, as against the other, sole responsibility for satisfaction of the judgment. One of the common bases for such a right of indemnity is the existence of an express contractual duty to indemnify. *fn6 Another is where one is held responsible solely by operation of law because of a relation to the original wrongdoer, such as the liability of an employer for acts of his employee or an owner of an automobile for acts of the driver. Likewise, one who is wrongfully directed or induced by another to do the negligent act may be entitled to indemnity from the other. PROSSER, (supra) , at 341-42.

It may be seen from these examples that the right to indemnity depends essentially upon the relationship between the parties, which may be expressly contractual or may be such that an obligation to indemnify, in a sense quasi-contractual in nature, *fn7 may be fairly imposed. So it is that while indeed a right to indemnity may extend to those personally at fault, it is granted in such circumstances normally only where "a duty to indemnify may . . . be implied 'out of a relationship between the parties,' to prevent a result 'which is regarded as unjust or unsatisfactory.'" East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1126 (D.C. 1990), quoting from Myco, supra note 6, 565 A.2d at 297. As noted in Myco, this concept in the main "is based on the well-established theory that if one breaches a duty owed to another and the breach causes injury, the former should compensate the latter." 565 A.2d at 298. "In order to establish the right to this particular type of implied indemnity, the obligation must arise out of a specific duty of defined nature -- separate from the injury to the -- owed to the third party. . . . ," and there must be evidence of a special legal relationship between the tortfeasors. 565 A.2d at 299. *fn8 The fact that one joint tortfeasor was more or less actively negligent than the other does not alone warrant indemnification. We have rejected the "active/passive" theory of implied indemnity. Myco, 565 A.2d at 298-99; East Penn, supra, 578 A.2d at 1127 n.20. *fn9

We have recently upheld an award of implied indemnity flowing from a relationship between the parties involving justified reliance where the joint tortfeasors stood in a manufacturer-retailer relationship. See East Penn, supra, 578 A.2d 1113. *fn10 There, we found an implied duty on the manufacturer of a battery to indemnify the retailer where the retailer's "only fault" was to rely on the manufacturer's skill and experience in its duplication of the wording of the manufacturer's warning label.

The NC contends that the same principle entitles it to indemnification. It argues that the NHL "had a critical relationship with the which pre-existed its negligence, and which gave rise to a duty . . . to render accurate, complete information regarding Pari Ahmadi's blood test results" to the NC. The NC then argues that the NHL breached this duty to it by failing both to provide a correct test result and to warn it that the test result was unreliable where its employees knowingly failed to follow proper testing protocols.

We think the trial court was correct in rejecting these arguments and concluding that whatever the duty or relationship of the NHL to the NC may have been initially, over time the NC could no longer rely reasonably on the test result. As the trial court found, the NC pursued a "misdiagnosis that initially perhaps was a difficult one . . . but which over the passage of time, perhaps soon after the report of the test from the , should have . . . caused to doubt the accuracy of the laboratory result in favor of the clinical symptoms which were consistent with vitamin B-12 deficiency . . ." and "the doctors independently negligent and actively negligent in failing to reopen the whole question of what the correct diagnosis was and to pursue that new inquiry . . . by ordering another . . . B-12 test." Certainly the different NC neurologists could at least collectively be expected to rely on their own clinical impressions as much as on the expertise of the testers where the B-12 test result itself represented only one piece of the diagnostic mosaic according to the standard of care of the profession. *fn11

Neither East Penn nor Myco entitles the NC to indemnity here. *fn12 In Myco, an employer assertedly had modified certain equipment furnished by Myco which resulted in injury to an employee. We rejected the concept that the user of a product has a responsibility to a manufacturer to use the product in such a way as not to bring liability upon the manufacturer, and that the duty of proper care by the user, the employer in that case, extends solely to his employees. 565 A.2d at 300. That case, involving an unsuccessful attempt by the prior joint tortfeasor to obtain indemnity from the subsequent tortfeasor, implicated the reverse of the NC's efforts here.

East Penn does involve a situation in which a subsequent tortfeasor sought indemnity but is clearly distinguishable. The sole involvement of the retailer there was to rely upon the manufacturer's warning label. It had no independent reason to suspect error or impetus to investigate further. Here, the NC was an active and ongoing participant, indeed the chief participant, in the effort to diagnose a mysterious ailment. The NHL's negligent test was only a part of the overall mosaic of the NC's activity. As the trial court reasoned, while the NC may have initially relied on the NHL's duty to provide it with accurate test results, the NC could not properly have relied on these results over the entire seven-month period. Any "independent duty" that the NHL may have had to the NC was thus dissipated for purposes of seeking indemnity. *fn13

The trial court quite properly denied the NC's indemnification claim against the NHL. We now turn to the arguments made by the NHL on appeal.


As appellant, the NHL seeks to avoid any liability on two distinct theories: (1) that the NC's negligence as a matter of law constituted a superseding cause relieving NHL of any liability, and (2) that it is entitled to recovery of a major portion, if not all, of its liability for damages on a theory of indemnity or "apportionment." *fn14

The issue of superseding cause was submitted to the jury, which found against the NHL. In its motion for a JNOV, the NHL argued that it had established superseding cause as a matter of law. The trial court disagreed, as do we.

We have recently had occasion to discuss the principle of superseding cause and need not repeat it here. In essence, it is a concept that the action of a subsequent tortfeasor may be a "superseding cause" which breaks the chain of causation and relieves the first tortfeasor of liability to the injured party. McKethean v. WMATA, 588 A.2d 708, 716 n.9 (D.C. 1991); RESTATEMENT (SECOND) OF TORTS, (supra) note 5 § 440. *fn15

The trial court here gave the jury an instruction, without objection by the NHL, which provided in part:

You are instructed that in order to find that the conduct of The Neurology Center or the hospital were intervening causes which would excuse the National Health Laboratory from liability to the plaintiff, you must find two things: First, you would have to find that the acts of The Neurology Center and/or the acts of the hospital were not foreseeable; that is that the conduct of these other actors could not reasonably have been anticipated by the National Health Laboratory and, therefore, that it could not reasonably have been expected to have taken steps to prevent the harm to the plaintiff from its own negligence . . . Second, you must find that the intervening acts in retrospect were highly extraordinary.

Superseding cause is a subset of the inquiry into proximate cause. "It is well-settled that proximate cause . . . is ordinarily a question of fact for the jury. It is only in cases where it is clear that reasonable could draw but one Conclusion from the facts alleged that negligence and proximate cause become questions of law. These cases have been said to be 'exceptional.'" Hill v. McDonald, 442 A.2d 133, 137 (D.C. 1982) (citations omitted). *fn16 Thus, a motion for a JNOV on this issue is subject to the rigorous test that such a motion "should be granted 'only in "extreme" cases, in which no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party.'" Mike Palm, Inc. v. Interdonato, 547 A.2d 1016, 1019 (D.C. 1988).

Applying this standard to the evidence presented here in the light of the instructions given to the jury, we find no error in the trial court's denial of the motion. The NHL's claims that the test results were so inconsistent with the patient's condition that the test could not have been foreseeably relied upon is belied by the fact that other indicators pointed to MS, and therefore the normal-range test result could have thrown the NC doctors off an original course which had contemplated B-12 deficiency as a possible culprit. There was ample expert testimony that the NC could have relied on the test. Further, the NC's negligent failure to discover the error over the subsequent months was not necessarily an extraordinary event. We could not deem it unforeseeable as a matter of law that a negligently performed vitamin B-12 deficiency test yielding a false normal result could lead to a negligent failure to diagnose B-12 deficiency. There is simply no basis for us to say that this jury could not reasonably have found the NHL's negligent testing and violation of its own protocol a substantial cause of the harm not superseded by the NC's conduct.


Any indemnity claim by the NHL against the NC must be Judged by the same principles applicable to the NC's like claim against the NHL and found wanting for substantially the same reasons. The NHL as a prior tortfeasor can establish no duty imposed on the NC arising out of the relationship. The NC's responsibility ran to the plaintiff to render her competent medical service. There can be no legitimate claim that the NC had a separate duty to the NHL to discover that the NHL had made an error in its blood test. As we said in Myco, supra note 6, "imposition of such a duty would stand 'indemnity on its head.'" 565 A.2d at 300 (citation omitted). *fn17 Moreover, given that indemnification is founded in principles of equity, we can find no difference in the relative fault of the NHL and the NC of such a "kind" or "quality" as to have required the trial court to make the NC bear the entire cost of their dual negligence. See supra note 9.

Perhaps realizing that it would not be able to succeed on an indemnification argument, the NHL instead stresses an argument that the damages should be "apportioned" as between itself and the NC favorably to it. On the facts here, this is essentially an argument for adopting comparative negligence, which as already mentioned has never been the law in the District. The NHL's reliance on RESTATEMENT (SECOND) OF TORTS, (supra) note 5, § 433A, which seems to permit apportionment where there are "distinct harms," is inapposite here because, as the trial court found, "the acts of both tortfeasors working together in tandem are what caused a single injury . . . that cannot be broken out . . . into discrete parts." Thus, the contribution of each cause to the harm could not be established under § 433A(1)(b). *fn18 The NHL's reliance on Lamphier v. Washington Hosp. Center, 524 A.2d 729, 732 n.2 (D.C. 1987), is similarly misplaced. That case simply recognizes that different rules may apply where two tortfeasors sequentially commit independent harms, not the case here.

In sum, we find no ground for reversal in the trial court's ultimate Conclusion that "based on the necessary facts decided by the jury by which . . . I am bound," this was a "classic case for contribution between joint tortfeasors." We uphold the trial court's award of 50% contribution by each appellant, and in all other respects affirm the judgment appealed from.


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