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09/04/91 NATIONAL HEALTH LABORATORIES v. PARI

September 4, 1991

NATIONAL HEALTH LABORATORIES, INC., APPELLANT
v.
PARI AHMADI, ET AL., APPELLEES. THE NEUROLOGY CENTER, P.A., APPELLANT V. PARI AHMADI, ET AL., APPELLEES



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.

I

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.

II

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 ...


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