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09/17/91 ALLEN A. NIMETZ v. PETER J. CAPPADONA

September 17, 1991

ALLEN A. NIMETZ, ET AL., APPELLANT
v.
PETER J. CAPPADONA, ET AL., APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Harriett Taylor, Trial Judge

Rogers, Chief Judge, and Ferren and Farrell, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Rogers

Appellants Allen Nimetz, M.D., and the Washington Clinic (referred to collectively as "Dr. Nimetz") appeal from a judgment of medical malpractice in favor of appellees Peter and Maureen Cappadona ("Mr. Cappadona"). The trial Judge instructed the jury that it could find Dr. Nimetz liable on any of six different theories of negligence, including a theory to which Dr. Nimetz had objected as being unsupported by the evidence. Conceding that there was sufficient evidence for the jury to find negligence on the five other theories, Dr. Nimetz renews his contention on appeal that the Judge erred in submitting the remaining theory to the jury since Mr. Cappadona failed to present sufficient evidence to establish a breach of the standard of care. Dr. Nimetz opposed Mr. Cappadona's request for a special verdict form, and the trial Judge decided to use a general verdict form. On appeal Dr. Nimetz contends that because the general verdict does not make clear whether the jury relied on the unsupported theory, the proper remedy is to remand for a new trial.

Although we agree that it was error to instruct the jury on the theory to which Dr. Nimetz objected, we affirm nonetheless. At the close of the evidence Mr. Cappadona requested, in order to avoid a later issue on appeal, that the jury be presented with a special verdict form requiring it to indicate whether it found negligence with regard to each of the theories of liability. Dr. Nimetz opposed this request, and we hold that he is therefore barred from raising on appeal the contention that the jury may have relied on the improper theory.

I.

Peter Cappadona was admitted to Suburban Hospital in Bethesda, Maryland on April 26, 1986, after he had suffered a relatively mild heart attack. Dr. Nimetz, a cardiologist, became the primary physician and ordered that Streptokinase (a drug to reduce blood clots) be administered. Shortly after the drug was administered, Mr. Cappadona began to experience unusual symptoms, including coughing, tightness in the neck, a flushed face, and trouble breathing. Dr. Nimetz ordered that Benadryl be administered, and that a catheterization procedure be performed. During the catheterization another dose of Streptokinase was administered. Mr. Cappadona's condition did not improve, and later that night Dr. Nimetz learned that Mr. Cappadona had low blood pressure but very high cardiac output. Dr. Nimetz determined that this unusual phenomenon could have resulted from any of four different causes: an infection, an unusual reaction to the Streptokinase, a "vasodilatory phenomenon," or a vascular collapse. Dr. Nimetz ordered drug treatment for all four possible causes, but Mr. Cappadona did not improve. In the early morning hours, Dr. Nimetz left the hospital.

Later in the morning Dr. Nimetz prescribed a drug called "Levophed" in order to increase Mr. Cappadona's blood pressure. When there was no effect Dr. Nimetz ordered "massive doses" of the drug. Later still, because of persistent low blood pressure and high cardiac output, Dr. Nimetz inserted a "balloon pump" to increase the blood pressure to the lower extremities. Ultimately, Mr. Cappadona's right leg had to be amputated at the knee, a portion of his left foot was amputated, and 75 to 90 percent of his stomach was removed. The hospital bills totaled around $300,000.

At trial Mr. Cappadona maintained that Dr. Nimetz failed to meet the appropriate standard of care in six different ways: (1) administering the second dose of Streptokinase during the catheterization; (2) failing to consult with more qualified physicians; (3) failing to remain in the hospital on the night of April 26, 1986; (4) administering excessive amounts of Levophed; (5) inserting the "balloon pump;" and (6) failing to treat adequately the allergic reaction. During the Discussion of the jury instructions, Dr. Nimetz objected to an instruction on negligent failure to consult. Mr. Cappadona thereafter requested that the jury be provided with a special verdict form on which the jury could specify, for each of the six theories, whether Dr. Nimetz had been negligent. Dr. Nimetz opposed the request, and the trial Judge decided to submit a general verdict form. The jury returned a general verdict in favor of Mr. Cappadona for $2.5 million. *fn1

II.

On appeal Dr. Nimetz properly concedes that Mr. Cappadona presented sufficient evidence to support five of the six theories of negligence. *fn2 He focuses on the trial Judge's decision to instruct the jury on the "failure to consult" theory, which Dr. Nimetz maintains was not supported by substantial evidence.

A.

A party is entitled to an instruction on his or her theory of the case if the instruction is supported by the evidence. District of Columbia v. Peters, 527 A.2d 1269, 1274 n.4 (D.C. 1987). Dr. Nimetz challenges the instruction to the jury that they could find him negligent because he "failed to consult with more qualified physicians when faced with a situation that was unknown to him." *fn3 Mr. Cappadona concedes that none of his several expert witnesses expressed an opinion on whether Dr. Nimetz's failure to consult with other doctors breached the standard of care. According to Mr. Cappadona, the "failure to consult" instruction was supported by the testimony of Dr. Nimetz himself:

Q. (counsel for Mr. Cappadona) And isn't it standard practice, sir, that when you have a situation that is something that you haven't seen before, you call someone else in?

A. (Dr. Nimetz) I believe there were over 25 physicians involved in Mr. Cappadona's care and we did consult other people, yes.

Q. Who did you call in at 1:00 in the morning, sir?

A. One o'clock in the morning, I felt that consultation with the house staff available and myself was what was necessary and felt ...


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