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10/04/91 DISTRICT COLUMBIA v. WILL ROGERS ANDERSON

October 4, 1991

DISTRICT OF COLUMBIA, ET AL. APPELLANT
v.
WILL ROGERS ANDERSON, APPELLEE. WILL ROGERS ANDERSON, APPELLANT, V. VIRGIL DAVIS, ET AL. APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Ronald P. Wertheim, Trial Judge

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

The opinion of the court was delivered by: Rogers

Appellee/cross-appellant Will Rogers Anderson (Mr. Anderson) brought this suit against appellants/cross-appellees the District of Columbia and its employee, Dr. Virgil Davis (referred to collectively as the District). Mr. Anderson alleged that while he was imprisoned at District correctional facilities, he was given negligent medical care by Dr. Davis and other District employees, resulting in the amputation of both of his legs. The trial Judge granted a partial directed verdict to the District, ruling that there was insufficient evidence that the District was responsible for the loss of Mr. Anderson's right leg. The jury found for Mr. Anderson, and both parties appealed.

The District contends on appeal that (1) the trial Judge should have granted it a directed verdict, (2) the Judge erred in refusing to strike a juror for cause, and (3) a new trial is required on the issue of damages. We reject the District's first two contentions but agree that a new trial is required on damages. We find no merit to Mr. Anderson's cross-appeal.

I.

In 1953 Mr. Anderson was convicted of armed robbery, for which he served twelve years in prison. He was released on parole, and spent approximately twenty years working as a cook and chef in various restaurants in the District of Columbia. In 1984 Mr. Anderson moved to Annapolis, Maryland without prior authorization from the parole authorities, which was a violation of the terms of his parole. He was arrested in May 1984, and brought to a jail in Anne Arundel County to await transfer to the District of Columbia Jail. At the Anne Arundel jail Mr. Anderson was informed for the first time that he had diabetes. He was given oral medication by the jail authorities.

In June 1984 Mr. Anderson was transferred to the D.C. Jail. When he told the correctional authorities that he was a diabetic, Dr. Lynnette Mundy, a physician at the D.C. Jail, prescribed oral medication to treat the diabetes. Mr. Anderson complained of dizziness one week later, and again in October. On November 7, 1984, he reported a cold sensation in his left foot. Finally, on November 19, 1984, Mr. Anderson complained to a physician's assistant at the jail that he had been experiencing numbness and tingling in his left calf and great toe for the past two weeks. The physician's assistant noted that the main artery carrying blood to the left foot had a good flow, but the secondary artery had a diminished flow. Although the assistant ordered a referral to the District of Columbia General Hospital for vascular testing, the order was never carried out.

On November 26, 1984, Mr. Anderson continued to experience a numbness, tingling and burning sensation in his left leg, and he placed his name on sick call to see Dr. Mundy. The doctor diagnosed Mr. Anderson as having diabetic neuropathy, and prescribed medication in order to treat the symptoms. Dr. Mundy noticed that the previous referral for vascular testing had not been carried out, but did not consider that unusual. *fn1

Two days later, on November 28, 1984, Mr. Anderson saw Dr. Virgil Davis, a podiatrist, in order to have his toenails trimmed; prisoners were not permitted to have nail files. In the course of trimming Mr. Anderson's toenails, the doctor cut the fifth toe of Mr. Anderson's left foot. *fn2 Dr. Davis gave Mr. Anderson an antiseptic ointment to apply periodically to the open wound. The doctor did not write on the consultation chart that follow-up care was to be arranged for Mr. Anderson.

The next day, on November 29, 1984, Mr. Anderson was transferred from the D.C. Jail to the District's correctional facility in Occoquan, Virginia. In accordance with prison procedure Mr. Anderson's medications -- both the diabetes medicine and the antiseptic ointment -- were taken from him before he was transported to the new institution. Mr. Anderson was told that he should sign up for sick call at Occoquan in order to have new medication prescribed. Mr. Anderson put his name on sick call, but did not see any medical personnel until the next day, December 4, 1984. He informed the staff doctor on that date about the removal of his foot medication and the continued pain he was experiencing. Mr. Anderson's condition worsened, until he was finally brought to D.C. General Hospital on December 25, 1984. Eventually, Mr. Anderson's left leg was amputated at the knee.

On July 31, 1985, Mr. Anderson was released from the District's correctional facility into the community. Upon release, his diabetes medication was taken from him and he was told by an unidentified corrections official that he no longer needed medicine to control his diabetes. He was advised to make an appointment with D.C. General Hospital for a prosthesis fitting. When Mr. Anderson went for his fitting, he was told that the stump was infected, and to return after the infection subsided. Before the infection went away, however, Mr. Anderson began to experience problems with his right leg. He felt a tingling in his toes, similar to the symptoms he had previously experienced with his left foot. Mr. Anderson saw a private physician, who prescribed medication and referred him to another doctor. Mr. Anderson, who explained that he had a "hangup . . . about seeing all those doctors," waited two months before making an appointment. When he did see the new doctor, he was told to come to the hospital immediately or risk losing his foot. Mr. Anderson delayed another two months, however, until he finally entered the Anne Arundel General Hospital in January 1986. After several operations, Mr. Anderson's right leg was amputated below the knee.

Mr. Anderson sued the District of Columbia and Dr. Davis, alleging that their negligence was responsible for his loss of both legs. Although the trial Judge denied the District's motion for directed verdict, the Judge ruled that the jury would be limited to considering whether the District was liable for the loss of Mr. Anderson's left leg. The jury found for Mr. Anderson, and awarded him $950,000. Both sides appealed.

II.

The District raises several challenges to the trial Judge's actions.

A. The Directed 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 of care by the defendant; and (3) a causal relationship between that deviation and the plaintiff's injury." Washington v. Washington Hosp. Center, 579 A.2d 177, 181 (D.C. 1990). The District contends that Mr. Anderson failed to carry this burden, and the trial Judge therefore should have granted the District's motion for a directed verdict.

The jury, by special verdict form, found for Mr. Anderson on the basis of three different theories: (1) "D.C. Department of Corrections medical staff was negligent in failing to make [Mr. Anderson's] diabetes and antibiotic medications available to him during the period 11/29 to 12/4/84"; (2) "D.C. Department of Corrections medical staff was negligent in failing to perform vascular test on [Mr. Anderson] during the period 11/19/84 to 1/17/85"; (3) "Dr. Davis was negligent in failing to arrange follow-up care for [Mr. Anderson's] toe." We conclude that Mr. Anderson presented sufficient evidence to support the first theory, see Corley v. British Petroleum Oil, 402 A.2d 1258, 1263 (D.C. 1979) (on review of directed verdict, evidence to be viewed ...


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