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December 20, 1991


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

Before Rogers, Chief Judge, Farrell, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Mack

Opinion for the court by Senior Judge Mack.

Dissenting opinion by Associate Judge Farrell.

Mack, Senior Judge: Appellants Arthur P. and Gloria E. Williams brought this action against the Washington Hospital Center (WHC) alleging medical malpractice growing out of WHC's failure to diagnose and treat Mr. Williams' medical condition. After a jury trial, the verdict was entered for WHC and the trial court denied appellants' motion for a new trial. In this court, appellants argue that concealment by appellee until the last day of trial that evidence critical to their case was lost, and the trial court's refusal to give a negative inference instruction regarding that loss, caused such substantial prejudice as to deny them a fair trial. We agree with appellants that, under the particular circumstances of this case, they were denied a fair trial. We remand for a new trial.


The "particular circumstances" to which we allude are graphically illustrated by a familiar quotation:

A little neglect may breed great mischief . . . for want of a nail the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost. *fn1

The circumstances began in January 1987, when appellant Arthur Williams, a cement mason, was struck in the eye while "chipping cement." *fn2 A few days later he began to experience pain along with flashes and black dots in his peripheral vision. He went to the eye clinic at the Washington Hospital Center where he was examined by Dr. Cheryl Mitchell, a second-year resident. *fn3 Dr. Mitchell performed a series of tests and examinations on appellant's eye but was unable to locate any foreign object. She discharged him with the warning to come back if the pain or other symptoms persisted. The pain and spots disappeared and for several months appellant suffered no problem with his eye.

Some five months later, while driving his car, appellant was involved in an automobile accident and suddenly realized that he could not see out of the previously injured eye. An ophthamologist discovered a cataract and a partially detached retina. An x-ray revealed the presence of a foreign body in the eye. A retinal specialist performed surgery to remove the cataract and repair the detached retina, at the same time extracting a small, sharp, metallic foreign body from the eye. After the surgery, the eye worsened, requiring two additional operations. Today, Mr. Williams is considered visually impaired and is no longer able to work as a cement mason.

Appellants filed suit against the Washington Hospital Center, contending that the failure of the examining doctor to discover the object when Mr. Williams was first injured proximately caused his visual impairment. Specifically, they claimed that Dr. Mitchell failed to perform a scleral depression examination which would have shown the presence of the foreign object. Mr. Williams testified that he did not remember the doctor performing a procedure consistent with that of a scleral depression examination and that there was no notation of such an examination in his medical record.

Appellee contended at trial that the foreign body removed from appellant's eye was not present when appellant was examined. It argued that the object entered the eye at some point after the original injury. Employing a "footprint defense," appellee presented evidence designed to show that the presence of a foreign object would have left a tell-tale track or "footprint" in the eye, such as bleeding or inflamation, readily visible during the examination. Thus, the "absence of a footprint" (no indication of blood or discoloration) could lead to the inference that no foreign body was present in the eye when Dr. Mitchell examined appellant.

Appellee also argued that, even if the foreign object had been in Mr. Williams' eye at the time of the initial examination, its location in the eye was such that a scleral depression examination would not have revealed its presence. Although Dr. Mitchell could not remember doing so, she testified that it was her usual practice to perform a scleral depression and she did not, as general rule, note such information in the medical record.

On the last day of trial, appellants' expert witness, called out of order for convenience purposes, was ready to testify. For the first time appellee's counsel revealed that the foreign object -- the subject of the footprint defense -- was missing. Proffers were made that after surgery, the foreign object that was removed was taped to appellant's medical record. It became part of the discovery material that was requested by appellants, used by them during the deposition process, and thereafter left in the custody of WHC to be available to both parties at trial. During the time between discovery and trial, one of the WHC doctors removed the object from the record, taped it to a 3x5 card, and took it to one of the hospital labs for testing. This action was taken after counsel had expressly instructed appellee that no such testing should be done, particularly without informing appellants. While in the lab, the 3x5 card and the object were lost. Appellee's counsel discovered the loss at the beginning of trial but did not inform appellants or the court.

Claiming that the missing object was a vital part of their argument, appellants' counsel moved for a default judgment which was denied by the court. Counsel then requested an adverse inference instruction. Finding no gross negligence or bad faith on the part of appellee, the court refused. It stated that appellants did not suffer any specific prejudice and the loss of the object was conceivably more damaging to appellee. The court agreed only to ...

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