B. Treatment During 1989
On March 11, 1989, Captain Edwards began to experience constipation and back pain and took his complaints to the Rader Clinic. There, Dr. Jeanne Daly examined him, treated his constipation topically, and ordered x-rays. She examined them and detected no new abnormality. On March 12, at Dr. Daly's request, Captain Edwards delivered the Rader Clinic x-rays to radiologists Walter Reed. The Walter Reed radiologists inexplicably failed to read the x-rays. Sometime before May 12, Edwards himself picked up the x-rays and returned them to the Rader Clinic. They were finally read on that day by one Robert Riddick, a radiologist at the Rader Clinic. There is no evidence in the record of any contemporaneous report of Riddick's findings from reading the x-rays.
Meanwhile, Captain Edwards' condition had deteriorated. On April 21, he collapsed at home. Family members took him by ambulance, not to Walter Reed, but to Arlington Hospital nearby his home. Without benefit of the missing x-rays, Arlington Hospital personnel identified cord compression (a squeezing of the spinal cord) as the source of his recent symptoms and promptly performed a laminectomy of the fifth, sixth, and seventh thoracic vertebrae, along with a resection of the metastatic tumor. He subsequently underwent an orchiectomy (castration) and radiation therapy. When Captain Edwards was discharged from Arlington Hospital on June 1, 1989, he was unable to walk. He then moved into the home of his son Michael and began receiving some physical therapy. For a time Captain Edwards regained the ability to walk, first with a walker and then with a cane. He was hospitalized briefly again in August 1989 for another TURP procedure to treat his inability to urinate.
In September 1990, Captain Edwards' condition again began to deteriorate. He was readmitted to Arlington Hospital on September 20, 1990 with leg and back pain and weakness of the legs. Radiation therapy was planned, but his condition deteriorated further and Captain Edwards died on October 14, 1990.
There is essentially no dispute that the Walter Reed staff departed from the standard of care in failing to read the x-rays for seven weeks. Drs. Carabell, Daly, and Lynch testified that this failure to examine the x-rays was a breach of the standard of care. As these experts testified, the x-rays, if properly interpreted, would have revealed that the cancer had spread to the spine, resulting in widespread metastatic disease.
While none of the expert witnesses could say to a reasonable degree of medical certainty that the seven-month delay in reading the x-rays actually shortened Captain Edwards' lifespan to any significant degree, Dr. Carabell testified that a timely reading of the x-rays and immediate treatment would probably have obviated the need for spinal surgery, spared Captain Edwards some of his subsequent neurological deficits, and generally improved the quality of his last year of life. It is reasonable to conclude that some measure of increased pain and suffering proximately resulted from the deviation from the standard of care with regard to the delay in reading the x-rays.
* * *
One final factual point: The plaintiffs, relying on the 1991 Statistical Abstract published by the U.S. Department of Commerce, posit a life expectancy of 9.1 years for Captain Edwards as of the spring of 1987. The life expectancy table relied on by plaintiffs, however, does not assume an individual diagnosed with a terminal disease such as cancer. In light of the fact that Captain Edwards had advanced, highly differentiated prostate cancer before he was seen by any of defendant's staff, the 9.1 statistical average for additional life is not a reasonable predicate for the calculation of damages.
II. CONCLUSIONS OF LAW
The applicable legal standards are undisputed. Under both District of Columbia and Virginia law, the duty of care applicable in a medical malpractice case is "that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstance." Morrison v. McNamara, 407 A.2d 555, 561 (D.C. App. 1979); see also Brown, 229 Va. at 531, 331 S.E.2d at 447. Contributory negligence on the part of a plaintiff could act as a defense to the defendant's liability. Contributory negligence is "the failure to act with the prudence demanded of an ordinary reasonable person under like circumstances." Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. App. 1985).
The plaintiff has established by a preponderance of the evidence: (1) the applicable standard of care owed to the plaintiff; (2) a deviation from or breach of that standard by the defendant; and (3) a causal relationship between that deviation or breach and the plaintiff's injury. Ornoff v. Kuhn & Kogan Chartered, 549 A.2d 728 (D.C. App. 1988); Fitzgerald v. Manning, 679 F.2d 341 (4th Cir. 1982); Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985). The defendant, in turn, has failed to carry its burden of proving by a preponderance of the evidence that plaintiffs' decedent was contributorily negligent.
As explained in the previous section of this Memorandum, the defendant departed from the standard of care in failing to communicate to Captain Edwards a consistent and understandable recommendation of treatment for his condition and to follow up on that treatment, and in failing to read the x-rays taken at Rader Clinic in a timely manner. The defendant's departure from the standard of care proximately caused some measure of the decedent's injury. In addition, the decedent was not contributorily negligent in failing to follow the advice of Dr. Bishop to receive radiation therapy or in failing to follow up on treatment of his prostate cancer.
Accordingly, the accompanying Order will declare that defendant is liable to the plaintiffs and that plaintiffs are entitled to recover from the defendant damages in an amount to be determined by agreement of the parties, or failing that, by the Court, after a further hearing.
Dated: December 23, 1992
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
ORDER - December 23, 1992, Filed
For the reasons stated in the accompanying Memorandum, it is this 23d day of December, 1992, hereby
DECLARED: that defendant is liable to plaintiffs; and it is further
ORDERED: that counsel for the parties shall confer and attempt to agree on an amount of money which will fairly compensate plaintiffs for the damages proximately caused by defendant's negligence; and it is further
ORDERED: that the parties may, on or before January 29, 1993, file an appropriate proposed judgment and order which will reflect any agreement about the amount of defendant's liability, while preserving its right to appeal on the issue of liability vel non; and it is further
ORDERED: that, in the event that the parties file no proposed judgment and order by January 29, 1993, they shall attend a hearing on that date at 9:30 a.m. on the issue of damages.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE