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March 9, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. von Kann, Trial Judge)

Before Rogers, Chief Judge, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellant Carol Cooper appeals from a jury verdict in favor of appellee Marilyn Berzin in a medical malpractice case. Her sale contention an appeal is that the trial Judge erred in denying her request that the jury be instructed that the defendant bore the burden of proof in apportioning damages. She maintains that if Dr. Berzin's conduct was a proximate cause of appellant's injuries, then the doctor is liable for all of those injuries unless the doctor introduces evidence from which a fair apportionment can be made. Because the jury resolved the issue of culpability in favor of appellee and thus never reached the issue of damages, even if the trial Judge had erred, and we conclude he did not, any such error would have been harmless. Accordingly, we affirm.


This appeal arose out of a medical malpractice suit brought by appellant Carol Cooper against appellee Marilyn Berzin, M.D. On December 29, 1986, after seeing another doctor, appellant first visited Dr. Berzin. Appellant complained of a rash on her arms, thighs, and chest and of intense itching of her scalp. In her patient history, she indicated that she had suffered for several years from seborrheic dermatitis, a dermatological condition. Dr. Berzin prescribed a regimen of treatment in an effort to respond to the various problems appellant was having. The doctor concluded that appellant suffered from seborrheic dermatitis as well as another condition known as keratosis pilaris. Dr. Berzin testified that none of the conditions on appellant's body resembled lichen planopilaris. *fn1 She explained that she did not think there was a need for a biopsy at that point because appellant had the classic signs of seborrheic dermatitis and keratosis pilaris, and that if appellant did not respond to the treatment by the next visit, further action would be taken.

Appellant returned to Dr. Berzin on January 20, 1987, and for the first time complained of massive hair loss. Dr. Berzin took further patient history and performed a scalp biopsy in order to obtain a microscopic evaluation of appellant's scalp. The doctor also started appellant on a topical steroid lotion to treat her scalp. Included with the biopsy specimen sent to the pathologist were comments asking the pathologist to consider several conditions.

On or about January 28, 1987, Dr. Berzin received the biopsy report from the pathologist concluding that the scalp specimen constituted granulomatous folliculitis. Considering this report "unusual," Dr. Berzin immediately consulted with her partner, appellant's treating internist, and the pathologist. Dr. Berzin testified that the granulomatous disease can be very serious as it may be caused by diseases such as tuberculosis, sarcoidosis, deep fungal infections, or lymphoma. Accordingly, various tests were set up to assess what action should be taken. Dr. Berzin stated that oral steroids given to a patient who may have a granulomatous condition could make that patient very sick, described the various side effects associated with steroids, and stated that she does not start people on steroids without having a diagnosis.

On January 29, 1987, appellant returned to Dr. Berzin's office in order to have her sutures removed. At this time, Dr. Berzin asked her partner, Dr. Isaacson, to examine appellant. Dr. Isaacson testified that while this was taking place, Dr. Berzin called the pathologist, Dr. Williams, on the telephone:

It was my impression from that conversation that Dr. Williams was just as confused about the biopsy and the clinical presentation in that the two did not seem to go ahead and go along with one another. What we saw in the biopsy was not consistent with what was being seen clinically.

Dr. Berzin recorded in her notes of January 29, 1987: "the clinical picture does not seem to fit the histology."

Appellant's next visit occurred on February 9, 1987. Dr. Berzin noted that appellant's scalp was less flaky, that the medication would be continued, and that a second scalp biopsy would be considered at the return visit scheduled in two weeks. Dr. Berzin observed scarring of the scalp and immediately performed the second biopsy. She considered lichen planopilaris as a possible diagnosis, and the biopsy report contained a similar finding as well.

On March 5, 1987, Dr. Berzin presented appellant for examination at a dermatology conference. The conferees recommended a third biopsy in order to determine conclusively whether appellant was suffering from lichen planopilaris or lupus erythematosus. The following day appellant began taking oral steroids to treat the symptoms of lichen planopilaris. Although appellant's hair loss abated once she was placed on this treatment system, she is now entirely bald except for fringes of hair on the front, sides, and back of her head.

At trial, appellant's basic theory of recovery was that Dr. Berzin's failure to diagnose and treat appellant's condition in a timely manner proximately caused her extensive hair loss. To this end, appellant called two expert witnesses who testified that Dr. Berzin breached the standard of care of a board certified dermatologist and that this breach caused appellant to lose more hair than she otherwise would have lost. *fn2 In response, Dr. Berzin presented two expert witnesses who testified that her diagnosis and treatment of appellant's condition was consistent with the applicable standard of care. In addition, Dr. Berzin introduced evidence that giving oral steroids can be dangerous for a patient who might be suffering from an infectious process at the time. *fn3

At the close of the evidence, appellant requested that the trial Judge instruct the jury that the burden of proof on the amount of damages shifted to the defendant once the jury found that the defendant had failed to conform with the standard of care and that the failure was a major factor in worsening the plaintiff's condition. *fn4 In support of this instruction, appellant relied on Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980), and Graham v. Roberts, 142 U.S. App. D.C. 305, 441 F.2d 995 (1970). The trial Judge found the Lacy case inapplicable, since it addressed causation rather than damages. The Judge distinguished Graham v. Roberts, ...

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