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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, supra, 142 U.S. App. D.C. 305, 441 F.2d 995, in view of the fact that there was evidence in the instant case from which the jury could determine the amount of damages:

That's not this case. This is a case in which the plaintiff called two expert witnesses who did offer evidence about the extent of damage done and the defendants called witnesses who offered expert testimony about the extent of damage done. It is clearly not the Graham v. Roberts situation. I certainly don't think you can extrapolate from Graham v. Roberts the proposition that if the plaintiff calls experts who say so much for other damage was done and the jury chooses to disbelieve them, that suddenly shifts the burden of proof on damages to the defendant. That's nonsense. That wouldn't make any sense at all.

This is a case in which both parties offered evidence, rather extensive expert testimony on causation of damages, extent of damages, and so this is just not a Graham v. Roberts case, and I'm not going to give that instruction.

The Judge instructed the jury that appellant had the burden to prove by a preponderance of the evidence that Dr. Berzin did not meet the degree of skill, care, and learning ordinarily possessed by a nationally certified dermatologist acting in similar circumstances, and that this act or failure on the part of Dr. Berzin "played a substantial part in bringing about the injury or damage." Regarding damages, the Judge instructed the jury that Dr. Berzin was liable only for the damages she proximately caused and that the burden of proof of damages remained with the plaintiff. *fn5 The jury returned a verdict in favor of Dr. Berzin.


On appeal, appellant contends that she is entitled to a new trial as a result of the trial Judge's refusal to give her requested instruction on the apportionment of damages. For several reasons, we disagree, and accordingly affirm.

The form of the verdict returned by the jury makes clear that the jury did not find Dr. Berzin negligent. In his instructions to the jury, the trial Judge explained that the verdict form would pose two questions: first, whether the doctor failed to comply with the applicable standard of care, *fn6 and second, if the jury found Dr. Berzin liable, the measure of damages. *fn7 The Judge also instructed the jury that if it found for the doctor on the first question (whether Dr. Berzin was negligent), the inquiry was ended and it was not to proceed to the second question (the amount of damages). The jury found for the doctor on the first question. *fn8

Appellant's sole contention on appeal, that the trial Judge improperly denied her request for a damages instruction, is, consequently, to no effect. While appellant maintains that the doctor would be liable for all of appellant's damages unless the doctor introduced evidence from which a fair apportionment can be made, the necessary predicate underlying appellant's damages instruction was never met. Having found that Dr. Berzin was not liable, the jury had no occasion to consider the issue of damages. *fn9

In addition, the instructions relating to the first question (whether Dr. Berzin was negligent) did not include an instruction that the jury could not award speculative damages. The latter instruction was given only in connection with the Judge's instructions on damages. See supra note 6. Appellant nevertheless maintains that the instruction on the first question made proof of injury an element of the first determination, see italicized language of note 5, (supra) , and thus the jurors could have checked the first box on the verdict form in favor of Dr. Berzin even if they believed that the doctor was negligent because they may have believed (as a result of allegedly erroneous instructions on apportionment of damages) that Ms. Cooper suffered no compensable injury. Therefore, Ms. Cooper maintains she was entitled to a burden-shifting instruction on the issue of partial or apportioned damages. We disagree for several reasons.

First, under the Judge's instructions, the issue of apportionment -- how much hair loss was caused by Dr. Berzin's negligence -- was not presented until after the jury answered the first, or liability, question on the verdict form, namely, whether the doctor had failed to adhere to the applicable standard of care and whether that failure, if any, proximately caused injury to Ms. Cooper. Hence, the jury's express statement that it found for the doctor on the first question is prima facie evidence that its verdict did not rest on confusion regarding the percentage of damages.

Second, the relevant instruction given to the jury was simple and clear. It told the jury that "plaintiff may recover only that portion of damages which resulted proximately from the defendant's negligence." This instruction was standard, see STANDARDIZED CIVIL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 12-2 (1985 ed.), and left to the jury a very practical assessment of how much of Ms. Cooper's hair loss was attributable to the fault (if there was fault) of Dr. Berzin. Therefore, the Judge was not required to give Ms. Cooper's instruct ion since the instruction given was adequate to address the apportionment issue, and did not involve the extraordinary step of shifting the burden to the defendant on what normally is an element of the plaintiff's case. By contrast, Ms. Cooper's requested instruction was potentially confusing because it would have required the defense to establish "the degree of plaintiff's worsening condition" or "the amount or degree of plaintiff's hair loss" -- both of which a jury would naturally think within the peculiar ability of the plaintiff to prove.

Finally, the trial Judge correctly ruled that the Graham holding was inapplicable to the instant case. In Graham v. Roberts, supra, 142 U.S. App. D.C. at 306, 441 F.2d at 996, the plaintiff claimed that his dentist was negligent in continuing to treat a worsening condition over a four-month period instead of referring him to a qualified specialist when the problem became apparent. On appeal, in reinstating the jury verdict in favor of the plaintiff, the court focused primarily on the issue of causation but stated in a footnote:

Apparently, there was no evidence adduced at trial by either side regarding what proportion of the appellant's damage was attributable to the lack of a prompt referral. We hold with the better modern authorities that the culpable defendant in such situations is liable for all damages unless he introduces evidence from which a fair apportionment can be made.

Id. at 308 n.3, 441 F.2d at 998 n.3 (citing RESTATEMENT (SECOND) OF TORTS §§ 433A, 433B, and 450 (1965)). Graham did not suggest that the burden of proof on damages actually shifted to the defendant in that case. Rather, it stands for the proposition that in the unique situation where the plaintiff met its burden to prove culpability and damages and neither party offered evidence of apportionment, the plaintiff was entitled to recover fully unless the defendant offered evidence why he should not fairly be held responsible for all of the damages. In any event, unlike Graham, where there was no evidence relating to the apportionment of damages, in the instant case appellant offered expert testimony regarding the amount of baldness that could have been prevented had appellant been treated earlier with oral steroids. *fn10 Thus, there was ample evidence before the jury from which it could have assessed damages once it determined that Dr. Berzin was culpable. Finally, the court also made clear in Graham that the prerequisite to placing upon the defendant the burden to come forward with evidence to prove apportionment of damages is the existence of a culpable defendant. Id. The jury made no such finding of culpability in the instant case. Therefore, in view of the evidence from which a reasonable jury could fairly find that Dr. Berzin's course of treatment and diagnosis conformed with the standard of care in all respects, the circumstances giving rise to issuance of a Graham apportionment instruction did not exist.

Accordingly, because the jury's verdict in favor of Dr. Berzin on liability precluded it from addressing the measure of damages and a Graham instruction was inappropriate in light of the evidence before the jury, appellant's contention regarding the apportionment instruction is unavailing, and we affirm.

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