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December 17, 1998



Before Terry, Schwelb, and Reid, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

[721 A2d Page 593]

On July 28, 1992, Russell Brown, who was serving a sentence as a youthful offender *fn1 at the Lorton Youth Center, died of asthma. On July 27, 1993, Brown's mother, Linda Wilson, brought this action against the District of Columbia, pursuant to the wrongful death *fn1 and survival *fn1 statutes, alleging medical malpractice and other negligence. The case went to trial on March 25, 1996, and on April 2, 1996, the jury returned a verdict in the plaintiff's favor in the amount of $277,-418. *fn1 On August 22, 1996, the judge denied the District's post-trial motion to set the verdict aside. The District now appeals, claiming evidentiary insufficiency and instructional error. We affirm.



A. Russell Brown's illness and death.

The evidence, viewed in the light most favorable to the plaintiff, see, e.g., District of Columbia v. Watkins, 684 A.2d 395, 401 (D.C. 1996), reveals that the decedent had suffered from asthma since birth. At the time of his death, Brown had been incarcerated at the Youth Center for approximately one year. There was evidence that Brown had suffered four attacks of asthma during the summer of 1991 and four more in 1992.

On July 12, 1992, following one of these attacks, Brown was treated at D.C. General Hospital. The physicians at that institution recommended that Brown's prior treatment with Theophylline, a bronchodilator, *fn2 be continued, and that he should also receive Prednisone, an anti-inflammatory steroid, which had been beneficial to him in the past. Brown was returned to the Youth Center, but Prednisone was not administered to him.

During the night of July 27-28, 1992, Brown suffered another, and more severe, asthma attack. After some delay, which the plaintiff ascribed to allegedly inadequate training of correctional personnel and negligence on the part of unlicensed foreign medical graduates who were assisting in his treatment, but which the District attributed to Brown's own negligence, Brown was taken to the Youth Center's infirmary, where he collapsed. Brown was then transported by ambulance to the nearest emergency facility, DeWitt Army Hospital at Fort Belvoir, but he died on the morning of July 28 of bronchial asthma. He was twenty-three years old.

B. The expert testimony.

(1) Dr. Michael D. Cohen

At trial, the plaintiff introduced the expert testimony of Michael D. Cohen, M.D., a board-certified pediatrician *fn3 with extensive experience in the provision of health services at correctional facilities. *fn3 According to Dr. Cohen, [721 A2d Page 594]

the management of [Brown's] asthma essentially from the time he entered the facility until he died was inadequate and that both in terms of the chronic management of his asthma throughout the little more than one year he was there was not effective or adequate and in particular the management of his more serious asthma attacks which occurred during the weeks preceding his death was inadequate and the management of his severe, life-threatening asthma attack on the morning of July 28 was inadequate and as a consequence he died.

Dr. Cohen testified that asthma is "one of the more common chronic illnesses, particularly in young people, and is the cause of a significant amount of morbidity and mortality that public health authorities feel is preventable through more aggressive treatment." He explained that the unfavorable effects of asthma can generally be controlled, and that the applicable standard of care *fn4 therefore required a proactive and preventive approach to the treatment and management of the disease. Dr. Cohen found no evidence, however, that such a proactive approach had been used at the Youth Center in the treatment of prisoners who were suffering from asthma. On the contrary, the care provided to Brown and others was entirely reactive.

Dr. Cohen pointed out that the treatment protocol which was in use at the Youth Center made no provision for the care of asthma patients "at times other than when they're having what's been called an acute asthma attack." Indeed, the medical staff at the Youth Center

did not appear to be taking a preventive approach at all. You know, I tried to distinguish between what I would call episodic care, where care is provided only when the patient is sick or seeks help, versus what I would call continuous care, where the health service, particularly with a chronic asthmatic who is having recurrent and severe attacks, seeks to follow the patient closely, adjust [his] medication in such a way as to achieve the optimum benefits that are possible from the available types of medication and assesses the response to treatment, both clinically by listening to the chest and objectively by obtaining peak-flow rates. None of this was done at this facility.

According to Dr. Cohen, the standard of care in effect in 1992 *fn5 required correctional institutions to have "specific times when patients with serious chronic illness[es] are seen and evaluated according to a specific protocol." In particular, "[t]here should be regular scheduled follow-up of every serious asthmatic. At least every three months if they're stable. Certainly more often if they're not stable." Brown, however, "was seen apparently only at his own initiative, and specific care was supplied only at those times." Moreover, Brown's medical records contained little or no information reflecting "any education of the patient regarding the nature of his disease or how to control it, or the seriousness of it, or how to use his medication, or opportunities for additional treatment that might be available." Dr. Cohen's apparent point was that the lack of patient education predictably inhibited the exercise of initiative on Brown's part.

Dr. Cohen testified that the lack of a preventive treatment plan was further reflected by the absence from Brown's medical records of any "detailed history regarding the severity of his illness, whether he had been hospitalized, whether he needed intensive care, whether he'd . . . needed steroid prescriptions in the past, no history regarding the possibility of an allergic component, no history regarding what types of circumstances precipitated his attacks or made his asthma worse." Dr. Cohen explained that a complete history is essential as "a guideline for the treating health professionals as to the severity of the individual's disease," and because [721 A2d Page 595]

it "gives them their first essential information about how to manage the patient's disease."

Another critical factor in the management of asthma, according to Dr. Cohen, is "the objective measurement of the severity of the airway narrowing" in the lung. One effective and widely available means of measuring the patient's lung function is a "peak flow meter," a device that costs approximately twenty-two dollars. Dr. Cohen testified that the standard of care in 1992 "certainly" required "any physician who treats asthma to have a peak flow meter that can be used to assess his asthmatic patients." *fn6

Dr. Cohen also testified that several foreign medical graduates, two of whom had treated the decedent, had been practicing as physician assistants at the Youth Center even though they were not licensed or certified for such work and had not completed the requisite accredited training programs. Eight months before Brown's death, the Department of Corrections (DOC) had issued its "Foreign Medical Graduate Guidelines," which provided that foreign medical graduates were authorized to "perform administrative tasks that comply with the District of Columbia's licensing regulations," but that they were not permitted to provide "direct patient care in the form of examination, diagnosis, and treatment of patients." See Division Operations Procedure (DOP) 6049 (Nov. 18, 1991). Dr. Cohen stated that these guidelines were, "in essence," consistent with the standard of care as it existed in 1992. He testified that, contrary to the guidelines, "the unlicensed foreign medical graduates . . . were providing direct patient care."

Dr. Cohen was also of the opinion that the physicians and foreign medical graduates who worked on Brown's case on the day before he died provided the wrong treatment:

The record indicates that Mr. Brown was not given oxygen initially on his arrival at the clinic. I think that was an error. The record indicates, after Mr. Brown collapsed, that they attempted to resuscitate using a bag and mask ventilation and they made no attempt to intubate him. In order to ventilate an asthmatic who is collapsed and not breathing due to an asthma attack, I think it is absolutely necessary to intubate in order to ventilate effectively.

The allegedly negligent treatment of Brown did not end, according to Dr. Cohen, with the failure to administer oxygen. Dr. Cohen testified that, under the applicable standard of care, the ambulance that transported Brown to DeWitt Army Hospital on July 28, 1992 should have been, but was not,

staffed with people who were trained — properly trained and certified as either advanced EMTs or paramedics to manage a life-threatening emergency of this type and it should have contained the equipment necessary to manage a life-threatening emergency of this type, which would include the ability to intubate the patient, the ability to ventilate the patient effectively, equipment for monitoring the cardiac — cardiac monitoring status to take the electrocardiogram to show the electrical activity of the heart and the ability to defibrillate or shock the heart in order to make it start beating again, if it has already stopped beating.

Finally, addressing the issue of causation, Dr. Cohen testified that Brown's death could and should have been avoided:

Q. Now, Doctor, all of the failures and violations of the various standards of care that you've articulated in the courtroom today, do you have an opinion, based upon a reasonable degree of [certainty], whether or not those violations were a substantial factor in the death of Russell Brown?

A. Yes, I believe this was a wholly preventable death. Had this inmate received adequate asthma care during the months leading up to his fatal asthma episode and, indeed, even if he had received adequate care for his two prior attacks on July 2nd and July 12th . . . death would likely not have happened at all. And, further, if he had received timely health services during [721 A2d Page 596]

the night when the condition was worsening . . ., his life very likely could have been saved.

(2) Dr. Jack E. Nissim.

The District called as its expert witness Jack E. Nissim., M.D., a board-certified specialist in pulmonary medicine. Dr. Nissim disagreed with many of Dr. Cohen's conclusions. He testified that in his opinion, the care given to Russell Brown satisfied the applicable standard of care for the treatment of asthma patients. In Dr. Nissim's view, Brown contributed to his own death by overuse of his inhaler, which led Brown to underestimate the severity of the final asthma attack that took his life, and which therefore caused Brown to wait too long to request medical assistance. Indeed, Dr. ...

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