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Bond v. Ivanjack

November 18, 1999

WILLIAM R. BOND, APPELLANT,
V.
LESLEY ANN IVANJACK, APPELLEE.



Before Steadman, Schwelb and Reid, Associate Judges.

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

Appeal from the Superior Court of the District of Columbia

(Hon. Leonard Braman, Trial Judge)

Argued October 14, 1999

This case presents a challenge to the trial court's disposition of a post-trial motion relating to a multi-million dollar jury verdict in a medical malpractice case involving the diagnosis of nasopharyngeal cancer. The trial court denied appellant, Dr. William R. Bond's motion for judgment as a matter of law or for a new trial, but granted his motion for remittitur by reducing the $2,206,000.00 verdict on behalf of appellee, Lesley Ann Ivanjack, to $1,506,000.00. On appeal, Dr. Bond contends that the trial court erred by denying his motion for judgment as a matter of law or for a new trial because: (1) the jury's award was based on surmise and speculation as manifested by a lack of legally sufficient evidence on causation; (2) the rules requiring expert testimony and substantial evidence should have been applied strictly; and (3) "the [trial] court's finding that the jury was motivated by 'passion and bias' requires a new trial," as does the jury's excessive award. We affirm.

FACTUAL SUMMARY

The testimony presented at trial in this case reveals the following facts. In April 1991, Ms. Ivanjack, who was then twenty-one years of age, complained of pain and loss of hearing in her right ear. Her primary care physician at her health maintenance organization ("HMO") diagnosed her condition as an ear infection and placed her on antibiotics. In late May 1991, Ms. Ivanjack was referred to Dr. Bond, an otolaryngologist who was employed by her HMO. Dr. Bond examined Ms. Ivanjack on June 5, 1991 and agreed with the ear infection diagnosis, noting that she "presented with a persistent otitis media with effusion." He continued the antibiotic treatment. Although Dr. Bond insisted that he had used a light and mirror technique to look at Ms. Ivanjack's nasopharynx on June 5 and July 10, 1991, he acknowledged at trial that his medical records reflected no examination of the nasopharynx, and further that he did not use a nasopharyngeal scope. On June 12, 1991, Ms. Ivanjack returned to Dr. Bond, asserting that her pain had grown worse. Finding no relief, Ms. Ivanjack visited Dr. Bond again on July 12, 1991. She testified that the pain in her right ear "had also spread into the side of [her] neck, [and her] throat. The whole side of [her] head was like on fire." Dr. Bond noted that Ms. Ivanjack had "acute tonsillitis. She had a fet[i]d odor, she had a sore throat, she had enlarged lymph nodes, her tonsils were big, [and] she had tender nodes." He performed a tonsillectomy on July 23, 1991 but Ms. Ivanjack experienced no relief, and her pain became worse. She even took "handfuls" of Advil in an attempt to alleviate the pain. On August 7, 1991, Ms. Ivanjack saw Dr. Bond who dismissed her complaints of pain, assuring her that the pain was not uncommon and would "resolve." He again observed the enlarged lymph node in her neck and told her to return in a month.

Ms. Ivanjack's employer, Dr. Parker T. May, described her health in the Summer of 1991 following her tonsillectomy: "[S]he was in very sad shape. She was exhausted, she was in tremendous pain, she was virtually cringing." When the pain got even worse and Ms. Ivanjack could not get an appointment with Dr. Bond, she returned to her primary care physician at the HMO who ordered a CAT scan, and later referred her to Dr. Zafar Iqbal, another ear, nose and throat specialist ("ENT specialist"). On September 4, 1991, Dr. Iqbal performed a biopsy of tissue removed from Ms. Ivanjack's neck. Other specialists also examined Ms. Ivanjack. On September 13, 1991, Ms. Ivanjack was informed that she was suffering from nasopharyngeal cancer. She was further told that she "had a 15 percent chance of living." She immediately underwent chemotherapy and radiation treatment in accordance with her doctor's recommendation. At the time of trial, she had been free of cancer for a six year period. Nonetheless, she testified to her fear of a recurrence: "Because the cancer was diagnosed later, my perception is that it is likely that I will have a reoccurrence. And if indeed I do, it's unlikely that I will survive the reoccurrence." She also said: "Because of my cancer and the severity of it, I understand that there is a chance that I will have a reoccurrence. Because of that reoccurence, I am not going to have children or adopt children."

Dr. Cedric Quick, Ms. Ivanjack's expert, who is an otolaryngologist, or an ENT specialist, testified that by September 1991, Ms. Ivanjack's cancer had become a Stage IV tumor in that it had invaded the bone in the neck area. He further stated that Dr. Bond did not meet the standard of care on the occasions he examined Ms. Ivanjack, primarily because of his failure to do "either a visualization of the nasopharynx [with a nasopharyngoscope or a light and mirror] . . . or a test like a CAT scan." Had Dr. Bond used these techniques, Dr. Quick opined "to a reasonable degree of medical certainty," that "the observing otolaryngologist would have seen a [Stage II] tumor mass in the nasopharynx" in June 1991. The eighty-one to eighty-four day delay in diagnosis between June 5, 1991 and September 13, 1991 "was unacceptable in general standards of care" and "the tumor itself grew and the spread of the tumor occurred." Moreover, even after six years of remission, Ms. Ivanjack "still faces for the next five or ten years a risk of relapse from the disease that . . . was treated in September of 1991." She "will need continued and repeated observations for a reoccurrence of [her cancer]." Indeed, in 1997, an abnormality was detected on her CAT scan, but after further investigation, was determined not to be malignant. In terms of Ms. Ivanjack's chances of survival, Dr. Quick expressed the view that had her cancer been diagnosed at Stage II in June 1991, her "chance of surviving five years is high" because sixty-five percent of patients diagnosed at Stage II would survive for five years without a recurrence. In contrast, only ten percent of the patients diagnosed at Stage IV would be tumor free after five years. In addition, "less than five percent [of those diagnosed at Stage II] will get into problems" after ten years, but "three to four times as many [Stage IV patients] get into trouble."

Another of Ms. Ivanjack's experts, Dr. Bruce Romanczuk, an ENT specialist and an otolaryngologist, conducted a review of Ms. Ivanjack's medical records. His videotape deposition was shown to the jury at trial. In his opinion, Dr. Bond did not meet the standard of care owed to Ms. Ivanjack because he should have suspected nasopharyngeal cancer in June or July 1991, and should have evaluated or had a biopsy done on the nasopharynx. Moreover, Dr. Bond did not properly evaluate the lymph node, nor order imaging studies in response to Ms. Ivanjack's persistent complaints, nor provide the proper postoperative care following her tonsillectomy. Dr. Romanczuk saw no evidence in Ms. Ivanjack's medical records that Dr. Bond ever examined her nasopharynx. According to him, had the proper standard of care been met, Ms. Ivanjack's cancer would have been diagnosed in June 1991, instead of being delayed by almost three months.

Dr. Bond presented the testimony of Dr. Richard Lee Fields, a retired otolaryngologist who reviewed Ms. Ivanjack's medical records. Under the assumption that Dr. Bond examined Ms. Ivanjack's nasopharynx in June or July 1991, he opined that Dr. Bond met the standard of care owed to her. Nonetheless, he expressed the view that "at the time of the tonsillectomy a blind biopsy should have been done on the nasopharynx," and agreed that "if Dr. Bond did not examine [Ms.] Ivanjack's nasopharynx, that he would have breached the standard of care." He saw "no evidence in the record" that Dr. Bond had examined Ms. Ivanjack's nasopharynx. He stated that Ms. Ivanjack "is cured and probably will remain so." Moreover, in his view, an earlier diagnosis of the cancer would not have made a difference.

Dr. Glenn Tonnesen, a radiation oncologist, who also conducted a record review on behalf of Dr. Bond, testified that it is "more likely than not that [Ms.] Ivanjack had Stage IV disease in June [or May 1991]" because "[i]n May she had swollen nodes in her neck." He expressed the opinion that the treatment for Ms. Ivanjack would not have been different had she been diagnosed in June, and stated further: "I don't believe that she would have been any more or less likely to be cured in June than she was in September." On cross examination, he stated that it was possible no Stage IV tumor existed in May or June 1991, but that it "probably [was] a Stage III tumor because it was extending." He also acknowledged that there was no "evidence of bone invasion until [the] CAT scan done at the end of August 1991." He considered Ms. Ivanjack to be "cured" "to a high degree of medical certainty."

The jury was given a "jointly proposed" verdict form which was completed as follows: (1) "The medical care rendered by defendant (Dr. Bond) failed to meet the appropriate standard of care?" The jury responded: "Yes"; (2) "[D]o you find that the failure to meet the standard of care was a proximate cause of injuries to Lesley Ann Ivanjack?" The jury responded: "Yes"; (3) "What amount do you award to Lesley Ann Ivanjack?" The jury responded: "$2,206,000.00." Neither Dr. Bond nor Ms. Ivanjack requested special interrogatories relating to causation or damages.

On November 26, 1997, Dr. Bond filed a motion for judgment as a matter of law, or in the alternative, a new trial or remittitur. On December 12, 1997, the trial court apparently heard argument on the motion. *fn1 The court concluded that the case satisfied "the Impact Rule," and that "there is a sufficient predicate in proximate causation to sustain the pain and suffering and mental anguish claims." The trial judge added: "I further believe that the verdict was not against the weight of the evidence, but I do believe that this verdict was such as to show that the jury's response was in part motivated by passion. A passion not only for the plaintiff which is understandable, but a passion and bias against the defendant." The trial court determined that "the amount of the verdict was grossly excessive, insupportable on a rational basis and accordingly does shock the conscious of the Court." Consequently, the trial court denied the motion for judgment as a matter of law and the alternative motion for a new trial "insofar as [it sought] an unconditional new trial," but granted the alternative motion for remittitur, provided Ms. Ivanjack agreed to take a judgment for $1,506,000.00.

ANALYSIS

Dr. Bond challenges the decision of the trial court to deny his motion for judgment as a matter of law and his alternative motion for a new trial. "Generally, a motion for judgment after trial and verdict is granted only in 'extreme cases.'" United Mine Workers of America v. Moore, 717 A.2d 332, 337 (D.C. 1998) (citing Daka, Inc. v. Breiner, 711 A.2d 86, 96 (D.C. 1998) (quoting Oxendine v. Merrell Dow Pharm., Inc., 506 A.2d 1100, 1103 (D.C. 1986)). "[W]e view the evidence in the light most favorable to the appellee[], and '[w]e reverse only if no reasonable juror could have reached the verdict.'" District of Columbia v. Walker, 689 A.2d 40, 42 (D.C. 1997) (quoting Kane v. Ryan, 596 A.2d 562, 564 (D.C. 1991) (citations omitted)). We review the trial court's ruling on a motion for a new trial only for abuse of discretion. Moore, supra, 717 A.2d at 337 (citing Gebremdhin v. Avis Rent-A-Car System, Inc., 689 ...


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