Before Wagner, Chief Judge, Terry, Associate Judge, and Richter,
Associate Judge of the Superior Court of the District of Columbia. *fn1
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Geoffrey M. Alprin, Trial Judge)
Opinion for the court by Associate Judge Terry.
Dissenting opinion by Chief Judge Wagner.
Appellant, Suzette Derzavis, filed suit against appellees, Dr. Frank Bepko and his professional corporation, Frank Bepko, M.D., P.C. *fn2 The complaint alleged that Dr. Bepko was negligent in, among other things, "failing to properly insert and/or employ [a] Cytobrush *fn3 so as to injure plaintiff." In the course of a five-day jury trial, appellant called four witnesses: herself, her mother, Dr. Bepko, and Dr. Deena Kleinerman, her sole expert witness. At the close of the plaintiff's case, appellees moved for judgment as a matter of law, which the trial judge denied, concluding that although the evidence was "not overwhelming," it was "enough to get past this stage." Appellees renewed the motion at the conclusion of the defense case, *fn4 but the judge again denied it, saying, "I think legally it is thin, but I wouldn't pull it from the jury at this point." Counsel for appellant requested a jury instruction on res ipsa loquitur, but the judge denied that as well.
The jury returned a verdict for Ms. Derzavis in the amount of $500,000. A few days later, appellees filed a written motion for judgment as a matter of law, or in the alternative for a new trial or remittitur. After Ms. Derzavis filed an opposition, the judge granted the motion for judgment as a matter of law without ruling on the two alternative requests. The judge concluded in his order that "the evidence was deficient with regard to all three elements" necessary to prevail in a medical negligence action. He ruled that Ms. Derzavis' expert witness had failed to establish an applicable standard of care because she "refused to testify categorically that the standard of care required a physician `to be familiar with the manufacturer's instructions for use of an endocervical brush.' " In addition, the judge noted that, even assuming the evidence was sufficient to establish a standard of care, "the expert never testified that what defendant Bepko did - inserting the brush just beyond the last bristles - violated such a standard." Finally, the judge stated that because Dr. Kleinerman "could not articulate how defendant used the Cytobrush, when the injury occurred in the course of that use, or even what the injury was," Ms. Derzavis had failed to establish a causal connection between her alleged injury and Dr. Bepko's actions. Ms. Derzavis appeals; we affirm.
On December 30, 1989, Ms. Derzavis went to Dr. Bepko, a gynecologist, for a routine Pap smear and gynecological examination. *fn5 During the Pap smear, Dr. Bepko inserted a speculum without incident, but when he inserted a Cytobrush, *fn6 Ms. Derzavis felt "the worst pain [she had] ever experienced," and she yelled out. Dr. Bepko testified that he inserted the Cytobrush "to the point that the last bristle disappeared," rotated the brush, and then withdrew it. The entire procedure, he said, took about three seconds. Ms. Derzavis testified that she noticed that the slide and Dr. Bepko's gloves were full of blood and that Dr. Bepko quickly removed the speculum and left the room. *fn7 Ms. Derzavis, "very cold but perspiring at the same time," slowly got dressed and met with Dr. Bepko in his consultation room. According to her testimony, she repeatedly told Dr. Bepko that she was in great pain, but he gave her a hug and told her that she would be fine.
Upon arriving home, Ms. Derzavis said, she started to sit down on the edge of her bed but quickly realized that she "couldn't sit down because [she] felt like [she] was sitting on a fiery fist." As she stood up, she "felt this warmth, and just to catch it [she put her] hands down [her] trousers . . . and when [she] took [her] palm out, it was a puddle of blood." She went to the bathroom and felt a need to urinate, "but the only thing that came out was blood." Ms. Derzavis called Dr. Bepko to tell him that she was bleeding, and he suggested that she take a hot bath. The pain did not subside, and Ms. Derzavis continued to lose blood along with her urine, so she called Dr. Bepko the next day and asked whether she should go to a hospital emergency room. Dr. Bepko told Ms. Derzavis that if she went to the hospital, the doctors would have to examine her and were likely to re-irritate any injury that she might have. *fn8
Three days later, on January 2, 1990, Ms. Derzavis returned to Dr. Bepko's office, still in great pain. According to her testimony, "he inserted one finger into [her] vagina and it came out with his glove being bloody so he said you're still bleeding. He asked me if that hurt. I said no, the pain was much higher. That was it. And he left." Dr. Bepko prescribed Monistat cream, Pyridium, and Valium. *fn9
After these medications did not ease her pain, Ms. Derzavis began to see other physicians, all of whom provided only minimal relief. *fn10 The pain and bleeding continued to plague her. For example, the first time she had a menstrual period after the December 30 Pap smear, she felt pain comparable to a contraction. "I urinated all over myself, the blood came out again all over me, and my uterus just went jabbing, stabbing, really stabbing up, up, up, and then the pain went barreling down the backs of my legs."
At the time of trial, Ms. Derzavis said, she still had substantial pain that severely limited her daily activities. She testified that she could "hardly lift anything" and could not walk, swim, sit, do housecleaning, go to the beauty parlor, paint, go to the movies, or have sexual intercourse without extreme pain. The only medication that helped to relieve the pain was Motrin. One of her doctors suggested a hysterectomy, but there was no guarantee that such surgery would end her pain, so she did not have it done.
The only expert witness that Ms. Derzavis presented at trial was Dr. Deena Kleinerman, a specialist in obstetrics and gynecology. After two meetings with Ms. Derzavis in September 1993 and March 1994, and after reviewing her history and the reports of the other doctors, she concluded that Ms. Derzavis "was having continued pain and that the original onset of the pain was at the time of [the] examination . . . on December 30, 1989." *fn11 As to the applicable standard of care for using Cytobrushes, Dr. Kleinerman stated that the standard in December 1989 was simply "for a physician to be aware of the correct use of the brush," either by reading the manufacturer's product information or through instruction from another specialist. In Dr. Kleinerman's opinion, the instructions that accompanied the Cytobrush comported with the proper standard for its use. *fn12
When asked whether Dr. Bepko had "exercised that degree of skill, care and knowledge ordinarily possessed and used by board-certified obstetrician-gynecologists acting in the same or similar circumstances as were present in Suzette Derzavis' case on December 30, 1989," Dr. Kleinerman answered that in her opinion "such care was not exercised." She based that opinion "on the description of the patient, how she felt before the examination and what she felt during and after the examination," and on the notes and depositions from various doctors which she had reviewed. Dr. Kleinerman believed that the Pap smear was improperly performed in two respects: first, the inner portion of Ms. Derzavis' cervix was sampled before the outer portion, *fn13 and second, Dr. Bepko engaged in "excessive instrumentation." The only evidence of such excessive instrumentation that Dr. Kleinerman could identify, however, was that Dr. Bepko inserted the Cytobrush until the last bristle ...