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Hawes v. Chua

March 29, 2001

TRIZAH HAWES, ET AL., APPELLANTS,
v.
MAUREEN CHUA, ET AL., APPELLEES.



Before Schwelb, Farrell 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. Susan R. Winfield, Trial Judge)

Argued January 18, 2001

In this medical malpractice action relating to the fetal death of twins, the jury returned a verdict for appellees Maureen Chua, M.D., Maureen Chua, M.D., P.C., and Carin Kleiman, M.D. Appellants Trizah Hawes and Derrick Hawes filed a timely appeal, alleging several trial court errors, including the failure of the trial judge to strike the standard of care testimony of defense witness, Dr. Charles F. Hill, Jr. We affirm the judgment of the trial court and conclude, in part, that the trial court did not commit manifest error in admitting Dr. Hill's national standard of care testimony, since that testimony: (a) reflected some evidence that it was based on a national standard, and (b) was grounded on neither the expert's personal opinion, nor mere speculation or conjecture. We emphasize the closeness of this case, however, and reiterate that it is insufficient for a defense expert's standard of care testimony to merely recite the words "national standard of care."

We also conclude that the trial court did not abuse its discretion by: (1) declining to remove a juror during the second week of trial because he recognized a defense expert who was a radiologist in a hospital emergency room ten years ago when the juror was an x-ray technician in the same hospital emergency room, and refusing to strike two jurors for cause during the voir dire process; (2) denying appellants' motion to strike the testimony of Dr. Chua as a sanction for her violation of the rule on witnesses; and (3) disallowing cross-examination of a defense expert as to financial bias based on commonality of insurance coverage between the expert and one of the defendants. Accordingly, we affirm the judgment of the trial court.

FACTUAL SUMMARY

The record before us reveals the following pertinent facts. On December 25, 1994, Mrs. Hawes gave birth to stillborn identical twins by emergency C-section. The twins had died in utero one to two days earlier. One of appellants' experts, Dr. Janice Marie Lage, Vice Chairman of the Department of Pathology and Professor of Pathology, with expertise in obstetrical and perinatal pathology, at the Georgetown University Medical School, attributed the twins' death to twin-to-twin transfusion syndrome, which in essence, means that one twin was drained of fluid by the other, and the second twin suffered from fluid overload from the first twin. *fn1

The case centered on the proper course of care and treatment for identical twins exposed to a risk of twin-to-twin transfusion syndrome, as well as a risk of intrauterine growth retardation. Dr. Chua initially provided care for Mrs. Hawes, who was diagnosed with the twin pregnancy on July 18, 1994. By November 1994, Dr. Chua's associate, Dr. Kleiman had assumed primary responsibility for Mrs. Hawes' care.

On November 29, 1994, when the twins were about 31 weeks into their fetal development, an in-office sonogram suggested that they were not developing properly when compared with a November 16th sonogram. A December 6th sonogram, performed at 32 weeks of growth by the Washington Radiology Associates, continued to show growth problems for the twins; they were getting smaller. No decision was made to hospitalize Mrs. Hawes or to deliver the babies, despite the results of the December 6th sonogram. *fn2

A complete biophysical profile, including a sonogram, was ordered on December 13th. However, the complete biophysical profile was never done. *fn3 Dr. Kleiman became concerned for Mrs. Hawes' pregnancy and arranged for home uterine contraction monitoring. Dr. Kleiman also prescribed a medication, terbutaline, to prevent premature contractions. When the monitoring device showed a lot of contractions, Mrs. Hawes was told to return to Dr. Kleiman's office on December 15th. On that day, she complained of pain, and another in-office sonogram was done. Mrs. Hawes was not hospitalized, and the twins were not delivered. After December 15th, no other sonogram was performed in-office, or by the Washington Radiology Associates. *fn4

When Mrs. Hawes arrived at the emergency room of the Washington Hospital Center on December 18th, complaining of continued cramping, pain and irregular contractions, Dr. Kleiman directed Mrs. Hawes to return home and to continue taking the terbutaline to prevent premature contractions. During her December 20th visit to Dr. Kleiman's office, she complained of a reduction in fetal movement, and was placed on a fetal heart monitor. No sonogram was performed, and she was sent home.

On December 25th, Mrs. Hawes called the home fetal monitoring service and informed them that she was experiencing decreased fetal movement. Dr. Chua called Mrs. Hawes back and told her to go to the hospital immediately. A sonogram revealed that both fetuses had died.

In their lawsuit against the appellees, Mr. and Mrs. Hawes maintained that the November and December sonograms showed the early warning signs of trouble for the high-risk twin pregnancy, including a size discrepancy between the twins and a deficit of amniotic fluid around one of the twins; that a sonogram should have been done on December 20th; that the signs of premature labor should have been interpreted as signs that the twins were in distress and were trying to be born; and that the twins should have been delivered sometime earlier since they were past the stage of viability during the period beginning around mid-November.

After the jury returned a verdict in favor of the appellees, Mr. and Mrs. Hawes moved for a new trial, which ultimately was denied. Their appeal followed.

ANALYSIS

We turn first to appellants' argument that the testimony of Dr. Charles F. Hill, Jr., appellees' expert witness regarding the standard of care owed to Mrs. Hawes, should have been struck by the trial court, because he failed "to provide any basis for his opinion as to the national standard of care." Appellees argue that the trial court did not abuse its discretion in deciding not to strike Dr. Hill's testimony, because, "[a]s the [trial] [c]court . . . noted, there was no need to recite the mantra of 'national' in each and every question and answer . . . ."

"'The trial judge has wide latitude in the admission or exclusion of expert testimony, and his [or her] decision with respect thereto should be sustained unless it is manifestly erroneous.'" In re Melton, 597 A.2d 892, 897 (D.C. 1991) (quoting Coates v. United States, 558 A.2d 1148, 1152 (D.C. 1989)). "Nevertheless, the judge's discretion is not without constraints." Coates, supra, 558 A.2d at 1152. One of the constraints is that the exercise of discretion must be based upon correct legal principles. See District of Columbia v. Sierra Club, 670 A.2d 354, 361 (D.C. 1996) ("A permissible exercise of discretion must . . . be founded upon correct legal principles.") (citation omitted).

To determine whether the trial judge's decision not to strike the testimony of Dr. Hill was "manifestly erroneous," or based upon incorrect legal principles, we first set forth the pertinent factual background. During his trial testimony, Dr. Hill revealed that he was licensed in the District of Columbia, Maryland, and Virginia; and had a practice in obstetrics and gynecology. A graduate of Mount St. Mary's College in Emmitsburg, Maryland (1969), and Georgetown University Medical School (1975), Dr. Hill completed his residency in 1978 at Georgetown Hospital. He was board certified at the time of trial, presumably in obstetrics and gynecology, and served as an associate clinical instructor at Georgetown.

Before being accepted by the trial court as an expert in the areas of obstetrics, gynecology, management of twin pregnancies, and evaluation of intrauterine growth retardation, and twin-to-twin transfusion syndrome, Dr. Hill responded to the following questions:

Q: Do you make efforts to keep up with the state of the medical art, obstetrics and gynecology?

A: I do.

Q: Are you, sir, in the course of medical education, residency training, overall medical education and experience, familiar with twin-to-twin transfusion syndrome?

A: I have seen it years ago and certainly read about it.

Q: Are you familiar, Dr. Hill, with the standards of care that would apply to the ordinary and reasonable OB/GY [obstetrician and gynecologist] in the management of twin pregnancies and in the evaluation of such patients for IUGR [intrauterine growth retardation] and TTS [twin-to-twin transfusion syndrome], as it existed in 1994?

A: I am.

In providing this background information, Dr. Hill did not mention any textbooks, journal articles, or national professional meetings he had attended, pertaining to the ...


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