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Hardi v. Mezzanotte

March 20, 2003

ROBERT HARDI, M.D., AND ROBERT HARDI, M.D., P.C., APPELLANTS,
v.
GENEVIEVE D. MEZZANOTTE, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CA 1691-97) (Hon. Judith Retchin, Motions Judge) (Hon. Steffen W. Graae, Trial Judge)

Before Wagner, Chief Judge, and Steadman and Glickman, Associate Judges.

The opinion of the court was delivered by: Wagner, Chief Judge

Argued May 8, 2001

This appeal arises out of a claim for medical malpractice filed originally by appellee, Genevieve D. Mezzanotte, against appellants, Robert Hardi, M.D., his professional corporation, Robert Hardi, M.D., P.C. (sometimes collectively referred to as Dr. Hardi), and another physician, Dr. Joel Match. After a bench trial, based upon the record of evidence adduced at an earlier trial, which resulted in a verdict for Dr. Match and a hung jury on appellee's claim against appellants, the trial court entered judgment for appellee and awarded costs. Appellants argue that the trial court erred in: (1) granting summary judgment and striking their statute of limitations defense; (2) finding that proximate cause was established without adequate evidentiary support; (3) including in the damages award medical bills written-off by appellee's health care providers in violation of the collateral source rule; and (4) awarding costs which are not recoverable, including those resulting from the earlier mistrial. We affirm.

I.

A. Factual Background

According to the evidence, appellee was treated by Dr. John O'Connor in 1990 for diverticulitis, an infectious process affecting the colon. In January and February of 1994, she experienced symptoms which she believed to be a recurrence of that illness. After trying without success to reach Dr. O'Connor, she saw Dr. Hardi, a Board-certified gastroenterologist, on February 3, 1994, and informed him of her suspicions and provided him with a copy of an x-ray report that Dr. O'Connor ordered after he treated her for diverticulitis. The doctor took appellee's history and noted on her chart that Dr. O'Connor had treated her previously with antibiotics for diverticulitis. During his physical examination of appellee, Dr. Hardi felt a mass which he thought to be of gynecological origin. However, he also understood that the mass could be caused by a recurrence of diverticulitis. His medical chart does not show alternate likely causes of appellee's condition or specify diverticulitis as one such cause. Dr. Hardi did not order a CAT-Scan, a test typically ordered when diverticulitis may be present, or initiate a course of antibiotic therapy. He informed appellee that her problems were gynecological in nature and referred her to Dr. Joel Match, a gynecologist, for a work-up with respect to the mass.

On February 8, 1994, Dr. Match saw appellee. He ordered a CA-125 blood test, which he testified is 80% reliable in predicting the existence of gynecological cancer. The test was negative for the disease. The report from the ultrasound examination, which Dr. Match ordered, revealed that there was a mass in the left lower quadrant of appellee's abdomen, but it could not be determined whether it was diverticular or gynecological in origin. Therefore, the radiologist recommended a "close clinical and sonographic follow-up." Notwithstanding the results of the tests, Dr. Match concluded that appellee had ovarian cancer and scheduled a complete hysterectomy (the surgical removal of her uterus, fallopian tubes and ovaries) for March 1994. Dr. Match informed Dr. Hardi of the test results. Although the blood test did not reveal cancer, and the ultrasound exam did not reveal an enlarged uterus, Dr. Hardi "cleared" the performance of gynecological surgery. Dr. Match requested that Dr. Hardi undertake further testing within his specialty in order to rule out the possibility that appellee was suffering from any gastrointestinal diseases.

On February 21, 1994, Dr. Hardi performed a sigmoidoscopy on appellee, which entailed the introduction of an endoscope into her sigmoid colon for purposes of observation. He was unable to complete the procedure after multiple attempts because of an apparent obstruction of the colon caused by the diverticulitis. Appellee's expert witness, Dr. Robert Shapiro, explained that such an obstruction is a "red flag," telling the doctor "there is something wrong with the bowel." Dr. Hardi scheduled a more intrusive procedure, a colonoscopy, performed under general anesthesia, for March 2, 1994. He attempted the procedure multiple times, without success, due to the obstruction, and desisted finally because of "fear of perforation." He ordered Dr. Odenwald, a Sibley Hospital radiologist, to perform a third exploratory procedure, a barium enema of the sigmoid colon, but it could not be completed due to the same obstruction. Dr. Odenwald discussed with Dr. Hardi the possibility that the obstruction resulted from a gastrointestinal disease rather than gynecological cancer.

Immediately following the exploratory procedures on March 2, 1994, appellee's condition deteriorated markedly. These procedures had exerted pressure on her sigmoid colon and caused the spread of her diverticular infection. Appellee was admitted as an emergency patient to Columbia Hospital for Women on March 7, 1994. By then, her diverticular abscess had ruptured, resulting in peritonitis (i.e., infection of the abdomen). Dr. Match ordered a CAT-Scan on March 7, 1994. However, appellee's condition precluded the use of contrast media. Dr. Match also ordered an ultrasound that day, which proved to be non-diagnostic. On March 8, 1994, appellee had surgery which involved removal of her non-cancerous reproductive organs. During surgery, multiple infectious abscesses and pus were encountered. Dr. Hafner, the general surgeon who performed the operation, removed the infectious matter from the patient's abdomen, excised the affected portion of her bowel, and performed a colostomy. After surgery, Dr. Hafner informed appellee's husband that she had diverticulitis, not gynecological cancer. Appellee had a slow recovery due to peritonitis and associated complications, and ultimately, she was required to undergo four additional surgical procedures, involving a "take-down" of her colostomy and the correction of hernias caused by the related weakening of her abdominal wall. These surgical procedures extended into March 1996. Appellee spent a total of eighty-three days as an in-patient at Columbia Hospital for Women and George Washington University Hospital, and a nursing home.

B. Procedural History

On March 6, 1997, appellee filed suit in Superior Court against appellants and Dr. Match. Appellants and appellee filed cross-motions for summary judgment related to the statute of limitations defense. The trial court (Judge Retchin) denied appellants' motion and granted appellee's motion to strike the statute of limitations defense, concluding that the suit was filed prior to the third anniversary of the March 8, 1994 surgery, the first date on which the court found that the patient could have "known" that she had diverticulitis. The case was tried before a jury which found for Dr. Match on liability. The jury could not reach a verdict in the claim against appellants, thereby necessitating a new trial.

The parties agreed to a bench trial based on the record from the first trial and supplemental briefing. In a Memorandum Opinion, the trial court (Judge Graae) found in favor of appellee and awarded her $909,259.82 in damages, consisting of $209,259.82 in medical bills and $700,000.00 as other damages associated with Dr. Hardi's failure to diagnose and treat her diverticulitis. Subsequently, the court awarded appellee $14,903.92 as taxable costs. Appellants appeal both decisions. *fn1

II.

Appellants argue that the trial court erred in granting appellee's motion for partial summary judgment and striking their statute of limitations defense. They contend that the three-year statute of limitations bars the claim because more than three years before appellee filed her complaint: (1) she knew or could have known the doctor's failure to diagnose and treat her for diverticulitis, and (2) she had her last treatment with him. In response, appellee argues that the trial court, applying the discovery rule, properly concluded that the statute of limitations did not bar the claim. She contends that it was not until March 8, 1994, when it was determined surgically that her illness was a result of diverticulitis and a ruptured diverticular abscess, that she knew or could have known that Dr. Hardi failed to diagnose her condition and treat it as required.

In this jurisdiction, an action for medical negligence must be filed within three years from the time the right to maintain the action accrues. See D.C. Code § 12-301 (8) (2002). "Where the fact of an injury can be readily determined, a claim accrues at the time that the plaintiff suffers the alleged injury." Hendel v. World Plan Executive Council, 705 A.2d 656, 660 (D.C. 1997) (citing Colbert v. Georgetown Univ., 641 A.2d 469, 473 (D.C. 1994) (en banc)). However, where the fact of the alleged tortious conduct and resulting injury are not readily apparent, we apply the discovery rule to determine the date on which the statute of limitations commences to run. Id. (citing Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 425 (D.C. 1986)). Under the discovery rule, "a medical malpractice claim does not accrue until the patient has 'discovered or reasonably should have discovered all of the essential elements of her possible cause of action, i.e., duty, breach, causation and damages.'" Colbert, 641 A.2d at 473 (citing Bussineau, 518 A.2d at 434) (quoting Ohler v. Tacoma Gen. Hosp., 598 P.2d 1358, 1360 (Wash. 1979) (en banc) (other citation omitted)). This means that, under the discovery rule, a ...


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