Appeal from the Superior Court of the District of Columbia (CA-5807-97) (Hon. John H. Bayly, Jr., Trial Judge)
Before Schwelb and Reid, Associate Judges, and Ferren, Senior Judge.
The opinion of the court was delivered by: Ferren, Senior Judge
Opinion for the court by Senior Judge FERREN.
Opinion concurring in part and dissenting in part by Associate Judge REID, at p. 17.
Separate statement by Senior Judge FERREN, joined by Associate Judge REID, at p. 17.
Concurring opinion by Associate Judge SCHWELB, at p. 18.
Antoinette Carter (the Patient) visited Macy G. Hall, M.D. (the Doctor) about a hernia. The Doctor recommended surgery not only to correct the hernia but also to accomplish a reconstructive abdominoplasty (tummy tuck), in order to forestall recurrence of the hernia and to achieve a more normal appearance. Apparently because of the Patient's smoking habit, the surgery did not heal and two "debridement" surgeries were necessary before proper healing was accomplished.
This case, alleging the Doctor's malpractice, focuses first on the Doctor's and the Patient's respective responsibilities to make clear how much the Patient smoked - a critical predicate for the decision to go forward with the first operation. Each claims the other was negligent in failing to disclose or elicit the truth. But the Patient claims, in addition, that even if she had been contributorily negligent - a finding that she concedes would ordinarily bar her claim entirely - the Doctor had the "last clear chance" to prevent her injury. As a result, she says, District of Columbia law permits her to recover the $465,000 the jury awarded on that theory. The Doctor - relying on the jury's finding that the Patient indeed was contributorily negligent - replies that this ends the matter; he had no "last clear chance" to avoid the harm.
On this record, we cannot say that the trial judge erred in giving the jury a "last clear chance" instruction; the facts, reasonably interpreted, would sustain a plaintiff's verdict on that theory. Furthermore, the instruction, as formulated, was accurate. Nonetheless, when incorporated into the court's special verdict form, the instruction confused the jury, which sent four notes to the judge requesting clarification. More fundamentally, the verdict form permitted the jury to find that the Doctor's negligence proximately caused the patient's injury without having to find, first, an act of "antecedent negligence," which District of Columbia law requires before a "last clear chance" finding (based on new or renewed negligence) is justified. Accordingly, we must reverse.
The Doctor had the Patient fill out several forms that sought personal and medical history. He then discussed with her various aspects of the surgery including potential complications - in particular, fat necrosis, partial or permanent numbness, and scar deformity. The Patient then signed a form indicating that she and the Doctor had discussed the surgery in full. During their conversation, after the Doctor had inquired, the Patient revealed that she smoked about half a pack of cigarettes a day. The Doctor responded by casually informing the Patient that he preferred she stop smoking, and that she at least should cut back for the surgery because smoking was not good for wound healing. He did not ask her to stop smoking for a specific period before surgery, nor did he tell her that she should not smoke after the surgery. Eight days before surgery, the Doctor received a FAX from a pulmonary physician who had examined the Patient and diagnosed possible pulmonary and cardiac problems. This prompted the Doctor to order a chest X-ray of the Patient, completed two days before her surgery.
The day before surgery, the Patient went through a pre-operation workup with nurses and the anesthesiologist. She revealed for the first time that she actually was smoking a pack of cigarettes a day, recently down from two packs a day. The Doctor saw the Pre-Anesthetic Evaluation an hour before surgery and was "shocked" to discover the true extent of Patient's smoking habit. He thus knew before surgery that her true level of smoking meant a significantly increased risk of improper healing after the surgery. He then looked at the Patient's chest X-ray and saw no sign of lung disease. He also checked the readout on her pulse oximeter, which showed 96-97 percent, a readout which suggested, in his words, that the Patient was "not compromised" and was "a safe candidate for surgery." The Doctor did not talk with the Patient further about the correct level of risk associated with her smoking. Nor did he ask whether she wanted to postpone surgery or decide himself to postpone it. Rather, on the strength of the chest X-ray and the pulse oximeter reading he proceeded with the surgery under general anesthesia.
The day after the surgery, the Doctor visited the Patient in the hospital and noted that she was a smoker with diminished respiration. He ordered her placed on a forced-air machine to expand her lungs and increase her respiration. He also wrote an order to discharge the Patient the following morning. The Doctor did not tell the Patient not to smoke once at home.
During the Patient's first post-operative office visit, the Doctor observed no problem with the incision. He removed drains from the incision, advised the Patient on caring for it, and told her to return in ten days or earlier if the incision developed a problem or if she had any concern. The Doctor did not discuss the Patient's smoking habit with her during this visit.
At the second post-operative office visit, the Doctor noted that the Patient's incision had developed "ischemic" changes, and that it was breaking down and would need "debridement." *fn1 The Doctor filled out a treatment plan for the Patient to give to her visiting nurse, but the plan contained nothing about smoking. On this occasion, however, the Doctor did discuss the Patient's smoking and told her that he was "concerned" about it. The Doctor scheduled the debridement surgery and, a few days later, discussed the scheduled surgery with a visiting nurse. He did not tell the nurse that the Patient was not to smoke.
In the first debridement surgery, the Doctor removed necrotic fat tissue and reclosed the incision. This procedure risked the same improper healing that the original surgery had. In a post-operative visit, the Doctor explained to the Patient that if necrosis recurred, he would not be able to do another debridement to reclose the incision, because that would create more deformity. Instead, he would have to leave the incision open after debridement and close it later with a graft of skin taken from another part of her body. He did not discuss her smoking with her, however, or suggest that she should not smoke during recovery from surgery.
In a post-debridement office visit, the Doctor noted that Patient had additional fat necrosis and separation. He scheduled a second debridement surgery after which he left the incision open pending a skin graft, which was successful. The entire process left the Patient with two scars reflecting ...