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Chidel v. Hubbard

January 15, 2004

DR. IRA W. CHIDEL, ET AL., APPELLANTS/CROSS-APPELLEES,
v.
VIRGINIA HUBBARD, APPELLEE/CROSS-APPELLANT.



Appeals from the Superior Court of the District of Columbia (CA-3873-95) (Hon. Peter H. Wolf, Trial Judge)

Before Steadman, Farrell, and Washington, Associate Judges.

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

Argued October 8, 2003

Appellants, Dr. Ira W. Chidel("Dr. Chidel"),Wener, Boyle & Associates, P.A. ("Wener"), and cross-appellant, Virginia Hubbard ("Ms. Hubbard") challenge the trial court's resolution of the parties' claims for contribution arising from Ms. Hubbard's medical malpractice suit. Dr. Chidel and Wener contend that the trial court should have permitted Dr. Chidel to recover a pro rata share of Ms. Hubbard's settlement with the District, despite his failure to comply with the notice requirements of D.C. Code § 12-309 (2001). Ms. Hubbard, however, claims that neither Dr. Chidel nor Wener are entitled to recover a share of her settlement with the District.

Dr. Chidel and Wener further argue that the trial court erred in ruling that interest on the judgments against them would accrue from the date of the initial judgment.

We agree with the trial court that Dr. Chidel's failure to timely notify the District precluded him from recovering a pro rata share of Ms. Hubbard's settlement with the District. Although we recognize that Wener gave timely statutory notice informing the District of its potential liability as Dr. King's employer, we find this notice legally insufficient to permit a claim against the District for the negligent operation of the Southwest Clinic. In light of the trial court's finding that there were three joint tortfeasors, and our determination that Dr. Chidel and Wener are entitled to recover from only one, we conclude that Dr. Chidel and Wener may recover a contribution of $333,333.33 to offset the $1,000,000 jury verdict against them. Finally, we concur with the trial court that interest properly ran from the date of the initial verdict. Therefore, we affirm in part, vacate in part and remand for entry of judgment consistent with this opinion.

I.

More than a decade ago, Ms. Hubbard's doctors negligently failed to inform her of a suspicious mass found on her mammogram. At the time, Ms. Hubbard's primary care physician was Dr. David King ("Dr. King"), an employee of the Southwest Clinic which is operated by the District of Columbia. On January 25, 1993, Dr. King referred her to Greater Southeast Community Hospital ("GSECH") to have a mammogram screening. Ms. Hubbard visited GSECH on March 5, 1993, at which time the mammogram was taken. Dr. Chidel, a radiologist at GSECH, reviewed the mammogram, noting the suspicious mass in his report and indicating, "Dr. King has been notified of these findings." Dr. King, however, denied ever having been informed of the abnormal mammogram results. Ultimately, Ms. Hubbard did not learn about the mass until July of the following year when subsequent tests revealed that the mass was cancerous and had metastasized to her lymph nodes, requiring both a mastectomy and chemotherapy.

On May 17, 1995, Ms. Hubbard filed a complaint against GSECH, Dr. Chidel, and Dr. King alleging medical malpractice. *fn1 During the discovery process, Ms. Hubbard learned that Wener was Dr. Chidel's actual employer and was granted leave to file an amended complaint including Wener as a defendant in April 1996. In response to the amended complaint, a number of claims for contribution and indemnity were made. Initially, on May 2, 1996, GSECH filed a cross-claim against Dr. King. On May 3, 1996, Wener filed both a third-party complaint against the District as Dr. King's employer, *fn2 and, together with Dr. Chidel, a cross-claim against Dr. King. Both the District and Dr. King filed separate cross-claims against Dr. Chidel and Wener on August 27, 1996.

On the morning of trial, Ms. Hubbard settled her claims against Dr. King and the District for $500,000. In doing so, she agreed to indemnify the two parties from any and all claims by the remaining defendants Dr. Chidel, Wener, and GSECH. At the conclusion of the trial on November 5, 1997, the jury returned a verdict finding Dr. Chidel and Wener negligent, and that their negligence proximately caused Ms. Hubbard's injury. The jury also found GSECH independently negligent, but did not find its negligence to be a proximate cause of Ms. Hubbard's injury. The jury then awarded Ms. Hubbard $1,000,000 in damages.

Immediately thereafter, the trial court made a number of factual findings related to the cross-claims and the third-party claim for indemnification and contribution. The trial court determined that neither Dr. Chidel nor his employer Wener were liable for Ms. Hubbard's injuries. Instead, the trial court concluded that Dr. King had "made no effort whatever to retrieve the March 5, 1993 mammogram, and he had a duty to do that, and his failure to do it was a violation of the standard of care for a referring physician." The trial court further found that the Southwest Clinic's "sloppy record keeping" and failure to locate the missing mammogram results violated the standard of care for a health care facility, and that the District, as operator of the Southwest Clinic was responsible for this lapse. However, because the trial court could not pinpoint whether it was the Southwest Clinic or Dr. King who had failed to ensure that Ms. Hubbard's report ended up in her file, the court deemed both the District and Dr. King to be the proximate causes of the injury, "both separately and together."

After allowing the parties to submit memoranda concerning the cross-claims and third-party claim for indemnification and contribution, the trial court rendered its final decision on February 2, 1998. The trial court concluded that Dr. Chidel, Wener, and GSECH were "entitled to full indemnity from settling defendant Dr. King" because "Dr. King's and the Southwest Neighborhood Center's negligence was far more egregious, primary, direct, causative, correctable, avoidable, aggravating, superceding, and repetitive extending over many months compared to any negligence of the trial defendants." The court concluded that Ms. Hubbard would receive nothing from defendantsChidel, Wener, and GSECH.

Ms. Hubbard then appealed the trial court's verdict. On January 31, 2002, this court reversed the trial court's ruling that Dr. Chidel, Wener, and GSECH were entitled to full indemnification. Hubbard v. Chidel, 790 A.2d 558, 573 (D.C. 2002) ("Hubbard I"). Our rationale was twofold: (1) the trial court erred in making factual findings that were inconsistent with the jury's findings because the parties had not made an appropriate and timely post-trial motion to set aside the jury's verdict; and (2) it was improper for the trial court to require Dr. King and the District to indemnify Dr. Chidel, Wener, and GSECH because all parties were joint tortfeasors and guilty of active negligence that concurrently produced Ms. Hubbard's injuries. Id. Finding indemnification inappropriate, we remanded the matter to the trial court "to determine the number of joint tortfeasors subject to the contribution remedy, and then decide the appropriate pro rata credit or percentage reduction of the jury award of $1 million against Dr. Chidel and [Wener]." Id. at 573. Although we concluded that Wener gave timely notice under D.C. Code § 12-309, *fn3 we left it to the trial court to determine whether Dr. Chidel was required to give the District separate notice of his claim for contribution. Id.

On remand, the trial court ordered the parties to brief the issues related to the contribution remedy. After considering the positions of the respective parties, the court issued a Memorandum Opinion on November 21, 2002. In it, the trial court found that "factually (though not necessarily for contribution purposes)" there were three separate tortfeasors: "(1) Defendants Chidel and Wener treated as one, (2) Dr. King, and (3) the District of Columbia as operator of the Southwest Clinic." *fn4 The trial court further found that "cross-claims for contribution [had] properly been made by both defendants Chidel and Wener against the District for both the conduct of Dr. King and the operation of the Southwest Clinic." *fn5 Next, the trial court found ...


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