(CA-1471-00) (Hon. Steffen W. Graae, Trial Judge)
Before Schwelb and Glickman, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
These consolidated appeals arise out of a jury tried medical malpractice suit filed by appellant, Dr. David Haidak, against his surgeon, Dr. Paul Corso, and the Washington Hospital Center (the Center), alleging that, after undergoing coronary bypass surgery, they negligently failed to provide proper care and failed properly to treat Dr. Haidak's ischemic optic neuropathy (ION - a process in which the optic nerve is starved of oxygen and which can, and in this case did, result in degrees of blindness). The jury, by a special verdict, decided that Dr. Corso and the Center failed in their duty of care and treatment, but that such failure did not proximately cause the ensuing malady. Dr. Haidak first asserts that the trial court erred when it refused to provide the jury with an instruction on Dr. Haidak's abandonment theory of causation; second, that it erred when it refused to allow several of Dr. Haidak's experts to testify about the cause, prevention, and treatment of ION; third, the trial court erred when it refused to allow plaintiff's ophthalmologist expert to testify about the likelihood of successful treatment of ION because the expert reached an opinion on the issue after he gave deposition testimony and appellees had no notice of his newly formed opinion; and fourth, the trial court erred when it refused to admit the package instructions for Levophed, a drug given to Dr. Haidak as part of his post-operative care. We are unable to agree with any of these contentions and, therefore, affirm. *fn1
Appellant, Dr. Haidak, underwent life-saving coronary by-pass surgery performed by Dr. Paul Corso at the Washington Hospital Center. Dr. Haidak, who is a board certified internist, hematologist and oncologist, and his wife met with Dr. Corso on September 9, 1998 (five days before the surgery). They testified that they informed him that Dr. Haidak becomes hypotensive after surgery. After surgery, Dr. Haidak was moved to the cardiovascular recovery room. Some time thereafter, his blood pressure decreased and he became hypotensive. He was then administered Levophed, a medication used to increase blood pressure. The package insert to Levophed says it is contraindicated for patients who are hypotensive except as an emergency measure. Dr. Haidak remained on Levophed for approximately 36 hours.
At 1:50 a.m. on September 15, Dr. Haidak was given one unit of packed red blood cells in an attempt to raise his blood pressure. He was given a second unit at 10:00 p.m. on the 15th. At approximately 4:45 a.m. on September 16, Dr. Haidak informed an Intensive Care Unit (ICU) nurse that he was losing vision in his left eye. The nurse informed the physician's assistant, who took no action and did not notify Dr. Corso. Dr. Corso checked on Dr. Haidak at 6:20 a.m. on September 16.
At 8:25 a.m. on September 16, Dr. Haidak was transferred to the "step down unit" at the Center. At that time he was assessed by a nurse and nurse practitioner. There is no evidence in the hospital records that Dr. Haidak made any complaints at this time. Dr. Haidak's wife, Cecily Holiday, and his father stayed with him for most of the 16th. *fn2 The next record of Dr. Haidak complaining about vision loss was at 1:00 p.m. on the 16th, when Dr. Leiboff, Dr. Haidak's cardiologist, checked in on Dr. Haidak. Dr. Leiboff informed the nurse practitioner then on duty, Stacey Miller, that Dr. Haidak was complaining of loss of vision and requested that she order an ophthalmology consultation with Dr. Kolsky, a neuro-ophthalmologist affiliated with the Center. Nurse Miller's notes reflect that she requested the consultation at 1:00 p.m. Subsequent complaints by Dr. Haidak were noted in his record at 3:00 p.m. and 6:45 p.m. that day.
At 8:00 p.m. the nurse practitioner then on duty, Elizabeth Davis, called the Eye Clinic for a consultation. Dr. Anne Burnley responded at 8:30 p.m., diagnosed the problem as ischemic optic neuropathy (ION), and called Dr. Kolsky. After initiating treatment, Dr. Haidak's vision eventually stabilized. By this time, however, Dr. Haidak was effectively blind in his left eye and had a scotoma (blind spot) in his right eye.
Dr. Haidak posited two alternative theories of causation: first, that the defendant's inadequate care, including the administration of Levophed, was a contributing cause of Dr. Haidak's developing ION; second, that the defendants abandoned and failed adequately to treat Dr. Haidak throughout the day of September 16. The jury found that the Center and Dr. Corso breached the standard of care, but that neither defendant's negligence was the proximate cause of injury.
The trial court refused to instruct the jury on the issue of abandonment. The court ruled that two of Dr. Haidak's experts were not qualified to render an opinion on ION, and that a third expert was not allowed to testify on matters not contained in the Rule 26 (b)(4) pretrial Statement. It also denied a request by the jury to view the package insert for the Levophed administered to Dr. Haidak as part of his post-operative care because it was not identified as an exhibit in the Joint Pretrial Statement and had not been properly introduced into evidence at trial.
One of Dr. Haidak's theories of proximate cause was that he was abandoned by Dr. Corso and the Center staff and that this abandonment was a contributing cause of the development of ION. Dr. Haidak requested a jury instruction on that theory in the Rule 16 Pretrial Statement, to which Dr. Corso objected. Dr. Haidak claims on appeal that the fact the trial court denied Dr. Corso and the Center's request for a directed verdict (pursuant to Super. Ct. Civ. R. 50) meant the court determined there was sufficient evidence as to that issue and that it should have instructed the jury as to the abandonment theory. Dr. Haidak argues the court's failure to do so was clear error. We disagree.
The trial judge must submit an instruction on a party's theory of damages to the jury if the theory is sufficiently supported by the evidence. Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685, 688 (D.C. 1977). "[I]n determining whether a proposed instruction on a party's theory of the case was properly denied, we review the record in the light most favorable to [the requesting] party." Nelson v. McCreary, 694 A.2d 897, 901 (D.C. 1997) (citing Wilson v. United States, 673 A.2d 670, 673 (D.C. 1996)). Abandonment is defined "as the termination of the professional relationship between the physician and patient at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement." Miller v. Greater Southeast Community Hosp., 508 A.2d 927, 929 (D.C. 1986) (citations omitted). Reviewing the record in the light most favorable to Dr. Haidak, as we must, we conclude that the trial judge did not err because there was insufficient evidence in the record to support a claim of abandonment.
The primary case on which Dr. Haidak relies is Ascher v. Gutierrez, 175 U.S. App. D.C. 100, 533 F.2d 1235 (1976). Ascher provides an excellent example of the sort of fact pattern necessary to present the issue of abandonment to a jury: Ascher was a patient in a surgical procedure for which Dr. Gutierrez was the scheduled anesthesiologist. Dr. Gutierrez administered sodium pentothal at 12:55 p.m., and within two or three minutes Ascher developed laryngospasm, a condition in which spasms of the throat muscles prevent the intake of oxygen. Dr. Gutierrez left the operating room at 1:30 p.m. to attend another operation; after weighing conflicting evidence, the jury determined that he was not replaced by another anesthesiologist. The court noted that the jury could have found that Ascher was not intubated until at least 1:45 p.m. (thereby restoring the flow of oxygen to her lungs and blood). The court upheld the jury's finding that, because Dr. Gutierrez left Ascher while she was being treated, and because he was not replaced by another anesthesiologist, Gutierrez abandoned his patient.
In this case, there is no evidence to suggest, nor does Dr. Haidak argue, that Dr. Corso terminated his doctor/patient relationship with Dr. Haidak, or that Dr. Corso should have been replaced by another cardiac surgeon. On the contrary, the record shows that after Dr. Corso performed successful cardiac surgery, Dr. Haidak was transferred to an intensive careunit for cardiac patients. Dr. Haidak's treatment was monitored by a team of physicians, physician's assistants, nurse practitioners, and nurses. Dr. Corso visited Dr. Haidak again the next morning, September 16, at 6:25 a.m. At 8:25 that morning, Dr. Haidak was transferred to a patient room (or so-called step down unit) where he was assessed by a nurse and nurse practitioner. He was seen on several other occasions that day by various hospital personnel. The essence of Dr. Haidak's complaint, both at trial and on appeal, is that the standard of care was inadequate insofar as hospital personnel failed properly to respond to knowledge of his medical condition. Thus the issue is one of the competency and adequacy of care, not whether or not care was terminated.
The facts at hand are similar to those of Johnson v. Bernard, 388 A.2d 490 (D.C. 1978). In that case, Johnson had a tooth extracted by Dr. Bernard, an oral surgeon. Johnson was sedated for the procedure, and ten to twenty-five minutes later she was ambulatory and moved to a recovery area. Dr. Bernard's assistant checked on Johnson once and at some point thereafter; Dr. Bernard came to check on her as well. Dr. Bernard found Johnson unconscious and evidencing a severe lack of oxygen. The trial court refused to give the jury an instruction on the issue of abandonment. On appeal, we held that "the evidence did not show a termination of the doctor-patient relationship[, but] did show that Dr. Bernard provided intermittent rather than continuous care, raising a question of negligence - not abandonment." Id. at 492 (citations and footnote omitted). As in Johnson, Dr. Haidak may have experienced intermittent care, but the evidence, viewed in the light most favorable to Dr. Haidak, does not support a claim of abandonment.
Dr. Haidak argues that the trial court committed multiple errors with respect to evidentiary issues relating to his expert witnesses. In particular, he claims that the trial court abused its discretion when it limited or rejected expert testimony of Drs. Vacanti, Dobrzynski, Miller, and Strom with respect to ION. Dr. Haidak also claims the trial court erred when it refused to allow Dr. Haidak's ophthalmologist, Dr. Hurwitz, to testify as to his opinion on the effective treatment of ION. Dr. Hurwitz had not reached an opinion when he gave his deposition testimony.
We note at the outset that much of the argument turns on the similarities and differences between ischemia generally and ION in particular, both as to causation, prevention, and treatment. Questions and answers pertaining to the effective treatment of ION are relevant to determinations of a breach of the standard of care; their relevance to causation, if any, is more limited. Moreover, since the jury determined that Dr. Corso and the Center did in fact breach the standard of care, we attempt to confine our analysis as much as possible to issues involving the causation and prevention of ION (to the extent that proof of the possibility, if any, of prevention helps to establish causation). All of Dr. Haidak's experts except Dr. Hurwitz testified, or were prepared to testify, that ION and ischemia are caused by the same phenomenon: a deprivation of oxygen. The issue then becomes how and why that deprivation occurs and whether the ION that may result is preventable. *fn3
We review the admission or exclusion of expert testimony for abuse of discretion. District of Columbia v. Anderson, 597 A.2d 1295, 1299 (D.C. 1991). The trial judge's decision will be affirmed unless it is manifestly erroneous. Eason v. United States, 687 A.2d 922, 925 (D.C. 1996), aff'd in pertinent part, 704 A.2d 284, 285 (D.C. 1997) (en banc) (per curiam); Coates v. United States, 558 A.2d 1148, 1152 (D.C. 1989). In Dyas v. United States, 376 A.2d 827 (D.C.), cert. denied, 434 U.S. 973 (1977), we set forth a three-part test for the admission of expert testimony: (1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman"; (2) "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth"; and (3) expert testimony is inadmissible if "the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert." Dyas, supra, 376 A.2d at 832, quoting MCCORMICK ON EVIDENCE, § 13, at 29-31 (E. Cleary, 2d ed. 1972). The first part of this test is not at issue in this case. We look to the record and the trial court's rulings with respect to each doctor and his respective area of expertise and testimony to determine whether it satisfies the second and third parts of the test.
Dr. Haidak offered Dr. Vacanti, a professor of medicine and an anesthesiologist, as an expert in the standard of care of the physicians and patients in a hospital, anesthesia, and the treatment of ischemia. After voir dire, the court accepted him as an expert with respect to medical records, the standard of care with respect to treatment of ischemia generally, and the standard of care for anesthesiology. Dr. Haidak did not object when the court declined to qualify Dr. Vacanti to testify about the treatment of ION. Dr. Vacanti had never treated a patient with ION, nor was he familiar with its effects or treatment. He had never lectured or conducted research on ION. He also testified that he did not believe that Dr. Corso's actions caused the ION.
Dr. Haidak claims that the trial court's decision to limit Dr. Vacanti's testimony to ischemia generally, and thereby exclude testimony as to ION, was manifestly erroneous and an abuse of discretion. *fn4 Coates, supra, 558 A.2d at 1152; Ornoff v. Kuhn & Kogan Chartered, 549 A.2d 728, 731 (D.C. 1988). To support this proposition, Dr. Haidak refers us to Baerman, in which the United States Court of Appeals for the District of Columbia Circuit held that a "'physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.'" Baerman v. Reisinger, 124 U.S. App. D.C. 180, 181, 363 F.2d 309, 310 (1966) (quoting Sher v. De Haven, 91 U.S. App. D.C. 257, 262, 199 F.2d 777, 782 (1952) (other citations omitted)). The Baerman court was persuaded by the record that the physician was knowledgeable about the subject matter about which he would have testified, and held that it was thus error to exclude his testimony. Id. We are not persuaded, on this record, that the trial judge erred by ruling that Dr. Vacanti was not knowledgeable about ION.
In any event, despite the limitations imposed on Dr. Vacanti's testimony, a review of the record reveals that he was, in fact, allowed to ...