Appeal from the Superior Court of the District of Columbia Civil Division (CA-6373-99) (Hon. Steffen W. Graae, Trial Judge).
The opinion of the court was delivered by: WASHINGTON,Chief Judge
Before WASHINGTON, Chief Judge,*fn2 RUIZ and GLICKMAN, Associate Judges.
Appellant Leroy Saunders ("Saunders") appeals the trial court's entry of a directed verdict in his medical malpractice case against George Washington University ("GWU") on the grounds that he failed to establish his prima facie case. Saunders contends that the testimony of his expert witness, Dr. Oswald Hoffler ("Dr. Hoffler"), was sufficient to establish that GWU's breach of a national standard of care proximately caused his injuries. In addition, Saunders argues that the trial court abused its discretion in failing to admit the deposition of another expert witness, Dr. William J. Brownlee ("Dr. Brownlee"), whose testimony, he claims, was sufficient to prove both causation and the national standard of care. Because Dr. Hoffler's testimony established the national standard of care and a breach of that standard, and because Dr. Brownlee's improperly-excluded testimony adequately established causation, we conclude that Saunders established a prima facie case of negligence, and, thus, the trial court erred in directing a verdict against him. Consequently, we reverse and remand for a new trial.
Saunders filed a complaint for medical malpractice against GWU on September 7, 1999. The complaint alleged that the hospital, through its interventional radiologists and other medical employees, negligently treated Saunders before, during, and after an angioplasty procedure. Specifically, the complaint charged GWU with: (1) negligence in failing to timely diagnose and treat the retroperitoneal bleed which caused his paralysis; (2) failing to obtain informed consent to perform the angioplasty; and (3) failing, after the angioplasty, to consult with a vascular surgeon where evidence suggested that a bleeding complication was likely to occur.
A. Dr. Brownlee's Deposition Testimony
In the course of the discovery process, GWU deposed Saunders' expert witness, Dr. Brownlee, for the purpose of discerning the nature and substance of his anticipated trial testimony. During his testimony, Dr. Brownlee was questioned on and addressed GWU's alleged breach of a national standard of care on several different occasions:
Q: Is that a breach of the standard of care, that the stick caused this bleed in the retroperitoneal area, or is that a natural complication of placing a femoral stick?
A: That's a natural complication of placing the stick.
The breach of the standard of care is not in the stick, itself, and not in the formation of bleeding from the stick. The breach is from the lack of recognition of the complication occurring with the manifestation of symptoms. (r). 386-87).
A: [Saunders] got what we call in general surgery a silent bleed. The reason I can tell you we are familiar with this is because in hernia surgery we know that we can sometimes stick the femoral vessel. We know if we stick the femoral vessels you can get a retroperitoneal bleed from it.
Q: Is that a breach of the standard of care?
A: No. To not recognize that you've got a bleeding patient is a breach of the standard of care. The Heparin only augments the fact of the hematoma formation. The breach comes in that he has complaints that should be evaluated, the fact that he is showing that he's bleeding and he's not being properly evaluated.
Q: Do you have a criticism of the fact that the patient was on Heparin to begin with at this point in time?
A: No. The criticism [is] that you do not recognize he's bleeding and you continue him on Heparin. That's kind of a subset. It's a breach in terms of maintaining him on Heparin on a bleeding patient.
Q: When should a CAT scan have been done on the 28th or the 29th?
A: The 28th ideally, the 29th absolutely. I'm saying the 29th absolutely because what you are doing, you're transfusing a man between the 28th and the 29th, and you're only bringing him up from 6.8 to 7.9, and if I am not mistaken he's gotten two units of blood. (r). at 393). . . .
Q: So it's fair to say, at least my understanding of your opinion is that silent bleeds or spontaneous bleeds are known complications of femoral sticks?
Q: And the fact that that occurred isn't a breach of the standard of care. The breach of the standard of care is the fact that they didn't, for lack of a better term, catch it and investigate it quick enough?
A: Correct. Failure to recognize. (r). at 400-01).
Q: So is it your opinion, I believe you've already given this testimony on September 27th, 1996, with a PTT reading of over 100 seconds the Heparin should have been discontinued at that point, 9/27/96?
A: Yes, that hour. This is in the evening hour, this is some six or eight hours or maybe longer after the procedure, the ...