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Deramus v. Donovan

July 27, 2006

JODY DERAMUS, APPELLANT
v.
DONOVAN, LEISURE, NEWTON & IRVINE, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia (CA-8848-96) (Hon. A. Franklin Burgess, Jr., Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Submitted July 31, 2003

Before RUIZ, Associate Judge, and TERRY and SCHWELB, Senior Judges.*fn1

After the death of her husband Frank Deramus in 1991, appellant Jody Deramus filed suit in federal court against Jackson National Life Insurance Company ("Jackson National") for failing to disclose that her husband had tested positive for the human immunodeficiency virus ("HIV") during a medical examination administered through the company three years earlier.*fn2 Appellant retained a law firm, appellee Donovan, Leisure, Newton & Irvine ("Donovan"), to represent her in that lawsuit.*fn3

After receiving an unfavorable decision in her federal case, and after taking Donovan's advice not to file suit against her husband's local physicians*fn4 for failing to detect the virus earlier, appellant noted an appeal to the Fifth Circuit and, soon thereafter, filed this legal malpractice action against Donovan in the District of Columbia. In the case against Donovan, only one of Mrs. Deramus' several claims made it to the jury, namely, her allegation that the firm engaged in malpractice by advising her to drop her suit in a Mississippi state court against her husband's local doctors. The jury returned a verdict in favor of Donovan, and Mrs. Deramus noted this appeal.

Before this court Mrs. Deramus maintains that the trial court erred in failing to give the jury an instruction on the Mississippi statute of limitations, which the jury requested during its deliberations, and incorrectly granted summary judgment in favor of Donovan on two of her other claims. We reject all of her arguments and affirm the final judgment.

I.

As part of the application process for supplemental life insurance coverage from Jackson National, Frank and Jody Deramus underwent separate medical examinations in April 1988. The results of both examinations were forwarded to Jackson National's medical director, Dr. Lewis Stewart, Jr. Shortly thereafter, Mr. Deramus was notified that the additional coverage he sought had been denied for undisclosed medical reasons. Eighteen months after undergoing the examination, Mr. Deramus was hospitalized at the Johns Hopkins Medical Center in Baltimore, Maryland, where he was diagnosed as HIV-positive.*fn5 In June 1991 Mr. Deramus died as a result of complications related to HIV.*fn6

Appellant subsequently hired Donovan to represent her in a suit alleging that Jackson National negligently failed to disclose to her husband that he was HIV-positive in 1988. The suit claimed generally that Jackson National had a fiduciary duty to Mr. Deramus to inform him of his medical condition. On September 29, 1995, the United States District Court for the Southern District of Mississippi granted summary judgment in favor of Jackson National, holding that the insurance company did not owe a duty to Mr. Deramus under Mississippi law.*fn7

Appellant took an appeal to the Fifth Circuit, but the District Court's decision was affirmed. Deramus v. Jackson Nat'l Life Insurance Co., 92 F.3d 274 (5th Cir. 1996).*fn8

After the notice of appeal was filed, but before the case was briefed and argued in the Fifth Circuit, appellant dismissed Donovan as her counsel and filed this legal malpractice action against the firm in the Superior Court of the District of Columbia. In her amended complaint she alleged, inter alia, that Donovan was negligent when it (1) advised her to drop the wrongful death suit against her husband's local doctors; (2) failed to seek certification of the issues decided by the United States District Court in Mississippi to that state's Supreme Court; and (3) failed to include the testing laboratories and the insurance company's agent and physician among the parties allegedly liable for her husband's death. Appellant sought $16 million in compensatory and punitive damages.

Donovan in due course filed a detailed motion for partial summary judgment; responsive pleadings were filed, and a hearing was held on February 24, 2000. The next day, February 25, the trial court entered an order granting summary judgment for Donovan on all claims except those concerning whether or not it had engaged in legal malpractice by advising Mrs. Deramus to dismiss her medical malpractice suit against the local physicians in the Mississippi state court. Appellant's motion for reconsideration of this order was denied on May 9, 2000, in a one-sentence order. A motion for "reconsideration and/or clarification" of the May 9 order was denied on October 11, 2000.*fn9

Trial on this sole remaining issue began several months later. What occurred next was a trial within a trial, i.e., a medical malpractice trial to determine whether Donovan was negligent when it advised appellant not to sue her husband's local doctors. It was first necessary to determine whether any medical malpractice had occurred, for if Mr. Deramus' local physicians were not negligent in failing to diagnose his HIV status, then no damage could have resulted from Donovan's advice not to sue them. Under Mississippi law, which was the operative law at the trial below, one cannot recover damages in a medical malpractice case simply because of a diminution in the chance of recovery. Rather, damages are allowed only when the failure of a physician to render the required level of care results in the loss of a reasonable probability of substantial improvement in the patient's condition. See, e.g., Singleton v. Stegall, 580 So. 2d 1242, 1246 (Miss. 1991); Clayton v. Thompson, 475 So. ...


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