Appeal from the Superior Court of the District of Columbia (CA-7485-01) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 27, 2005
Before REID and KRAMER, Associate Judges, and NEWMAN, Senior Judge.
Opinion for the court by Associate Judge REID.
Dissenting opinion by Associate Judge KRAMER at page 43.
After a jury trial in this medical malpractice matter, which involved lower back surgery and allegations of improper surgical technique, the jury rendered a verdict in favor of appellees, Dr. Jeff Jacobson, the Neurological Surgery Group, and the Washington Brain and Spine Institute, P.C. Appellants, Dr. Sardul S. Pannu and his wife, Surinderjit G. Pannu appealed, alleging that the trial court erred in declining to give the proposed modified version of STANDARDIZED CIVIL JURY INSTRUCTION FOR THE DISTRICT OF COLUMBIA, § 5.03 (rev. ed. 2005) (hereinafter Instruction 5-3), which the appellants had specifically requested. Appellants maintain that the proposed instruction -- "a reasonable doctor under the standard of care changes [his] [her] conduct according to the circumstances or according to the danger [he] [she] knows, or should know, exists"; and that "as the danger increases, a reasonable doctor under the standard of care acts more carefully" -- was a significant part of their theory of the case which was supported by evidence from expert witness testimony. We conclude that the trial court did not err by refusing to give the precise wording of the requested instruction, because it contained phrasing which could have confused the jury regarding the applicable law. Nevertheless, it was incumbent upon the trial court to give the jury a fair and accurate statement of the law of negligence, in the context of a medical malpractice case involving neurological surgery. And, the failure of the trial court to give an instruction consistent with the legal principles set forth in this opinion constituted an erroneous exercise of discretion. Furthermore, we hold that the error was not harmless and thus constituted an abuse of discretion. Consequently, we reverse the judgment of the trial court and remand this case for a new trial.
The record on appeal shows that in April 2000, Dr. Pannu was a sixty-four-year-old chemistry professor with a history of lower back pain. Dr. Pannu consulted with Dr. Jacobson, who, after performing several diagnostic tests, recommended that Dr. Pannu undergo a decompressive lumbar laminectomy and a partial discectomy. Dr. Jacobson believed that Dr. Pannu was suffering from lumbar stenosis, a narrowing of the spinal channel, which compresses the nerves traveling through the lumbar spine to the legs. The surgery was intended to excise the posterior arch of the vertebrae, known as the lamina, and an intervertebral disc in order to relieve compression of the nerves of the spine.*fn1
The surgery took place on June 9, 2000 at Suburban Hospital in Bethesda, Maryland. While working to remove the lamina from the lower portion of one of the lumbar vertebrae, known as L5, using manual bone-cutting instruments called rongeurs, Dr. Jacobson inadvertently nicked the dura, the tough fibrous membrane covering the spinal cord; and created a one millimeter tear in it, apparently a relatively common complication of such surgery. Through the hole in the dura Dr. Jacobson could see the arachnoid, a thin, delicate, cobweb-like membrane that lies beneath the dura and encloses the spinal cord; however, no cerebrospinal fluid was leaking out and no nerves had been damaged.
Dr. Jacobson then moved to the upper portion of L5 and attempted to continue using the rongeurs. However, the fact that Dr. Pannu's dura was thinner than normal and very nearly stuck to the underside of the lamina made it difficult to separate the dura adequately from the bone. Dr. Jacobson determined that a high-speed, turbine, hand-operated drill would be an equally effective way of thinning the lamina to a thickness that would allow him to pick away the remaining bone with special instruments. He fit the drill with a five-millimeter burr, tested it, and used a small piece of cotton, known as a cottonoid, to protect the already exposed dura.*fn2 Since he could not place the cottonoid between the dura and the bone due to the inadequate spatial conditions, Dr. Jacobson laid the cottonoid on the exposed dura next to the bone and proceeded to drill, with one hand operating the drill and one hand operating the suction instrument.
As Dr. Jacobson continued to perform the surgery, his drill encountered a piece of bone of uneven consistency, which caused the drill to jump and land in the dural sac between the bone and the cottonoid near the area which had already been torn. The drill severed several of Dr. Pannu's nerves, specifically those responsible for bowel and bladder control. Dr. Jacobson removed the nerves from the drill, put them back in the dural sac, sutured it closed, placed fibrin glue over it, and continued on with the operation, the remainder of which was successful.
Dr. Pannu lost bladder and bowel function and has no hope of regaining them.*fn3 Consequently, Dr. Pannu's life revolves around the time and labor intensive processes that he must undergo in order to urinate and defecate. He must catheterize himself every four hours in sterile environments to guard against urinary tract infections; he wears a diaper due to his total inability to control his bowels, and often must manually disimpact himself.
Dr. Pannu's injuries have caused him to suffer episodes of depression. He retired from his position as a tenured professor of analytical chemistry at the University of the District of Columbia due to his embarrassment over his inability to control his bowels. His social life has deteriorated as well as his intimacy with his wife. Appellants filed a medical malpractice action against appellees. Dr. Pannu sought compensatory damages for the loss of his bowel and bladder functions, and Mrs. Pannu claimed damages due to loss of consortium. The jury returned a verdict in favor of defendants/appellees.
Dr. Pannu presents only one issue on appeal: whether the trial court erred in refusing to give a modified version of STANDARDIZED CIVIL JURY INSTRUCTION 5-3, which would have expressed appellants' theory of the case that, in a medical malpractice action, as the danger increases, a proportional change in conduct is required. Appellants contend that the trial court had no discretion as to whether or not to give the instruction because there was sufficient evidence in the record to establish a factual predicate for it. They cite testimony from medical experts from both parties, as well as the trial judge's conclusion that they had laid a factual predicate to substantiate their claim. They insist that no other instruction given by the trial judge adequately explained the legal principle that negligence is a relative concept and that consequently, the jury did not receive a complete and accurate set of instructions on the applicable law.
Appellees counter that the requested instruction was correctly refused because it is most appropriately given in general negligence cases, whereas it can be confusing to jurors in a medical malpractice suit. Appellees argue that in cases that do not involve expert witnesses, juries are expected to be able to draw upon their life experiences to determine what it means to "act more carefully" in a dangerous situation. However, they assert that juries are not expected, nor should an instruction tell them, to determine on their own what it might mean for a neurosurgeon to act more carefully during a surgery that involves working millimeters away from the spinal cord. Instead, they contend, juries are expected to listen to the expert testimony and conceptualize an understanding of the appropriate standard of care from what they believe was the most credible testimony. They assert that the jury was free to believe the appellants' expert testimony concerning what Dr. Jacobson needed to do to be more careful, but that an instruction telling the jury that Dr. Jacobson had to act more carefully would invite jury speculation. Moreover, they argue that judges retain some discretion in refusing requested jury instructions when it involves a legal, not factual, question. Finally, appellees contend that an overview of the complete set of jury instructions given by the trial judge reveals that he did provide a fair and accurate explanation of the law.
Before discussing the legal issue presented, and the arguments of the parties, we set forth pertinent background information. Then we articulate applicable legal principles.
Most of the trial testimony involved medical experts who were presented by both parties to explain to the jury what the appropriate national standard of care was in 2000 for a board-certified neurosurgeon performing the type of lower back surgery Dr. Jacobson had conducted on Dr. Pannu. Each side called two independent medical experts, and Dr. Jacobson testified for the defense. The testimony covered acceptable surgical techniques, equipment, and personnel used for the procedure including: the drill versus manual bone-cutting instruments; the type of drill; the size of the drill bit; the direction and motion of the drill; various items which could protect the dura during surgery; the use or non-use of an assistant as an extra pair of hands to help protect the dura; and the use of two hands versus one hand while operating the drill.
Dr. George Gruner and Dr. Lawrence F. Marshall, the medical experts for the appellants, each testified that Dr. Jacobson should have been more careful during the operation. At the time of the trial, Dr. Gruner was a board-certified neurosurgeon who practiced in Virginia.*fn4 Prior to testifying, he reviewed Dr. Pannu's medical records, including Dr. Jacobson's operative report, and Dr. Jacobson's deposition transcript. Dr. Gruner stated that "the closer you get to the dura, the more careful you have to be and the more likely you are to have an injury. . . . The most important goal is, number one, . . . to prevent any type of injury to the nerve roots." When asked if it was his opinion that "the standard of care for a reasonably prudent Board Certified neurosurgeon require[s] him or her to take all necessary actions to protect against nerve injury," Dr. Gruner replied "Yes." (Id. at 229-30).
In Dr. Gruner's opinion, which was based on the operative report, Dr. Jacobson's deviation from the standard of care was demonstrated by his failure to use a cottonoid to adequately protect the dura. He testified that:
The original operative report does not state anything about putting a cottonoid toward the dura, about using any type of measure to protect the dura the way one normally would. It's because of that I said this was below the standard of care. The dura in this situation, especially because it was thinned, needed to be adequately protected.*fn5
Dr. Gruner believed that if the cottonoid had been used in "the appropriate manner . . . more likely than not  it [would] have been effective." (Id. at 240). Dr. Gruner also discussed other possible methods of protecting the dura. While recognizing that the national standard of care is not based on his own practice, Dr. Gruner noted that his technique when drilling bone involved the "use [of] two hands. Some surgeons use one hand. Both are appropriate. With both methods you're trying to [maintain] control . . . whenever you use a drill there is a tendency for the drill to kick." (Id. at 233). When questioned about the drill specifically Dr. Gruner commented that neurosurgeons sometimes use "diamond drills. The advantage of a diamond drill is it doesn't drill as rapidly and it's finer. It takes much longer and you go just minutely. We use it around the brain stem. In this area most people will not use a diamond drill."*fn6 (Id. at 234). As for the burr size, Dr. Gruner testified, "[a]s a general rule you can state the larger the burr size the more likely it is to kick," and that the bit Dr. Jacobson used was "on the medium to large size." (Id. at 234-35). Dr. Gruner also mentioned that if a doctor didn't use a cottonoid to protect the dura, "one would use a piece of metal, if one could get that in there properly. Having the assistant control [the metal retractor] as well." (Id. at 241). Dr. Gruner testified that it was possible to use the rongeurs throughout such an operation and that "the advantage of the [rongeur], as opposed to the drill, is the fact that . . . your hand has total control of that instrument, [so] you can do it slowly."*fn7 (Id.) Finally, as his direct testimony drew to a close, Dr. Gruner stated his opinion that Dr. Jacobson "deviated from the normal standard of care . . . [b]y not adequately protecting the dura at a time when it was most liable for injury."
On cross-examination, Dr. Gruner acknowledged that Dr. Jacobson did not list a number of items in his operative report that he actually used during Dr. Pannu's surgery. On redirect examination, Dr. Gruner was again asked how Dr. Jacobson deviated from the standard of care. He responded, in part:
In reading the original operative report there is no mention . . . made of any type of protection that was offered to the dura at the time he was drilling. That's very important to a[n] incident like this. Anytime an untoward event occurs, a prudent neurosurgeon would dictate immediately their operative note, what happened, what they did, while it's still fresh in their mind . . . . The original operative report does not state anything about putting a cottonoid toward the dura, about using any type of measure to protect the dura the way one normally would. It's because of that instance that I said this was below the standard of care. The dura in this situation, especially because it was thinned, needed to be adequately protected. Now, how you protect it, there are various methods. I use one method. Dr. Jacobson may use one method. Other doctors may use another method. But you try to use every method humanly possible to protect that dura because the consequences of not protecting can be disastrous, as it was.
Dr. Marshall was the other board certified neurosurgeon presented by appellants.*fn8 He supported Dr. Gruner's views, testifying that "the issue is when you have the possibility or probability of direct dural contact with a drill, then every precaution has to be exercised." Dr. Marshall, testified that "the standard [of care] requires appropriate precautions be taken to protect the dura." He declared: "In a straight forward lumbar stenosis case . . . there is a relationship between the potential of operator error and increased nerve root injury." When asked if such precautions include using "some object, be it cotton, be it fiber, be it metal, be it plastic," to protect the dura, Dr. Marshall answered, "what you have enumerated, yes . . . I think some mechanism of protection of the dura, cotton, another instrument is generally required." (Id. at 467-70). He also asserted that "[i]f you have multiple injuries to a nerve root, to nerve roots using a drill you have violated the standard of care." (Id. at 371). Moreover, in Dr. Marshall's opinion, it is "highly unlikely" that Dr. Jacobson would have severed the specific nerves that he did if he had been drilling in the proper direction -- from medial to lateral (inside out).*fn9 (Id. at 397).
However, when pressed by appellants' own counsel as to what "the standard of care specifically require[d] of Dr. Jacobson . . . to prevent against [Dr. Pannu's] injury," Dr. Marshall replied, "I think that's a complex question because  one isn't there." (Id. at 401). Although he could not testify that there were specific requirements demanded by the standard of care, Dr. Marshall did offer alternate techniques that Dr. Jacobson could have used to prevent Dr. Pannu's injuries, in large part echoing Dr. Gruner. He mentioned that a neurosurgeon could 1) use the suction device or bayoneted forceps as protective instruments to provide a barrier for the dura; 2) reduce the torque on the drill or the air pressure to reduce the drill speed; or 3) use bone cutting instruments. (Id. at 401-03). He stated that, at a minimum, the standard of care required that Dr. Jacobson maintain control of the drill "every second during the surgery," and in his opinion Dr. Jacobson did not control the drill within the standard of care because "the degree of movement of the drill . . . [was] inconsistent with adequate control of the drill." (Id. at 406-10). He acknowledged that in using a drill to remove bone, the surgeon may confront "different bone consistencies," which may cause the drill to kick or move. But, "that doesn't happen most of the time . . . . It happens . . . . But it's unusual . . . ."
Dr. Jacobson, and the experts testifying on his behalf, attempted to counter Dr. Gruner and Dr. Marshall's testimony by asserting that despite the increase in danger to the nerves that resulted from the first tear in the dura, there was nothing physically different that he could have done to provide more protection for the dura once it had been torn.*fn10 Dr. Jacobson testified that although Dr. Gruner was correct that he had not written in the original operative report that he had used a cottonoid to protect the dura, that was simply a mistake in his own dictation because it was his common practice to place a cottonoid in the area to protect the dura and he had done so during Dr. Pannu's surgery. He admitted that the standard of care required him to "protect and be cognizant of where the dura is," but maintained that there was no single correct way to do so. He pointed out that "[t]here are some surgeons who put absolutely nothing there [to protect the dura]. Their protection is the skill and environment in which they're working." (Id. at 199).
Dr. Jacobson further testified that he felt the safest and most comfortable when using one hand on the drill because he was taught "that it was safer . . . [to] use the suction with one hand and the drill with the other"; and that he avoided techniques that call for an additional pair of hands because "although there are four hands, there are really only two eyes . . . I can't control [an]other person's hand. . . . I don't like to trust, under those circumstances, the actions of another person that can't see what's going on." (Id. at 194-97). Dr. Jacobson insisted that his use of the drill was appropriate, that the size and substance of the drill bit met the standard of care, and that he tested the drill before the operation began and it had performed well. (Id. at 177-79). Essentially, he testified that he met the standard of care at all times and that there was nothing procedurally safer that he could have done to protect the dura.
The medical experts testifying on behalf of Dr. Jacobson corroborated his view. Dr. Mark Shaffrey, a board-certified neurologist at the time of the trial was the medical director of the University of Virginia's Neuroscience Service Center and professor of neurosurgery at the University of Virginia Hospital (through the University of Virginia School of Medicine).*fn11 Dr. Shaffrey reviewed record documents, including deposition transcripts and Dr. Jacobson's operative report. He was asked his opinion as to "whether or not the care and treatment during the course of the surgery on June 9, 2000, by Dr.  Jacobson, and the surgery of Dr. Pannu met the applicable standard of care of reasonable conduct by a board certified neurosurgeon in the performance of that surgery?" He replied: "I believe it met the standard of care." In explaining his response, he testified that "it would [not] be possible to say that there's any one technique in any situation that would embody the standard of care. Therefore, they're [sic] going to be many techniques to do the same job that basically are all acceptable." When asked whether Dr. Jacobson's use of a high-speed drill to remove or thin a thickened piece of lamina was "in accordance with the standard of care," Dr. Shaffrey replied in the affirmative. (Id. at 89). He testified that when "the dura is thinned . . . normally you can't use the punches and the Rongeurs without destroying the joints or compromising the stability of the spine. That's why we use the drill." (Id. at 133).
Dr. Shaffrey was asked about each of the techniques used by Dr. Jacobson and despite admitting that "for me, rough surfaces [on the bone] are areas where you have to pay a lot of attention," he did not indicate that there was anything more that Dr. Jacobson could have physically done to protect the dura. (Id. at 133). In fact, he testified that Dr. Jacobson was "not required" under the standard of care to use anything to "separate the drill from the [exposed dura]," because he had often seen other specialists perform the surgery successfully without using any barrier. (Id. at 104-05). Concerning the standard of care and "the direction that a physician drills the lamina in the spine during a lumbar stenosis at the L4/L5 level," Dr. Shaffrey stated: "I'm not aware of any standard for the direction that the drill should be used." He added, "you have to be prepared when you do an operation like this for the bone to be of various consistencies, thicknesses, hard, soft, all of those instances. And you're not sure . . . before you start what those are going to be. You have to go in and assess the situation as you go." He rejected the correlation between "the number of nerve roots that were injured" and the "control of the drill." Several nerve roots could be injured if the drill traveled only "a short distance" because "[a] lot of nerve roots in the thecal sac are tied together with little strands of something called arachnoid, which means spider web[, and] . . . . if you hit the arachnoidal membrane, you can automatically wrap up or lacerate several [nerve roots]." With regard to the use of the cottonoid to protect the dura, defense counsel asked Dr. Shaffrey: "[I]n the year 2000 in June of that year, did all board-certified neurosurgeons practicing acceptable care use cottonoids to protect the thecal sac or the dura and its contents when drilling on the lamina near the edge of the lamina?" He replied: "No." During "the course of operating with other competent neurosurgeons," Dr. Shaffrey "often" "observed  other specialists using no barrier device when using a drill" with one hand.
Dr. Donlin Long was the other defense board-certified neurosurgeon.*fn12 He testified that the tragic result of Dr. Pannu's surgery was simply one of those unfortunate complications that you cannot completely avoid if you're going to do this kind of surgery . . . . I certainly wouldn't prescribe a way and say that's the only way it can be done . . . . [It d]epends on what you're comfortable with, how you've learned it, and how you think you do it best. . . . There are just many ways to use that drill.
(Id. at 159-62). Dr. Long further asserted that "there's nothing that anybody has ever worked out that's a sure protection. . . . [T]here is just no instrument made for that purpose. There's nothing you can do that will definitely prevent this from happening." (Id. at 165).*fn13 He noted that a dural tear of the sort Dr. Jacobson first made was not a ...