Appeal from the Superior Court of the District of Columbia (CA-2557-01) (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before REID and KRAMER, Associate Judges, and LONG,*fn1 Associate Judge, Superior Court of the District of Columbia.
The appellee, Kimberly Donaldson, asserted medical malpractice claims against the appellant, Dr. Lewis Townsend,*fn2 and Sibley Memorial Hospital ("the Hospital")*fn3 following complications from a surgical procedure that led to subsequent surgeries and permanent injuries. After a twelve-day trial, a jury found Dr. Townsend and the Hospital liable and returned a verdict in favor of Ms. Donaldson in excess of three million dollars. Only Dr. Townsend has appealed, the Hospital having settled with Ms. Donaldson. On appeal, Dr. Townsend asserts that there were numerous errors committed during the course of the trial, including the use of an insufficient verdict form, improper admission of expert testimony, unfair surprise and an erroneous ruling on his motion for judgment notwithstanding the verdict. We affirm.
On January 8, 2000, Ms. Donaldson was admitted to the Hospital for a surgical procedure called a dilation and curettage ("D&C") to be performed by Dr. Townsend.*fn4 During the procedure, Dr. Townsend inadvertently perforated Ms. Donaldson's uterus. In doing so, he seized a piece of yellow tissue that he identified as fat. Testimony at trial indicated that yellow tissue is not normally found in the uterus, and that the tissue likely came from the omentum*fn5 or the bowel, which is located behind the uterus. Dr. Townsend directed the nurse not to send the specimen to the pathology department for analysis.*fn6
After Dr. Townsend completed the D&C, he performed a laparoscopy on Ms. Donaldson to repair the perforation and identify any further injuries.*fn7 In doing so, Dr. Townsend examined both the small and large bowels, neither of which appeared to him to be injured.Accordingly, Dr. Townsend attempted to repair the perforation in the uterus. To do so, he used a monopolar cautery probe provided by one of the Hospital's nurses, which neither he nor the nurse inspected beforehand.
The probe malfunctioned. Dr. Townsend informed the nurses of the failure and then switched to a bipolar cautery with which he cauterized the perforation. He concluded the laparoscopy by again searching for damage to the large bowel, finding none.
Following her discharge from the hospital, which occurred on the same day as the operation, Ms. Donaldson experienced symptoms including nausea, pain, dizziness, abdominal bloating, and a temperature. After taking medication prescribed by Dr. Townsend, which did not alleviate her symptoms, she called his office to report her condition. The next day, January 9th, the conditions had worsened and she called again. She reported feeling "horrible," and that she had shoulder pain, was unable to sleep in a bed or lie flat because of abdominal distention, was unable to eat, was throwing up, and had an elevated temperature. The symptoms continued on January 10th, and she called Dr. Townsend once again.
On Tuesday, January 11th, Ms. Donaldson was taken to Dr. Townsend's office. It was painful for her to walk, and she wore pajama bottoms to the visit because her stomach was too distended to wear her normal clothing. It was also difficult for her to lay flat on the doctor's examining table, and she informed Dr. Townsend that she had been sleeping in a chair because of extreme pain and abdominal distention. Dr. Townsend obtained an x-ray that showed "pleural effusions" (liquid in her lungs), which were consistent with an infection. It also showed "free air" in the abdomen that should not have been present and was consistent with a bowel perforation. Dr. Townsend concluded that she was suffering from an ileus, a blockage of the small or large bowel.
The next day, Wednesday, January 12th, her symptoms remained the same, except that her vomit had become green and foul smelling whenever she threw up. Although she reported her symptoms to Dr. Townsend, he did not order a CT scan or MRI, but asked her if she would like to return to the Hospital, an offer that she declined. On Thursday, January 13th, when the symptoms were still the same, she again called Dr. Townsend, who instructed her to come into his office. Following a consultation with his medical partner, Dr. Townsend admitted her to the Hospital to consult with a general surgeon, Dr. Richard DeRosa. Dr. DeRosa ordered no new treatment until Friday, January 14th, when a slight temperature prompted him to place Ms. Donaldson on antibiotics.
On Saturday, January 15th, Dr. DeRosa operated on Ms. Donaldson after her abdomen became more tender and her white blood cell count rose despite the antibiotic treatment. During the surgery, Dr. DeRosa determined that Ms. Donaldson had a perforation in her small bowel that had allowed more than three quarts of toxic bowel content to leak into her peritoneal cavity. He repaired the perforation by removing six inches of her bowel. This leakage meant that her internal organs had been continually bathed in infectious material which led to her various complications, including sepsis, Adult Respiratory Distress Symptoms, pulmonary dysfunction, the need for multiple additional surgeries, scar tissue, swollen and blocked fallopian tubes, and infertility.
On January 18th, after discussing the case with Dr. DeRosa, Dr. Townsend reached the conclusion that an electric spark from the cautery probe that failed during the laparoscopy had burned Ms. Donaldson's bowel, slowly causing her bowel to perforate. He went to the Hospital's equipment room and identified the probe that he believed he had used in the procedure, claiming that it was grayer than the other probes and had a piece of red tape on it. The insulation on the probe was frayed.
Subsequently, Ms. Donaldson filed a medical malpractice case in the Superior Court against Dr. Townsend and the Hospital asserting professional negligence. According to the Pretrial Order, she asserted the following negligent acts as the bases for her claims: (1) Dr. Townsend's failure to submit the yellow tissue to pathology,*fn8 (2) his failure to tell his associate or a consulting surgeon about the yellow tissue, (3) his failure to properly examine Ms. Donaldson's bowel after he 6 punctured her uterus, (4) his failure to provide proper care following surgery, and (5) Dr. Townsend's and the Hospital's failure to inspect the monopolar probe.
While neither defendant asserted cross-claims, it became apparent by the time of trial that they had different theories of the case. Dr. Townsend maintained that the defective probe provided by the Hospital had caused a thermal burn on the small bowel that eventually resulted in a puncture. In contrast, the Hospital asserted that Dr. Townsend had punctured the bowel mechanically during the initial D&C.
At the conclusion of trial, the jury found both Dr. Townsend and the Hospital liable. The basis for liability with respect to the Hospital rested on its failure to inspect and maintain the probe. In response to a series of special interrogatories, the jury found that Dr. Townsend had breached the standard of care by his: (1) failure "to appropriately inspect the bowel on January 8, 2000," (2) failure "to recommend a CT Scan on January 11, 2000, or January 12, 2000," (3) failure "to hospitalize [Ms. Donaldson] earlier than January 13, 2000," and (4) failure "to consult with another physician earlier than January 13, 2000." The jury found that Dr. Townsend had not breached the standard of care when he punctured Ms. Donaldson's uterus or in his inspection of the probe.
Four basic issues are before us on appeal: (1) whether the trial court erred by not requiring the jury to make specific findings of causation regarding the theories of liability listed on the special verdict form; (2) whether the trial court erred in allowing an expert witness for the Hospital, Dr. Bechamp, to testify as to the standard of care where the Hospital's Rule 26 (b)(4) statement did not specifically state that he would provide such testimony; (3) whether Ms. Donaldson was entitled to use Dr. Bechamp's expert testimony to make her prima facie case that Dr. Townsend had violated the standard of care and that the violation was the proximate cause of her injuries; and (4) whether the trial court erred in denying Dr. Townsend judgment as a matter of law after the close of all the evidence on the ground that Ms. Donaldson had failed to show sufficient evidence of causation. We begin with the issue of the jury form.
II. Clarity of the Verdict Form
At the conclusion of trial, Dr. Townsend and Ms. Donaldson both submitted suggested verdict forms, each of which contained a set of special interrogatories. Over Dr. Townsend's objection, the trial court chose the verdict form proposed by Ms. Donaldson. Dr. Townsend argues that it leaves unanswered the question of whether each of the violations of the standard of care found by the jury was a proximate cause of Ms. Donaldson's injuries. A description of the jury form is necessary to an understanding of this argument.
The three-page form began with a "General Verdict" section. This section, in relevant part, asked the jury whether Dr. Townsend breached the standard of care in his treatment of Ms. Donaldson, and the jury answered, "Yes." It then asked whether the breach was a proximate cause of her injury, and the jury again answered, "Yes." Based upon the two "Yes" answers, reflecting that the jury had found a breach and causation, the form then instructed the jury to proceed to fill in the amount of damages, if any, it was awarding to Ms. Donaldson. The jury wrote in its award of $3,578,488.98.
The second section, entitled "Special Interrogatories," was a series of six questions requiring a "Yes" or "No" answer concerning whether Dr. Townsend had "breached the standard of care" with respect to (a) "puncturing the uterus on January 8, 2000," (b) "failing to inspect the monopolar cautery equipment [the probe] on January 8, 2000," (c) "failing to appropriately inspect the bowel on January 8, 2000," (d) "failing to recommend a CT Scan on January 11, 2000, or January 12, 2000," (e) "failing to hospitalize Kimberly Donaldson earlier than January 13, 2000," and (f) "failing to obtain a consult with another physician earlier than January 13, 2000." The jury found that Dr. Townsend had breached the standard of care with respect to four of the six special interrogatories: inspection of the bowel, failing to recommend a CT Scan, failing to hospitalize the plaintiff earlier than January 13, 2000, and failing to consult with another physician earlier than January 13, 2000.
Dr. Townsend argues that this verdict form was insufficient. We are compelled to agree. The General Verdict portion of the form inquired whether or not Dr. Townsend had breached the applicable standard of care and whether that breach was a proximate cause of injury to Ms. Donaldson. The special interrogatories asked only whether Dr. Townsend had violated the standard of care as to each theory. While the jury found four separate breaches of the standard of care, we have no way of knowing which ones (or one) the jury found to be a proximate cause of injury in the absence of a verdict form that specifically tells us. See District of Columbia v. White, 442 A.2d 159, 165 (D.C. 1982); see also Hubbard v. Chidel, 790 A.2d 558, 567 (D.C. 2002). In other words, the jury's "Yes" answer in response to the general interrogatory about whether or not the jury had found proximate cause does not establish that the jury found proximate cause with respect to each of the four breaches of the standard of care.*fn9 Thus, as we explain, Ms. Donaldson is in the same position as the appellant in White. In that case, the plaintiff sued the District of Columbia under the Wrongful Death Act*fn10 alleging, in relevant part, that the decedent's death resulted from a Metropolitan Police Department detective's negligent use of excessive force. White, supra, 442 A.2d at 161. The trial court submitted two theories of liability to the jury: (1) that the District was negligent in training the detective, and (2) that the District was vicariously liable for the detective's negligence. Id. at 165.
We found that there had been insufficient evidence presented upon which to submit the negligent training issue to the jury, and that this undermined the validity of the jury finding. In ...