Appeal from the Superior Court of the District of Columbia (CA9416-01) (Hon. Neal E. Kravitz, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before WASHINGTON, Chief Judge, FISHER, Associate Judge,and SCHWELB,*fn1 Senior Judge.
Dr. Robert H. Dennis, a plastic surgeon, appeals from a jury verdict in a medical malpractice action. He principally complains that the Superior Court erroneously refused to give a jury instruction on assumption of risk in addition to the contributory negligence instruction which was given. Even assuming the court should have given the requested instruction, its failure to do so was harmless on the record presented. Therefore, we affirm.
In February 1999, appellee Hazel Jones began consulting Dr. Dennis about whether plastic surgery could relieve her chronic back pain. Although they discussed breast reduction surgery to relieve the strain on Ms. Jones's back, she also expressed interest in abdominoplasty -- a surgical procedure to reduce the size of the abdomen. At their initial meeting, Dr. Dennis noted that Ms. Jones had high blood pressure, had smoked a quarter pack of cigarettes a day for twenty years, and was more than 100 pounds overweight. Ms. Jones decided not to have breast reduction surgery because she could not afford it, but she chose to undergo abdominoplasty (and carpal tunnel release surgery to address a separate issue).*fn2
Dr. Dennis performed the surgeries on April 30, 1999, and Ms. Jones went home later that day, but she soon began experiencing significant complications, including difficulty breathing and healing, and infections in her surgical wounds. Ms. Jones was hospitalized on two occasions in May 1999 and underwent two procedures to surgically remove infected tissue. In June 1999 continuing complications caused Dr. Dennis to perform a skin graft on the affected area, and in August 1999 Ms. Jones was diagnosed with Hepatitis C, possibly related to a blood transfusion she received in May.
II. Procedural Background
Ms. Jones filed a complaint against Dr. Dennis on December 28, 2001, claiming negligence and failure to obtain informed consent.Over the course of four days, a jury heard testimony from six witnesses, including the parties and two experts.*fn3 The primary question raised on appeal stems from a disagreement about what Dr. Dennis told Ms. Jones about the need to quit smoking and what Ms. Jones told him about whether she had followed his advice.
Ms. Jones testified that Dr. Dennis failed to fully advise her that continued smoking, in conjunction with her high blood pressure and obesity, would increase the risk of post-surgery complications, including infection, and difficulty healing and breathing. According to Ms. Jones, Dr. Dennis told her "that he didn't see where the smoking would be a problem, since [she] didn't smoke that much."In fact, she testified that she kept smoking until the date of her surgery. Finally, Ms. Jones said that she "would not have had the surgery" had she known about the increased risks posed by her obesity, smoking, and hypertension, or by undergoing abdominoplasty and liposuction at the same time.
Dr. Dennis maintained that he fully discussed the risks of smoking with Ms. Jones. Indeed, he testified that he explained to her that he would not perform the proposed surgeries on someone who was actively smoking and that he directed her to quit smoking at least a month before the surgery. According to Dr. Dennis, Ms. Jones told him at her April 27 pre-operative visit that she had quit smoking earlier that month. Ms. Jones signed a consent form indicating that Dr. Dennis had discussed with her the complications that might arise from abdominoplasty, including those resulting from smoking. However, the doctor conceded that he did not discuss with Ms. Jones the surgical risks associated with obesity, or with a combination of obesity and smoking. He did not indicate whether he discussed with Ms. Jones the risks associated with the combined surgeries.
At the close of evidence, counsel for Dr. Dennis requested jury instructions on both assumption of risk and contributory negligence. The court agreed to instruct on contributory negligence, explaining that "the only issue on which there is sufficient evidence to get to the jury on a contributory negligence claim is the smoking." It denied the assumption of risk instruction. First, the trial judge quoted Morrison v. MacNamara, 407 A.2d 555, 567 (D.C. 1979), which explains that,
[a]lthough the defense of assumption of risk has been applied in a wide variety of circumstances to defeat negligence claims, the defense has rarely been sustained in actions involving professional negligence. . . . [T]he disparity in knowledge between professionals and their clientele generally precludes recipients of professional services from knowing whether a professional's conduct is in fact negligent. . . . Thus, save for exceptional circumstances, a patient cannot assume the risk of negligent treatment.
In response, counsel for Dr. Dennis made clear that his assumption of risk theory was likewise based on smoking: "I'm not saying that she assumed the risk of negligent treatment. I'm saying she not only assumed the risk of not smoking but the risk that she could develop exactly what she did develop from the surgery." The court noted, secondly, that the instruction "would really be duplicative in any event . . . ." "[I]t's hard to imagine that the jury could find assumption of the risk as posited by defense counsel ...