Appeals from the Superior Court of the District of Columbia (Hon. Natalia Combs-Greene, Trial Judge) CA 5310-00.
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Before REID and BLACKBURNE-RIGSBY, Associate Judges, and WAGNER, Senior Judge.
In this consolidated appeal, Vincent and Peggy Hill, appellants, challenge the trial court's grant of appellees' motion for judgment as a matter of law at the close of appellants' case. Appellants contend that, contrary to the trial court's ruling, they established a prima facie case on their claims of negligence, abandonment, and informed consent. They also argue that the trial court erred in granting appellees' pretrial motions for partial summary judgment on their other multiple counts.*fn1 Discerning no error, we affirm.
We first discuss the trial judge's proper grant of Judgment as a Matter of Law on appellants' remaining claims after the close of appellants' case. We conclude that appellants' expert, though initially qualified as an expert, failed to provide a basis for his knowledge of the applicable national standard of care, or a basis for his opinion that Mr. Hill's physicians breached the national standard of care in their treatment of his injuries. We require that an expert provide an independent basis for his knowledge of the applicable national standard of care and for his opinion regarding compliance with or breach of such standard. Absent such a basis and linkage, the expert would simply be providing a personal opinion as to the course of treatment he would have taken in treating the patient. This is insufficient for a medical malpractice case. An expert in a medical negligence case must establish that his opinion is grounded in a national standard of care and not merely his personal opinion. The expert must demonstrate that the doctor in question failed to do what a reasonable doctor nationally would have done in the same course of treatment. Appellants' expert failed to meet this standard.
Second, we address appellants' contention that the trial court improperly granted partial summary judgment on their breach of contract (42 U.S.C. § 1981), breach of contract (duty of fair dealing and good faith), civil conspiracy, intentional infliction of emotional distress, and punitive damages causes of action. We conclude that the trial court properly granted partial summary judgment. Following a discussion of the relevant factual background, we will address each issue in turn.
On July 21, 1997, Mr. Hill fractured the tibia and fibula bones in his lower left leg in a motorcycle accident*fn2 and was taken by ambulance, at his request, to the emergency room at Washington Hospital Center ("WHC"). Dr. Levitt recommended to Mr. Hill that an external fixation procedure be performed on his leg, however, Mr. Hill did not want an external fixation because he thought it looked painful based on what he saw in a movie. Mr. Hill informed Dr. Levitt that he preferred an internal fixation instead because he knew his bones took a long time to heal, and he was afraid of getting infected because of "those rods and stuff being outside going inside my leg."*fn3 Dr. Levitt performed the internal fixation operation on Mr. Hill. Prior to the operation, Mr. Hill signed a consent form, but added a handwritten note on the form indicating that he wanted a board certified anesthesiologist to administer the anesthesia.
On October 20, 1998, during a follow-up visit with Dr. Levitt, Mr. Hill expressed concern that his "leg was starting to look like it was charcoal . . . it looked dead, lifeless" in the area of the operation. Dr. Levitt told Mr. Hill that some darkness was to be expected. Mr. Hill scheduled a follow-up visit for December 1998, but was unable to make it because he was sick. Mr. Hill testified that by then his leg had "developed like a blister and . . . had pus coming out of [it]." Mr. Hill did not think the blistering or dark color of the skin were related to the operation, so he decided to see a dermatologist, Dr. Lindgren. Dr. Lindgren took a skin culture and informed Mr. Hill that he had a staphylococcal infection. She treated the infection, but told him to return to Dr. Levitt if he had further concerns about his leg, which Mr. Hill did. A few days later, Dr. Levitt informed Mr. Hill that the hardware in his leg was infected and had to be removed immediately. Dr. Levitt performed a second surgery on Mr. Hill on February 11, 1998, which Mr. Hill thought was intended to remove every piece of metal in his leg. After the surgery, a Groshong catheter was placed in his chest so that he could take Vancomycin, an antibiotic, intravenously.*fn4 On March 4, 1998, Mr. Hill called Dr. Levitt's office complaining of pain in his leg and that he heard a "crack" in his leg. He scheduled an appointment with Dr. Levitt for that day, and an x-ray revealed that he still had two screws on each side of his leg where it was broken.*fn5 On April 6, 1998, after several follow-up visits, Dr. Levitt informed Mr. Hill that another surgery was needed to remove over one-inch of the infected bone which would result in a 50% loss of the strength in that bone. During that visit, Mr. Hill, feeling like "an experiment gone bad," "fired" Dr. Levitt.
Dr. Levitt referred Mr. Hill to Dr. DiPasquale, an orthopedic surgeon, and noted that she was known for her knowledge about osteomylitis (infections of the bone). Mr. Hill contends that Dr. Levitt never informed him, until that time, that he had osteomylitis. He contends that Dr. Levitt had only informed him that his "hardware" was infected. Mr. Hill met with Dr. DiPasquale, and she recommended a treatment plan which included performing an operation on April 16, 1998, to remove the infected bone and then inserting antibiotic beads into the leg.
Prior to the April 16, 1998 operation, Dr. DiPasquale informed Mr. Hill that Dr. Levitt would have to assist on any future operations, to which Mr. Hill strongly objected. Mr. Hill, however, consented to Dr. Levitt's presence in the operating room as long as Dr. Levitt did not touch him.*fn6 When Mr. Hill received the consent form for his operation, both Dr. DiPasquale and Dr. Levitt's names were listed, at which point Mr. Hill "lost it" and "hit the ceiling." He felt as though Dr. Levitt had butchered his leg, and he did not want Dr. Levitt to touch him again. Later that day, Dr. DiPasquale informed Mr. Hill that she was canceling the surgery and provided him with the names of three doctors who could provide care for him.*fn7
Mr. Hill eventually went home, conducted his own internet research, and located Dr. Tetsworth, who was not one of the three doctors recommended by Dr. DiPasquale. After an initial appointment, Dr. Tetsworth then scheduled a surgery for May 7, 1999, at which point he partially removed the infected bone and inserted antibiotic beads into the infected leg. Over the course of the following year, Mr. Hill had several subsequent surgeries to his leg, and on October 5, 1999, his bone was deemed healed. One leg is now permanently shorter than the other one, however, and he has a deformity where a muscle had to be moved from his thigh and placed in his ankle.
On July 17, 2000, Mr. Hill and Mrs. Hill (appellant's wife) filed the present action.*fn8 On July 23, 2003, the trial court granted defendants, Dr. Levitt's and Dr. Danziger's,*fn9 Motion for Partial Summary Judgment as to punitive damages; and defendants' Dr. DiPasquale and WHC, Motion for Partial Summary Judgment as to punitive damages. On April 5, 2005, the trial court granted summary judgment as to Dr. Levitt on Counts IV (civil conspiracy); VI (intentional infliction of emotional distress); VII (contract -- 42 U.S.C. § 1981); and VIII (contract -- duty of fair dealing and good faith). On May 5, 2005, the trial court granted summary judgment as to WHC and Dr. DiPasquale on counts IV (civil conspiracy); VI (intentional infliction of emotional distress); VII (contract -- 42 U.S.C. § 1981); and VIII (contract -- duty of fair dealing and good faith). Mr. and Mrs. Hill appeal each of these orders.
On May 16, 2005, the matter went to trial by jury on Counts I (negligence), II (abandonment), III (lack of informed consent), V (negligent infliction of emotional distress), and IX (loss of consortium). Appellant testified and also presented the testimony of his wife, Peggy Hill, his expert, Dr. Bryant Bloss, Dr. Barrington Barnes (appellant's primary care physician,) and Dr. Buck (Mr. Hill's radiologist). At the close of appellants' case, appellees made a Motion for Judgment as a Matter of Law, which the trial judge granted, on all of the remaining claims. This consolidated appeal followed.
A. The Trial Court Correctly Granted Appellees' Motion for Judgment as a Matter of Law
Our review of the trial court's grant ofa Motion for Judgment as a Matter of Law is de novo,and we view the evidence in the light most favorable to the opposing party. "A verdict may be directed only if it is clear that the plaintiff has not established a prima facie case." Strickland v. Pinder, 899 A.2d 770, 773 (D.C. 2006); Snyder v. George Wash. Univ., 890 A.2d 237, 244 (D.C. 2006).
11.. Appellants' expert failed to establish the basis for his national standard of care testimony.
Dr. Bloss failed to establish a basis for his knowledge of the national standard of care for the treatment of osteomyelitis. We do not agree, as appellants' contend, that Dr. Bloss's general knowledge in the field of orthopedic surgery, which was sufficient for him to satisfy the first threshold requirement for qualifying as an expert, was sufficient to satisfy the second threshold requirement of demonstrating that his opinion testimony was grounded in and based on a national standard of care. Standing alone, Dr. Bloss' testimony regarding his educational and professional background, was insufficient to establish a basis for his knowledge of a national standard of care, and merely amounts to the expert's personal opinion. See Strickland, supra, 899 A.2d at 774.
Appellants' counsel attempted to elicit testimony from Dr. Bloss that to treat Mr. Hill's infection, all of the "hardware" should have been removed during the second operation with Dr. Levitt. Further, counsel attempted to elicit testimony establishing that when Dr. Levitt left two screws in Mr. Hill's leg, his conduct did not comport with the national standard of care. However, appellee's counsel objected, based on lack of foundation, and the objections were sustained by the trial court.
Ms. Holt (appellants' counsel): Do you have experience in osteomyelitis? You have already told us you do, is that accurate?
Q: . . .you also have experience in the treatment of osteomyelitis, you told us, right?
Q: And as a result of your experience in the treatment of osteomyelitis, is there a reason why you as an orthopedic surgeon would want to remove the hardware of a person who has developed osteomyelitis? Mr. Montedonico (trial counsel for Dr. Levitt)
Ms. Holt: Court's indulgence for a moment.
Q: Have you had experience-have you had experience in removing the hardware after a person develops osteomyelitis?
Q: Could you give an estimate?
Q: And were these people who had open reduction and internal fixation.
Q: In your experience, did you have a reason for removing the hardware after they developed?
Mr. Montedonico Objection again to the foundation, what he does.
The court: I will sustain as to the form.
Ms. Holt: Are you aware of practices of other physicians with respect to removal of the hardware after a person has osteomyelitis and he has had open reduction and internal fixation?
Mr. Montedoncio: Objection; lack of ...