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Wolff v. Washington Hospital Center

December 20, 2007


Appeal from the Superior Court of the District of Columbia (CAB7500-02) (Hon. Joan Zeldon, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued December 3, 2007

Before REID and GLICKMAN, Associate Judges, and STEADMAN, Senior Judge.

During a jury trial in this wrongful death case, the trial court denied the motion of appellant, D. Rebecca Wolff, to strike expert testimony presented by the nursing expert of appellee, the Washington Hospital Center ("the hospital"). The jury rendered a verdict in favor of the hospital, and the trial court later denied Ms. Wolff's motion for a new trial. She claims trial court error. We affirm the judgment of the trial court.


The record shows that Ms. Wolff's husband underwent successful cardiac bypass surgery on May 10, 2001. He developed complications later and doctors performed two additional surgeries relating to the separation of the surgical incision. After the second additional surgery, the hospital placed Mr. Wolff in a BariAir bed which is designed to prevent and treat pressure sores or ulcers. Ms. Wolff's nursing expert, Sheryl Gilson, testified, in part, that the national standard of care calls for patients "to be turned at least every two hours" manually and that the hospital failed to meet that standard. Nurse Gilson stated that even if the BariAir bed is used, the patient still has to be turned. She acknowledged that a BariAir bed can be programmed for continual rotation and that it is designed to prevent and treat pressure ulcers. Nurse Gilson was unable to cite any literature requiring that a patient be turned manually while on a BariAir bed.

The hospital's nursing expert, Dr. Catherine Ratliff, stated at trial that the hospital complied with the national standard of care by using the BariAir bed and mattress which "is designed for the prevention and treatment of pressure ulcers," and which can be "programmed for continuous rotation." Nurse Ratliff asserted that the hospital had complied with the national standards of care in 2001, including those concerning the turning of Mr. Wolff. She further testified that even if the hospital had turned Mr. Wolff manually every two hours, he would have developed pressure sores on his sacrum due to his "comorbidities," that is, "diseases such as diabetes . . . that affect [the] ability to heal." And, she maintained that under "[t]he national standards you would not want to be aggressive in turning and mobilizing [Mr. Wolff] with the risk of doing some cardiac damage." During her earlier deposition, Nurse Ratliff declared that to prevent pressure ulcers, a patient should be turned and repositioned frequently, but that "[t]here's no research out there to determine a maximum or minimum time for repositioning," and no national standard of care with respect to frequency. However, she stated that "[o]ften[]] [in the literature] you'll see quoted every two to four hours, but there's no research to ba[ck] that up." At trial, Nurse Ratliff said she had misunderstood the deposition question and that "[t]here is a national standard of care for turning and repositioning a patient"; that "[t]he nursing standard of practice speaks to turning and repositioning the patient every two to four hours." During her deposition testimony, the hospital's counsel asked Nurse Ratliff three pertinent questions concerning the BariAir bed and the turning of Mr. Wolff: (1) "Based upon the documentation of the use of the rotational mattresses and the repositioning by the nursing staff, did the nurses and nursing staff comply with the standards of care that is [sic] necessary to attempt to prevent the formation of pressure sores - pressure ulcers"; (2) "From what you saw documented in terms of the nursing turning of the patient, was that reasonable and appropriate"; and (3) Was that also within the standard of care?" Nurse Ratliff responded, "yes" to each of these questions.

Prior to his cross-examination of Nurse Ratliff, Ms. Wolff's counsel moved to strike most of her direct examination testimony. In support of his motion, counsel maintained: "She's not established what the standard of care is with regard to frequency of turning . . ., she was familiar with it, but she never established what is was." The trial court disagreed and denied the motion.

After the jury verdict in favor of the hospital, Ms. Wolff filed a motion for a new trial pursuant to Super. Ct. Civ. R. 59,*fn1 asserting, in part, that "Defendant Washington Hospital Center['s] only nursing expert, Catherine Ratliff, RN, testified [during her deposition] there is no standard of care, and therefore [she] should have been precluded from testifying whether or not Washington Hospital Center complied with the standard of care." Ms. Wolff further asserted: "To allow Nurse Ratliff to testify at trial that in her opinion [the hospital's] nurses complied with the standard of care with respect to the turning of patients was a surprise to the Plaintiff." The trial court found "no merit to the allegations made by [Ms. Wolff] concerning Dr. Ratliff, who plainly qualified as an expert, and who did testify at trial, inter alia, that the Washington Hospital Center's use of the BariAir bed complied with the national standard of care."


Ms. Wolff contends that "[t]he trial court erred in allowing Nurse Ratliff . . . to testify regarding the nursing standard of care with respect to turning patients" because she said at her deposition "that she could not and would not offer opinions on the standard of care in turning a patient [since] there is no national standard of care" regarding that subject. Ms. Wolff claims that the nurse's "[trial] testimony contradicted her deposition testimony and was a complete and unfair surprise to [her]," and that the hospital's "[Super. Ct. Civ.] Rule 26 (b)(4) statement said nothing about testifying to the standard of care with regard to turning and rotating a patient." Ms. Wolff also dismisses Nurse Ratliff's claim that she misunderstood the deposition question concerning the standard of care, and further urges that "[t]he trial court erroneously ruled that this testimony only went to credibility."

In reviewing Ms. Wolff's contentions on appeal, we are guided by what the court said in Miller v. Avirom, 127 U.S. App. D.C. 367, 384 F.2d 319 (1967):

In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort. Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal.

Id. at 369-70, 384 F.2d at 321-22 (footnotes omitted). "The rationale for requiring a specific objection is to allow the trial judge an opportunity to correct [any] mistake as well as to allow the [opposing party] an opportunity to [address or] to present evidence on the issue raised." Adams v. United States, 302 A.2d 232, 234 (D.C. 1973) (citations omitted). Furthermore, "the trial court has broad latitude in ruling on a motion for a new trial," and has "the power and [the] duty to grant a new trial . . . if for any reason or combination of reasons justice would miscarry if [the verdict] were allowed to stand." Scott v. Crestar Fin. Corp., 928 A.2d 680, 687 (D.C. 2007) (quoting Faggins v. Fischer, 853 A.2d 132, 140 (D.C. 2004), and Fisher v. Best, 661 A.2d 1095, 1098 (D.C. 1995) (internal quotation marks and emphasis omitted)); see also Queen v. D.C. Transit Sys., Inc., 364 A.2d 145, 148 (D.C. 1976) (under Rule 59 (a), "[t]he trial court enjoys a broad discretion when granting or denying a motion for a new trial") (citations omitted); Dist. No. 1 -- Pacific Coast Dist., v. Travelers Cas., 782 A.2d 269, 278 (D.C. 2001) (motions under Rule 59 (e) are committed to the trial court's broad discretion, and the rule is not "designed to enable a party to complete ...

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