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Giordano v. Sherwood

April 2, 2009


Appeal from the Superior Court of the District of Columbia (CA3439-00) (Hon. Mary A. Gooden Terrell, Trial Judge).

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

Argued March 21, 2007

Before REID and FISHER, Associate Judges, and TERRY, Senior Judge.

In this medical malpractice case, the jury awarded appellee Vivia Sherwood approximately $600,000 in damages. Dr. Joseph Giordano appeals, asserting that he was entitled to judgment as a matter of law or, alternatively, that he should be granted a new trial because the court excluded important impeaching evidence. We agree that Dr. Giordano was entitled to judgment as a matter of law and do not reach the second issue.

I. The Factual and Procedural Background

In August 1996, appellant Vivia Sherwood, who was in her mid-thirties at the time, was playing a game of tag at a church retreat in Pennsylvania. "And during the time that I was running, I stopped and I heard pop and fell to the ground." She had injured her right knee. An x-ray taken the next day disclosed a fracture at the rim of the kneecap,and various doctors attempted unsuccessfully to treat the pain that she complained about in her leg and foot. Eventually she consulted Dr. Giordano, a vascular surgeon. Based upon the symptoms she reported and his examination, Dr. Giordano concluded that Ms. Sherwood probably had reflex sympathetic dystrophy ("RSD"), a complex condition of the central nervous system that usually is associated with trauma or injury to bone or tissue, but results in pain out of proportion to the severity of the injury.*fn1 Because he considered that "a vascular surgeon for RSD is the person of last resort, and she wasn't there yet," Dr. Giordano recommended that Ms. Sherwood continue with nerve blocks and physical therapy, "the mainstay of conservative treatment."

When Ms. Sherwood returned seven months later, on April 21, 1997, Dr. Giordano noted that she continued to have "problems with pain, numbness, inability to move her leg[], and swelling."Despite "all the usual therapies, including multiple continuous epidural blocks" and physical therapy, her condition had worsened. After conducting a physical examination and studying the results of an arteriogram, he was "very alarmed" because Ms. Sherwood "not only doesn't have the normal [blood] pressure [at the ankle], she has no flow." Of all the patients with whom he had consulted concerning sympathetic dystrophy, Dr. Giordano "never saw anybody that had such bad flow as Ms. Sherwood." He feared that "if this continues, she was going to go on to gangrene, gangrenous changes of the [right] leg."

Based on the patient's symptoms, his examination, and consultation with Ms. Sherwood's other doctors, Dr. Giordano recommended a lumbar sympathectomy, a surgical procedure designed to increase blood flow to the leg. He advised Ms. Sherwood that the results of the surgery varied, that some people improve while others do not improve or even get worse, and that he could not predict how she would do.Dr. Giordano performed the right lumbar sympathectomy on April 29, 1997, and he dictated an operative report that same day.

The purpose of the surgery was to remove groups of nerve cells called ganglia from the sympathetic chain of nerves located "between the psoas [muscle] and the vertebrae."*fn2

Dr. Giordano described the surgery consistently with his operative report. After the abdomen was opened, the "peritoneum [a sac containing the viscera] was swept anteriorly until the psoas muscle was identified.*fn3 Dissection continued to identify the vena cava, psoas muscle and vertebral column. We dissected in the area until we located the sympathetic nerve plexus. We took the entire sympathetic nerve plexus from L2 through L5. We sent these to the pathologist to confirm the presence of ganglia. We had 4 ganglia in the reported specimen.*fn4 All bleeding was controlled. We used the Bovie and ligatures. We also used clips on some certain parts of the nerve to make sure that all the branches of the nerve were cut and ligated."The wound was closed, and Ms. Sherwood "left the operating room in good condition."

The surgery was a success from a vascular point of view. Dr. Giordano explained that Ms. Sherwood "had a huge increase of blood flow in that leg." After the surgery, however, Ms. Sherwood experienced nausea, vomiting, and constipation for weeks.She complained of new pain in her groin, in her hip, and in her lower back. She also had difficulty lifting her right leg.An EMG*fn5 "reveal[ed] changes of acute partial denervation in muscles supplied by the femoral nerve, but also mid-lumbar paraspinal muscles, with lesser changes in obturator and sciatic innervated muscles."*fn6

In May 2000, Ms. Sherwood filed this action accusing Dr. Giordano of negligence in performing the surgery. She claimed, in essence, that an injury to the femoral, sciatic, and/or obturator nerves occurred during the course of the sympathectomy and that, as a result, she suffered a new onset of pain in her right leg, hip, and back. Ms. Sherwood also claimed that she has been and will be unable to work due to the effects of narcotic medications she takes to control the pain. Following a twelve-day trial, the jury returned a verdict in Ms. Sherwood's favor, awarding her $330,253 in economic damages and $260,500 in damages for pain and suffering.Dr. Giordano filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial. The trial court denied the motion,and this appeal followed.

II. Standard of Review

"We review [a decision granting or denying] a motion for judgment as a matter of law by applying the same standard as the trial court." Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C. 2002). "A trial court may grant a motion for judgment as a matter of law notwithstanding the verdict only if no reasonable juror, viewing the evidence in the light most favorable to the prevailing party, could have reached the verdict in that party's favor." Liu v. Allen, 894 A.2d 453, 459 n.10 (D.C. 2006). "When viewing the evidence, the court must take care to avoid weighing the evidence, passing on the credibility of witnesses or substituting its judgment for that of the jury. If it is possible to derive conflicting inferences from the evidence, the trial judge should allow the case to go to the jury." McFarland v. George Washington University, 935 A.2d 337, 355 (D.C. 2007) (internal quotation marks and citation omitted). "The jury, however, may not be allowed to engage in idle speculation. ...

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