Appeal from the Superior Court of the District of Columbia, (CAM-7358-04), (Hon. Neal E. Kravitz, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before RUIZ, GLICKMAN and THOMPSON, Associate Judges.
Appellant Evelyn Aikman appeals from the trial court's denial of her motion for a new trial in her medical malpractice action against Dr. Louis Kanda and his (former) practice group, Cardiovascular & Thoracic Surgery Associates, P.C. We affirm the trial court's ruling.
In October 2001, Aikman was admitted to the Washington Hospital Center for surgery to repair her mitral valve (the valve between the heart's left atrium and left ventricle). Dr. Kanda, a cardiac surgeon, performed the open-heart operation on October 3, 2001. Following the surgery, Aikman was slow to recover from the anesthesia, and, when she did awaken, she manifested weakness in her extremities. A brain scan performed the day after the surgery revealed that Aikman had suffered an embolic stroke, a stroke that is caused by small particles traveling through the bloodstream to the brain. Aikman was left with permanent physical injuries, including loss of the use of her legs and diminished use of her left hand, and emotional injuries. On September 24, 2004, Aikman sued Dr. Kanda and his professional association, contending that her injuries resulted from air that accumulated in her heart while it was open during the surgery and that traveled to her brain afterwards, and alleging negligence. Specifically, Aikman claimed that Dr. Kanda either failed to employ procedures to remove air from her heart (so-called "air drill" procedures) before completing the surgery, or performed the air drill inadequately.*fn1
After the jury returned a verdict in favor of Dr. Kanda on all counts, Aikman filed a motion for a new trial pursuant to Super. Ct. Civ. R. 59. The trial judge, the Honorable Neal Kravitz, denied the motion. See Order Den. Pl's Mot. for New Trial, May 1, 2007 ("Order"). This appeal followed.
In her brief on appeal, Aikman's first argument is that Judge Kravitz erred by giving the jury the so-called "bad result" instruction included in section 9.06 of the Standard Civil Jury Instructions for the District of Columbia, an instruction that the defense requested. Instruction 9.06 states in pertinent part, "A doctor is not negligent simply because his efforts are not successful." Aikman argues that this instruction was confusing to the jury and was "tantamount to a directed verdict" for Dr. Kanda.*fn2
In rejecting Aikman's claim, Judge Kravitz reasoned that Instruction 9.06 "was amply supported at trial by expert testimony showing that stroke was a known risk of mitral valve repair surgery, even in the absence of negligence." Order, supra, at 8. Judge Kravitz also noted that "the same expert testimony that supported Instruction [9.06] caused the plaintiff to concede toward the end of trial that [her] mid-trial request for an instruction on the doctrine of res ipsa loquiter [sic] could not be defended." Id. Judge Kravitz's observations accurately reflect the record. Aikman's expert, Dr. Campos, agreed variously that embolic strokes are a "major category of stroke that is seen after heart surgery," that air is a "known risk ," and that air emboli are "always a risk in this type of surgery." In addition, during a portion of his pre-trial deposition that was read to the jury, Dr. Campos answered "No" to the question, "Is it[,] in every situation of this type of surgical procedure[,] a violation of the standard of care if a patient winds up with neurological deficit as a result of air to the brain?" Dr. Conte, too, disagreed with the assertion that "if the deairing procedure is done the way it should be done, it's virtually impossible for air to go to the brain." And, during a discussion about jury instructions, Aikman's counsel told the court, "I don't think I could in good conscience" request a res ipsa loquitur instruction. He apparently recognized that, in light of the medical testimony, an instruction to the effect that embolic stroke "will not usually occur if due care is used" was not warranted.*fn3
Instruction 9.06 reflects a principle established by rulings of this court. See, e.g., Bunn v. Urban Shelters & Health Care Sys., 672 A.2d 1056, 1060 (D.C. 1996) ("we cannot imply negligence . . . based solely on the fact that an adverse result occurred") (internal citation and quotation marks omitted). Aikman contends that the instruction made it impossible for her to succeed on her theory of the case, but we do not agree. In the bulk of his testimony, Dr. Campos stressed two major points: (1) that the massiveness and diffuse nature of the embolization shown on Aikman's CT scan convinced him that the cause of Aikman's embolic stroke was not (the inevitable) small amounts of residual air,*fn4 but instead inadequate de-airing procedures; and (2) that Aikman's records, which evidenced both an absence of any significant atherosclerotic disease and the administration of an anti-clotting drug prior to surgery, undermined the defense suggestion that plaque or blood clots (instead of air) caused her embolic stroke. Judge Kravitz -- who had the role of "thirteenth juror"*fn5 in weighing the evidence and determining whether a new trial was warranted -- took the impression that Aikman "presented credible expert testimony in support of her claim of negligence on the part of Dr. Kanda," and that "a reasonable jury could have found in favor of the plaintiff based upon the evidence presented at trial." Order, supra, at 10. We discern no basis to disagree with Judge Kravitz's judgment that, notwithstanding Instruction 9.06 (and the other claimed errors that Aikman cites), the jury could have credited Dr. Campos's theory that Dr. Kanda did not adequately perform the air drill. For all these reasons, we conclude that Judge Kravitz did not abuse his discretion in denying the motion for a new trial on the ground of Aikman's claim of error with respect to Instruction 9.06.
The background for Aikman's second claim of error is as follows. Pre-trial discovery in the case revealed that there was no contemporaneous notation in Aikman's medical records indicating that Dr. Kanda had performed an air drill before completing the surgery. In addition, by the time the lawsuit was filed, no one on the surgical team could specifically recall the details of Aikman's surgery. Dr. Kanda explained during his deposition and at trial that he performs the air drill "100 percent of the time"as an "integral part" of mitral valve surgery, but he attributed his inability to recall his actions during Aikman's surgery to his having performed over 500 mitral valve operations over the course of his career (with an average of forty or fifty such procedures each year). Defense witness Dr. Steven Goldstein, a cardiologist who assisted during Aikman's surgery as echocardiographer, similarly explained that he had assisted with hundreds of mitral valve operations.
At trial, however, on November 27, 2006, Dr. Goldstein testified for the first time that the transesophageal echocardiogram ("TEE") that he recorded during Aikman's surgery -- essentially, a video image of the heart*fn6 -- provides visual proof that Dr. Kanda took action to remove air from Aikman's heart after he had completed the mitral valve repair. Both Drs. Goldstein and Kanda had mentioned the TEE during their pre-trial depositions, but neither had suggested that the TEE could provide evidence that Dr. Kanda performed an air drill maneuver. Looking at the TEE as ...