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Schoonover v. Chavous

July 2, 2009

LYNNE SCHOONOVER, M.D., APPELLANT,
v.
BEVERLY BASS CHAVOUS, GUARDIAN AD LITEM FOR ALANTE MAYBIN, A MINOR, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAM583-03) (Hon. Stephanie Duncan-Peters, Trial Judge).

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

Argued May 20, 2008

Before REID, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

A jury found Dr. Lynne Schoonover liable in the amount of $3,050,000 for medical malpractice. Thereafter, the trial court determined that The George Washington University ("GWU"), which had settled with the plaintiffs prior to trial, was a joint tortfeasor responsible for the concurrent negligence of its nurses. The court concluded that Dr. Schoonover was entitled to pro rata credit and entered judgment against her in the amount of $1,525,000, representing one-half of the jury's verdict.

Dr. Schoonover no longer asks for a new trial, but she seeks to reduce the amount of the judgment against her. The doctor asserts that the Superior Court should have allowed her to withdraw her cross-claim for contribution against GWU. Absent the court's finding on the cross-claim that GWU was a joint tortfeasor, Dr. Schoonover would have been entitled to pro tanto credit for the full amount of GWU's settlement ($2.1 million), thus reducing her liability by $575,000.*fn1 Finding no abuse of discretion by the trial court, we affirm.

I. The Factual Background

In January 2000, Sherri Maybin and her son Alante Maybin were participants in the GWU Health Plan ("Health Plan") and Alante Maybin was a patient of GWU Pediatrics, which provided a call service for patients to speak with nurses and doctors outside clinic hours. Dr. Schoonover was not employed by GWU, but she and the physicians in GWU's Pediatric Division had entered into an agreement whereby they took turns answering after- hours calls for each other. During the early morning hours of January 18, 2000, Dr. Schoonover was on call.

On the evening of January 17, Alante Maybin, who was six years old at the time, had been ill for several days; he was acting sleepy and had a headache, a sore throat, and stomach pains. Ms. Maybin called the GWU Pediatrics advice line and spoke with Bernadette Deely, a nurse at GWU, who said Alante probably had a virus and advised Ms. Maybin to make sure her son drank plenty of fluids. Ms. Maybin called the advice line again the next morning because her son was getting worse. When Dr. Schoonover returned the call, Ms. Maybin explained that Alante had diarrhea, red eyes, a fever of 103 to 104 degrees, white spots on his tongue, and stomach pains. He was vomiting and sleepy, and he was not urinating. Dr. Schoonover told Ms. Maybin to call the pediatric practice clinic and tell them to give her a morning appointment to see the first available doctor. When Ms. Maybin placed that call, she spoke with Emily Campbell, a nurse at GWU Pediatrics, who also told Ms. Maybin to take Alante to the clinic.

While Ms. Maybin was making arrangements for transportation, Alante collapsed. Ms. Maybin called 911 and an ambulance rushed her son to Children's Hospital. Alante was diagnosed with an invasive Group A strep infection and toxic shock. His blood circulation was compromised when many of his organ systems shut down, and both of his legs had to be amputated below the knee.

Plaintiffs presented expert testimony to support their theory that the standard of care required the nurses and the doctor to follow up with Ms. Maybin and advise her to take her son directly to the nearest emergency room. Dr. Schoonover, Nurse Deely, and Nurse Campbell had all spoken with Ms. Maybin about Alante's condition, but none of them told Ms. Maybin that the situation was an emergency or advised her to immediately take her son to the nearest emergency room. According to expert testimony presented at trial, in cases of sepsis "minutes can make a significant difference," and if Alante had been taken to the emergency room immediately after any of the three phone calls Ms. Maybin made to the after hours line, the emergency treatment would have prevented most of the complications Alante experienced.

II. The Procedural Background

As amended, the complaint filed by Sherri Maybin, individually and on behalf of her minor son, Alante Maybin, alleged that both GWU and Dr. Schoonover were liable for medical malpractice. (In an order dated July 6, 2005, Beverly Bass Chavous was appointed Guardian Ad Litem and was added as plaintiff.)On December 17, 2004, the plaintiffs agreed to settle their claims against GWU; that agreement was memorialized on August 4, 2005, and the court approved it.

In the meantime, Dr. Schoonover requested leave to file a cross-claim against GWU. Both the plaintiffs and GWU opposed, but the court granted leave on March 10, 2005. In her cross-claim, Dr. Schoonover alleged that GWU "is or may be liable to [her] by reason of indemnity and/or contribution...."

The claims against Dr. Schoonover proceeded to trial before a jury on November 7, 2005. During that trial (on November 10 and 16), Dr. Schoonover presented evidence to the court, outside the presence of the jury, regarding GWU's negligence and the causal link between that negligence and Alante Maybin's injuries. On November 16, the court took the cross-claim under advisement. The jury returned its verdict on November 17, 2005. A few days later, the court entered partial judgment against Dr. Schoonover in the amount of $3,050,000, with interest, "subject to amendment once ...


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