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Convit v. Wilson

September 17, 2009

RAFAEL JACINTO CONVIT & WASHINGTON BRAIN & SPINE INSTITUTE, P.C., APPELLANTS/CROSS-APPELLEES,
v.
EILEEN WILSON, APPELLEE/CROSS-APPELLANT.



Appeals from the Superior Court of the District of Columbia (CAB4014-03) (Hon. Frederick H. Weisberg, Trial Judge).

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

Argued November 6, 2008

Before REID, GLICKMAN, and THOMPSON, Associate Judges.

This is a medical malpractice action in which Eileen and Frederick Wilson, husband and wife, filed a two-count complaint against Dr. John Barrett, and against appellants/cross-appellees, Washington Brain & Spine Institute, P.C. ("WBSI") (Dr. Barrett's employer) and Dr. Rafael Jacinto Convit. Mr. Wilson alleged that Dr. Barrett and Dr. Convit's negligent treatment and care caused him to suffer severe and permanent neurologic injuries.*fn1 Mrs. Wilson claimed loss of consortium. Prior to trial, Mrs. Wilson entered into a settlement agreement (only with Dr. Barrett) regarding the loss of consortium claim; she released Dr. Barrett from the lawsuit, without prejudice, in exchange for $4,050,000.00. WBSI and Dr. Convit declined to settle and proceeded to trial. The jury found them jointly and severally liable and awarded Mr. Wilson $20,109,000.00 on his negligence claim (Count I) and Mrs. Wilson $2,500,000.00 for her loss of consortium claim (Count II).

WBSI and Dr. Convit filed post-verdict motions for judgment as a matter of law, or in the alternative, for a new trial. The trial court denied the motions on all grounds, with the exception of WBSI's and Dr. Convit's request that the jury verdict be reduced as a result of the settlement agreement signed by Mrs. Wilson and Dr. Barrett. As to the judgment relating to the loss of consortium claim and the $2,5000.000.00 award of damages, the trial court determined that WBSI was entitled to a pro tanto credit and Dr. Convit a pro rata credit, and that the $1,550,000.00 in excess funds from Mrs. Wilson's $4,050,000.00 settlement with Dr. Barrett should be applied to WBSI's joint and several liability of $20,109,000.00 on the negligence claim, thus reducing its liability to $18,559,000.00. Dr. Convit remained jointly and severally liable for the $20,109,000.00 negligence damages award.

On appeal, WBSI argues that the trial court erred when it determined that Mrs. Wilson's settlement with Dr. Barrett did not extinguish both the negligence and loss of consortium claims against WBSI, the vicariously liable employer. Dr. Convit contends, in part, that Mrs. Wilson produced insufficient evidence to prevail on the negligence claim against him, because "Dr. Barrett's failure to remove the shunt when Mr. Wilson was hospitalized the day after Dr. Convit's surgery constituted a superseding cause that relieved Dr. Convit of any liability." Both WBSI and Dr. Convit generally argue, in the alternative, that if this court rejects their primary arguments, the court should hold that in light of Dr. Barrett's settlement, the trial court erred by failing to grant them a 50% pro rata credit and reduction of the total amount of the jury's verdict as to both counts of the complaint. Mrs. Wilson cross-appeals on the ground that the trial court erred in calculating the settlement credits due WBSI and Dr. Convit.

We reverse the trial court's reduction of WBSI's liability for the award of damages on Mr. Wilson's negligence claim, but we affirm its judgment in all other respects.

FACTUAL SUMMARY

The record shows that the events leading to Dr. Barrett's settlement and the jury verdict in this case began in early 1999 when Mr. Wilson began experiencing memory loss and gait problems. Dr. Mohammed Moussavian, a neurologist at Kaiser Permanente ("Kaiser"), referred him to Dr. Barrett, a neurosurgeon, and on December 2, 1999, Mr. and Mrs. Wilson met with Dr. Barrett. Dr. Barrett determined that Mr. Wilson was suffering from obstructive hydrocephalus*fn2 due to compression and obstruction in the aqueduct of Sylvius;*fn3 Dr. Barrett recommended that Mr. Wilson allow him to place a ventriculoperitoneal ("VP") shunt*fn4 into Mr. Wilson's right ventricle to clear the obstruction.*fn5 Mr. Wilson agreed to the procedure.

Dr. Barrett performed the operation at the Washington Hospital Center on December 8, 1999. To insert the VP shunt, Dr. Barrett cut a hole in the bone of Mr. Wilson's skull that was about the size of a dime; cut through the dura (a thick lining underneath the bone); placed a ventricular catheter (part of the plastic tubing) through the brain into the right ventricle; and threaded the peritoneal end of the catheter underneath the skin down to Mr. Wilson's abdomen.*fn6

During a second surgical procedure on December 11, 1999, necessitated because the initial tubing proved to be too short, Dr. Barrett inserted a longer catheter because "as the spinal fluid was draining down into the peritoneum, the ventricles became smaller [retracted] . . . and the [existing] catheter was lodged in the brain[;] it did not quite reach the ventricle." With two or three non-absorbable nylon sutures, Dr. Barrett anchored the reservoir to Mr. Wilson's head, closed the galea layer (the layer of skin under the scalp) with absorbable zero vicryl sutures, and stapled the skin closed.

At a follow-up appointment on February 22, 2000, Mrs. Wilson alerted Dr. Barrett to a little red scab that had formed over the posterior aspect of the incision. Dr. Barrett pushed on the wound to check for pain, tenderness, or other indications of an infection. He found none. Dr. Barrett told Mrs. Wilson that the scab would heal and recommended that Mr. Wilson put neomycin ointment, a triple antibiotic, on his head three times a day. Mr. Wilson followed Dr. Barrett's instructions; the scab eventually fell off. When Mr. and Mrs. Wilson returned to Dr. Barrett's office on April 18, Dr. Barrett noticed that the wound under the scab had dehiscence;*fn7 the size of the wound was about a quarter of an inch long. He could see the edge of the VP shunt reservoir.

Dr. Barrett wanted Mr. Wilson to consult with a plastic surgeon to discuss covering over the wound, and he contacted Dr. Moussavian on April 27. He "asked Dr. Moussavian to arrange a plastic surgery consultation." He did not request that Dr. Moussavian have the plastic surgeon proceed with an operation to cover the open wound.

On May 10, 2000, Dr. Convit received a referral marked urgent from Dr. Moussavian stating that Dr. Barrett wanted Dr. Convit to perform a flap procedure on Mr. Wilson's exposed VP shunt. Two days later, Dr. Convit met with Mr. and Mrs. Wilson at his office in the Washington Hospital Center. Mrs. Wilson told Dr. Convit that Mr. Wilson "had the shunt in [his head]; that the opening wouldn't close, and it had been open for five months."

Based on his examination of the wound, Dr. Convit believed it showed no clinical signs of infection and that he could safely cover the wound by performing a flap procedure.*fn8

However, before performing the flap procedure, Dr. Convit sent Mr. Wilson back to Kaiser for a preoperative evaluation, which included a complete blood count, and a surgery clearance. Mr. Wilson's white blood count showed no signs of a hidden infection; Kaiser cleared Mr. Wilson for the flap procedure on May 17.

On May 18, Dr. Convit still found no clinical signs of infection. He took pictures of the wound and then performed the flap procedure. During the course of the surgery, Dr. Convit "debrided the tissue around the shunt . . . and then mobilized the tissues to cover it." He also found some permanent sutures that he removed; they were embedded in the scar tissue around the exposed reservoir of the shunt. Sometime later that day, Dr. Convit released Mr. Wilson from his care.

The next morning, May 19, Mr. Wilson suffered a generalized seizure. He was taken to Calvert Memorial Hospital, and later, to the Washington Hospital Center. Upon his arrival at the Washington Hospital Center, Mr. Wilson was "severely comatose, unable to respond." Doctors placed an emergency shunt into Mr. Wilson's left ventricle to relieve pressure from his brain because the right shunt was blocked. A few days after the procedure, Mrs. Wilson saw Dr. Barrett who told her that Mr. Wilson's condition was caused by the flap procedure; he believed that during the procedure, "Dr. Convit kinked the tubing in behind the ear[.]" But, Dr. Barrett reassured her that he could "straighten that out" by placing "another shunt in on the [left] side and connect[ing] it to the . . . one [on the right side]."

On May 25, Dr. Barrett replaced the emergency shunt with a permanent left VP shunt. He left the nonoperational right shunt in because he did not find any signs of infection in the multiple cerebral spinal fluid samples drawn from the left lateral ventricle and he wanted to avoid the risk of removing the right shunt. On May 28, doctors performed a lumber puncture which showed abnormality in Mr. Wilson's white blood cell count. On May 29, doctors tested spinal fluid from the right shunt; it showed evidence of yeast called candida, and staph epidermidis, a bacteria. On May 29, Dr. Edward Aulisi removed the right and left shunts.

Upset by the treatment doctors provided Mr. Wilson at the Washington Hospital Center, Mrs. Wilson had him transferred to Johns Hopkins Hospital on June 26. From that point forward, Dr. Williams took over as Mr. Wilson's neurosurgeon. Mr. Wilson remained at Johns Hopkins for about five and a half weeks. He did not regain consciousness while there. Due to her inability to pay for her husband's medical care, Mrs. Wilson took him home and cared for him herself. Mr. Wilson eventually regained consciousness but remained bed ridden suffering from neurological problems.*fn9

Mr. and Mrs. Wilson filed their complaint on May 16, 2003. There were efforts along the way to settle the lawsuit for the limits of each defendant's insurance policy, totaling approximately $10,000,000.00. WBSI and Dr. Convit declined to settle, but on April 25, 2006, Mrs. Wilson and Dr. Barrett (and the attorneys for both) executed a settlement agreement (the "Agreement" or "the settlement agreement") for $4,050,000.00. In the Agreement the parties acknowledged that Mrs. Wilson's "Claim for loss of consortium is significant, and could easily be valued at $5,000,000.00 by the jury." The Agreement stated: "it is agreed by the parties that they have reached a partial settlement only, and only as to those claims that are part of Eileen's Claim against Dr. Barrett"; the Agreement "in no way release[s] the defendant [WBSI] from any part of [Mr. Wilson's] Claims against WBSI for Barrett's actions . . . " Although the Agreement provided that Mrs. Wilson would "not refile an action against Dr. Barrett for her own claim," Mrs. Wilson and Dr. Barrett "stipulate[d] and agree[d] that th[e] Agreement [was] not a release in any respect of Dr. Barrett's liability to the plaintiff [Mrs. Wilson] for [Mr. Wilson's] claim." The parties also agreed that "[s]ince the period of limitations has expired, Dr. Barrett . . . waives any . . . form of time bar recognized in the law in a subsequent action by the plaintiff against Dr. Barrett for damages for [Mr. Wilson's] claim, for a period of eighteen months from the date of this agreement." On April 25, 2006, the trial court granted Dr. Barrett's oral motion to be dismissed from the lawsuit "without prejudice" in light of the Agreement he entered into with Mr. and Mrs. Wilson.

WBSI immediately moved for summary judgment, claiming that because the Agreement released Dr. Barrett from the lawsuit, it also released WBSI, the vicariously liable party. The trial court denied WBSI's motion for summary judgment as to both the negligence and loss of consortium claims.*fn10

After a jury trial, beginning on April 26, 2006 and extending to May 22, 2006, during which the parties presented numerous fact and expert witnesses, the jury found WBSI and Dr. Convit jointly and severally liable on both the negligence and loss of consortium claims and awarded damages to Mr. Wilson in the amount of $20,109,000.00 and $2,500,000.00 to Mrs. Wilson. Dr. Convit and WBSI filed post-verdict motions for judgment as a matter of law or, in the alternative, for a new trial. In a seventeen-page written order, the trial court denied their motions, indicating generally that "[t]he liability issues were presented to the jury on conflicting expert testimony, and the resulting verdicts were not against the great weight of the evidence." Specifically, as it did before trial, the court rejected WBSI's contention that "the settlement of Mrs. Wilson's loss of consortium claim with Dr. Barrett, by operation of law, discharged not only the liability of WBSI to her on the loss of consortium claim, but its liability to Mr. Wilson as well." After reviewing the "litigation environment" and "context" at the time of the settlement, and the intent of the Wilsons and Dr. Barrett, the court determined that the parties to the agreement "deliberately structured their settlement in such a way as to preserve Plaintiffs' cause of action against both WBSI and Dr. Convit to the full extent possible beyond the one claim that was settled." Recognizing "these unusual facts" surrounding the settlement, noting the absence of applicable case law in this jurisdiction, and relying in part on case law from other jurisdictions and Restatements of the Law, the court declared that "the settlement of Mrs. Wilson's loss of consortium claim with Dr. Barrett probably did not release even that claim against WBSI, and almost certainly it did not release or discharge the liability of WBSI on Mr. Wilson's personal injury claim, even though the liability of WBSI, vel non, was solely vicarious."

The trial court, however, agreed with Dr. Convit and WBSI that under the case law in this jurisdiction they, as "non-settling tortfeasors[,] are entitled to a credit against [the jury] verdict based on a settlement between the plaintiff and another party" due to Dr. Barrett's settlement agreement with Mr. and Mrs. Wilson. The court reasoned that the settlement by its agent, Dr. Barrett, entitled WBSI "to a dollar for dollar pro tanto credit against Mrs. Wilson's verdict on the consortium claim," and that "Dr. Barrett's settlement effectively resolved all of the liability of Dr. Barrett and the vicarious liability of WBSI on that claim." Dr. Barrett's settlement entitled "Dr. Convit, as a separate joint tortfeasor, . . . to a 50% pro rata credit toward Mrs. Wilson's verdict on the consortium claim, which reduces the verdict against him on that claim from $2.5 million to $1.25 million."

With regard to the $1,550,000.00 in excess of the jury award that Dr. Barrett paid on Mrs. Wilson's loss of consortium claim, the trial court was aware of case law in this jurisdiction permitting plaintiff to retain the excess,*fn11 but the court decided, instead, to reduce "Mr. Wilson's verdict against WBSI . . . by $1,550,000.00, [while determining that] Dr. Convit [should] remain[] jointly and severally liable for the full amount." The trial court explained its decision as follows:

Here . . ., where the settlement amount far exceeds the verdict [on the loss of consortium claim], the liability of WBSI is vicarious only, and the settling Defendant and WBSI are considered a single tortfeasor for credit purposes, it seems fair that WBSI, rather than Plaintiffs, should receive the benefit of the "extra" money paid by Dr. Barrett. Even with the pro tanto credit to WBSI on the consortium claim, Mrs. Wilson still receives much more on that claim, between the settlement amount and the amount for which Dr. Convit remains liable after application of the pro rata credit, than the jury determined it to be worth [$5.3 million compared with the jury verdict of $2.5 million] . . . . This result seems especially appropriate in the circumstances of this case, given the dynamics that drove the settlement, the understanding of all parties that the money paid by Dr. Barrett represented a desire on his part to settle the claims of both Plaintiffs against him, and the practical reality that the settlement proceeds will undoubtedly benefit the family unit, including, of course, Mr. Wilson. In the absence of any authority to the contrary, this result strikes the court as the most reasonable way to allocate the settlement funds in the unusual circumstances of this case.

In support of its rationale, the trial court cited District of Columbia v. Washington Hosp. Ctr., 722 A.2d 332, 336 (D.C. 1998) (en banc).

Furthermore, the trial court addressed other contentions made by the defendants, which also had been advanced during trial. Both WBSI and Dr. Convit argued that Mrs. Wilson failed to establish that they "violated any applicable standard of care or that any such violation caused the injury suffered by Mr. Wilson." The trial court found that Mrs. Wilson's "experts were all well qualified to offer expert opinion testimony, they were all familiar with the pertinent national standards of care, and they all offered testimony, which the jury was free to accept or reject, that the respective doctors violated the standard of care and caused the injury of Mr. Wilson." With respect to the issue of causation, the trial court noted that "[t]he medical causation questions were extremely complex"; and "[e]ven if the opinions on when and where the infection started and the related causation issues tended to favor Defendants, Plaintiffs definitely had enough on their side to submit the issues to the jury and, in the court's opinion, the resulting verdict was not against the great weight of the evidence." As to WBSI's and Dr. Convit's argument that they were entitled to a new trial because the damages awarded were excessive, the trial court pointed to Mr. Wilson's need for "millions of dollars of medical and ...


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