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Mody v. Center for Women's Health

July 15, 2010

JYOTHSNA MODY, APPELLANT,
v.
CENTER FOR WOMEN'S HEALTH, P. C. AND ANITA SIKAND, M.D., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAM-7558-06) (Hon. Lynn Leibovitz, Trial Judge).

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

Argued March 22, 2010

Before WASHINGTON, Chief Judge, and KRAMER and OBERLY, Associate Judges.

Appellant Jyothsna Mody sued appellee Dr. Anita Sikand and Sikand's professional corporation, Center for Women's Health, alleging that Dr. Sikand negligently performed a medical procedure that caused perforations in Ms. Mody's uterus and bowel. A jury returned a verdict in favor of Dr. Sikand and the Center for Women's Health. On appeal, Ms. Mody argues that the trial court erred in denying her motion for a new trial in which she asserted that the court abused its discretion in conducting voir dire and that the jury verdict was against the weight of the evidence. In addition, she argues that the court abused its discretion in awarding some of the costs sought by appellees, including certain copying charges, certain unusual costs associated with the taking of one deposition, and certain filing fees. We conclude that the trial court did not err in denying Ms. Mody's motion for a new trial, but reverse certain of the costs awarded and remand to the trial court to revisit the findings supporting the award of those costs.

I. Facts

After seeing Ms. Mody as a patient in November 2005 in her Washington, D.C., office, Dr. Sikand recommended that Ms. Mody "undergo a diagnostic hysteroscopy, polypectomy, and dilation and curettage in order to remove [two endometrial] polyps" that Dr. Sikand had detected in Ms. Mody's uterus. Ms. Mody consented to having the procedure, and in January 2006, Dr. Sikand performed the operation, removing two polyps from Ms. Mody's uterus with polyp forceps and then scraping the uterine lining to obtain tissue for a biopsy. Dr. Sikand testified that it was her routine when she had performed this same procedure in the past to "look back" at the uterus with a small scope after she had removed the polyps to make sure that she had not perforated the uterus with any instruments. In Ms. Mody's case, Dr. Sikand's post-operative notes did not mention that she had looked back, although Dr. Sikand testified that she must have looked back because she had taken a series of photos with a scope during the procedure, and the final photo in the series could have been taken only after she had removed the polyps. After the procedure, Ms. Mody recovered for several hours at the hospital and was discharged the same day.

Two days later, Ms. Mody called Dr. Sikand's office because she had become concerned about her inability to take in food and fluids. Ms. Mody described to Dr. Sikand the symptoms she was experiencing and Dr. Sikand advised Ms. Mody to "ambulate more" and to call back if the symptoms persisted. Later that same day, Dr. Sikand received a phone call from the hospital's pathology department telling her that tests on the specimens taken during the procedure showed that a segment of Ms. Mody's bowel was included in the tissue removed from Ms. Mody's uterus. This information led Dr. Sikand to suspect for the first time that during the procedure she had accidentally perforated Ms. Mody's bowel.

Dr. Sikand immediately called Ms. Mody and instructed her to go to the emergency room at the hospital where Dr. Sikand had performed the procedure two days earlier. After undergoing tests in the emergency room, a surgeon (not Dr. Sikand) operated on Ms. Mody to close a perforation of her bowel. Ms. Mody was in the hospital for five days after this surgery and, in her complaint, alleged that she required medical care and treatment "for a significant period of time following this second surgery."

Ms. Mody subsequently commenced a medical malpractice action against Dr. Sikand and the Center for Women's Health in the Superior Court. At trial, each side presented expert testimony regarding the standard of care for the polypectomy. Ms. Mody called Dr. Richard Stokes. Dr. Stokes testified that the procedure employed required that the physician must "look back [into the uterus] with the scope," and that not looking back was a breach of the standard of care. Dr. Harry Johnson testified for Dr. Sikand, stating that the standard of care requires the physician to look back only if she had reason to suspect that an injury had occurred. Dr. Sikand testified that she normally looked back after performing this type of surgery, although she did not always record doing so in her post-operative notes, and that her notes of Ms. Mody's procedure did not reflect that she had looked back.

After two days of deliberations, the jury found that Dr. Sikand was not negligent and returned a verdict in favor of appellees. Thereafter, Ms. Mody filed a timely motion for new trial, challenging the voir dire process employed by the trial court and also arguing that the verdict was against the overwhelming weight of the evidence. The trial judge denied the motion, and Ms. Mody appeals to this court.

II. Issues on Appeal

A. Framing of the Voir Dire Questions

Ms. Mody first argues that the trial court's voir dire process did not allow her to uncover potential biases that jurors might have had against her case or against medical malpractice cases in general. Ms. Mody initially proposed 43 voir dire questions that fit into eight broad categories: prospective jurors' personal knowledge of the case (questions 1-8, 27); physical challenges or personal commitments that might affect or prevent the venirepersons from serving (questions 9, 43); past employment related to the issues in the case (questions 10, 21-25); past medical conditions similar to Ms. Mody's (questions 11, 12); experience with personal injury or medical malpractice suits (questions 14, 15, 17-20, 32, 33, 36, 38); exposure to information about tort reform (questions 26, 29-31); feelings prospective jurors might have toward health care providers or other issues that might affect their ability to serve (questions 28, 37, 39-42); and, finally, several questions regarding the prospective jurors' ability to be fair (questions 13, 16, 34, 35). On appeal, Ms. Mody challenges the adequacy of the eleven questions the trial judge asked the prospective jurors -- questions, she argues, that impaired her ability to flesh out prospective jurors' strong feelings or bias about tort reform, medical malpractice, and medical professionals. In particular, she complains of the trial court's refusal to ask the following three questions her counsel proposed that the court ask for the purpose of exploring the panel's views toward medical malpractice:

26. Any member of the jury panel or their immediate family members or close friends belong to any organizations who promote tort reform?

28. Do any of you have strong feelings about lawsuits against hospitals or doctors because of anything you have seen, heard, read or experienced? (Have each juror responding affirmatively approach the bench and ...


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