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Stone v. Alexander

October 28, 2010

JACQUELINE E. STONE, ET AL., APPELLANTS,
v.
E. PENDLETON ALEXANDER, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB 8322-04) (Hon. Melvin R. Wright, Trial Judge).

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

Argued December 2, 2009

Before GLICKMAN, KRAMER and THOMPSON, Associate Judges.

In this malpractice case, Jacqueline and Ronald Stone sued Dr. E. Pendleton Alexander and Medical Faculty Associates ("MFA") in connection with the death of their mother, Irma Stone, after a double heart valve replacement operation performed by Dr. Alexander. A jury returned a verdict for appellee. The issues on appeal are whether the trial court properly concluded that a conversation between Dr. David Salter, an assisting surgeon, and his colleagues about Dr. Salter's concerns with respect to Dr. Alexander's performance during Ms. Stone's surgery was privileged,*fn1 and whether an "amended autopsy report" was properly admitted into evidence.*fn2 We hold that even if the trial court abused its discretion by excluding testimony regarding a particular conversation, appellants suffered no prejudice because the court allowed testimony about every other conversation that Dr. Salter had with his colleagues, which allowed the jury to properly consider the matter. We also find no merit to appellants' remaining assertions and thus affirm.

I. Factual Background

On October 20, 2003, Irma Stone underwent a double heart valve replacement operation at George Washington University Hospital ("GWUH"). Ms. Stone was 67 years old and considered a "high-risk" patient because of her pre-existing afflictions,*fn3 but otherwise the operation was considered "routine." Eight days after the surgery, she was dead.*fn4 Appellants alleged that Dr. Alexander had negligently placed one of the replacement valves during the surgery, blocking the flow of blood to Ms. Stone's heart and causing her eventual death.

Dr. Alexander was assisted during the operation by Dr. Salter. The undisputed facts established at trial are as follows. Dr. Salter left the operating room some time during the procedure and returned later. Dr. Salter, and not Dr. Alexander, was present when Ms. Stone passed away. After Ms. Stone's death, Dr. Salter asked to examine her heart during the autopsy. Dr. Salter had discussions about the operation with his colleagues at various times, including Dr. George, a cardiothoracic fellow at GWUH, Dr. Gharagozloo, chief of cardiothoracic surgery at GWUH, and Dr. Katz. One of these conversations took place in the hospital cafeteria, during a meeting called by Dr. Gharagozloo. Dr. Alexander was not present.

The parties dispute why Dr. Salter left the operating room, why he went to examine Ms. Stone's heart at the autopsy, and what Dr. Salter said to his colleagues about the operation. Specifically, appellants assert that Dr. Salter's testimony at trial was inconsistent with the statements he made to his colleagues. At trial, Dr. Salter denied that Dr. Alexander had placed the valve negligently and offered an attenuated version of his concerns about the operation and Dr. Alexander's performance. On the other hand, at his deposition, Dr. Gharagozloo testified that Dr. Salter "voiced... very strongly his opinion about the way a valve was placed." According to Dr. Gharagozloo, Dr. Salter told Dr. Alexander during the operation that "the valve they were putting in... wasn't seating right, it wasn't being placed correctly." Dr. George's deposition testimony was that Dr. Salter had expressed concerns to him about the position of the replacement valve. Drs. George and Salter observed Ms. Stone's heart at the autopsy together, and Dr. George shared Dr. Salter's concerns at that time. Dr. George testified that the cafeteria meeting was called "out of concern for the position of the valve," and that Dr. Salter repeated his concerns at the meeting. At Dr. Katz's deposition, he testified that the cafeteria meeting was held because "people were upset and concerned about Ms. Stone's death" and "Dr. Gharagozloo... was made aware of this concern about the case, and there was enough talk that I think he simply wanted people to stop talking and say look, this is the way we handle it."

Appellee moved to preclude all testimony involving Dr. Gharagozloo, arguing that because Dr. Gharagozloo chaired GWUH's Peer Review Committee, "all conversations regarding the decedent's surgery [involving] Dr. Gharagozloo... were properly subject to the peer review privilege." Despite calling it a "close question," the trial court partially granted the motion with regards to the meeting in the cafeteria. The court reasoned that the meeting was "the beginning of an attempt to formulate the [peer review] committee."

At the same time, the court allowed testimony regarding all other conversations Dr. Salter had with his colleagues, including those colleagues who had been present at the cafeteria meeting. For example, the jury received the bulk of Dr. Gharagozloo's testimony through his de bene esse deposition. Therefore, Dr. Gharagozloo's statement that one "could not talk to Dr. Salter without this matter coming up"was admitted. Also admitted were Dr. Gharagozloo's hearsay reports of Dr. Salter claiming that he voiced his concerns about the valve's placement to Dr. Alexander during the operation and Dr. Salter's conclusion that "the outcome of this situation [i.e., Ms. Stone's death] was due to the result of the valve placement." In addition, Dr. Katz testified at trial that Dr. Salter told him that he was concerned about the position of the valve during the operation, and that his examination of Ms. Stone's heart after her death confirmed his concerns that the valve was not correctly positioned. Dr. Katz told the jury that Dr. Salter "told us that when he looked at the valve [after Ms. Stone's death], clearly the valve was in an improper position....

[T]here was some obstruction of the coronaries." Finally, the jury heard the de bene esse deposition testimony of Dr. George - who was also a participant at the cafeteria meeting, along with Drs. Gharagozloo and Katz - explaining that Dr. Salter expressed "concern that the valve was [positioned] too close to the [coronary] ostia such that it might inhibit the performance of the valve."

II. Standard of Review

We review a trial court's decision about admissibility of evidence for abuse of discretion.*fn5 In exercising our reviewing power, we remain cognizant that "[t]he concept of 'exercise of discretion' is a review-restraining one. The appellate court role in reviewing 'the exercise of discretion' is supervisory in nature and deferential in attitude."*fn6 Even where we find error, "we may find that the fact of error in the trial court's determination caused no significant prejudice and hold, therefore, that reversal is not required."*fn7 "In sum, the appellate court makes two distinct classes of inquiries when reviewing a trial court's ...


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