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Savage v. Burgess

Court of Appeals of Columbia District

July 25, 2013

Dionne Savage, Appellant,
v.
Cheryl M. Burgess, M.D., et al., Appellees.

Argued April 30, 2013

Appeal from the Superior Court of the District of Columbia (CAM-1107-07) (Hon. Erik P. Christian, Trial Judge)

Paul Y. Kiyonaga for appellant.

Andrew J. Spence, with whom Edward A. Gonsalves and Nicholas G. Hallenbeck were on the brief, for appellees.

Before Glickman and Blackburne-Rigsby, Associate Judges, and Nebeker, Senior Judge.

Nebeker, Senior Judge:

Appellant, Dionne Savage, brought various medical-malpractice related claims against the appellees, Cheryl M. Burgess, the Center for Dermatology and Dermatologic Surgery, The Professional Aesthetic Image Center, P.C. and Francis Dent, after receiving a chemical peel that left her with painful burns and scars.[1] At trial, appellant tried to qualify Dr. Stephanie P. Diamond as an expert witness. We conclude that counsel elicited a proper foundation for Dr. Diamond's opinion on a national standard of care before the trial court cut the questioning short. Accordingly, we reverse the trial court's judgment in favor of appellees, and remand for further proceedings.

On the first day of trial, following testimony from appellant and appellee Dent, appellant called Dr. Diamond, a board-certified dermatologist from Pennsylvania. Dr. Diamond testified about her education, professional experience, and review of the records at issue in this case. Then, Dr. Diamond identified texts she believed were "authoritative treatises in the field of dermatology, " including a textbook on chemical peels and a document "from the Neostrata Company, [asserted to be] one of the leading companies that makes glycolic acid peels." She also described reviewing "some articles from journals that I showed during my deposition." At this point, appellant asked Dr. Diamond if she was "prepared to render an opinion as to the standard of care to a reasonable degree of medical certainty?" This question drew a prompt objection from appellees, who argued that appellant had not yet laid a proper foundation for Dr. Diamond's opinion. The court sustained the objection.

It is unnecessary to summarize what followed in detail. Suffice it to say that appellant's counsel had great difficulty phrasing his questions to the court's satisfaction, but eventually crafted the following exchange:

Q: What – specifically, what document did you review for – in connection with this case?
A: I reviewed the medical records from when Ms. Savage was treated at Dr. Burgess's office. I reviewed depositions of Dr. Burgess, of Mr. Dent, of Dr. Issacson, of Dr. Downey, and the – my deposition when I was deposed. I reviewed various textbooks on the – on the subject of chemical peels, and I also reviewed literature that was provided by one of the major companies that manufactures chemical[ ] peels, as well as other articles from my field of dermatology and our peer review journals.
Q: I believe previously you testified to text that you reviewed that you believe to be authoritative.
A: Correct.
Q: Is it your opinion that they are – that they apply to a national standard of care ...

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