Ronald G. PERKINS, Appellant,
Darcy J. HANSEN, et al., Appellees.
Argued Nov. 6, 2012.
Barry J. Nace, Washington, DC, with whom Christopher T. Nace was on the brief, for appellant.
James P. Gleason, Jr., Rockville, MD, and D. Lee Rutland, Annapolis, MD, with whom Alissa A. Watts was on the brief, for appellees.
Before OBERLY and McLEESE, Associate Judges, and PRYOR, Senior Judge.
OBERLY, Associate Judge:
On June 6, 2007, Margie Perkins died at Georgetown University Hospital from severe liver failure. Appellant Ronald Perkins, Mrs. Perkins's husband, brought a medical malpractice action, individually and as administrator and personal representative of his wife's estate, against appellees, Mrs. Perkins's treating physicians, alleging that their negligence caused his wife not to receive a life-saving liver transplant. Upon objection by appellees, the trial judge excluded portions of testimony by one of appellant's experts. Without that testimony, appellant conceded that he could not establish causation and the judge granted appellees' motion for a directed verdict. On appeal, appellant alleges that the trial court committed reversible error in excluding his expert's testimony and also by granting the directed verdict. For the reasons discussed herein, we agree and reverse and remand for a new trial.
Beginning in April 2007, Mrs. Perkins's " lab work showed elevation in [her] liver tests." She was being treated by her primary physician Dr. Darcy Hansen and gastroenterologist Dr. Michael Keegan. On May 11, her condition worsened and Dr. Keegan sent Mrs. Perkins to the emergency room at Sibley Memorial Hospital. For reasons not clear from the record, she was discharged the next morning. Unfortunately, however, Mrs. Perkins's condition continued to decline. On May 23, she was admitted to Georgetown University Hospital and after being evaluated was placed on the United Network for Organ Sharing (" UNOS" )  transplant waitlist two days later. The decision to place patients on the waitlist and in what order of priority generally is determined using a Model for End-Stage Liver Disease (" MELD" ) score. However, because Mrs. Perkins was diagnosed with " hepatic encephalopathy," a worsening of brain function associated with liver failure, she was designated as " status one" and " placed at the top of the list." From then until she passed away on June 6, there were 44 livers available for her, but they were deemed unsuitable and Mrs. Perkins did not receive a transplant.
Appellant brought a medical malpractice suit against appellees  alleging that they " failed to timely recognize that Mrs. Perkins had severe liver failure" and that if she had been admitted sooner to Georgetown University Hospital or another facility that performed transplants, she would have received a liver transplant and survived. At trial, appellant proffered that Dr. Esteban Mezey would offer expert testimony on causation, explaining that it was more likely than not that if Mrs. Perkins had been transferred to a hospital that performed transplants sometime between May 12-14, shortly after she was discharged from Sibley, she would have received a liver transplant and survived. Appellees objected to that testimony because Dr. Mezey did not review the UNOS data on the mean and median wait times for organ transplants for region two, which includes Georgetown University Hospital, arguing that he did not have an adequate foundation for his opinion. The trial judge sustained the objection and excluded Dr. Mezey's testimony on causation.
At the conclusion of appellant's presentation of evidence, appellees moved for judgment in their favor arguing that appellant failed to establish " proximate cause" as a matter of law. Appellant's counsel conceded that without Dr. Mezey's testimony on causation, " there is not sufficient evidence of causation to go to the jury on these issues." Accordingly, the trial judge granted appellees' motion and Mr. Perkins filed a timely notice of appeal.
" In a medical malpractice case, the plaintiff must establish the applicable standard of care, [a] deviation from that standard and a causal relationship between the deviation and the injury." Snyder v. George Washington Univ., 890 A.2d 237, 244 (D.C.2006) (internal quotation marks omitted and alteration in original). The causal relationship between breach and injury is established through expert testimony " based on a reasonable degree of medical certainty, that the defendant's negligence is more likely than anything else to have been the cause (or a cause) of plaintiff's injuries." Derzavis v. Bepko, 766 A.2d 514, 522 (D.C.2000) (internal quotation marks omitted). Appellant argues that the trial court erred in not allowing Dr. Mezey to provide testimony on causation. We review a trial court's decision regarding the admissibility of expert testimony for an " abuse of discretion." District of Columbia v. Anderson, 597 A.2d 1295, 1299 (D.C.1991). Thus, the trial court's decision will be " sustained unless it is manifestly erroneous." Coates v. United States, 558 A.2d 1148, 1152 (D.C.1989).
Generally, the admission of expert testimony is guided by the three Dyas factors. The first and third factors are not at issue here.  The second factor requires that the witness have " ...