Argued: October 23, 2014.
Appeals from the Superior Court of the District of Columbia. (CAM-8643-11). (Hon. Neal E. Kravitz, Trial Judge).
Donald L. DeVries, Jr., with whom Craig S. Brodsky and Erin Christen Miller were on the brief, for appellant/cross-appellee. Janet A. Forero also entered an appearance for appellant/cross-appellee.
Sandra H. Robinson, with whom Jack H. Olender was on the brief, for appellee/cross appellant.
D. Lee Rutland filed a Statement in lieu of a brief for defendant William Brownlee, III, M.D.
Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and FARRELL, Senior Judge.
A jury awarded plaintiff/cross-appellant John Willis $650,000 in damages for an injury arising from negligence by nurses employed by defendant/appellant Providence Hospital (the Hospital) when, after a surgery, they failed to place on his legs sequential compression devices (SCDs) ordered by the surgeon. The Hospital moved to set aside the verdict, arguing that Willis had not proven a causal link between the negligence and his injuries, ultimately the below-knee amputation of both of his legs at another hospital. Willis, in turn, moved for a new trial on damages asserting that the jury's award was inadequate under the circumstances and was likely influenced by the trial court's refusal to give an instruction on " special susceptibility."
The trial judge denied both motions, leading to this appeal and cross-appeal in which the parties renew their objections to the verdict. We affirm the judgment essentially for the reasons stated by Judge Kravitz in his comprehensive, painstaking opinion, which we append hereto. The following discussion, which assumes familiarity with the judge's analysis, supplements it in two respects.
n1. As the trial judge explained, the principal dispute between Willis and the Hospital at trial was whether deep venous thrombosis (DVT) became " well-established" in Willis's legs before, or instead after, a second surgery performed to ameliorate an abscess on his right buttock. If the latter was the case, then expert testimony supported the jury's finding that negligence by nurses in not placing SCDs on Willis's legs after the second surgery,
despite instructions from the surgeon to do so, contributed causally to the below-knee amputation of his legs ten days later at Prince George's Hospital Center. The trial judge, applying the correct test of causation, arrayed the pertinent evidence and concluded that the jury, " without engaging in impermissible speculation," had reasonably found that " the plaintiff's DVT did not become well-established until after the second surgery, and that the application of SCDs beginning on [the date of that surgery,] September 10, 2008, would have prevented the formation of a well-established DVT . . . ."
On appeal, the Hospital disputes this conclusion but does so, in our view, chiefly by overstating the plaintiff's burden of proof. It contends that the judge wrongly " shifted the burden of proof on the issue of causation" to the defense (Br. for Appellant at 16) by not recognizing that " [i]t was incumbent on Mr. Willis to prove that the DVT had not yet become 'well-established' by September 10th when [the surgeon] entered the order for SCDs" ( id. at 6; italics added). See id. at 14 (" [N]one of the [plaintiff's] experts could establish with reasonable medical probability that the DVT had not already formed before the order for SCDs was placed" (italics added)). The Hospital thus argues that Willis had to prove a negative: It was not enough for him to show that the DVT more likely than not became well-established in the ten days after the negligence; he also had to disprove -- to rule out -- that it did so in the five-day interval between the two surgeries. But while the Hospital cites unassailable legal principles such as that a medical expert's opinion must be formed " with sufficient certainty so as to make a medical judgment," Lasley v. Georgetown Univ., 688 A.2d 1381, 1388 (D.C. 1997), and that more than a temporal relationship -- " contemporaneity" -- between a medical procedure and an injury must have existed to prove causation, Derzavis v. Bepko, 766 A.2d 514, 522 (D.C. 2000), it points to no case law or other authority requiring Willis to negate a possibility ( i.e., that the DVT became established too early for the ordered prophylaxis to be effective) and show by a preponderance of the evidence, as he did, that timely placement of the SCDs would have kept the DVT from becoming well-established.  Requiring Willis to do both, in our judgment, would amount to increasing his burden of proof to something akin to the standard in criminal cases. Cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (in criminal case, disproving prejudice " beyond a reasonable doubt" from constitutional error tantamount to dispelling any " reasonable possibility" of such prejudice).
Altogether, then, we agree with Judge Kravitz that, while " [t]his was a very close case on the issue of causation," Dr. Hall (Willis's chief medical expert) " never withdrew or even backed away from his opinion that the nurses' negligence proximately caused the plaintiff's amputations, and the evidence, although hotly contested, was
sufficient to support his opinion."  Willis, required only to meet the standard of causation stated in Travers, supra note 2, met his burden of proof.
2. Willis's argument, as cross-appellant, that the jury's award of $650,000 in damages was inadequate requires discussion mainly of his claim that the judge's refusal to give the " special susceptibility" instruction was error and may have caused the jury to minimize (relatively speaking) his damages. Like the trial judge, we conclude that as the case was actually tried, that instruction had no relevance to the assessment of damages the jury was called on to make.
The instruction reflects the " firmly established principle of tort law that a tortfeasor takes his victim as he finds him," Bushong v. Park, 837 A.2d 49, 55 (D.C. 2003), so that " [a] negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent." Gubbins v. Hurson, 987 A.2d 466, 469 (D.C. 2010) (quoting Restatement (Second) of Torts § 461 (1965) (italics deleted)). In the present case, there was conceded evidence that Willis came to the Hospital with pre-existing medical conditions (or " risk factors" ) including diabetics, obesity, hypertension, and a history of smoking. He thus argues that, without the special susceptibility instruction, the jury may have unfairly reduced or discounted his damages to the extent it saw these risk factors -- all beyond the Hospital's control -- as combining with the negligence to cause the need for the amputations.
What Willis ignores, however, is that the Hospital tried the case on the theory that an independent cause, not its alleged negligence, combined with his prior conditions to necessitate the amputation. It presented evidence through two medical experts that " sepsis or a syndrome related to infection in his buttock abscess," developing only after his release from the Hospital, combined with his pre-existing debilities (as " a diabetic and former smoker" ) to cause a blockage of arteries, eventual gangrene, and the need for amputation. This progression that began with wound contamination, those experts maintained, was unrelated to the DVT and any attendant negligence, and the Hospital thus did not imply, in questioning of witnesses or closing
argument, any mitigating link between the DVT and Willis's pre-existing conditions.
The jury was free, of course, to reject the Hospital's causal theory wholly or in part and find, as it did, that the DVT and its sequelae were a substantial contributor to the loss of Willis's legs. But in assessing the damages to be awarded, the jury would have received no guidance from an instruction designed to forestall a mitigation (or minimization) argument that was not part of the case actually tried.
It is true, as Willis argues relatedly, that the jury's award of $50,000 for past medical expenses -- chiefly associated with the amputation of his legs -- seems quite small when the actual medical expenses he incurred were some $275,000. But, as Judge Kravitz pointed out, the issue of causation was " hotly contested" in the manner we have described, with the Hospital contending that the amputation stemmed causally from something unrelated to the deep venous thrombosis and antecedent negligence. Thus the jury, while finding that the negligence was indeed a contributing cause, may have been unwilling to attribute more than a modest portion of the amputation-linked expenses to something it did not believe had predominantly necessitated the amputation. Any skepticism this court may have about that conclusion is beside the point. Our standard of review, see Posner v. Holmes, 739 A.2d 358, 360-61 (D.C. 1999), and the substantive impediments the law erects to ...