998 A.2d 303 | D.C. | 2010
Appellants (plaintiffs at trial) appeal the trial court’s grant of judgment to appellees as a matter of law in this medical malpractice case. Appellants argue that the trial court erred in determining that their expert witness lacked a sufficient basis upon which to testify about the national standard of care for a dilation and evacuation procedure. We agree with appellants on this point,
I. Facts
On December 27, 2001, appellants Francisco Javier Camacho and Beatriz Cárde-nas went to the District of Columbia office of appellee, Scott P. Muangman, M.D., for an abortion after the 20-week fetus Ms. Cárdenas was carrying was diagnosed with Trisomy 21. Following the procedure, which appellants said was very painful and left Ms. Cárdenas feeling weak, they returned to their home in Virginia. Ms. Cárdenas testified that she was in significant pain throughout the evening. During the early hours of December 28, 2001, Ms. Cárdenas was taken by ambulance to Fair-fax Hospital’s emergency room, where it was discovered that she had sustained a ten-to-twelve centimeter laceration of the uterus which extended into the cervix, a four-to-five centimeter tear of the sigmoid colon, a tear of the right infundibulopelvic ligament, damage to the ovaries, significant blood loss, sepsis, and hemorrhagic/septic shock. As a result, Ms. Cárdenas underwent a hysterectomy, a bilateral sal-pingo-oophorectomy,
Appellants filed complaints for medical malpractice against Dr. Muangman and his partner in the medical office, appellee Nathan Bobrow, M.D. At trial, appellants proffered the testimony of Philippe Girard, M.D. Appellees objected that Dr. Girard did not have a basis of knowledge to testify about the national standard of care for the performance of a second trimester dilation and evacuation procedure (“D & E procedure”). The trial court initially ruled that Dr. Girard’s testimony was admissible, and Dr. Girard testified that Dr. Muangman had deviated from the national standard of care by, inter alia, failing to use laminaria to dilate Ms. Cárdenas’s cervix before attempting surgery.
II. Admissibility and Sufficiency of Standard of Care Testimony
“The Court of Appeals will review a motion for judgment as a matter of law de novo by applying the same standard as the trial court.” Strickland v. Finder; 899 A.2d 770, 773 (D.C.2006). Judgment as a matter of law is proper only upon a finding that “a party has been fully heard ... and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party.” Super. Ct. Civ. R. 50(a). Here, the trial court found, and appellants do not contest, that without the testimony of Dr. Girard, appellants could not have made a prima facie case for medical malpractice. Therefore, the principal issue for our review is whether, in deciding appellees’ motion for judgment, the trial court properly determined that the testimony of appellants’ expert was unqualified and insufficient to prove the applicable national standard of care.
“In a medical malpractice action, the plaintiff carries the burden of establishing ... ‘the applicable standard of care, deviation from that standard, and a causal relationship between the deviation and the injury.’” Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007) (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C.1996)). “Because these issues are ‘distinctly related to some science, profession, or occupation,’ expert testimony is usually required to establish each of the elements, except where the proof is so obvious as to lie within the ken of the average lay juror.” Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990) (quoting District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987)).
Admissibility
Whether an expert is qualified to testify as to the applicable national standard of care is an issue that has received considerable attention from this court in recent years. See, e.g., Coulter v. Gerald Family Care, P.C., 964 A.2d 170, 188-203 (D.C.2009); Hill v. Medlantic Health Care Group, 933 A.2d 314, 322-28 (D.C.2007); Nwaneri, 931 A.2d at 470-78; Strickland, 899 A.2d at 773-74; Snyder v. George Washington Univ., 890 A.2d 237, 243^46 (D.C.2006); Hawes v. Chua, 769 A.2d 797, 801-08 (D.C.2001). As these cases have noted, a proper determination that an expert is qualified to testify as to the applicable standard of care does not vary depending upon whether the expert is proffered by the plaintiff or the defendant. The proffered expert’s testimony “must meet basic standards of competency and relevancy,” address national norms, and not be based merely on local custom or personal opinion. Hawes, 769 A.2d at 806. This requirement is founded on the prerequisite that any expert testimony not be based on mere speculation or conjecture. See Washington, 579 A.2d at 181; see also
Sufficiency
Whereas experts for both parties must meet these minimum requirements to be qualified to testify about the national standard of care, the plaintiffs experts, and only the plaintiffs experts, also have to hurdle a higher threshold: the burden of proving the national standard of care by a preponderance of the evidence.
“In Hawes ... we examined this court’s medical malpractice cases ... and identified ‘at least seven legal principles [which] are important in assessing the sufficiency of national standard of care proof....’” Drevenak v. Abendschein, 773 A.2d 396, 416 (D.C.2001) (alteration in original) (emphasis added). These principles are:
First, the standard of care focuses on the course of action that a reasonably prudent doctor with the defendant’s specialty would have taken under the same or similar circumstances. Second, the course of action or treatment must be followed nationally. Third, the fact that [particular] physicians follow a national standard of care is insufficient in and of itself to establish a national standard of care. Fourth, in demonstrating that a particular course of action or treatment is followed nationally, reference to a published standard is not required, but can be important. Fifth, discussion of the course of action or treatment with doctors outside this jurisdiction, at seminars or conventions, who agree with it; or reference to specific medical literature may be sufficient. Sixth, an expert’s personal opinion does not constitute a statement of the national standard of care; thus a statement only of what the expert would do under similar circumstances ... is inadequate. Seventh, national standard of care testimony may not be based upon mere speculation or conjecture.
Hawes, 769 A.2d at 806 (second alteration in original) (citations and internal quotation marks omitted).
Subsequent to Hawes, we have restated these principles in various formulations. See Strickland, 899 A.2d at 773 (“The personal opinion of the testifying expert as to what he or she would do in a particular case ... is insufficient to prove the applicable standard of care.” (quoting Travers, 672 A.2d at 568)); Coulter, 964 A.2d at 189 (“Further, an expert’s educational and professional background is not sufficient to demonstrate that he is familiar with the national standard of care.”); id. (“[T]he testifying expert must establish that the relevant standard of care is followed nationally, ‘either through reference to a published standard, discussion of the described course of treatment with practitioners outside the District at seminars or conventions, or through presentation of relevant data.’” (quoting Strickland, 899 A.2d at 773-74)). Importantly, the expert must “link his testimony to [a] certification process, current literature, conference or discussion with other knowledgeable professionals,” at a national level, otherwise there is no “basis for his discussion of the national standard of care.” Strickland, 899 A.2d at 774 (emphasis added); see also Coulter, 964 A.2d at 189; cf. Nwaneri, 931 A.2d at 467, 475, 477.
III. Analysis of Appellants’ Expert’s Testimony
Because the requirements for qualifying an expert to testify and assessing the qualified expert’s testimony for sufficiency overlap, they are susceptible to being confused. Thus it is essential to keep in mind the context and purpose for which an expert’s testimony is challenged. In this case, the issue is complicated by the fact that although the trial judge granted judgment to appellees post-verdict, which we review de novo, the judge ruled that judgment was warranted because “[i]f the expert had not been qualified, that is, if he
Regarding admissibility, we note first that Dr. Girard’s opinion was not based merely on his own personal experience. Upon being asked after having been recalled to the stand on voir dire “how [he is] familiar with the standard of care throughout the country,” Dr. Girard responded:
Well that’s a hard question. It’s a conglomeration of things. What you see in journals, what you’ve read in textbooks, what you’ve learned from, you know, being exposed to them to talking to people who do [D & E procedures]. From doing [D & E procedures] myself. I can’t put my finger on exactly what defines how, you know, where I get my information, but it’s just like anything else we do in life. It’s a conglomeration of events and sources of information.
Dr. Girard explained that his opinion was based on his familiarity with medical literature, national in scope, including Obstetrics & Gynecology, the official publication of the American College of Obstetricians and Gynecologists (“ACOG”); the American Journal of Obstetrics and Gynecology; and various textbooks that contain “sections on second trimester abortions.” He referred to speakers “[f]rom all over the country, California, Michigan ... New York” who come to grand rounds at the Medical College of Virginia
Moreover, we further conclude that Dr. Girard’s testimony was sufficient to permit the jury to find (as it did) that appellants proved the national standard of care by a preponderance of the evidence.
[T]he second trimester fetus is so large that instead of struggling against a cervix that’s been dilated in the last minutes, one prefers always to have a cervix that’s open and wide so that less twisting, pulling and activity is needed to remove the fetus.
This is the same in what’s called a D & X procedure[ ] where there’s two days of laminarias that are placed, and then the fetus is just kind of removed. It also decreases the amount of pain from the dilation that’s performed in the office.
A closer question is whether Dr. Girard satisfied the requirement that he “link” his expert testimony about the use of la-minaria to national practices. Strickland, 899 A.2d at 774. Although Dr. Girard could have been better prepared to explain the link between his opinion on the use of laminaria for second trimester abortions and its basis in national practice, we conclude that his testimony sufficed to establish the necessary connection. See Snyder, 890 A.2d at 245 (“Our primary concern is whether ‘[i]t is reasonable to infer from [the] testimony that such a standard is nationally recognized.’ ” (quoting Phillips, 714 A.2d at 775)). For example, Dr. Girard’s testimony was not as parochial as the testimony of Dr. Woo-dyear in Coulter, which this court held deficient because it was based only upon the expert’s personal, albeit extensive, experience. See Coulter, 964 A.2d at 191 (noting that “nothing in [the proposed expert’s] testimony established that he attended national conferences, or kept current with pertinent medical literature, from which he could be familiar with the national standard of care”); see also Travers, 672 A.2d at 569-70 (rejecting the testimony of an expert as to the national standard of care where “the expert expressed a personal opinion rather than a national standard of care”). Nor is Dr. Girard’s testimony like that of Dr. Stark, the plaintiffs expert in Strickland, who stated “in rather general terms that his opinion was ‘[w]hat other similarly trained doctors would have done under similar circumstances,’ or that it was the ‘standard of care what doctors do in hospitals around the country.’ ” Strickland, 899 A.2d at 774 (alteration in original); see also Travers, 672 A.2d at 569-70 (upholding grant of judgment under Rule 50 where plaintiffs expert “failed to provide any factual basis for his assertion that his testimony reflected a national standard
Rather, Dr. Girard’s testimony is more like that of Dr. Hoffler, plaintiffs expert in Snyder, which we concluded was “legally sufficient.” 890 A.2d at 245. In that case, plaintiffs expert explained “that the basis for his knowledge in this area was his ‘[education, experience, continued discussions about these matters in hospital staff meetings, surgical society meetings, in the medical journals.’ ” Snyder, 890 A.2d at 246 (alteration in original). Here, Dr. Gir-ard was specifically asked about the source of his opinion on the use of laminaria in performing second trimester abortions:
Q. Have you had occasion to discuss second trimester abortions with other physicians?
A. I have.
Q. Have you discussed whether lami-naria was [used] with them — by them?
A. You know, at which time are you talking about? It’s—
Q. At any time in your life?
A. Yeah, I have.
Q. Or any time in your professional career?
A. I’ve asked around. Do you use Lams [i.e., laminaria], yes or no. Most everyone I ask has always said, yes.
Q. And these physicians whom you’ve talked to in that regard, where are they from?
A. Various areas in the country.
Viewed in the light most favorable to appellants, who opposed the motion for judgment, we conclude that, although vague at times, Dr. Girard’s testimony was not only admissible at trial but sufficient to permit the jury to find by a preponderance of the evidence that the national standard of care prescribed the use of laminaria for second trimester abortions such as the one performed by Dr. Muangman. Cf. Travers, 672 A.2d at 569 (noting that “if there was evidence that the witness had discussed the described course of treatment with practitioners outside the District, such as at seminars or conventions, and that those other practitioners agreed with the course urged, the testimony might have been sufficiently supported since it would have been based upon ‘adequate data’ ” (quoting Sponaugle, 411 A.2d at 367)).
IV. Loss of Consortium Claim
We reject appellant Camacho’s argument that the trial court erred in dismissing his claim for loss of consortium on the authority of Stutsman v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., 546 A.2d 867 (D.C.1988). In Stutsman, we held that under the governmental interest analysis we apply to ques tions of choice of law, a similar loss of consortium claim was governed by the law of Virginia, where the married couple resided, because otherwise “Virginia’s clearly-expressed intent in regulating the legal rights of married couples domiciled within its borders would be seriously impaired.” Id. at 376. As Virginia does not recognize a claim for loss of consortium brought by a husband,
Finally, Virginia’s expressed interest in precluding Camacho’s loss of consortium claim is more significant to our governmental interest analysis than is the fact that a Virginia court might apply District of Columbia law (and therefore allow Camacho’s claim to proceed) under the conflict of laws analysis used in that state.
We hold that the testimony of Dr. Gir-ard was admissible and sufficient to allow a jury to find the national standard of care on the use of laminaria for the performance of a dilation and evacuation procedure during a second-term abortion. We therefore reverse the grant of judgment as a matter of law for appellees and remand the case with instructions to reinstate the jury verdict for appellants. We affirm the trial court’s dismissal of appellant Camacho’s claim of loss for consortium.
So ordered.
. We therefore need not address appellants’ alternative argument that a new trial is warranted because the trial court improperly dismissed their claim of lack of informed consent.
. A bilateral salpingo-oophorectomy entails "[r]emoval of the ovary and its uterine tube.” Stedman’s Medical Dictionary 1716 (28th ed. 2006) [hereinafter "Stedman's”].
.A laminaria is a ”[s]terile rod made of kelp ... that is hydrophilic, and, when placed in the cervical canal, absorbs moisture, swells, and gradually dilates the cervix.” Stedman's, supra note 2, at 1046. Plaintiffs’ expert, Dr.
. "On the other hand, the fact that an expert 'did not expressly use the words "national standard” when stating his expert opinion does not, in itself, render his opinion inadmissible’; rather, ‘[o]ur primary concern is whether it is reasonable to infer from [the] testimony that such a standard is nationally recognized.’ " Coulter, 964 A.2d at 189 (alterations in original) (quoting Snyder, 890 A.2d at 245).
. Thus, an expert who presents sufficient evidence of the national standard of care necessarily satisfies the elements necessary to qualify as an expert on the national standard of care, but not vice versa.
. The Medical College of Virginia is part of Virginia Commonwealth University.
. We note that some of Dr. Girard’s testimony was presented during his voir dire, outside the presence of the jury. The trial court expressly took into account all of Dr. Girard’s testimony in granting judgment to appellees. Neither party objected at trial. The parties do not argue, and therefore we do not decide, what effect Dr. Girard’s having presented some of his testimony outside the presence of the jury
. As noted, supra, note 5, the trial court’s ruling that the expert was unqualified to testify necessarily implied that the expert’s testimony was insufficient as a matter of law.
. As we explained in Stutsman, the origins of the Virginia statute, Va.Code Ann. § 55-36 (2010), was "to enlarge the personal rights of married women and to grant them separate legal estates.” 546 A.2d at 374. As the statute has been interpreted by courts applying Virginia law, not only may a husband not file suit to recover for his wife’s monetary damages, but he also may not sue to recover for loss of consortium. Id. at 372. Nor may a wife sue for loss of her husband’s consortium. See Carey v. Foster, 345 F.2d 772, 778 (4th Cir.1965).
. Virginia applies the lex loci delicti, or the law of the place of the wrong, in multi-state tort cases. See, e.g. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979); Miller v. Holiday Inns, Inc., 436 F.Supp. 460 (E.D.Va.1977). "The place of the wrong.has been defined as ‘the state where the last event necessary to make an actor liable for an alleged tort takes place.’ ” Miller, 436 F.Supp. at 462 (E.D.Va. 1977) (quoting Restatement (First) of Conflict of Laws § 377 (1934)). We have found no decision of the Supreme Court of Virginia or an appellate court of that state involving facts analogous to those presented here; we know of one decision, of the Virginia Circuit Court, applying District of Columbia law to permit a loss of consortium claim by a husband, where the couple resided in Virginia, under the lex loci delicti test because the "last event necessary” to make the defendants liable occurred in the District. See Pringle v. Sloan, 44 Va. Cir. 516 (1996).
. Under federal transfer statutes, the choice of law provisions of the state of the transferor court apply after transfer if venue was proper in the transferor court, 28 U.S.C. § 1404(a), but not if venue was improper, in which case