Ferrell v. Rosenbaum

self-employed.” challenged apply plans ... for the the entireties even before the 2) Hence, Zyblut’s Keogh Mr. transfer in even there had Id. at 4873. been, Lloyd prove, by account not shielded from his creditors Roberts & failed evidence, conveyed wife convincing Zy- that the before he it to himself and his clear and by the entireties. It is for bluts did so with fraudulent intent. as tenants fact, determine, question trial court to as Zyblut’s of the funds Mr. transfer III. Keogh account held as from his account an respect With to the second as by his wife was tenants the entireties with pect appeal, of this we conclude that Mr. defrauding purpose hindering or for the Zyblut’s Keogh account was shielded his creditors. from his creditors virtue of section 206 of 1056(d) ERISA, (Supp.1993). § 29 U.S.C. Conclusion 1056(d) provides, pension plan Section “Each affirm the trial court’s We provide shall that benefits under brokerage Zybluts respect to the with plan may assigned be or alienated.” error of accounts. Because the trial court’s § statutory authority, id. Pursuant respect Keogh to the account affect- law with Secretary promulgated reg of Labor has findings pretermitted ed and its of fact on defining “pension plan” ulations the term the issue of intent to defraud or hinder Rob- ERISA, purposes of Title I of of which Lloyd, pro- for further erts & we remand § part. 1056 is a That definition excludes ceedings opinion. consistent with this plans Keogh proprietor in which a sole is the 2510.3-3(a). only participant. § 29 C.F.R. So ordered. regulatory properly applied

The definition is 1056(d) particular, § because that sec specifies pension plan

tion of what a ERISA provide” Secretary

“shall and the of Labor is

charged enforcing requirements with 1132(a)(5). §

that section. 29 U.S.C. regulatory comports

The definition with statutory language legisla- both the and the FERRELL, al., Appellants, et Susan history of tive ERISA The statute defines “pension plan” plan to mean a established v. “employer” provide an retirement income ROSENBAUM, Kenneth N. 1002(2)(A) “employees.” § 29 U.S.C. M.D., al., Appellees. et (1988). “employee” employed by An is one No. 94-CV-1179. “employer,” acting an person who is directly employer indirectly Appeals. District of Columbia Court employer, plan. interest of relation to (6). 1002(5), § statutory Id. In view of the Argued 1995. Nov. scheme, designed protect which was to. April 1997. Decided employees against interests of the miscon- employers, duct of their it makes sense to require statute to

construe the em-

ployer employee persons. be different legislative history that out. The bears Report part

House stated that the of the bill

encompassing “Keogh section 206 excluded

plans benefiting self-employed and own-

er-employees.” Employee Retirement In- 93-406, Act, Security

come Pub.L. No. (93 Stat.) Similarly,

U.S.C.C.AN. Report

Senate states that Act does not “[t]he Edward Lee

Norman G. Schneider and DC, Rogers, Washington, appellants. Reed, Vienna, VA, Lynn appel Mary lees. RUIZ, TERRY and Associate

Before NEWMAN, Judges, Judge. and Senior RUIZ, Judge. Associate daughter, and Alexis Susan Ferrell her Ferrell, brought malpractice action a medical Rosenbaum, M.D., against N. and Kenneth National Medical Center Children’s (“CNMC”) upon allegedly negli- based their gent diagnose failure to Alexis Ferrell as anemia, suffering potentially from Faneoni genetic trial court fatal blood disorder. The awarded Rosen- baum and CNMC and denied the Ferrells’ motion for reconsideration. young girl1

Alexis Ferrell is a who suffers progressive aplastic from Faneoni prevents production of anemia that red platelets. and white blood cells and The physical signs of Faneoni anemia include abnormalities, kidney small stat- thumb microcephaly. ure and a bone mar- Without transplant, row the odds of survival into adulthood are minimal. 27, 1985,

Alexis born on March at the University George Washington Medical Cen (“GWUMC”). Washington Short ter D.C. ly delivery, was noted to have after Alexis hypoplastic and no external audito thumbs ry Consequently, Ferrell and canals. Susan husband, Ferrell, Barron Fento Rosenbaum, was Di referred to Dr. rector of Clinical Genetics CNMC. bom, morning Alexis was Dr. Rosen- Alexis at baum examined GWUMC hypoplastic found that addition canals, auditory thumbs and lack of external slightly anteriorly placed anus she also had sonogram A renal also indi and small ears. missing kidney. At cated that Alexis was time, to Mrs. Dr. Rosenbaum indicated diagnostic he would have various Ferrell that years and in 2. Her thumbs were smaller than normal 1. Alexiswas nine old in 1994. an immature state. tests, test, including per years subsequently chromosome nia later two has twice, formed on Alexis. contacted Ferrell tele- phone, Spring in October 1989 and later, days Two March currently His whereabouts are unknown. analysis performed of Alexis’s blood conversation, During last Mr. Ferrell abnormally GWUMC showed Alexis had Mrs. Ferrell he told was homeless. (“MCV”) corpuscular elevated mean volume (“MCH”) Arlington Hospital Alexis was admitted to corpuscular hemoglobin and mean April pneumonia. of 1990 with When she an abnormally levels and low red blood cell released, (“RBC”) However, was referred to hema- count. Dr. Rosenbaum tologist, Joseph Gootenberg, E. who in- did not review these After several results. visits, formed Mrs. Ferrell that because of her follow-up misdiag- Dr. Rosenbaum count, physical deformities blood he syn- with having nosed Alexis a malformation strongly suspected that Alexis suffered from drome to as referred the VATER association. Fanconi anemia and he need that would to approximately Alexis first went to CNMC samples birth, and bone marrow to send blood New after her two weeks at which time testing in diag- York for to confirm his order surgically deformed left thumb removed. was 30, 1990, Gootenberg Dr. Thereafter, nosis. On October continuously was seen suspicion informed Mrs. Ferrell his was at Dr. Rosenbaum When Alexis was CNMC. old, positive correct: Alexis had tested for Fanco- approximately thirteen Dr. months ni anemia. having Rosenbaum noted that Alexis was weight, gaining head was trouble that her injury The basis for Mrs. Ferrell's claim of small, abnormally and think that he “did not diagnosed properly is that had Alexis been problems sole- these could be attributed care, under Dr. the Fer- while Rosenbaum’s ly syndrome.” malformation rells would have been informed matched bone from sib- marrow Hematological data from the tests taken ling for donor was best treatment days done at GWUMC three after Alexis’s they daughter’s condition. Because were 30, 1985, birth March further on and from Alexis, living together they loved then and at tests conducted CNMC on October taken opportunity 26, 1986, April consistently showed who donated another child could have abnormally high that Alexis had MCV and transplantation. matched bone marrow for abnormally levels and an low RBC. MCH However, due Dr. Rosenbaum’s and results, These were all indic- abnormal negligence, misdiag- CNMC’s Alexis was ative of Fanconi marked on the were and, consequently, nosed until October 1990 laboratory reports with to alert the asterisks the Ferrells not informed neces- However, physicians abnormality. of their sary during treatment the time that Mr. Rosenbaum, anyone Dr. neither nor else part family. Ferrell was Since Mr. CNMC, reviewed the of the blood results found, only Ferrell cannot now be Alexis’s Further, pur- tests. Rosenbaum did has been chance for matched donor problems sue his belief Consequently, foreclosed. as a result Dr. solely not be attributed to the malformation negligence, Alex- Rosenbaum’s CNMC’s syndrome affecting her. he believed to be chance to obtain matched bone mar- is’s Instead, when Dr. last saw Alex- transplant donor she needs survival row 28, 1987, April is that Alexis’s on he noted significantly has been reduced. syndrome following malformation was the ex- course, pected and his recommendation Proceedings Trial Court year follow-up in one was to see her pursuant Mrs. Ferrell filed a statement visit. 26(b)(4) on March Superior Court Civil Rule 17, 1994, separated listing among experts Dr. Nas Ferrell and her husband Susan Shahidi,3 testify as 1987. Mr. Ferrell moved to Califor- rollah Thomas who June vices, is a Pediatrics at the a Medical Advisor to the Fanconi Anemia Dr. Shahidi Professor of University Wisconsin Health Ser- Center of 26(b)(4)” 3, 1994, day discovery by Dr. on to the violation of the standard of care June pretrial order.6 The also closed under the Rosenbaum and CNMC. The statement Gillio,4 testify explained statement P. who would listed Alfred discovery light that Dr. Rosen- that Alexis suffers from Fanconi anemia. of the belated data, blood test baum had not reviewed the The Rule statement indicated Gillio, as initially had been identified might supplement her list of Dr. appellants on Alexis’s expert witnesses at a later witness for date.5 initial state prognosis 26, 1994, During deposition April his on ment, testify to Dr. prepared also as expressed opinion that Alexis Shahidi violation of the standard Rosenbaum’s properly diagnosed shortly could have been effect on Alexis’s treat care and its adverse and that it be a violation of birth Appellees to strike the ment. filed motion up the standard care not to follow 24, 1994; supplemental statement on June repeat the results of Alexis’s abnormal blood opposition appellees’ Ferrell filed an deposed May tests. Dr. Rosenbaum was July motion on 1994. The trial court deposition 1994. From Dr. Rosenbaum’s not rule on the motion to strike. that, in Mrs. Ferrell discovered addition to summary days Appellees the blood done at three filed a motion for work GWUMC bom, analysis judgment stating no after Alexis was more that there was they material fact and that been conducted CNMC some seven issue as a matter of law. fourteen months later which indicated that were entitled to abnormally high responded by filing a motion for Alexis continued have abnormally summary judgment opposing ap partial MCV and MCH levels and low and acknowledged summary judgment. Dr. in pellees’ RBC. Rosenbaum his motion for Mrs. deposition summary judg partial that he had not reviewed the fore- Ferrell’s for motion going appellees’ on blood data and that he did not know ment was based violation duty one to at specific else CNMC had reviewed the least review support opposition, results. Dr. Gilliowas informed data. of her When about blood testimony, Dr. deposition argued Rosenbaum’s Dr. Mrs. Ferrell the record con support finding prepared “ample Gillioindicated that he was to testi- tained evidence to a fy appli by jury [appellees] that Dr. Rosenbaum’s failure to review the a violated the negli negligent blood test results was and resulted cable standard of care and that opportunity effectively deprived in gence Alexis’s loss of for survival. Alexis of her chance of survival.” gave Mrs. promptly ap Ferrell’s counsel pellees’ Superior counsel oral and denied Mrs. Ferrell’s written notification Court scope testimony partial summary judgment that the of Dr. and Gillio’s would motion granted summary judgment than to Dr. Rosen- be broader had been indicated on the 26(b)(4) First, initial Rule statement and filed a and the trial court found baum CNMC. “Supplemental disputed no issues of materi- Statement Pursuant to Rule that there were Fund, appellees’ requested Research counsel inform the author of numerous arti- letter appellees prefer cles on Fanconi anemia. Mrs. Ferrell’s counsel if that Mrs. Ferrell file a formal amended statement Hematologist 4. Dr. Gillio is a Pediatric in the arrangements to and invited counsel to make Transplantation Bone Marrow Service at Memo- depose Appellees’ Gillio. counsel did not Dr. Kettering rial Sloan Cancer Center. addressing respond this letter. Asecond letter by points Mrs. Ferrell's coun- the same was sent Appellees similarly right supple- reserved 2, 1994, appel- May sel on 1994. On June ment their statement. responded appellees counsel did not lees’ appel- 6. Mrs. sent two Ferrell's counsel letters May recognize letter as a formal indicating pre- lees’ counsel that Dr. Gillio was 26(b)(4) supplement to the Rule statement. The pared testify that Dr. Rosenbaum violated the supplemental day, a Rule next Mrs. Ferrell filed letter, May standard of care. The first dated 26(b)(4) indicating scope statement broader proposed described Dr. Gillio’s proffered testimony and the reason of Dr. Gillio's light in of the fact that Dr. Rosenbaum had therefor. revealed, during deposition, that he failed to review and evaluate Alexis’sblood test data. The Second, al fact. the trial court considered Rosenbaum’s and CNMC’s violation in supplemental not demonstrated that standard of care Rule Mrs. Ferrell had 2) 26(b)(4) statement; departed by applying wrong Dr. CNMC care, applicable admissibility and that medi- standard standard for the demonstrate, opinion considering even if she could so “the undis- cal when Shahidi’s 3) puted suggest testimony; failing that an ear- evidence does not to consider testimony indicating lier that he [Alexis] Rosenbaum’s 4) sufficiently data; with a substantial chance of sur- had reviewed blood misconstruing injury resulting vival.” from the negligence delay per-

claimed to be the Alexis, forming I. bone marrow opportunity than best rather the loss grant summary judgment We review transplant, medically in- whenever de is no novo to ensure dicated, potential sibling from a donor.7 prevailing issue of material fact and that the parties are entitled to as a matter A. Univ., Georgetown

of law. Colbert v. banc). (D.C.1994)(en 469, 472 A.2d ascer principal Ferrell’s claim of error taining material facts are awarding summary judgment is that dispute, we view the entire record and we do prof trial court failed to consider Gillio’s party light so most favorable to the fered additional opposing the motion. Id. To defeat a motion adequately forth in the set malprac a medical sup statement. Because this Rule action, tice the non-movant must establish plemental indicated that Dr. Gillio statement prima malpractice, con facie case of medical testify that Dr. Rosenbaum and 1) establishing sisting applicable stan Alexis, negligently diagnose CNMC failed 2) care, applicable dard of and that such failure caused her to lose 3) violated, proving standard has been survival, ignoring it substantial chance for relationship causal between the violation and harmful error. The trial court erred was alleged v. the harm. Miller Greater South summary judgment granted when it based Community Hosp., east 508 A.2d 930 of a proffer Mrs. Ferrell’s failure to evidence (D.C.1986) (citing Kosberg Washington v. of standard of care and its breach Ctr., Inc., 322, 324, Hosp. U.S.App. 129 D.C. cause the (1968)). Applying 394 F.2d 949 the sum granting summary judg- The court’s order mary judgment standard to the record before mention Dr. ment does not address even us, we conclude there was given sup- proffered testimony in the Gillio’s Further, dispute over material facts. This plemental Rule statement. record contains sufficient evidence proffered testimony pointed out to the jury find that Dr. Rosenbaum which could par- motion for court both Mrs. Ferrell’s care and and CNMC violated the standard of opposition summary judgment and in her tial negligence deprived this Alexis of a judgment. appellees’ summary for motion Therefore, substantial chance for survival. argue not Appellees that the trial court need appellees are not entitled to as a supplemental considered Mrs. Ferrell’s matter of law. reverse and remand the We 26(b)(4) statement because the state- Rule case to the trial court. properly the court. ment was not before II. usually defer to the exercise We 26. court discretion under Rules 16 and appeal, argues Ferrell On 1) States, 473, 479 by v. United 566 A.2d failing trial court erred to consider Dr. Gibson (D.C.1989); Corley Corp., 402 testimony see v. BP Oil proffered Alfred as to Dr. Gillio’s reversing summary refusing the affidavits of Dr. Gillio light disposition to consider 7. of our to recon- judgment, and Dr. Shahidi attached to her motion we do not address Mrs. Ferrell's fifth reversal, summary judgment. grant ground that the trial court erred in sider for (D.C.1979). new informa supplementation was caused It is unclear A.2d granting from the trial court’s order sum and that there is tion from Dr. Rosenbaum however, mary judgment appellees, wheth appellees,11 we do prejudice to no credible impliedly granted appellees’ er the trial court trial court intended not assume that the supplemental motion to strike the statement important proffered testi exclude Dr. Gillio’s statement, or, although striking failed it is an abuse of mony. have held that We testimony proffered in the to consider the deny party’s for a trial court to discretion making decis supplemental statement its seeking pretrial order to amend a motion ion.8 All we know from the record is testimony, where particularly add new proffered to Dr. testi the reference Gillio’s party. other prejudice is no to the mony supplemental in the statement is not supplemental conclude that Id.12 We granting mentioned in the trial court’s order have been considered statement should record, summary judgment. can On this we appel- trial court in its consideration of conclude, appellees urge, that the trial summary judgment lees’ motion. court intended to strike the pre in our de novo review of evidence Superior Civil Rule 26 re statement. Court sented, proffered tes we consider Gillio’s discovery quires parties supplement summary judg timony evaluating whether regard identity responses with to the of ex appropriate. ment was witnesses, subject pert matter and the supplemental statement indicated testimony.9 of their substance testimony show proffered Gillio’s discovery. did so within the time duty that Dr. Rosenbaum breached determining supple testify care towards Alexis. Dr. Gilliowould part mental statement of the record should have that Dr. Rosenbaum and CNMC upon motion the data and that examined and evaluated considered, take into should have been we to a such would have led review supplement, account the reason for the proper diagnosis Fanconi anemia. This importance proffered testimony pro- would then have allowed the Ferrells any prejudice opposing party. to the See would now duce a matched donor (D.C. Beeks, Daniels v. 532 A.2d life-saving. be 1987). Considering that case turned proffered ex- conclude that Dr. Gillio’s We upon expert regarding violation of to create a pert was sufficient prof the standard of care which Dr. Gillio’s regarding Dr. testimony provided,10 genuine question of fact fered need baum, applicable Although granting geneticist, the trial sum- had breached court’s order maty court’s of care. In view of the trial states that the trial court consid- standard conclusion, herein,” testimony was all the ered “the entire record it fails to men- Dr. Gillio’s proffered testimony important tion the of Dr. Gillio. to the Ferrells’ case. more 26(f)(1)(B) Super.Ct.Civ.R. part: provides Beeks, 9. supra, amendments as v. allows 11. Daniels “ample long accommodate as there is time to (f) responses. parly Supplementation A of discovery any any request of addi- ... to obtain responded request discovery to a with supplemen- the ... tional witnesses identified in response complete made is that was when Appellees pretrial had a tal statement.” Id. duty supplement response under no to the to Gillio, depose to do Dr. but chose not chance to acquired, except include information thereafter so. as follows: (1) seasonably sup- party duty A is under a pursuant Appellees' argument to Su- that 12. ques- plement response respect any the with required 16(g), of per.Ct.Civ.R. leave (B) directly identity ... the tion addressed to good to file her court for statement, cause person expected as an of each to be called considering the affir- is without merit trial, subject expert matter on witness the imposed supplement duty information mative testify, person expected and the which the is Super.Ct.Civ.R. parties pursuant the on 26(f)(1)(B). person’s testimony. substance of event, good cause would section, Dr. Gillio since the reason the trial have been shown 10. As discussed in the next testimony scope was as a of his appears the Fer- broadened the court to have concluded that Shahidi, discovery after the initial expert. conducted had not suffi- result rells’ other Dr. was filed. ciently expressed opinion Rule statement an that Dr. Rosen- 648 standard of of care because Dr. Shahidi

Rosenbaum’s violation of the standard infra, and, explained testify care for the its unwilling concerning reasons the standard subsequent cause to the Ferrells’ geneticist, care for a Dr. Rosenbaum’s inability produce donor for Alex- expertise. medical is.13 These material facts must be resolved that Dr. review of the record indicates Our moving deciding against party a mo- clearly deposition stated in his Shahidi Colbert, supra, summary judgment. tion for up failure to review and follow on abnormal Therefore, summary judg- 641 A.2d at 472. hematological reports violated the standard granted. ment should not been prevented early diagnosis of Fan- of care and therefore, issue, is coni anemia.14

B. qualified Dr. to render whether Shahidi was ground for re Ferrell's second opinion. applied versal is trial court wrong expert standard the admission of Kuhn recognized As we in Ornoff v. testimony Dr. medical it considered when “ Chartered, Kogan, & qualifying particu ‘a testimony Dr. Rosen regarding Shahidi’s testify largely expert lar witness to as an is baum’s violation the standard of care. ” judge.’ the domain of 549 within deposition testimony out Shahidi’s set (D.C.1988) curiam) (quot (per A.2d 731 applicable physicians standard of care for States, v. United U.S.App. Jenkins ing stated that violated this standard was n. 645 n. 19 D.C. F.2d Dr. Rosenbaum when failed to review (en (D.C.Cir.1962) banc)). As ex opined that had blood results. Shahidi Ornoff necessary expert plains, it is violated, the standard of care not Alexis testify knowledgeable or be about witness diagnosed would have been with Faneoni particu of care to a “shortly applicable the standard after The trial court anemia birth.” Instead, is testimony specialty. the issue that Dr. lar medical concluded Shahidi’s concerning is applicable qualified not establish a violation Well, opinion patient only prof- just my Dr. Gillio’s not the A: is that this 13. — earlier; malprac- diagnosed evidence fered relevant to the issue could have been based B, infra, As discussed in Dr. Shahi- tice. di's section findings hematological physical find- also was sufficient for Mrs. Ferrell analysis. ings, and also chromosomal to overcome the motion. you say patient Q: When the "the earlier,” diagnosed your is have been what by appellees’ counsel]: examination [On early patient opinion terms of how you listing Why begin by generally Q: don’t diagnosed? could have been are, opinions we for me what those and then diagnosed patient could A: The have been go in further will back and discuss them shortly birth. detail. by the counsel:] examination Ferrells’ [On presentation A: Well I believe that the clinical Shahidi, Q: is it doctor true that patient have included birth should reviewing physical abnormalities [sic] Fanconi’s congenital because of various work, with, presented and the blood with this anomalies consistent up gone down the disorder, should have followed particularly the thumb disorders. then, addition, path differential toward Fanco- explanation And lack of retardation, growth very is ni? for the Well, patients they anemia. common in with Faneoni think the A: I clinical laboratories— intake, patient adequate This caloric had system physician vari- to of have alert the hormone, growth abnormalities, normal levels of but con- cause determine the ous physically be tinued to retarded. count, repeat it or ask for a blood because of addition, laboratory you at the look laboratory may be some sometimes believe, days, values obtained three I errors. birth, you will are some ab- find that there up Q: doctor follow And a that doesn’t normalities. things repeat the blood those doesn’t you opinions Q: hold Are there other count, you say that falls below regarding this case? reviewing physician standard of care for a diagnosis? regarding mean A: You him what was before or her? formed, Any opinions you Q: have re- Oh, yes. A: case, garding you intend to ex- press at trial? notes did not that the fact that his particular procedure about which he is testified testifying. trial court discredited Dr. that he had seen the blood work Id. The indicate expert testimony he was had not reviewed the probably because meant that he Shahidi’s prepared specifically testimony enough that Dr. not state This blood data. of a Rosenbaum violated the standard of care fact as to question raise a of material breach geneticist. problem This was error. Dr. testi- of the standard of care. Shahidi’s here, Ornoff, testimony is that the trial court proffered as mony and Dr. Gillio’s specialty and not focused too much on the up on the to review and follow that failure enough alleged. on the breach Id. That Dr. rec- information contained Alexis’smedical willing testify that Dr. was not care, Shahidi made Dr. violated the standard of ords of violated the standard care do so testimony that he did not Rosenbaum’s geneticist, preclude not Dr. Shahidi Thomas v. United highly relevant. See expressing opinion that Dr. Rosen- (D.D.C.1987). States, F.Supp. applicable baum violated the standard of care performed and Once the blood tests were any physician presented with Alex who is abnormalities, appellees they indicated by failing follow is’s condition to review and specific duty diagnos- under a to take further abnormalities, hematological up on and as a Id. Dr. Rosenbaum and tic action. Since result, misdiagnoses patient. Common action, they not take such CNMC did can sense dictates that Dr. Rosenbaum be duty have breached the of care owed “any category encompassing in the included Therefore, for the court Alexis. it was error ques doctor” about which Dr. Shahidi was disputed issue to conclude that there was no qualifications tioned. Dr. Rosenbaum’s material fact on the issue of breach of the of another, geneticist may him have held deposi- standard of care. Rosenbaum’s care, higher standard of but it did not release testimony, in the context of the tion required him from the basic standard care testimony concerning applicable standard treating Alexis to review and doctor care, summary to defeat was sufficient up follow on her abnormal blood test data. judgment. conclude that the trial court we crediting its discretion abused D. testimony concerning proffered Shahidi’s applicable breach of the standard of care. is that Mrs. Ferrell’s last contention Consideration of Dr. Shahidi’s “there is no the trial court’s conclusion that leads us to conclude that the Ferrells made proximate cause” was prima facie prima facie case that Dr. Rosenbaum violated erroneously misapprehension on a based care, delaying diag the standard of a correct alleged injury to be that the missed Alexis’s nosis of Alexis’s condition. delayed a bone diagnosis of Fanconi anemia Instead, in transplant. the claimed marrow C. opportunity to jury of Alexis’sbest is the loss argues Mrs. Ferrell also sibling do potential have a it into ac court erred when faded to take nor. deposition testimony count Dr. Rosenbaum’s summary granting order indicating the data that he had not reviewed court concluded: the trial indicating blood abnormalities Moreover, undisputed evidence does Appellees argue that Dr. Rosen count.15 diagnosis would suggest that an earlier having violated the baum never “admitted” sufficiently with a Although [Alexis] of care. Dr. Rosenbaum standard In addition chance of survival. to the ultimate substantial did not make an admission as Shahidi, in that care, to the standard of he issue of breach of the relating ups to Alexis de- see her blood work testified as follows in his 15. Dr. Rosenbaum by performed Children’s position: were Ferrell that Hospital? asking trying Q. find out at I am not am —I notes, my I in then If it is not indicated during any A: treatment or time no time her expect Hospital you didn't see it. did I that she was at Children’s 650 assuming Even trial court

regard, proxi- the absence of evidence of that the correct by further ly apprehended gravamen mate cause is demonstrated of Alexis’s the Alter, treating pediatric hematologist, “independent the injury, claimed we conduct 1990, in who testified that December of whether review the record determine 30, 1990, diagnosis on October that the a material fact there is issue of to be have a could not recommended bone [s]he proximate Clay on the cause. tried” issue of transplant, because marrow the child was Owens-Corning Fiberglas Corp., v. tor 662 stable, of transplant and the risks (D.C.1995). 1374, A.2d 1381 We conclude Thus, prima high. there is no facie show- it that the trial court erred when determined ing proximate cause.... of prima that Mrs. Ferrell had not made a facie showing ground that the of on the proximate Mrs. Ferrell contends court’s reli- cause Dr. Alter’s indicates that not undisputed sug ance on that “the evidence does the trial court misunderstood nature of the gest diagnosis that an earlier the sufficiently harm suffered and that provided with a substan [Alexis] testimony was irrelevant the harm Alter’s tial chance of survival.” negli- alleged to have been caused the

gence cause is divided into of Dr. Rosenbaum CNMC. Proximate in policy cause fact and considerations that court, filings in in In her the as have, fact, in liability persons limit who the of court, consistently argued Ferrell has Mrs. “ injury the chain of caused ‘where the events appellees’ misdiagnosis harmed Alexis ” extraordinary retrospect.’ in appears highly by depriving parents being in- Columbia, Lacy v. 424 A.2d District formed, prior separation and es- (D.C.1980) (quoting Reporter’s sought damages negligence plaintiff tice case where the extent to which the defendants’ for a “lost chance of The substan- survival.” reduced this chance. Id. appropriate tial factor test “is the test two-pronged We conclude that Daniels’ cases, this, in causation such at where [sic] analysis correctly applies District of Colum appears brought the harm to have been bia law on causation a case such by two or about more concurrent causes.” involving negligent as this treatment of a U.S.App. D.C. at 566 F.2d at 757. potentially Applying fatal condition. court, law, applying The District of Columbia case, analysis to this we determine that Mrs. rejected plaintiff the claim that a must con- showing, a Ferrell made sufficient for sum clusively show that the harm not still mary judgment purposes, that Dr. Rosen malpractice. have occurred absent the negligence a baum’s CNMC’s sub

As the court noted: causing factor in stantial does not lie in [I]t the defendant’s mouth prong analysis first involves Alex conjectures to raise toas the measure of properly is’s chances to survive had she been put beyond the chances that he has diagnosed Proper treated. treatment possibility of realization. there was If case, transplant meant a bone marrow possibility substantial survival and the from a suitable matched donor.16 The record it, destroyed has he is answera- defendant clearly supports finding that had Dr. Rarely ble. is it possible to demonstrate qualified person other at certainty absolute what would have data, reviewed CNMC the blood happened in wrong- circumstances that the of Fanconi anemia would have resulted doer pass. allow to come to 1985, and the Ferrells least Id. at (quoting F.2d at 757 Hicks v. given opportunity conceive States, (4th Cir.1966)). United 368 F.2d 626 child compatible or children who would be added.) (Emphasis donors for Alexis. Mrs. Ferrell testified that determining negligence anything possible she would done harm, causing Alexis, was a substantial factor in help including having another child or children; questions: Daniels court focused on supports two the record an inference a) plaintiff what chance the had to supportive survive that Mr. Ferrell would have been b) properly diagnosed According and treated and expert such efforts.17 to the According proffered mary judgment, they to Dr. Gillio's prof- tes- are consistent with the 16. timony ment, in the Rule state- fered that was available to the trial time, prognosis promising Alexis's presumably “not court show how transplant.” the absence of [a marrow] bone Drs. Gillio and Shahidi would have testified if proceed case had been allowed to to trial. transplant ap- The success of a bone marrow parently depends on how close a match exists Appellees 17. contend that the record does recipient. between the donor and the As Dr. support finding that Mr. Ferrell would have support Gillio’s affidavit in of Mrs. Ferrell’s mo- agreed attempt to conceive another child even explains, tion for reconsideration ”[r]e- further if the Ferrells had known that Fanconi reports percent cent indicate that 70 to 90 part anemia when Mr. Ferrell was still patients Fanconi anemia can be cured of their below; argument family. This was not made hematological transplanted disease if with a therefore it is not before us for consideration. sibling early age.” matched at an us, properly Even were it before it is without Additionally, support Dr. Shahidi's affidavit in merit. Alexis was bom March 1985. Mrs. of Mrs. Ferrell’s motion for reconsideration very Ferrell testified that Mr. Ferrell was atten- states as follows: spend tive to Alexis and that Mr. Ferrell would Usually, only truly long-term 4. effective daughter. lot of time with his The Ferrells were pa- beneficial treatment for Fanconi anemia separated sometime in left Mr. Ferrell transplant, tient is a either bone marrow or September for California in transplant, cord blood. Without such a most years was available for Mr. Ferrell four patients prematurely Fanconi anemia die Alexis was bom. Mrs. Ferrell testified that dur- complications.... their illness or from its reconciliation, ing that time Mr. Ferrell wanted a 5. Alexis’[s] substantial chance of a suc- did not. but that she cessful be from a do- response appellees’ Interrogatory nor. In her No. Although the affidavits were not stated before that had she known that trial court when it ruled on the motion for sum- Alexishad Fanconi anemia she prima proximate that facie testimony, significant the chances make a were Ferrells, child, they a the conceived erroneous. cause was yielded a have suitable donor for Alexi would sum, that, considering Dr. we conclude Thus, the showed that had s.18 evidence proffered testimony and Dr. Rosen- Gillio’s properly diagnosed when Mr. Alexis been depositions, and Dr. there baum’s Shahidi’s life, in her Alexis re Ferrell was and had dispute a as to whether transplant sibling compatible a from a ceived appli- and the CNMC breached appreciable Alexis would had “an donor have also standard of conclude cable care. We saving Id. at [her] chance life.” sufficient, for that the evidence of record was (concluding F.2d at 758 that there was summary judgment purposes, to show that “appreciable patient’s chance” that life would jury applica- to find the the a breach of saved, including have been bench care, proxi- a ble standard of that breach was testimony that 75-85% survived if patients mate cause of Alexis’s treatment). given proper Reversed and remanded. prong, defendants The second whether the plaintiffs with the chance to avoid interfered TERRY, dissenting: Judge, Associate easily It is the harm is met in this case. case, plain- malpractice the In this medical plain from the record that Dr. Rosenbaum’s the tiff mother claims that the doctor and alleged directly in- negligence and CNMC’s hospital diagnose child’s illness failed her having possibility Alexis terfered with anemia, potential- very a rare but as Fanconi transplant sibling from a donor. a matched complaint al- ly fatal blood disorder. The may speculative be said about the Whatever leged right diagnosis if the had been that having nature of the Ferrells had a child who early enough, parents could have made Alexis, it is could donate bone marrow to might have another child who conceived alleged negligence that beyond doubt a for his or her served as bone marrow donor any Ferrells eliminated chance that parents Because have now older sister. implement consider that would even and separated, longer possible, is no suf- course of action. Mrs. Ferrell therefore mother has this suit. thus the filed negli- ficiently claimed demonstrated that the Although there is from which a loss of evidence gence was a substantial factor jury find that best chance The trial could the doctor breached for survival. care, judge not I think the trial court’s conclusion that Mrs. Ferrell did standard immediately appropriate conclu- have all left for California. The dissent's would taken Ferrell assure, necessary flawed it steps sion is also because assumes to the maximum required would to avert possible, availability reconciliation have been of a bone mar- extent needed, injury result of the (BMT) suffered Alexis as a Alexis when row fact, willing- negligence. Mr. Ferrell's including pregnant immedi- efforts to become another is at issue. ness to sire child or children necessary ately many have as children require sperm, and would not This donation age, possible, light maternal of her necessarily mother. reconciliation with the matching sibling obtain a donor. appellees jury argue that Mr. While urgently appellees contest The issue that most unlikely agreed to conceive Ferrell was have con- would have is the chance Ferrells children, point another child or the record at this sibling have would ceived a child that such support jury finding that Mr. Ferrell would been a suitable bone marrow donor. helped daughter’s life. save 23-24, states, dissenting pages colleague Our approxi- Shahidi testified there was an might have post, the fact that Ferrell ‘‘Mr. percent mately twenty-five sib- chance estranged willing wife to reconcile with his perfect ling would be a conceived Ferrells reasonably permit prior June 1987 transplant. There is for a bone marrow match might to infer have been a trier of fact that he sibling twenly-five percent chance that a also doing This so after October 1990.” interested disqualifying that would have Fanconi point Therefore, ar- misses the of Mrs. Ferrell’s conclusion was an a donor. child as alleged negli- gument because it assumes would be chance one 18.75% gence. to the stan- compatible Had Dr. Rosenbaum adhered ar- donor. care, had, properly gues, have been dard of the more children she could years to have diagnosed before Alexis’s chances would have been two better separated years perfect donor. parents before Mr. had a and four correctly granted summary agree my colleagues judgment for the cannot with that “the hospital doctor and the because the mother supports record an inference that Mr. Ferrell possibly cannot establish cause. supportive would have been of such efforts.” in The mother asserts her brief that she and Ante at 651. The fact that Mr. Ferrell might pro- Mr. Ferrell would have “taken action to willing have been to reconcile with his es- duce a matched donor for Alexis’ tranged prior to 1987 could not wife June transplant,” evidentiary sup- there is no but reasonably permit a trier of fact to infer assertion, port for that and hence no factual might doing he have been interested in so predicate on which to base October any expert deprived that Alexis was of a irreplaceable missing link father is is, substantial chance of survival. There in the chain of causation. Without a clear course, deposition no or other showing that he would have consented to sire agreed Mr. Ferrell that he would have hope producing in another child father another child with Mrs. Ferrell. As donor, possible I bone marrow do not see mother, deposition she testified possibly can how the mother establish separated that she and her husband had the doctor’s breach of the standard of care any expectation June 1987 without of recon- I proximately caused her child’s As ciling, and that she had not seen him since record, read such a has not been September when he left for California my colleagues made. Since take a different and never returned. She also stated that she view, respectfully I dissent. had no in a interest reconciliation the time separation between their in 1987 and the departure

father’s for California in 1989. nothing in suggest

There is the record to parent attempt, either made or had intention, to reconcile once the

of Fanconi anemia was made October 1990 simply order to conceive another child. I 320-21 Notes sibling trangement, that a could as the serve §to (Second) 3 Alexis, Torts, thereby for best bone marrow donor Restatement (1966)). Appellees argue at 129 app., precluding Alexis from chance of ever alleged negligence was not cause obtaining sibling a matched bone marrow injury fact Alexis’s because Ferrell Although Dr. Alter’s tends donor. that she transplant was unable to demonstrate appropri- was not show compatible diagnosed certainly ate was have conceived a donor the time Alexis suffering sibling. from Fanconi it does proximate defeat Mrs. Ferrell’s determining has if, testified, as Dr. Alter cause. Even fact, plaintiff cause is not re transplant not have at the should occurred certainty. quired prove to a The causation made, an accurate time could possibility bare Ferrells have transplant Alter did not rule out a at another children, child, had another Therefore, or possibility remained time. marrow donor have been suitable bone for that, had the Ferrells known about the Fan- Alexis, however, sufficient to defeat a is not optimum with coni anemia and its treatment motion failure transplant, they matched donor Something siblings show causation. more steps to conceive taken proper needed. test is whether the compatible bone is could have plaintiff by preponderance can transplant prove, marrow donor whenever evidence, negligence appropriate. Because the Ferrells did not asserted was a causing anemia and treat- know of Alexis’s its best “substantial factor” however, ment, they 318-319; Hadley take v. Mem’l Id. Daniels 84, 92, steps opportuni- at the That 566 Hosp., U.S.App. these time. lost 185 D.C. F.2d (1977) ty possibility of a approval has meant quoted 757 with permanently 320; matched donor was foreclosed Lacy, supra, A.2d at Graham v. subsequent estrange- Roberts, due to Mr. Ferrell’s 441 F.2d U.S.App. D.C. family. appellees’ (1970). from his ment oppor- loss negligence caused Alexis’s Daniels, applied treatment, the court tunity for the best malprac- test a medical compatible sibling donor. substantial factor from a

Case Details

Case Name: Ferrell v. Rosenbaum

Court Name: District of Columbia Court of Appeals

Date Published: Apr 3, 1997

Citation: 691 A.2d 641

Docket Number: 94-CV-1179

Court Abbreviation: D.C.