Derzavis v. Bepko

WAGNER, Chief Judge,

dissenting:

The majority, as did the trial court, concludes that Derzavis failed to establish any of the three elements of her medical negligence claim. In my opinion, the record reveals otherwise. The three-part burden requires a plaintiff to establish “(1) the applicable standard of care; (2) a deviation from that standard; and (3) a causal relationship between that deviation and [her] injury.” Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990). Plaintiffs expert, Dr. Deena Kleinerman, testified that the standard of care at the time relevant hereto for the use of the cytobrush, which allegedly caused Derza-vis’ injuries, comported with the manufacturer’s instructions which were admitted into evidence as plaintiffs exhibit 15-A. Not only did Derzavis’ expert so testify, but also Dr. Donald Sewell, one of appel-lee’s own experts, testified that it was his opinion that the instructions in the same exhibit comported with the standard of care at that time. Those instructions stated, among other information, that the device should be inserted “into the endocer-vix until only the bristles closest to the handle are exposed.” Dr. Kleinerman also testified that the standard of care required that a physician know how to insert the instrument correctly. This evidence forms an adequate factual basis for the establishment of the first element of this medical negligence claim, i.e., the applicable standard of care.

The majority reaches a different determination on this issue primarily because of a mistaken premise, specifically, that the expert’s only testimony concerning the applicable standard of care was that a doctor should know how to use the cytobrush correctly. That a physician should know how to use the cytobrush correctly was not the only applicable standard of care about which Dr. Kleinerman provided an expert *524opinion. Rather, Dr. Kleinerman testified that the standard of care for use of the eytobrush was as described in the manufacturer’s insert, which was admitted into evidence. I cannot agree that Dr. Kleiner-man’s testimony that a physician can learn the proper usage of the eytobrush from either the manufacturer’s insert or instructions from other physicians eliminates the evidentiary value of the opinions of the two experts that the standard of care for the procedure was accurately stated in the manufacturer’s insert.

The second element of Derzavis’ claim is also proved adequately to withstand a motion for judgment as a matter of law. Relevant to this issue, Dr. Kleinerman testified that appellee did not exercise that degree of skill, care and knowledge ordinarily possessed by a board certified obstetrician-gynecologist acting under the same or similar circumstances. More specifically, Dr. Kleinerman testified that ap-pellee did not use the eytobrush “in the way that we were taught or for that matter as in the instruction sheet as being the proper way to use it.” Dr. Kleinerman based her opinion on Derzavis’ description about how she felt before the examination as contrasted with the severe pain she felt during the examination as well as a description of how Dr. Bepko performed the examination. According to Dr. Bepko, he “introduced the brush until you couldn’t see the last bristles attached to the handle,” while the standard of care required that it be inserted “until only the bristles closest to the handle are exposed.” This evidence, as well as other evidence bearing on the issue, is adequate to allow the jury to decide whether appellee deviated from the standard of care.

The adequacy of the evidence to support the third element for a medical negligence claim, while perhaps a closer question, is one which must be resolved in Derzavis’ favor under our standard of review. This element was supported by expert testimony as well as other evidence properly relied upon by the expert. Dr. Kleinerman testified that, to a reasonable degree of medical certainty, appellee’s breach of the standard of care caused injuries and damages to Derzavis. She testified that her opinion was based upon Derzavis’ description of how she felt before and during the examination and notes and deposition testimony which included a description of how Dr. Bepko performed the Pap smear with the eytobrush. She explained the importance of the temporal connection between the use of the eytobrush and the immediacy of Derzavis’ pain. Dr. Kleiner-man explained that Derzavis felt fine, or not particularly uncomfortable before the examination, but felt extreme pain when the eytobrush was used. This medical expert testified that, to a reasonable degree of medical certainty, the patient should not experience this kind of pain if the taking of the Pap smear had comported with the applicable standard of care. Other evidence established the simultaneity between the Pap smear and the onset of Derzavis’ symptoms. Derzavis testified that she had no symptoms when she went for the medical appointment for a Pap smear. Dr. Bepko testified initially concerning the use of the eytobrush in performing the Pap smear on Derzavis that “I inserted it. At this point she yelled and said, ... what are you doing to me, or words to that effect.” He later testified that the patient screamed either while he was going in or coming out with the cyto-brush. Derzavis testified that she screamed so loudly because of the pain, the worst she had ever felt in her life, and the nurse came into the room. She also testified that she noticed that the slide Dr. Bepko took was full of blood, and she asked him about it, to which he responded, “I did that.” There was also evidence that Derzavis experienced coldness, perspiration, and weakness immediately, and more profuse bleeding after the incident. This evidence was sufficient to avoid judgment as a matter of law on the issue of causation. It was for the jury to determine whether to accept or reject the expert’s opinion, considering the expert’s “edu*525cation, experience, the reasons given for the opinion, the expert’s credibility, and all the other evidence in the case.” STANDARDIZED Civil Jury Instructions for the DistriCt of Columbia, No. 3-3 (Rev. Ed.1998).

This case differs from this court’s decision in Lasley v. Georgetown Univ., 688 A.2d 1381 (D.C.1997), cert. denied, 522 U.S. 1060, 118 S.Ct. 719, 139 L.Ed.2d 659 (1998), cited by the majority, in which we held that “[i]n a medically complicated case ... contemporaneity between a medical procedure and an injury is too weak a foundation upon which to infer causation.” 688 A.2d at 1387. The issue in Lasley was whether “it was fatal to Lasley’s claim that none of his witnesses explicitly asserted that the embolization procedure caused his AVM [arteriovenous malformation] to rupture and hemorrhage.” Id. at 1383. Since the rupture and bleeding occurred during the embolization procedure, Lasley contended that expert testimony of a causal link was not necessary.1 Id. In Lasley, unlike the present case, there was a complicated pre-existing condition, an AVM, which had the potential for rupture even without the medical procedure. Since it was determined to be necessary for the jury to understand how or why the procedure, rather than the AVM, caused the harm, the lack of expert testimony was fatal to Lasley’s claim. Id. at 1385. The present case is much less complicated. Derzavis presented to the physician with no pre-existing medical condition related to her injury here. According to the evidence, appellee breached the standard of care in using the cytobrush during an examination, and the patient immediately experienced excruciating pain and bleeding which the expert testified would not have occurred but for the improper use of the instrument. “Even assuming that the injury was not of the type which by its nature reflected its cause, there was expert opinion testimony explaining its cause and the basis for that opinion.

“In reviewing the trial court’s grant of a judgment notwithstanding the verdict, we apply the same standard as the trial court.” Durphy v. Kaiser Found. Health Plan, 698 A.2d 459, 465 (D.C.1997) (citation omitted); Washington, supra, 579 A.2d at 181 (citations omitted). A judgment notwithstanding the verdict may be entered “ ‘only when, viewing the evidence and reasonable inferences in the light most favorable to the party who secured the jury verdict, no juror could reasonably reach a verdict for the opponent of the motion.’ ” Id. (citing District of Columbia v. White, 442 A.2d 159, 163 n. 9 (D.C.1982)). It appears that the majority may not be applying that standard, particularly with respect to the deference it appears to accord the trial court’s review of the issue of causation.2 It is not appropriate to set aside a jury verdict because other evidence, some of which is outlined in the majority opinion, might have allowed the jury to reach a different result. “ ‘It is the responsibility of the jury (and not the judge) to weigh the evidence and to pass upon the credibility of the witnesses.’ ” Homan v. Goyal, 711 A.2d 812, 817-18 (D.C.1998) (quoting Etheredge v. District of Columbia, 635 A.2d 908, 915-16 (D.C.1993) (other citations omitted)). It is only in rare cases, “in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict.” Homan, 711 A.2d at 817 (quoting Etheredge, 635 A.2d at 915-16 (quoting Levy v. Schnabel Found. Co., 584 A.2d 1251, 1254-*52655 (D.C.1991) (other citation omitted))). This is not one of those rare cases, in my view. Viewing the evidence and reasonable inferences in the light most favorable to Derzavis, as we must, it cannot be said that no reasonable juror could reach a verdict in her favor. See Washington, 579 A.2d at 181. Therefore, I respectfully dissent.3

. Lasley argued that

[c]ausation in this case is simple because the causation is obvious. He stresses that only two possibilities exist: Either the em-bolization procedure or the AVM itself caused his blood vessels to rupture and hemorrhage. Moreover, the rupture and bleeding occurred during the embolization procedure. In Lasley’s estimation, the temporal coincidence of the procedure and the rupture reveals the causal link between them.

Lasley, supra, 688 A.2d at 1383.

. While I would reverse the grant of judgment for appellee, I would remand the case to the trial court for consideration of appellee’s alternative request for a new trial or remittitur. See Super. Ct. Civil R. 50(c); Spain v. McNeal, 337 A.2d 507, 511 (D.C.1975) (the trial court should rule on alternate motion, even if a judgment notwithstanding the verdict is granted).

. See majority opinion at 521-522.