Travers v. District of Columbia

WAGNER, Chief Judge,

dissenting:

The testimony of appellant’s medical expert was sufficient to allow him to have his case decided by a jury. See Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990). Viewing the evidence in the light most favorable to appellant, as we must, appellant met his three-part burden of establishing the applicable standard of care, its breach by the physician who treated him, and a causal relationship between the breach and appellant’s injury. See id.; see also Levy v. Schnabel Found. Co., 584 A.2d 1251, 1255 (D.C.1991). Contrary to appellee’s argument, the expert’s opinion in this case was not based merely on his personal opinion, which would be insufficient. See Toy v. District of Columbia, 549 A.2d 1, 7 (D.C.1988). Rather, the testimony of appellant’s expert was based on the prevailing national standards for the practice, as an examination of the record will reveal.

Dr. Brownlee testified that it was his opinion that the failure to administer aspirin timely to appellant fell below the national standard of care. He testified that “it is the opinion of all general surgeons, that we give aspirin for [appellant’s] condition to prevent the formation of thrombus and emboli.” On this point, he further testified that “[i]t is the consensus of opinion of all of the surgeons with which I have worked [ ] and taught with that we do use aspirin when [the platelet count] reaches about two times the norm.” He elaborated further “that the vast majority of surgeons that I am aware of, and I attend these meetings ..., do use aspirin in post-splenectomized patients and particularly when the platelet level reaches a certain level, in terms of around two times the norm.” At this point in the testimony, Dr. Brownlee was talking about the American College of Surgeons; therefore, it is reasonable to infer that he was making reference to *571their meetings. Dr. Brownlee also cited a Framingham study in support of his position. The Framingham study addressed specifically the administration of aspirin by cardiologists in relationship to thrombosis to prevent myocardial infarction, which Dr. Brownlee thought to be analogous.

Indeed, the treatment rendered by the District and the testimony of its expert are consistent with Dr. Brownlee’s testimony in critical respects. The District’s physicians and expert witness also found it was medically indicated to administer aspirin and that aspirin prevented blood clotting.1 In concluding that the expert was expressing only his personal opinion concerning the need to administer aspirin, the majority seems to rely, in part, on the surgeon’s statement on cross-examination that aspirin is “indicated.” The term, “indication,” in medicine means that “[i]n the course of a disease, a sign, symptom, or development [has occurred] which makes the use of a particular procedure or medicine advisable.” Schmidt’s ATTORNEYS’ DICTIONARY OF MEDICINE (1992). Thus, the expert’s use of the term in testimony does not render his opinion, that aspirin is “indicated” when the platelet count reaches between 700,000 and 800,000 following a sple-nectomy, a personal one.

In sustaining the rejection of the expert’s opinion of the standard of care, the majority seems to read a requirement into Morrison v. MacNamara, 407 A.2d 555 (D.C.1979) that the expert must have spoken to other physicians in states which are not contiguous with the District of Columbia in order to testify regarding a national standard of care. Morrison stands for exactly the opposite proposition, ie., that physicians in the District are presumed to practice under a national standard of care because of “the tremendous resources available in the District for medical professionals [which] keep them abreast of advances in the care and treatment of patients that occur in all parts of the country.” 407 A.2d at 565. In rejecting the locality rule in Morrison,2 we observed that

the nation’s capital is not a community isolated from recent advances in the quality of care and treatment of patients. Rather, it is one of the leading medical centers in quality health care. The medical schools in the nation’s capital rate as some of the most outstanding schools in the nation. The hospitals in the District not only possess some of the most recent medical technology, but also attract some of the best medical talent from all over the country.

Id. at 562. The clarity in the law which Morrison provided is blurred by the majority’s rejection in this case of the testimony of a board-certified surgeon merely because it perceives that he has conferred about the issue involved with only five or six fellow surgeons in the metropolitan area. Moreover, there are “uniform standards of proficiency established by national board certification.” Id. at 565; Capitol Hill Hosp. v. Jones, 532 A.2d 89, 93 (D.C.1987). For these reasons, I cannot agree that Dr. Brownlee’s expert opinion on standard of care must be rejected because his medical experiences, with limited exceptions, have been within the District of Columbia, and his discussions about the medical issue involved in this case have been with general surgeons only in the Washington metropolitan area.

The majority also finds significant that the expert did not identify any “published medical standards, manuals or protocols” in support of his opinion.3 Although the fact that scientific data has been published in a peer-reviewed journal may be relevant to the validity of a particular scientific technique on which an expert opinion is based, it is not mandatory that the expert base his or her opinion on published materials, as the majority concedes. This court never has excluded the opinion of a board-certified medical expert merely because he does not rely on a *572published treatise or other published authority for his opinion. The majority has not cited, and I have been unable to find, any courts which take such a restrictive view of the resources upon which experts in the field reasonably may rely. The Fifth Circuit has taken exactly the opposite position in holding that an expert cardiologist’s “refus[al] to base his testimony on a single medical textbook or journal article does not warrant wholesale exclusion of this testimony.” Carroll v. Morgan, 17 F.3d 787, 790 (5th Cir.1994). Indeed, the Supreme Court has recognized that “[pjublication ... is not a sine qua non of admissibility; it does not necessarily correlate with reliability ... and in some instances well-grounded but innovative theories will not have been published.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469 (1993) (citations omitted).4

An expert opinion must have a reliable basis; however, even in eases dealing with strictly scientific data, support in. treatises is not an absolute requirement. This court has recognized that physicians acquire the knowledge they use in the profession from many sources, including their personal experiences and through others in related fields. See Garvey v. O’Donoghue, 530 A.2d 1141, 1147 (D.C.1987). The expert opinion of a physician should not be rejected merely because it is based upon long-term personal experiences and the experiences of other physicians.5

The trial court found that appellant’s medical expert was qualified to render an opinion, a finding which the record fully supports. According to the evidence, Dr. Brownlee, a Diplómate of the American Board of Surgery (ABS) since 1964, with a specialty in general surgery, is licensed to practice in the District of Columbia and Maryland. He received ABS certification after successful completion of a four-year, post-degree training program and an oral and written examination. He was appointed medical officer for the District of Columbia General Hospital, where he served in the emergency and admissions departments. Later, he was promoted to Chief Medical Officer. In spite of the witness’ education, training, and experience, the majority seems to suggest that the expert was not qualified to render an opinion with respect to the standard of care for post-sple-nectomy patients because Dr. Brownlee thought he had performed only one such operation in the last ten years.6 However, Dr. Brownlee testified explicitly that removal of a spleen was within his medical specialty. He also testified that, as Chief of Surgery at Hadley Memorial Hospital, he reviewed all records of surgical procedures performed at the hospital, and therefore, he was familiar with what happens to post-splenectomy patients even though he did not perform personally the procedure involved. This background is more than adequate to meet the requirements to qualify the expert to render an opinion on the subject involved.7 See Jones, supra, 532 A.2d at 94. Indeed, “‘a physician is not incompetent to testify as an expert merely because he is not a specialist in the particular field of which he speaks.’ ” Melton, supra note 5, 597 A.2d at 897 (quoting Baerman v. Reisinger, 124 U.S.App.D.C. 180, 181, 363 F.2d 309, 310 (1966)).

In reviewing an appeal from the granting of a motion for judgment notwithstanding the *573verdict, this court is bound by the same constraints as the trial court. We must view the evidence and reasonable inferences in the light most favorable to the non-moving party. Washington Hosp. Ctr., supra, 579 A.2d at 181; Spain v. McNeal, 337 A.2d 507, 508 (D.C.1975). Against this standard, it cannot be said that no reasonable juror could reach a verdict for appellant. See Washington Hosp. Ctr., 579 A.2d at 181. The question is whether the expert’s testimony and the evidence as a whole, along with reasonable inferences therefrom, would allow a reasonable juror to find that a reasonably prudent physician would have administered aspirin at a particular time during appellant’s post-sple-nectomy treatment. Id. The expert’s testimony, as previously described, demonstrates that we must answer this question in the affirmative.8

That an expert witness for the opposing party testifies that there is no national standard which requires the treatment outlined by the other party’s expert is not a basis for taking the issue from the jury. That is a matter to be argued to the jury for their consideration in resolving the factual dispute between the experts. See Jones, supra, 532 A.2d at 94; see also Standardized Civil Jury Instruction for the District of Columbia, No. 9-6 (Rev.1985).9 Here, the trial court accepted the witness’ qualification as an expert in the field of general surgery. Viewing the evidence and reasonable inferences in the light most favorable to appellant, as we must,10 it is clear that appellant’s expert witness provided the jury with evidence of “the course of action that a reasonably prudent doctor with the defendant’s [employee’s] specialty would have taken under the same or similar circumstances.” Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984) (citing Morrison, supra, 407 A.2d at 560-65); Washington Hosp. Ctr., supra, 579 A.2d at 181. The expert’s opinion as to the national standard of care provided a sufficient foundation to create a jury issue and precluded the court from resolving it as a matter of law. See Washington Hosp. Ctr., supra, 579 A.2d at 181.

Contrary to appellee’s argument, appellant also presented sufficient evidence on proximate cause to prevent the entry of judgment as a matter of law for appellee. To meet the burden of establishing proximate cause where expert medical testimony is required, “the expert need only state an opinion, 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 plaintiffs injuries.” Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986). Dr. Brownlee rendered such an opinion at trial. Dr. Brownlee testified that the administration of aspirin when appellant’s platelet count fell below a certain level “to a reasonable degree of medical probability would have prevented the formation of the thrombos and embolization that caused the loss of a foot[,]” the condition for which appellant brought his action. He further testified that “[t]o a reasonable degree of medical certainty, if [appellant] had received aspirin at a level of which he was 2XN, that is twice his normal, his chances of emboli would have been darn near nil.” Specifically, with respect to appellant, the doctor testified that the hospital administered aspirin, but it did so too late to prevent the clot which formed and migrated to his foot and caused a blockage which resulted in the amputation. He also testified that you can anticipate the problem when you fail to manage *574the patient in conformity with the described standard of care. Thus, on this record, there was sufficient evidence from which “a reasonable juror could find that there was a direct and substantial causal relationship between the [appellee’s] breach of the standard of care and the plaintiffs injuries and that the injuries were foreseeable.” Id. For these reasons, I conclude that the trial court erred in entering judgment as a matter of law for appellees, and accordingly, I respectfully dissent from the opinion of the court.

. However, appellee’s expert contended that there was no firm national standard which dictated the platelet level at which aspirin must be administered.

. "The locality rule states that the conduct of members of the medical profession is to be measured solely by the standard of conduct expected of other members of the medical profession in the same locality or the same community.” Morrison, supra, 407 A.2d at 561 (citations omitted).

.The expert did reference the Framingham study, in support of his position.

. In Daubert, supra, the Supreme Court considered the proper standard for admission of expert testimony under the Federal Rules of Evidence. 509 U.S. at -, 113 S.Ct. at 2792. The court rejected the "general acceptance” test for admitting expert scientific evidence in light of the absence of such a requirement in the Rules and the liberal thrust of the Rules in relaxing the barriers to the admission of expert opinion evidence. Id.

. Such a position would be contrary to the principle that the court should not substitute its judgment for the expert's as to the source of information upon which experts reasonably rely. See In re Japanese Elec. Prods., 723 F.2d 238, 277 (3d Cir. 1983). If of the type upon which experts reasonably rely in forming an opinion, further testing of the opinion should be left to rigorous cross-examination. Id.; see also In re Melton, 597 A.2d 892, 901 (D.C.1991); Edwards v. United States, 483 A.2d 682, 685 (D.C.1984).

. See majority opinion, note 2.

. "A person who by education, study, and experience has become an expert in any art, science, or profession, and who is called as a witness may give his opinion as to any such matter in which he is specially versed and which is material to the case.” Standardized Civil Jury Instructions for the District of Columbia, No. 3-3 (Rev. 1985).

. Other similar testimony appears in the record.

. Instruction No. 9-6 is designated "Standard of Care Determined by Expert Testimony.” It provides in pertinent part as follows:

You must determine the standard of professional learning, skill, and care required of the defendant only from the opinions of the [doctors] who have testified as expert witnesses as to such standard. You should consider each such opinion and should weigh the qualifications of the witness and the reasons given for his opinion.... You must resolve any conflict in the testimony of the witnesses by weighing each of the opinions expressed against the others, taking into consideration the logic of the reasons given for the opinion, the facts relied upon by the witness ... his relative credibility, and his special knowledge, skill, experience, training and education.

. See Washington Hosp. Ctr., supra, 579 A.2d at 181 (standard of review of judgment notwithstanding the verdict replicates that of the trial court).