Bond v. Ivanjack

740 A.2d 968, 1999 D.C. App. LEXIS 264, 1999 WL 1040762
CourtDistrict of Columbia Court of Appeals
DecidedNovember 18, 1999
DocketNo. 98-CV-58
StatusPublished
Cited by4 cases

This text of 740 A.2d 968 (Bond v. Ivanjack) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bond v. Ivanjack, 740 A.2d 968, 1999 D.C. App. LEXIS 264, 1999 WL 1040762 (D.C. 1999).

Opinion

REID, Associate Judge:

This case presents a challenge to the trial court’s disposition of a post-trial motion relating to a multi-million dollar jury verdict in a medical malpractice case involving the diagnosis of nasopharyngeal cancer. The trial court denied appellant, Dr. William R. Bond’s motion for judgment as a matter of law or for a new trial, but granted his motion for remittitur by reducing the $2,206,000.00 verdict on behalf of appellee, Lesley Ann Ivanjack, to $1,506,000.00. On appeal, Dr. Bond contends that the trial court erred by denying his motion for judgment as a matter of law or for a new trial because: (1) the jury’s award was based on surmise and speculation as manifested by a lack of legally sufficient evidence on causation; (2) the rules requiring expert testimony and substantial evidence should have been applied strictly; and (3) “the [trial] court’s finding that the jury was motivated by ‘passion and bias’ requires a new trial,” as does the jury’s excessive award. We affirm.

FACTUAL SUMMARY

The testimony presented at trial in this case reveals the following facts. In April 1991, Ms. Ivanjack, who was then twenty-one years of age, complained of pain and loss of hearing in her right ear. Her primary care physician at her health maintenance organization (“HMO”) diagnosed her condition as an ear infection and placed her on antibiotics. In late May 1991, Ms. Ivanjack was referred to Dr. Bond, an otolaryngologist who was employed by her HMO. Dr. Bond examined Ms. Ivanjack on June 5, 1991 and agreed with the ear infection diagnosis, noting that she “presented with a persistent otitis media with effusion.” He continued the antibiotic treatment. Although Dr. Bond insisted that he had used a light and mirror technique to look at Ms. Ivanjack’s nasopharynx on June 5 and July 10, 1991, he acknowledged at trial that his medical records reflected no examination of the nasopharynx, and further that he did not [970]*970use a nasopharyngeal scope. On June 12, 1991, Ms. Ivanjack returned to Dr. Bond, asserting that her pain had grown worse. Finding no relief, Ms. Ivanjack visited Dr. Bond again on July 12, 1991. She testified that the pain in her right ear “had also spread into the side of [her] neck, [and her] throat. The whole side of [her] head was like on fire.” Dr. Bond noted that Ms. Ivanjack had “acute tonsillitis. She had a fet[i]d odor, she had a sore throat, she had enlarged lymph nodes, her tonsils were big, [and] she had tender nodes.” He performed a tonsillectomy on July 23, 1991 but Ms. Ivanjack experienced no relief, and her pain became worse. She even took “handfuls” of Advil in an attempt to alleviate the pain. On August 7, 1991, Ms. Ivanjack saw Dr. Bond who dismissed her complaints of pain, assuring her that the pain was not uncommon and would “resolve.” He again observed the enlarged lymph node in her neck and told her to return in a month.

Ms. Ivanjack’s employer, Dr. Parker T. May, described her health in the Summer of 1991 following her tonsillectomy: “[S]he was in very sad shape. She was exhausted, she was in tremendous pain, she was virtually cringing.” When the pain got even worse and Ms. Ivanjack could not get an appointment with Dr. Bond, she returned to her primary care physician at the HMO who ordered a CAT scan, and later referred her to Dr. Zafar Iqbal, another ear, nose and throat specialist (“ENT specialist”). On September 4, 1991, Dr. Iqbal performed a biopsy of tissue removed from Ms. Ivanjack’s neck. Other specialists also examined Ms. Ivan-jack. On September 13, 1991, Ms. Ivan-jack was informed that she was suffering from nasopharyngeal cancer. She was further told that she “had a 15 percent chance of living.” She immediately underwent chemotherapy and radiation treatment in accordance with her doctor’s recommendation. At the time of trial, she had been free of cancer for a six year period. Nonetheless, she testified to her fear of a recurrence: “Because the cancer was diagnosed later, my perception is that it is likely that I will have a reoccurrence. And if indeed I do, it’s unlikely that I will survive the reoccurrence.” She also said: “Because of my cancer and the severity of it, I understand that there is a chance that I will have a reoccurrence. Because of that reoccurence, I am not going to have children or adopt children.”

Dr. Cedric Quick, Ms. Ivanjack’s expert, who is an otolaryngologist, or an ENT specialist, testified that by September 1991, Ms. Ivanjack’s cancer had become a Stage IV tumor in that it had invaded the bone in the neck area. He further stated that Dr. Bond did not meet the standard of care on the occasions he examined Ms. Ivanjack, primarily because of his failure to do “either a visualization of the naso-pharynx [with a nasopharyngoscope or a light and mirror] ... or a test like a CAT scan.” Had Dr. Bond used these techniques, Dr. Quick opined “to a reasonable degree of medical certainty,” that “the observing otolaryngologist would have seen a [Stage II] tumor mass in the nasopharynx” in June 1991. The eighty-one to eighty-four day delay in diagnosis between June 5, 1991 and September 13,1991 “was unacceptable in general standards of care” and “the tumor itself grew and the spread of the tumor occurred.” Moreover, even after six years of remission, Ms. Ivanjack “still faces for the next five or ten years a risk of relapse from the disease that ... was treated in September of 1991.” She “will need continued and repeated observations for a reoccurrence of [her cancer].” Indeed, in 1997, an abnormality was detected on her CAT scan, but after further investigation, was determined not to be malignant. In terms of Ms. Ivanjack’s chances of survival, Dr. Quick expressed the view that had her cancer been diagnosed at Stage II in June 1991, her “chance of surviving five years is high” because sixty-five percent of patients diagnosed at Stage II would survive for five years without a recurrence. In contrast, only ten percent of the patients diagnosed [971]*971at Stage IV would be tumor free after five years. In addition, “less than five percent [of those diagnosed at Stage II] will get into problems” after ten years, but “three to four times as many [Stage IV patients] get into trouble.”

Another of Ms. Ivanjack’s experts, Dr. Bruce Romanczuk, an ENT specialist and an otolaryngologist, conducted a review of Ms. Ivanjack’s medical records. His videotape deposition was shown to the jury at trial. In his opinion, Dr. Bond did not meet the standard of care owed to Ms. Ivanjack because he should have suspected nasopharyngeal cancer in June or July 1991, and should have evaluated or had a biopsy done on the nasopharynx. Moreover, Dr. Bond did not properly evaluate the lymph node, nor order imaging studies in response to Ms. Ivanjack’s persistent complaints, nor provide the proper postoperative care following her tonsillectomy. Dr. Romanczuk saw no evidence in Ms. Ivanjack’s medical records that Dr. Bond ever examined her nasopharynx. According to him, had the proper standard of care been met, Ms. Ivanjack’s cancer would have been diagnosed in June 1991, instead of being delayed by almost three months.

Dr. Bond presented the testimony of Dr. Richard Lee Fields, a retired otolaryngologist who reviewed Ms. Ivanjack’s medical records. Under the assumption that Dr. Bond examined Ms. Ivanjack’s nasophar-ynx in June or July 1991, he opined that Dr. Bond met the standard of care owed to her. Nonetheless, he expressed the view that “at the time of the tonsillectomy a blind biopsy should have been done on the nasopharynx,” and agreed that “if Dr.

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Bluebook (online)
740 A.2d 968, 1999 D.C. App. LEXIS 264, 1999 WL 1040762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bond-v-ivanjack-dc-1999.