Derzavis v. Bepko

766 A.2d 514, 2000 D.C. App. LEXIS 303, 2000 WL 33206246

• Court: District of Columbia Court of Appeals
• Decided: December 29, 2000
• Docket: 96-CV-1023
• Status: Published

Opinions

TERRY, Associate Judge:

Appellant, Suzette Derzavis, filed suit against appellees, Dr. Frank Bepko and his professional corporation, Frank Bepko, M.D., P.C.¹ The complaint alleged that Dr. Bepko was negligent in, among other things, “failing to properly insert and/or employ [a] Cytobrush² so as to injure plaintiff.” In the course of a five-day jury trial, appellant called four witnesses: herself, her mother, Dr. Bepko, and Dr. Deena Kleinerman, her sole expert witness. At the close of the plaintiffs case, appellees moved for judgment as a matter of law, which the trial judge denied, concluding that although the evidence was “not overwhelming,” it was “enough to get past this stage.” Appellees renewed the motion at the conclusion of the defense case,³ but the judge again denied it, saying, “I think legally it is thin, but I wouldn’t pull it from the jury at this point.” Counsel for appellant requested a jury instruction on res ipsa loquitur, but the judge denied that as well.

The jury returned a verdict for Ms. Der-zavis in the amount of $500,000. A few days later, appellees filed a written motion for judgment as a matter of law, or in the alternative for a new trial or remittitur. After Ms. Derzavis filed an opposition, the judge granted the motion for judgment as a matter of law without ruling on the two alternative requests. The judge concluded in his order that “the evidence was deficient with regard to all three elements” necessary to prevail in a medical negligence action. He ruled that Ms. Derzavis’ expert witness had failed to establish an applicable standard of care because she “refused to testify categorically that the standard of care required a physician ‘to be familiar with the manufacturer’s instructions for use of an endoeervical brush.’ ” In addition, the judge noted that, even assuming the evidence was sufficient to establish a standard of care, “the expert never testified that what defendant Bepko did — inserting the brush just beyond the last bristles — violated such a standard.” Finally, the judge stated that because Dr. Kleinerman “could not articulate how defendant used the Cytobrush, when the injury occurred in the course of that use, or even what the injury was,” Ms. Derzavis had failed to establish a causal connection between her alleged injury and Dr. Bep-ko’s actions. Ms. Derzavis appeals; we affirm.

I

On December 30, 1989, Ms. Derzavis went to Dr. Bepko, a gynecologist, for a routine Pap smear and gynecological examination.⁴ During the Pap smear, Dr. Bepko inserted a speculum without incident, but when he inserted a Cytobrush,⁵ Ms. Derzavis felt “the worst pain [she had] ever experienced,” and she yelled out. Dr. Bepko testified that he inserted the Cyto-brush “to the point that the last bristle disappeared,” rotated the brush, and then withdrew it. The entire procedure, he said, took about three seconds. Ms. Der-zavis testified that she noticed that the slide and Dr. Bepko’s gloves were full of blood and that Dr. Bepko quickly removed the speculum and left the room.⁶ Ms. Derzavis, “very cold but perspiring at the same time,” slowly got dressed and met with Dr. Bepko in his consultation room. According to her testimony, she repeatedly told Dr. Bepko that she was in great pain, but he gave her a hug and told her that she would be fine.

Upon arriving home, Ms. Derzavis said, she started to sit down on the edge of her bed but quickly realize d that she “couldn’t sit down because [she] felt like [she] was sitting on a fiery fist.” As she stood up,« she “felt this warmth, and just to catch it [she put her] hands down [her] trousers ... and when [she] took [her] palm out, it was a puddle of blood.” She went to the bathroom and felt a need to urinate, “but the only thing that came out was blood .” Ms. Derzavis called Dr. Bepko to tell him that she was bleeding, and he suggested that she take a hot bath. The pain did not subside, and Ms. Derzavis continued to lose blood along with her urine, so she called Dr. Bepko the next day and asked whether she should go to a hospital emergency room. Dr. Bepko told Ms. Derzavis that if she went to the hospital, the doctors would have to examine her and were likely to re-irritate any injury that she might have.⁷

Three days later, on January 2, 1990, Ms. Derzavis returned to Dr. Bepko’s office, still in great pain. According to her testimony, “he inserted one finger into [her] vagina and it came out with his glove being bloody so he said you’re still bleeding. He asked me if that hurt. I said no, the pain was much higher. That was it. And he left.” Dr. Bepko prescribed Mon-istat cream, Pyridium, and Valium.⁸

After these medications did not ease her pain, Ms. Derzavis began to see other physicians, all of whom provided only minimal relief.⁹ The pain and bleeding continued to plague her. For example, the first time she had a menstrual period after the December 30 Pap smear, she felt pain comparable to a contraction. “I urinated all over myself, the blood came out again all over me, and my uterus just went jabbing, stabbing, really stabbing up, up, up, and then the pain went barreling down the backs of my legs.”

At the time of trial, Ms. Derzavis said, she still had substantial pain that severely limited her daily activities. She testified that she could “hardly lift anything” and could not walk, swim, sit, do housecleaning, go to the beauty parlor, paint, go to the movies, or have sexual intercourse without extreme pain. The only medication that helped to relieve the pain was Motrin. One of her doctors suggested a hysterectomy, but there was no guarantee that such surgery would end her pain, so she did not have it done.

The only expert witness that Ms. Derza-vis presented at trial was Dr. Deena Kleinerman, a specialist in obstetrics and gynecology. After two meetings with Ms. Derzavis in September 1993 and March 1994, and after reviewing her history and the reports of the other doctors, she concluded that Ms. Derzavis “was having continued pain and that the original onset of the pain was at the time of [the] examination ... on December 30, 1989.”¹⁰ As to the applicable standard of care for using Cytobrushes, Dr. Kleinerman stated that the standard in December 1989 was simply “for a physician to be aware of the correct use of the brush,” either by reading the manufacturer’s product information or through instruction from another specialist. In Dr. Kleinerman’s opinion, the instructions that accompanied the Cy-tobrush comported with the proper standard for its use.¹¹

When asked whether Dr. Bepko had “exercised that degree of skill, care and knowledge ordinarily possessed and used by board-certified obstetrician-gynecologists acting in the same or similar circumstances as were present in Suzette Derza-vis’ case on December 30, 1989,” Dr. Kleinerman answered that in her opinion “such care was not exercised.” She based that opinion “on the description of the patient, how she felt before the examination and what she felt during and after the examination,” and on the notes and depositions from various doctors which she had reviewed. Dr. Kleinerman believed that the Pap smear was improperly performed in two respects: first, the inner portion of Ms. Derzavis’ cervix was sampled before the outer portion,¹² and second, Dr. Bepko engaged in “excessive instrumentation.” The only evidence of such excessive instrumentation that Dr. Kleinerman could identify, however, was that Dr. Bepko inserted the Cytobrush until the last bristle was not visible. As to causation, Dr. Kleiner-man stated that Dr. Bepko’s deviation from the standard was the direct cause of injury to Ms. Derzavis, but she also said that inserting a Cytobrush one additional bristle was not likely to cause damage.

On cross-examination, Dr. Kleinerman admitted that she had never seen or heard of an injury such as that of Ms. Derzavis resulting from the use of a Cytobrush. In addition, she agreed with counsel’s statement that “there is no evidence that Dr. Bepko used excessive or too much force when he used the bristle brush on Ms. Derzavis.... ” She also conceded that, although she thought Dr. Bepko had used “excessive instrumentation,” she did not see him take the Pap smear and did not know exactly when Ms. Derzavis began to experience pain. Moreover, Dr. Kleiner-man acknowledged that she herself had never read a package insert for a Cyto-brush but had been instructed on its use by another doctor. She also agreed that she did not “have any evidence in this case to allow [her] to conclude that Doctor Bep-ko went in too deeply when he used the brush....”

In their defense, appellees presented evidence that Ms. Derzavis was emotionally unstable, that she had complained of numerous maladies in the past, and that none of her myriad physicians could diagnose any injury attributable to negligence on the part of Dr. Bepko. Dr. Bepko testified that he had referred Ms. Derzavis to a psychiatrist on numerous occasions, including one time in May 1980 after she called Dr. Bepko’s nurse and “started complaining of burning in her abdomen, she had a burning fist in her abdomen.” According to Dr. Bepko, Ms. Derzavis “had many, many complaints, along with frequent visits to many physicians.” ¹³ Dr. Bepko testified that after every pelvic examination, Ms. Derzavis would “bend over and walk over, walk bowlegged as if she was hurting. She’d be rubbing her back, rubbing her thighs and complaining ... [and] was rambling, rambling on.” Dr. Bepko attributed Ms. Derzavis’ condition in this case to a psychophysiologic reaction to the December 30,1989, pelvic examination.¹⁴

Dr. Arthur Becker, an obstetrician and gynecologist, testified that he saw Ms. Derzavis in June 1990 and conducted a physical examination with Pap smears, using a Cytobrush. He diagnosed severe vaginismus, which is “an involuntary contraction of the outer muscles of the vagina ... while someone is trying to examine the patient, and this usually will make the examination difficult.” He also testified that “there was a slight amount of tenderness in touching the cervix.” Dr. Becker concluded that Ms. Derzavis had “vaginal lower pelvic pain of unknown etiology” and recommended that she have a psychiatric evaluation.¹⁵

Dr. Donald Sewell, an obstetrician and gynecologist, testified that he spoke with Ms. Derzavis in August 1993 and examined her in September 1994. He himself inspected the December 1989 Pap smear and found no blood on the slide, and he concluded that Dr. Bepko had performed the Pap test correctly. In Dr. Sewell’s opinion, it was within the standard of care for Dr. Bepko “to put the brush into the cervix to the point where he could just see the last bristles disappearing into the opening of the cervix.” After reviewing the medical records of all the doctors who treated Ms. Derzavis, Dr. Sewell observed that “no one came up with an anatomical basis for her pain.” Dr. Sewell concluded that there was “no way that [Ms. Derzavis] could have suffered a nerve injury” as a result of Dr. Bepko’s Pap smear.

Dr. Kenneth Ullman, a general psychiatrist, testified that he evaluated Ms. Der-zavis twice in January 1994 and concluded that she had both a somaform disorder, which occurs when a person’s psychological problems are manifested in physical symptoms, and a histrionic personality disorder, and that she was depressed. Dr. Joseph Collea, a professor of obstetrics and gynecology at Georgetown University, testified that he performed a pelvic examination on January 31, 1990, a month after the Pap smear at issue, and found no abnormalities. He described Ms. Derzavis as “the most agitated patient I’ve ever seen in my life before or since [that] time.” Dr. Harry Ervine, an obstetrician and gynecologist in private practice, testified that he examined Ms. Derzavis on January 4, 1990, and “didn’t find anything of note except for a small vaginal discharge.” Dr. James Barker, an associate professor of gynecology at Georgetown University, testified that he had never encountered a case in which a Pap smear caused the sort of damage that Ms. Derzavis alleged. He also stated that, in his opinion, it was “perfectly fine” to insert a Cytobrush until the last bristle disappeared into the cervix because “[t]he more that you sample, the better for the patient.” Dr. James Simon, an associate professor of reproductive endocrinology at Georgetown University, testified that he had an office consultation with Ms. Derzavis in January 1990 in which he “sat there and listened to her literally yell at me, scream at me. And I waited for what was a very, very long time in the hope that she would quiet down and relax and allow me to elicit the proper history. But when that never occurred, I asked her to leave the office.... I couldn’t get any history from her.”

II

In a medical malpractice case, the plaintiff has the burden of proving the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiffs injury. “Expert testimony is usually required to establish each of [these] elements, except where proof is so obvious as to lie within the ken of the average lay juror.” Washington v. Washington Hospital Center, 579 A.2d 177, 181 (D.C.1990) (citations omitted); see Lasley v. Georgetown University, 688 A.2d (D.C.1997) (rule requiring expert testimony applies to proof of causation), cert. denied, 522 U.S. 1060, 118 S.Ct. 719, 139 L.Ed.2d 659 (1998). Because the present case “involve[d] ... the exercise of professional skill and judgment,” expert testimony was required to make a prima facie showing of negligence. Harris v. Cafritz Memorial Hospital, 364 A.2d 135, 137 (D.C.1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); accord, e.g., Eibl v. Kogan, 494 A.2d 640, 643 (D.C.1985).

Viewing the evidence in the light most favorable to Ms. Derzavis, we observe that her expert witness testified to the following: (1) that the applicable standard of care was “for a physician to be aware of the correct use of’ a Cytobrush and that the instructions accompanying the Cyto-brush “comported” with the standard of care; (2) that in her opinion Dr. Bepko deviated from that standard by engaging in “excessive instrumentation”; and (3) that in her opinion a causal relationship existed between that deviation and Ms. Derzavis’ injury.

A. Standard of care

To prove the relevant standard of care, “the plaintiff must establish through expert testimony the course of action that a reasonably prudent doctor with the defendant’s specialty would have taken under the same or similar circumstances.” Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984) (citations omitted). It is not enough for the expert to testify as to what he or she would have done in a particular case. Toy v. District of Columbia, 549 A.2d 1, 7 (D.C.1988); Meek, 484 A.2d at 581.

In this instance, the only applicable standard of care that Ms. Derzavis’ expert identified in her testimony was that a doctor should know how to use a Cytobrush correctly. Dr. Kleinerman testified that, in her opinion, the standard of care required a “physician to be aware of the correct use of the brush,” but she never stated what that “correct use” was. She did testify that the instructions accompanying the Cytobrush “comported” with the standard of care for its use, which indicates that a physician who followed the written instructions would have been acting within the standard of care. Significantly, however, she did not testify that if a physician had failed to follow the instructions, that physician would have breached the standard of care. On the contrary, it was her opinion that it would be within the standard of care for a doctor to learn the correct way to use a Cytobrush either by reading the manufacturer’s instructions or by learning how to use it from another physician. In fact, until this case came along, Dr. Kleinerman had never personally read the instructions and had been directed by a senior physician on how to use the Cytobrush. Because Dr. Kleinerman never stated what the standard of care was for the use of a Cytobrush, and because she admitted that a physician could learn to use the Cytobrush properly without reading the written instructions, her testimony was not sufficient to establish the applicable standard of care.

The manufacturer’s package insert, which included written instructions for using the Cytobrush, was also introduced in evidence. In pertinent part, those instructions state:

[Gjently insert the Cytobrush device into the endocervix until only the bristles closest to the handle are exposed. Slowly rotate one half to one full turn. Remove.

This court has held that such a package insert, standing alone, does not establish a standard of care, but is admissible only as prima facie proof of proper use. Garvey v. O’Donoghue, 530 A.2d 1141, 1146 (D.C.1987) (citing Nolan v. Dillon, 261 Md. 516, 540, 276 A.2d 36, 49 (1971)); accord, Monk v. Doctors Hospital, 131 U.S.App. D.C. 174, 176, 403 F.2d 580, 582 (1968). “When the package insert ... is offered in conjunction with expert testimony, however, that combination may be sufficient to establish the standard of care.” Garvey, 530 (citation omitted; emphasis added).

We are thus confronted with the question of whether the testimony of Dr. Kleinerman, in combination with the manufacturer’s instructions, would permit the jury to determine what the standard of care actually was. Dr. Kleinerman said that the instructions “comported” with the standard of care, but she also said that a physician could learn how to use a Cyto-brush from another physician, i.e., without reading the manufacturer’s instructions. Under Garvey, the instructions themselves were insufficient to prove the standard of care, and it does not appear that Dr. Kleinerm’an’s testimony provided the missing element of proof. We need not rule definitively on this point, however. Even if we assume for the sake of argument that the standard of care was sufficiently proven, we nevertheless conclude that Ms. Der-zavis failed to prove either a breach of the standard of care or—most importantly— proximate cause.

B.Deviation from the standard

Even if we accept Dr. Kleinerman’s testimony that the applicable standard of care was for a physician to be aware of the correct way to use a Cytobrush, there was no evidence that Dr. Bepko deviated from that standard. In fact, Ms. Derzavis did not present any evidence that Dr. Bepko had never been instructed, or had been instructed incorrectly, in the use of a Cyto-brush. Her evidence focused instead on the way he inserted the brush when he conducted the Pap test.

Dr. Kleinerman did say that she believed Dr. Bepko violated the standard of care because he engaged in “excessive instrumentation.” The only basis she offered for that conclusion, however, was the fact that Dr. Bepko inserted the Cyto-brush until the last bristle disappeared. But neither Dr. Kleinerman nor anyone else testified that inserting the brush into the cervix until the last bristle disappeared violated the standard of care. At most, the package insert, which said that the Cyobrush should be inserted “until only the bristles closest to the handle are exposed,” constituted “prima facie proof of proper use,” Garvey, 530 A.2d at 1146, but there was no evidence that inserting the Cytobrush one bristle farther amounted to improper use. We therefore hold that Ms. Derzavis did not present sufficient evidence to prove the second element of her malpractice claim: that Dr. Bepko deviated from the applicable standard of care.¹⁶

C.Causation

Ms. Derzavis argues that the jury could permissibly infer that her injury, because it was contemporaneous with the Pap smear, resulted from negligence on the part of Dr. Bepko. She asserts in her brief that “[t]he most compelling evidence, as Dr. Kleinerman noted, was the temporal relationship between the onset of pain and the injury.” Dr. Kleinerman did so testify, but she also admitted that there was “no evidence that Dr. Bepko used excessive force or too much force” when he inserted the Cytobrush, and she agreed with counsel’s statement that there was no basis in the evidence “to conclude that Doctor Bep-ko went in too deeply when he used the brush .” The trial judge, in granting appel-lees’ motion for judgment as a matter of law, concluded that Ms. Derzavis

failed to establish ... the causal link between her injury and defendant Bep-ko’s actions. Dr. Kleinerman could not articulate how defendant used the Cyto-brush, when the injury occurred in the course of that use, or even what the injury was.... She never explained at what point the injury actually took place or what the mechanism of the injury was.

We agree with the judge’s analysis of the evidence and with his conclusion that Ms. Derzavis failed to prove that any act by Dr. Bepko caused any injury to her.

In order to establish proximate cause, “[t]he 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 plaintiff’s injuries.” Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986) (citations omitted). But the expert may not base such an opinion merely on “a proximate temporal association” between a medical procedure and an injury. Lasley v. Georgetown University, supra, 688 A.2d at 1887. “Without more, this proximate temporal relationship will not support a finding of causation.” Hasler v. United States, 718 F.2d 202, 205 (6th Cir.1988), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984), cited in Lasley, 688 A.2d at 1387. To hold otherwise — i.e., to hold “that contemporaneity proved causation” — would improperly shift the burden of proof from the plaintiff to the defendant and “would in effect be forcing defendants to disprove causality.” Id. We rejected such an argument in Lasley, and we reject it again here.

In support of her claim that she adduced sufficient evidence of causation, Ms. Derzavis cites our decision in McCoy v. Quadrangle Development Corp., 470 A.2d 1256 (D.C.1983), in which we said, ‘Where there are no eyewitnesses to an accident and the cause thereof cannot be established by direct proof, then the facts which can be established circumstantially may justify an inference by the jury that negligent conditions produced the injury.” Id. at 1259 (footnote omitted). In McCoy, a wrongful death case, the evidence showed that the decedent was last seen when he returned to his office late one night after eating dinner "with some of his co-workers. The next morning his body was found at the bottom of an elevator shaft. The plaintiff submitted evidence that the elevator had a history of malfunctioning and had not been working properly on the evening of the decedent’s death. The trial court granted summary judgment for the owner of the office building, but this court reversed and remanded the case for trial. We held that the history of the malfunctioning elevator was sufficient to raise a jury issue as to the possible negligence of the building owner. There is, of course, no comparable evidence in the case at bar. Moreover, McCoy stands for the basic proposition that when there is evidence from which a trier of fact may find negligence, the case cannot be decided on summary judgment.¹⁷ Ms. Derzavis apparently reads McCoy to state that if there are no witnesses to an accident, the court automatically assumes causation. That is plainly not what McCoy says. Because there is no circumstantial evidence here similar to that presented in McCoy, we conclude that McCoy has no bearing on this case.

Ms. Derzavis further contends that “the trial court erred in imposing on the plaintiff the duty to prove that another female had been similarly injured with a Cyto-brush in order to establish a prima facie case of negligence.” Regardless of whether such a ruling would be right or wrong, the record makes clear that the trial court did not impose such a burden. The judge relied on the evidence presented at trial, which he summarized and quoted in detail in his order, to conclude that Ms. Derzavis had failed to prove all the elements of medical malpractice. In addition, he noted that “neither party offered any evidence to show that this medical procedure ever affected anyone as plaintiff claims it affected her,” citing appellees’ statement that Ms. Derzavis “stands alone in a sea of hundreds of millions of women.” The judge did not rely on this statement as a basis for saying that Ms. Derzavis failed to establish a prima facie case. Rather, we read it as reflecting the legal reality: that her expert witness simply did not provide the necessary testimony.

Ill

Ms. Derzavis makes two additional arguments which we may treat more briefly.

First, she contends that the trial judge erred in refusing to instruct the jury on the doctrine of res ipsa loquitur. This court has held, however:

[I]f a case involves the merits and performance of scientific treatment, complex medical procedures, or the exercise of professional skill and judgment, a jury will not be qualified to determine whether there was unskillful or negligent treatment without the aid of expert testimony. As a basis for invoking the doctrine of res ipsa loquitur in this type of situation, the plaintiff must at least present some expert opinion that the event will not usually occur if due care is used.

Harris v. Cafritz Memorial Hospital, supra, 364 A.2d at 137 (citations and footnote omitted). We conclude, as did the trial judge, that the testimony of Ms. Derzavis’ expert was not sufficient, under Harris, to lay a foundation for a res ipsa instruction.

Second, Ms. Derzavis maintains that we should reverse the judgment because appellees attached material not in evidence to their post-trial motion for judgment as a matter of law. Although appellees may have used poor judgment in doing so, there is no indication that the granting of the motion was tainted by that material; on the contrary, the judge’s order clearly set forth the evidence on which he relied in ruling on the motion, and all of it was properly before him. Consequently, the submission of any improper material does not require reversal.

The judgment of the trial court is therefore

Affirmed.

1 .The original complaint also named as defendants International Cytobrush, Inc., Meds-cand USA, Inc., and Medscand AB, a Swedish corporation, but the claims against them were all dismissed before trial.

2 . According to the testimony of appellant’s expert witness, a Cytobrush is a brush with soft, flexible bristles which is specially designed for gathering cervical cells during a Pap smear. Although some doctors use a Q Tip swab, the witness said, a Cytobrush "tends to pick up cells better.”

3 . The defense consisted of testimony from Dr. Bepko and several other doctors.

4 . Dr. Bepko had treated Ms. Derzavis since April 1980 and had previously performed two minor surgical procedures on her, with no adverse consequences.

5 .- Dr. Bepko testified that he had previously used a Cytobrush dmring a Pap smear of Ms. Derzavis about three months earlier. On this occasion, he said, he told Ms. Derzavis that he was using a Cytobrush and that she might experience some cramping or spotting.

6 .Dr. Bepko, on the other hand, testified that he showed Ms. Derzavis the Cytobrush, which was not bloody, and then performed a biman-ual examination of Ms. Derzavis’ cervix. He stated, "There was no blood at all. Absolutely not. No blood at all.”

7 . Erma Derzavis, Ms. Derzavis' mother, testified that her daughter was "sunny, happy, glowing” when she left for her appointment with Dr. Bepko, but when she returned, she was "greenish gray, teeth chattering, shaking, in shock.”

8 . Dr. Bepko gave a different account of Ms. Derzavis' visit on January 2: "I did a pelvic exam because I wanted to make sure that there wasn’t something there, and if there was something there, I could take care of it. I wrote down, exam today perfectly normal, with a slight amount of old heme discharge.” Heme discharge, he explained, was "a little watery discharge perhaps with some ... little specks of blood.... But it’s only spotting, it’s not a flow of blood.”

9 . Ms. Derzavis testified that she saw, among others, Dr. Ervine, who examined her and prescribed Flagyl, Topicort, Myanesin, Apri-mirin, Prednisone, Medrol, and more Pyridi-um. Dr. Ervine then referred her to Dr. Gross, who performed a sonogram, and to Dr. Collea, who examined her and prescribed 3200 milligrams a day of Motrin. Dr. Collea in turn referred her to Dr. Pahira, who prescribed Ditropan. After Dr. Pahira, Ms. Der-zavis went to Dr. Paul, who recommended a laparoscopy, which was never done. Dr. Marlow then conducted two magnetic resonance imaging (MRI) tests, which apparently were inconclusive. After that, Ms. Derzavis consulted Dr. Simon, Dr. Margolis, Dr. Becker, and Dr. Jerome. In addition, Dr. Stewart performed a dilation and curettage, which only made the pain worse. Dr. Anderson and Dr. Levitt had consultations, and Dr. Kogan conducted an examination which included a Pap smear and a sonogram. In all, Ms. Der-zavis consulted about twenty different doctors, but obtained very little relief and no diagnosis of the cause of her continued pain.

10 .It is significant to note that Ms. Derzavis refused to allow Dr. Kleinerman to conduct a physical examination because Ms. Derzavis thought it would be too painful.

11 . The instructions accompanying the Cyto-brush were admitted into evidence at trial, but were not initially included in the record on appeal. It was not until long after oral argument that we were able to locate them and to have them transmitted to this court as a supplemental record.

12 . According to her reply brief, Ms. Derzavis does not contend that this caused her injury.

13 . Ms. Derzavis admitted on cross-examination that Dr. Feffer, who examined her for "joint pain all over the body” on August 9, 1993, concluded that she was a hypochondriac.

14 .Dr. Bepko explained that "psychophysio-logic” refers to "a symptom, a disease where there’s no basis in fact. You examine the patient, there's absolutely nothing you can find to support what she appears to be having.”

15 . Dr. Becker also testified that using a Cyto-brush "is not only acceptable but is probably one of the better ways of doing a Pap smear ... because it is the least traumatic to the cervix...

16 . Ms. Derzavis contends that the trial court "inadvertently overlooked Dr. Bepko’s testimony which in itself provided evidence of deviation from the standard of care.” According to Ms. Derzavis’ brief, Dr. Bepko allegedly said that he "introduced the brush until you couldn't see the last bristles attached to the handle.” Since the trial judge stated in his order that he had "reviewed the entire record in the case” when ruling on the post-trial motion, there is no reason for us to conclude that he overlooked Dr. Bepko's testimony.

17 . In the instant case, unlike McCoy, there was a full trial lasting five days.