Moattar v. Foxhall Surgical Associates

694 A.2d 435, 1997 D.C. App. LEXIS 80, 1997 WL 220245

• Court: District of Columbia Court of Appeals
• Decided: April 30, 1997
• Docket: 94-CV-1389
• Status: Published

Opinions

WAGNER, Chief Judge:

The issue presented in this medical negligence case is whether the trial court may remove from the jury’s consideration a claim for future loss of earnings where the plaintiff can adduce evidence sufficient to support a finding, to a reasonable degree of medical certainty, that she will die prematurely as a result of defendants’ negligence. The case arises out of a claim for medical malpractice in which appellant, Vida Moattar, alleged that the eight month delay by appellee, Dr. Richard DeRosa, in diagnosing and treating her breast cancer caused her permanent injuries and damages and would probably result in her premature death. The trial court precluded Ms. Moattar’s expert from testifying at trial regarding the present value of her future loss of earnings, concluding that the issue was not ripe for consideration until her cancer actually recurred or until her death. The trial court also instructed the jury that another jury in a future case would decide what damages would be awarded to Ms. Moattar or her heirs in the event that her cancer recurred. The jury awarded Ms. Moattar $150,000 to compensate her for damages through the time of trial. Concluding that the jury’s inexplicable failure to award Ms. Moattar any damages for future mental anguish and embarrassment constituted a clear miscarriage of justice, the trial court granted her motion for a new trial for damages to the extent related to future noneco-nomic damages. However, the court adhered to its earlier ruling, to exclude from the new trial any consideration of future economic losses. Pursuant to D.C.App. R. 5, this court granted Ms. Moattar’s application to determine “whether a jury should consider claims for future loss of earnings in a personal injury action where the plaintiff can demonstrate that because of defendant’s negligence her life expectancy will probably be drastically reduced.” We answer this question in the affirmative.

I.

The evidence at trial showed that in November of 1989, Ms. Moattar went to see her gynecologist who found a lump in her right breast, which ultrasound confirmed as a solid nodule. The radiologist who performed the ultrasound recommended a biopsy of the mass. The gynecologist referred Ms. Moat-tar to the appellees, Dr. Richard DeRosa and Foxhall Surgical Associates, P.C. (Surgical Associates) for treatment. Dr. DeRosa was an agent or employee of Surgical Associates. In December of 1989, Ms. Moattar saw Dr. DeRosa, who concluded, without a biopsy, that the lump was benign. Although Dr. DeRosa saw Ms. Moattar twice after her initial visit, he still failed to biopsy the lump or to order an ultrasound of it. In August of 1990, Ms. Moattar was diagnosed with breast cancer in the right breast and underwent a mastectomy, breast reconstruction surgery, and chemotherapy.

At trial, Ms. Moattar presented two expert witnesses, a Board Certified general surgeon and a Board Certified internist specializing in oncology, who both testified that it was “more likely than not” that she would not survive another four years. Ms. Moattar, a thirty-nine year old professional employed by the U.S. Department of Education and single mother of a two year old son, was prepared to offer testimony of an economic expert to establish the present value of her future economic loss given her diminished life expectancy.

Just before the trial commenced, Dr. De-Rosa and Surgical Associates filed a motion in limine requesting the trial court to preclude Ms. Moattar from introducing evidence concerning her diminished life expectancy and future economic losses. Before ruling on the motion, the trial court allowed Ms. Moat-tar’s counsel to address these issues in opening statement. Subsequently, during trial, reasoning that because of the degree of uncertainty concerning whether Ms. Moattar would have a recurrence of cancer and to avoid what it deemed to be prejudice, the trial court ruled that the issue of Ms. Moat-tar’s economic loss due to her reduced life expectancy could not be presented to the jury. Therefore, the trial court ordered a separate trial on the issue pursuant to Super. Ct. Civ. R. 42 at such time as Ms. Moattar either experienced a recurrence of the cancer or died as a result of it. The trial court instructed the jury in that connection that

if Ms. Moattar’s cancer recurs and threatens her with an early death, then another jury, not you, will decide what damages she or her heirs should be awarded that stem from that recurrence.

The trial court also instructed the jury that Ms. Moattar’s claim for future general damages would be annuitized over the years of her life, rather than paid in a lump sum, and that those payments would cease upon her death. The court gave the following instruction:

What you are to decide with respect to damages is what Ms. Moattar has already suffered and, ... what future physical pain, mental anguish, embarrassment, inconvenience, discomfort, disfigurement and humiliation Ms. Moattar will probably suffer in the future, assuming that she would live to a normal life expectancy that is to the age you conclude Ms. Moattar would live had Dr. DeRosa treated her according to the standard of care expected of him.

[O]n the jury verdict form you’ll be asked to [put down] a dollar figure that you calculate for her future damages, assuming Ms. Moattar lives out her normal life expectancy, and every year of her life Ms. Moattar will have a guaranteed annuity for the amount you determine.

In other words, for her future damages, she will receive the dollar amount you decide on divided by the number of years you decide is her normal life expectancy and the pay out would end whenever Ms. Moattar, in fact, dies. And the reason for that is that obviously you don’t suffer any more pain and suffering ... if, in fact you have died.

The jury found in favor of Ms. Moattar on the issue of liability and awarded her as damages to the date of its verdict, the sum of $150,000. It awarded Ms. Moattar no future damages for her noneconomic losses. In response to a special interrogatory on the verdict form, the jury found that Ms. Moattar’s normal life expectancy would have been forty years, absent the physician’s negligence.

Ms. Moattar filed a motion to certify to this court under D.C.Code § 11-721 the question raised by the trial court’s rulings removing the issue of economic loss due to reduced life expectancy and ordering that the verdict be annuitized rather than in a lump sum.¹ She also filed a timely motion for a new trial on the issue of damages and renewed her motion to certify the contested rulings on damages to this court. Subsequently, contending that the trial court had left her with no final judgment and no right to appeal, Ms. Moattar filed a petition for a writ of mandamus with this court seeking an order directing the trial court to grant a new trial on the issue of damages. One day later, the trial court entered its memorandum opinion and order holding that the juifys failure to award non-economic damages was “a miscarriage of justice,” ordering a new trial on that issue, and certifying to this court pursuant to D.C.Code § ll-721(d) the two contested issues, the ripeness of the claim of future economic loss and the restriction of the verdict to an amount for an annuity rather than a lump sum. This court denied the request for a writ of mandamus, but granted the petition to appeal the trial court’s ruling on the “ripeness” of her future economic damages claim.

II.

Ms. Moattar argues that the trial court erred in removing from the jury’s consideration her claim for future economic loss due to her diminished life expectancy. Dr. DeRosa and Surgical Associates argue that the trial court properly refused to submit the issue of loss of future earnings to the jury where there was no sign of a recurrence of cancer by the time of trial. They take the position that her claim is a premature attempt to recover damages under the Survival Statute (D.C.Code § 12-101) and Wrongful Death Statute (D.C.Code § 16-2701).²

A claim for damages for loss of future earnings resulting from injuries suffered due to the negligence of others is a cognizable element of damages during the life of the injured party. District of Columbia v. Barriteau, 399 A.2d 563, 567 (D.C.1979). Here, we are dealing with loss of earnings recoverable by the injured party in a medical negligence case, not in a survival action. See Monias v. Endal, 330 Md. 274, 623 A.2d 656, 659 (1993). The prevailing view is to allow recovery for economic losses based on a plaintiffs lifespan if unaffected by the injury resulting from the defendant’s negligence. Burke v. United States, 605 F.Supp. 981, 989 (D.Md.1985) (citations omitted). As this court stated in Barriteau, this element of damages represents “the amount that the injured party would have earned but for the injury.” 399 A.2d at 567 n. 6. The allowance for such recovery is consonant with the principal purpose for compensatory damages in such cases, which is to make the victim whole. See id. at 566.

The allowance of future economic losses resulting from diminished life expectancy is not a premature attempt to recover wrongful death and survival damages, as Dr. DeRosa and Surgical Associates contend, but an element of damages recoverable by the injured party during her lifetime where properly proved. See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 594, 94 S.Ct. 806, 819, 39 L.Ed.2d 9 (1974). In addressing the point in Sea-Land, the Supreme Court stated that:

[U]nder the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery “on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.”

Id. (emphasis in original) (citations omitted). The Supreme Court rejected Sea-Land’s double-liability argument.³ While reeogniz-ing that there may be some overlap between the injured party’s recovery for future loss of wages and a dependent’s subsequent claim for support in a wrongful death action, the Supreme Court deemed collateral estoppel principles sufficient to avoid double recovery. 414 U.S. at 592, 94 S.Ct. at 818.

The reliance of Dr. DeRosa and Surgical Associates upon this court’s decision in Cole, Raywid & Braverman v. Quadrangle Dev. Corp., 444 A.2d 969 (D.C.1982) is misplaced. They contend that in Cole, this court rejected an attempt by a law firm to recover damages arising out of the death of a managing partner because it could only be pursued under the Wrongful Death statute. In Cole, this court upheld the dismissal of the law firm’s complaint because it was based upon a statutory right of action which had to be brought in the name of the personal representative of the decedent’s estate for the benefit of the decedent’s spouse and next of kin. 444 A.2d at 972. The law firm did not, and could not, claim that status. Therefore, we held that their complaint failed to state a cause of action under the Wrongful Death statute. In this case, we have the injured party seeking to recover on her own behalf damages for medical negligence which she is entitled to pursue.

The trial court in this case expressed its concern with the “closeness of the survival question,” the high stakes involved, and the potential for substantial over-compensation or under-compensation. It cited these reasons for taking the novel approach of deferring Ms. Moattar’s right to prove her claim, either personally or through the personal representatives of her estate, when there would be a greater certainty that she had actually suffered a recurrence of the cancer or death. This approach is contrary to relevant caselaw in this jurisdiction which permits the injured party, upon a proper showing, to recover such damages during his or her lifetime. See Barriteau, supra, 399 A.2d at 567.

Of course, “[the] recovery of damages based on future consequences of a tort is available only if such consequences are reasonably certain.” Curry v. Giant Food Co. of D.C., 522 A.2d 1283, 1291 (D.C.1987). “Unless there is nonspeculative evidence demonstrating that future suffering, additional medical expense, and loss of income will occur, the question should not be submitted to the jury.” Id. The “reasonably certain” standard may be met where the plaintiff proves

that it is more likely than not (a greater than 50% chance) that the projected consequence will occur. If such proof is made, the alleged future effect may be treated as certain to happen and the injured party may be awarded full compensation for it; if the proof does not establish a greater than 50% chance, the injured party’s award must be limited to damages for harm already manifest.

Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982).

Here, Ms. Moattar presented competent expert medical evidence that, to a reasonable degree of medical certainty, she will “more likely than not” die prematurely due to ap-pellees’ negligence. There was evidence that when Ms. Moattar was diagnosed finally, cancer cells were discovered in her lymph-nodes. Although apparently cognizant that Ms. Moattar had made a prima facie showing on this issue, the court expressed concern that Dr. DeRosa and Surgical Associates had experts who would testify otherwise. Their experts posited that Ms. Moattar had “a better than 50 percent chance of survival.” In particular, they pointed to characteristics of her excised cancerous tissue that indicated very favorable prospects expected from her chemotherapy treatment and her three years of living without a recurrence. When there is conflicting expert testimony in a trial, it is the jury’s function to resolve it, applying standards set forth in the court’s instructions.⁴ It is not unusual for a jury in a medical negligence case to have before it conflicting evidence. That is not a basis for removing an issue from the jury until more persuasive evidence can be obtained by one side or the other. Having presented evidence that it was more probable than not that she would suffer a recurrence of cancer and a specific shortened life expectancy, Ms. Moattar was entitled to present evidence of her future economic losses and have the jury resolve the issue.

Moreover, Ms. Moattar was required to pursue her case for all damages associated with her claim. See Colbert v. Georgetown Univ., 641 A.2d 469, 474 (D.C.1994) (en banc). A right of action accrues when the injured party knows or should have known “that she ha[s] suffered injury as a result of the defendants’ negligence.” Id. at 473. A plaintiff injured by a physician’s negligence in failing to diagnose breast cancer, knowing that it is more probable than not that her cancer will metastasize, cannot split her claim and wait until the cancer recurs before bringing suit. Id. at 475-76. In this jurisdiction, under such circumstances, a plaintiff is entitled to include in her claim, and recover for, future consequences based on the probability of metastasis and of hastened death. Id. at 474.

In reaching its decision, the trial court relied on the “ripeness” doctrine as explained in the Supreme Court’s decision in Abbott Lab. v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), which focuses on the question of the competence of courts to resolve disputes before they are sufficiently refined administratively. See id. at 148-49, 87 S.Ct. at 1515-16. In Abbott, the Supreme Court stated that the doctrine’s

basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Id. We are not persuaded that considerations embodied in the ripeness doctrine are applicable here or can form a basis for deferring a plaintiffs claim in a medical negligence case where she has presented evidence of the probability of future damages to the extent required by our precedents.

Finally, we conclude that the trial court abused its discretion in bifurcating Ms. Moattar’s proof of the various elements of her damages under Super. Ct. Civ. R. 42(b). The trial court’s decision was based, in part, upon an erroneous understanding of the controlling legal principles, which may result in an abuse of discretion. Moreover, Rule 42(b) permits bifurcation of issues “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” These goals are not achieved by the court’s ruling in this case. Much of the same evidence involved in proving Ms. Moattar’s noneconomic losses would have to be presented to prove her economic losses. Where issues involve the same evidence, bifurcation under the rule should ordinarily be denied. See 5 James WM. Moore, Moore’S Federal Practice § 42.03[1] at 42-61 (2nd ed.1996). Rather than promoting convenience, expedition and judicial economy, bifurcation of the damages issues simply delays or, perhaps forecloses, Ms. Moattar from presenting her own claim and testifying before the jury which will decide her case. It also causes the additional expense of a second trial to both sides.

For the foregoing reasons, we conclude that the trial court erred in precluding Ms. Moattar from presenting her claim for future economic losses. Therefore, we remand the case to the trial court for a new trial on the issue of all damages, including future economic loss.

Reversed and remanded.

1 . D.C.Code § 11 — 721(d) provides in pertinent part that:

When a judge of the Superior Court of the District of Columbia in making in a civil case ... a ruling or final order not otherwise ap-pealable under this section, shall be of the opinion that the ruling or order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from the ruling or order may materially advance the ultimate termination of the litigation or case, the judge shall so state in writing in the ruling or order. The District of Columbia Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from that ruling or order, if application is made to it within ten days after the issuance or entry of the ruling or order.

2 . The Wrongful Death Act provides a remedy for close relatives, who might have been entitled to maintenance and the like from the decedent, to recover compensatory damages from the tortfea-sor for wrongful death. Semler v. Psychiatric Inst. of Washington, D.C., Inc., 575 F.2d 922, 924-25 (D.C.Cir.1978). Under the Survival Act, actions in tort survive the death of the deceased person, and the decedent's estate may recover prospective economic benefits which include net lifetime earnings discounted to present worth. Hughes v. Pender, 391 A.2d 259, 261 (D.C.1978).

3 . In Sea-Land, the issue was whether the widow of a longshoreman could maintain a wrongful death action for his death in navigable waters after her husband had recovered damages in his lifetime for his injuries. The decedent had recovered for his permanent disability, physical pain and suffering, and loss of earnings in an action, but he died shortly after the action was terminated. Sea-Land, supra, 414 U.S. at 574, 94 S.Ct. at 809-10. The issue whether a wrongful death action is available to dependents of a decedent who had litigated tort actions arising out of the same alleged wrong is not before us in this case.

4 . See Standardized Civil Jury Instructions For The District Of Columbia, No. 3-4 (Expert Opinion Conflict) (Rev. ed.1985).