Travers v. District of Columbia

672 A.2d 566, 1996 D.C. App. LEXIS 27, 1996 WL 97451
CourtDistrict of Columbia Court of Appeals
DecidedMarch 4, 1996
Docket93-CV-1070
StatusPublished
Cited by40 cases

This text of 672 A.2d 566 (Travers v. District of Columbia) 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
Travers v. District of Columbia, 672 A.2d 566, 1996 D.C. App. LEXIS 27, 1996 WL 97451 (D.C. 1996).

Opinions

Opinion for the court by Senior Judge GALLAGHER.

Dissenting opinion by Chief Judge WAGNER at p. 8.

GALLAGHER, Senior Judge:

Appellant commenced this medical malpractice suit alleging that the District of Columbia General Hospital’s negligence led to the amputation of the front half of his right foot. After a mistrial due to a hung jury, the District of Columbia (the “District”) filed a Motion for Entry of Judgment pursuant to Super.Ct.Civ.R. 50(b), claiming that appellant failed to prove the existence of a national standard of care and failed to show proximate cause. On July 19, 1993, the trial court granted the District’s motion and entered judgment in favor of the District. Appellant appeals the trial court’s ruling. We affirm.

I.

Appellant was treated at D.C. General Hospital for traumatic injuries resulting from an automobile accident. Doctors performed a splenectomy1 several days after the accident. After the splenectomy, appellant developed a blood clot above his right ankle which obstructed the flow of blood to his right foot. Gangrene developed in his foot [568]*568and it was partially amputated. He later brought suit against the District for medical malpractice. In support, he alleged a failure to properly administer aspirin following the removal of his spleen permitted a blood clot to form in his ankle, causing gangrene and necessitating the amputation.

His claim of medical malpractice was based upon the contention that the failure of the hospital physician to give him aspirin after the operation when his blood platelet level reached 800,000 to 1,000,000 constituted negligence. This negligence, says appellant, caused the injury.

Plaintiff offered a medical expert witness to establish that aspirin should be administered to prevent a clot in a post-splenectomy patient; and that the surgeon who performed this operation on plaintiff breached the applicable standard. The specific issue being addressed was whether the surgeon had delayed too long in administering aspirin as an anti-platelet therapy, the purpose being to ward off the formation of blood clots. While aspirin was in fact administered the claim was that it was done too late.

The plaintiff introduced a medical expert witness in an effort to establish that (a) a national standard of care exists as to when aspirin should be administered to avoid a clot in a post-splenectomy patient, and (b) here the surgeon breached that standard. The defendant’s position was, and is here, that the plaintiff failed to establish a national standard of care in support of his position. The issue is whether the trial court erred in granting the defendant’s motion for judgment on the basis that the plaintiff had failed (a) to effectively establish the national standard of care in these circumstances, and (b) to show the failure to administer aspirin was proximate cause of the injury suffered due to a deviation from the standard, each showing being required to establish medical malpractice. Allen v. Hill, 626 A.2d 875, 877 (D.C.1993).

II.

There was a hung jury and the trial court then granted a motion for judgment, filed pursuant to Super.Ct.Civ.R. 50(b) after a mistrial was declared. We review the grant of judgment in the light most favorable to the appellant. See, e.g., Spain v. McNeal, 337 A.2d 507, 508-09 (D.C.1975).

In a medical malpractice action, the plaintiff must prove the applicable standard of care, deviation from that standard and a causal relationship between the deviation and the injury. See, e.g., Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990). In this jurisdiction, the applicable standard is a national standard, not just a local custom. See id. (citing Morrison v. MacNamara, 407 A.2d 555, 565 (D.C.1979)). In order to establish a national standard, “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) (footnote omitted). “The purpose of expert testimony is to avoid jury findings based on mere conjecture or speculation. The sufficiency of the foundation of those opinions should be measured with this purpose in mind.” Washington Hosp. Ctr., supra, 579 A.2d at 181 (citations omitted).

The personal opinion of the testifying expert as to what he or she would do in a particular case, without reference to a standard of care, is insufficient to prove the applicable standard of care. Thus, in Meek, supra, 484 A.2d at 581, the court ruled a doctor’s testimony insufficient where he never testified to a standard of care, “but rather stated only what he would do under similar circumstances” to those at issue. Similarly, in Toy v. District of Columbia, 549 A.2d 1, 8-9 (D.C.1988), the expert, although indicating that he had reviewed certain publications before testifying, insufficiently based his opinion as to the necessity of certain devices solely on his experience in a single jurisdiction.

There must be, then, evidence that a particular course of treatment is followed nationally. Reference to a published standard, though not required, can be important in determining whether a national standard’s adherence was proven with sufficiency. See [569]*569Morrison, supra, 407 A.2d at 562-63 (availability of publications important to national standards requirement). Further, if there was evidence that the witness had discussed the described course of treatment with practitioners outside the District, such as at seminars or conventions, and that those other practitioners agreed with the course urged, the testimony might have been sufficiently supported since it would have been based upon “adequate data.” Sponaugle v. PreTerm, Inc., 411 A.2d 366, 367 (D.C.1980). Without such proof, there is no indication that the described standard is followed nationally, except the notion that what is done by certain District doctors is nationally followed because the District’s doctors are required to adhere to national standards. But that is just another way of saying that the applicable standard is what the testifying expert would have performed, which we have deemed an inadequate showing. See Meek, supra, 484 A.2d at 581-82.

Essentially, appellant’s medical expert witness testified that support for his opinion in relation to treatment by aspirin after the operation rested on discussions with about five or six local fellow surgeons.2 He testified, “It is the consensus of opinion of all the surgeons with which I have worked with and taught with that we do use aspirin when it reaches about two times normal.” He did not relate any basis for a further statement that other physicians around the country held the same viewpoint. He merely stated that he attended various medical conferences all over the country where doctors would discuss medical issues.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Walen v. United States of America
District of Columbia, 2019
Smith v. Dist. of Columbia
306 F. Supp. 3d 223 (D.C. Circuit, 2018)
Braylon Seifert v. Kay M. Balink, M.D.
2017 WI 2 (Wisconsin Supreme Court, 2017)
Casey v. Ward
211 F. Supp. 3d 107 (District of Columbia, 2016)
Pauline v. United States of America
83 F. Supp. 3d 13 (District of Columbia, 2015)
PROVIDENCE HOSPITAL, INC., APPELLANT/CROSS v. JOHN WILLIS, APPELLEE/CROSS-APPELLANT.
103 A.3d 533 (District of Columbia Court of Appeals, 2014)
Rhodes v. United States
967 F. Supp. 2d 246 (District of Columbia, 2013)
Bederson v. United States of America
935 F. Supp. 2d 48 (District of Columbia, 2013)
Flores Hernandez v. United States of America
910 F. Supp. 2d 64 (District of Columbia, 2012)
Robinson v. Washington Metropolitan Area Transit Authority
858 F. Supp. 2d 33 (District of Columbia, 2012)
Porter v. McHugh
850 F. Supp. 2d 264 (District of Columbia, 2012)
Cárdenas v. Muangman
998 A.2d 303 (District of Columbia Court of Appeals, 2010)
Burton v. United States
District of Columbia, 2009
Convit v. Wilson
980 A.2d 1104 (District of Columbia Court of Appeals, 2009)
Coulter v. Gerald Family Care, P.C.
964 A.2d 170 (District of Columbia Court of Appeals, 2009)
Sanders v. United States
572 F. Supp. 2d 194 (District of Columbia, 2008)
Thone v. Regional West Medical Center
745 N.W.2d 898 (Nebraska Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
672 A.2d 566, 1996 D.C. App. LEXIS 27, 1996 WL 97451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travers-v-district-of-columbia-dc-1996.