Robinson v. Washington Internal Medicine Associates, P.C.

FARRELL, Associate Judge,

concurring in part and concurring in the judgment.

I join all but part II.B. of Judge King’s opinion. Specifically, I agree that the rule of Nimetz v. Cappadona, 596 A.2d 603 (D.C. 1991), that a tort defendant claiming trial error as to a particular theory of liability must — under pain of forfeiting the issue on appeal — present a record from which an appellate court can determine that the verdict depended on that theory, applies to plaintiffs and affirmative defenses as well. There is no sound reason for not enforcing the rule both ways. Our reliance on Cobb v. Standard Drug Co., 453 A.2d 110 (D.C.1982), however, deserves an additional word. The Nimetz rule assumes here, for purposes of decision, that the trial court erred in submitting appellee’s defense of contributory negligence to the jury at all or, at least, in instructing the jury about that defense. Ordinarily, when an appellant has succeeded in demonstrating trial error, it becomes the burden of the party defending the judgment to demonstrate that the error was harmless — that it did “not affect the substantial rights of the parties.” D.C. Code § 11-721 (e) (1989). The present situation differs, however, in that appellant concedes the possibility that the verdict rested on an entirely independent ground of non-liability; the most he can assert is the equal possibility that it rested on the error-tainted theory. 1 In this context, as most courts have held (see Judge King’s discussion, ante at 1145), it is both logical and fair to impose on the party contesting the verdict the duty of having taken readily available measures in the trial court — a special verdict or its equivalent — to insure that a later decision by the appellate court will not be hypothetical.

Unlike Judge King, however, I do not believe that we should decide the issue of even partial retroactivity, i.e., whether our exten *1150 sion of Nimetz applies to the case before us. 2 Judge Mack makes a persuasive argument why a litigant in appellant’s shoes could have read Nimetz as announcing a narrower rule that a party may not oppose a special verdict requested by its adversary and yet seek reversal based on ambiguity in the general verdict — in other words, that the parties share jointly the responsibility to request a special verdict where necessary, a duty on which appellee defaulted here no less than appellant. Indeed, our subsequent decision in Howard Univ. v. Baten, 632 A.2d 389 (D.C.1993), lends support to this reading since in that case we refused to apply the Nimetz rule after concluding that the plaintiff, having himself acquiesced in a general verdict, “share[d] at least equal responsibility with [the defendant] for the [trial] court’s failure to insure separate verdicts....” Id. at 394. I agree with Judge King that the primary duty, under pain of estoppel, to attempt to clarify the basis of the verdict through special interrogatories lies with the party seeking to preserve a claim of error for appeal; future litigants can scarcely claim ignorance of that rule. But given the ambiguity of Nimetz and Baten on this point, I would be hesitant to apply the rule to the case before us.

Nor do I think it necessary to decide the retroactivity issue, because, unlike Judge Mack, I am convinced that the trial court committed no reversible error in regard to the contributory negligence defense. First, we cannot hold on this record that no reasonable juror could rationally find that Mrs. Jones was eontributorily negligent. Even limiting the relevant conduct to her behavior concurrent (or “simultaneous”) with Dr. Stock’s asserted negligence in responding to her 9:00 a.m. telephone call (through her daughter), there was testimony the jury could have credited which established that Mrs. Jones had been cautioned in written post-operation instructions, read during the night by herself and her daughter, to report “any unusual bleeding, vomiting, pain, fever or other reactions [to the colonoscopy] promptly to your doctor.” There was further evidence (which, of course, plaintiff disputed) that Mrs. Jones informed Dr. Stock in the morning phone call only that she — in the present tense — “has gas,” without relating to him any of the symptoms of spitting up and abdominal pains that she had suffered during the night.

Appellant is quite right that contributory negligence in this context must take into account “the disparity in medical knowledge between the patient and the doctor and ... the patient’s right to rely on the doctor’s knowledge and skill in the course of medical treatment.” Martineau v. Nelson, 311 Minn. 92 , 247 N.W.2d 409, 415 (1976). Moreover, contributory negligence can be defeated by testimony that the physician failed to elicit necessary information by asking questions of a lay patient who, without such probing, has only limited capacity “to select and communicate to her examiners the pertinent ... aspects of her medical history.” Favalora v. Aetna Casualty & Sur. Co., 144 So.2d 544, 550 (La.Ct.App.1962). But appellant makes no claim that the jury was not, or upon request could not have been, instructed in accordance with these principles. Moreover, contributory negligence remains a defense fully available in the medical malpractice context, requiring the defendant to prove “the failure to act with the prudence demanded of an ordinary reasonable person under like circumstances.” Stager v. Schneider, 494 A.2d 1307, 1311 (D.C.1985). That burden can be met by proving that the plaintiff failed to use ordinary care in relating to the physician, in non-technical language, her medical symptoms and condition. See, e.g., James v. Krpan, 116 Ariz. 216 , 568 P.2d 1114, 1115 (1977); Haynes v. Hoffman, 164 Ga.App. 236 , 296 S.E.2d 216, 217-18 (1982); Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 255 (Ky.Ct.App.1979); Fall v. White, 449 N.E.2d 628, 633 (Ind.Ct.App.1983). At least where a reasonably prudent person would know that the information she conveys, by its omission *1151 of important facts, could mislead the physician, a jury rationally can find that her negligence concurred with whatever fault attended the doctor’s failure to ask questions in bringing about the resulting harm. E.g., Mackey, 587 S.W.2d at 255 .

A contributory negligence instruction is appropriate when “the defense has borne its burden to put forth some evidence upon which a jury could find that the plaintiff, by encountering the risk created by the defendant’s breach of duty, departed from an objective standard of reasonable care.” Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985). Under Dr. Stock’s version of events, Mrs. Jones’s failure via the 9:00 a.m. telephone call to communicate the severity of her symptoms the night before, contrary to instructions that she report any vomiting, fever or other reactions, presented a jury question as to whether her negligence “was a substantial factor in causing her injury,” id. at 528 , thus relieving the defendant of liability.

Appellant further contends that, at a minimum, the judge erred in not granting his request to instruct the jury that any negligence by the plaintiff before the 9:00 a.m. phone call could not be considered, under the principle that “[t]o constitute a bar to the [judgment,] the negligence of the patient ... must have been simultaneous and co-operating with the fault of the defendant.” 61 Am.JuR.2d Physicians, Surgeons, Etc., § 302 (1981). See also Brief for Appellee at 18 (“Defendants concede, as did their counsel at trial, that for the decedent’s contributory negligence to constitute a bar to recovery, it must have been concurrent with the alleged negligence of Dr. Stock”), In my view there was no error to begin with because, although the central focus of both sides’ presentations may have been the 9:00 a.m. phone call and Dr. Stock’s and Mrs. Jones’s respective omissions at that time, appellant nonetheless introduced evidence that would have allowed the jury to conclude that Dr. Stock’s negligence was not limited to his response to that telephone call but was “continuing,” having begun the day before in the immediate aftermath of the operation.

There was testimony that after the operation Mrs. Jones was taken to a recovery room and a file notation was made that she complained of “abdominal cramping and discomfort.” Yet she was released from the hospital late that afternoon. Dr. Brownlee, one of plaintiffs experts, testified that the standard for post-operative treatment following a colonoscopy involves continuous monitoring of the patient’s condition, particularly when she has complained of discomfort. He therefore refused to specify the time (“Time A, Time B, Time C”) when Dr. Stock’s breach of the standard of proper care took place: “if the patient is complaining and continues to complain and you do not evaluate her, you’ve breached.” Dr. Stock’s failure was thus ongoing, “continu[ing] even to the following morning,” for “[o]nce [the patient] complains and you have nothing that says that you have satisfied the cause of that complaint, you have now begun [to breach the standard of care]” (emphasis added). Not surprisingly, although plaintiffs other expert did not believe there had been negligence by Dr. Stock before the 9:00 a.m. phone call, defendant’s counsel in summation felt obliged to respond to the theory of continuing negligence advanced by Dr. Brown-lee — a theory, counsel argued, that “was disagreed to by every gastroenterologist who testified in this courtroom.” Absent a stipulation to strike Dr. Brownlee’s testimony and the theory of “continuing” negligence, the trial judge did not err in refusing to instruct the jury to disregard Mrs. Jones’s own inaction during the night (in failing to report her symptoms “promptly”) that was concurrent with Dr. Stock’s asserted continuing failure to exercise reasonable care. 3 See Johnston v. Ward, 288 S.C. 603 , 344 S.E.2d 166 (1986).

*1152 But even if the judge erred in failing to give the requested instruction, I would not reverse the judgment on the mere hypothetical possibility that the jury found contributory (as opposed to no primary) negligence to begin with and that, in doing so, it relied on evidence (of pre-9:00 a.m. behavior) which appellee’s counsel himself never argued was relevant to that issue. In Finkelstein v. District of Columbia, 593 A.2d 591 (D.C.1991) (en banc), this court pointed out that “courts routinely assess the impact of instructional formulations [or, as here, omissions] ... on the jury in the context of a party’s theory of the case as argued to the jury_” Id. at 597-98 . At issue in that case (involving the trial court’s reversal of a jury damage award as excessive) was the trial court’s determination as to “the critical [time] period the jury considered” in assessing the plaintiffs pain and suffering. In sustaining the court’s determination, we relied importantly on the fact that plaintiffs counsel, in summation to the jury, had restricted his plea for damages to the time period identified by the trial court. Id, at 597; see also id. at 601 (“the judge saw that plaintiff himself then narrowed the issue of damages to this critical afternoon period in closing argument”). In the present case, Dr. Stock’s counsel argued in summation that Mrs. Jones’s contributory negligence lay in her failure to inform the doctor of her symptoms in the telephone call at 9:00 a.m. — that just as the daughter told him later that day that she had been vomiting and he immediately instructed her to take her mother to the hospital, so “he would have done the same thing at nine o’clock in the morning if [Mrs.] Jones had just given him a chance.” 4 Counsel did not assert negligence based on Mrs. Jones’s inaction during the night. Appellant’s counsel, in turn, argued that “[t]he doctor charged with superior knowledge of her medical condition had the obligation to act on her complaints as of nine o’clock, and had he done that, everything that had gone before on the part of Mrs. Jones would have been of no moment.” The parties’ arguments, in short, joined issue on what complaints Mrs. Jones had conveyed to the phy-sieian at 9:00 a.m. and what steps he should have taken in response. We accordingly can say with fair assurance, R. & G. Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530 (D.C.1991), that the absence of an instruction that any earlier failure on her part to telephone the doctor was irrelevant had no effect on the jury’s verdict.

. Appellant contends that the jury’s note indicates a greater than equal likelihood that it ruled on the basis of contributory negligence, but I agree with Judge King that we can draw no such conclusion from the note, which was followed by partial reinstruction on both negligence and contributory negligence.

. As Judge King acknowledges, the Supreme Court's recent retroactivity decisions effectively overturning the analysis of Chevron Oil v. Huson, 404 U.S. 97 , 92 S.Ct. 349 , 30 L.Ed.2d 296 (1971), which this court applied in Nimetz , are not binding on us; and this case presents no occasion for general reconsideration of this court’s retroactivity law. See, e.g., Mendes v. Johnson, 389 A.2d 781 (D.C.1978) (en banc).

. Furthermore, even assuming that Mrs. Jones’s inaction before 9:00 a.m. had no bearing on whether Dr. Stock deviated from the standard of care in responding to her call in the morning, it is not clear why her conduct during the night would not have been relevant to whether his negligence proximately caused her death — that is, to whether, as appellant's counsel stated in summation, "this woman was salvageable” in the morning. The close conceptual interrelatedness of proximate causation and contributory negligence, see, e.g., Marlow v. Cerino, 19 Md.App. 619 , 313 A.2d 505, 509 (1974) (cited in Stager, 494 A.2d at 1312 ), is an additional reason why the trial judge properly rejected appellant’s proposed instruction.

. Later counsel again argued: "Why wouldn't Dr. Stock do at nine o'clock what he immediately did at three o’clock, and they never answered that question.”