Lasley v. Georgetown University

FARRELL, Associate Judge,

dissenting:

There is no question that in general our decisions require medical expert opinion testimony to prove causation in medical malpractice cases. But this case is unique in presenting a cluster of facts that, in my view, would permit a reasonable jury to find causation without a medical opinion on which to rest the conclusion. I would reverse and allow the case to go to a jury on the fundamental issue in dispute between the parties— whether the hospital doctors adequately warned Lasley of the dangers of the emboli-zation procedure. 1

There were only two causal possibilities: either the rupture and hemorrhaging occurred naturally as though Lasley were at home watching television, or they occurred as a result of the operation in the legal sense that the intrusion into the brain more likely than not “was a substantial factor in bringing about the result.” District of Columbia v. Freeman, 477 A.2d 713 , 716 n. 9 (D.C.1984) (quoting W. PROSSER, Law of Torts § 41, at 241 (4th ed.1971)). As the majority correctly recounts the testimony, “The principal risk of the embolization procedure is identical to that of the AVM condition itself.” Testifying in court and through deposition, the doctors who performed the embolization and related procedures uniformly explained the care with which they advised Lasley and his family of the danger of an operation so sensitive that it could cause the very rupture and bleeding it was intended to keep from happening naturally. And, in fact, the artery feeder ruptured either during the operation or immediately after it. Assuming the statistics on AVM’s were so grim that of 100 persons having the condition roughly 50 could expect to suffer a natural rupture in the course of a year, that would still leave it highly improbable that a rupture occurring just when it did here was causally unrelated to the operation. Yet I might well agree with the court that in that case contemporaneity and the conceded risks of the surgery were an inadequate proxy for a medical opinion on causation. But here the probabilities become insurmountable when the testimony by Dr. Caputy was, as the court states, that “[t]he probability of a spontaneous [ie., naturally occurring] AVM rupture and hemorrhage is five percent per year or *1389 less.” I have read that testimony carefully (as well as Dr. Luessenhop’s corroborative testimony that “of all people with AVM who [are] bleeders,” three or four out of a hundred “will have a spontaneous hemorrhage per year”); it supports a reasonable inference, for directed verdict purposes, that Las-ley would not have had a spontaneous rupture at or around the time of surgery or, indeed, for some time into the future. 2 Putting the testimony as to probabilities together with the fact that the hemorrhage occurred at the very time of the operation, I do not know what other proof an expert would need on which to base the required opinion. Indeed, given the conceded danger that the embolization can cause the very harm it is intended to prevent, I doubt very much that an expert could state with any confidence the opposite conclusion that the rupture happened spontaneously. But, at the least, I would recognize the sui generis nature of this case and leave it to the defense to negate the reasonable inference of causation by expert testimony or otherwise. By acknowledging the exception here, we would not weaken the general rule.

. On that point, the trial judge wisely refused to direct a verdict, although Lasley’s unrelieved succession of one-word denials that any warning whatsoever had been given him about the dangers of the operation taxes belief.

. Dr. Deveikis’ testimony that Lasley presented "a higher risk for hemorrhage,” besides not stating how much higher a risk, surely does not overcome the combined weight of the other testimony and circumstances in presenting a jury issue as to whether hemorrhaging that occurred simultaneously with the operation was yet unrelated to it.