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Noteworthy Recent Medical Malpractice Opinion from DC Court of Appeals

By: Michael M. Wilson

A noteworthy recent opinion in the D.C. Court of Appeals can be found in Perkins v. Hansen, Case No. 11-CV-1540, decided November 7th, 2013.

In this case, Ms. Margie Perkins died of liver failure, and could have survived if she had received a liver transplant. Her husband, Mr. Ronald Perkins, administrator of her estate, sued Georgetown University and the Metropolitan Gastroenterology Group, P.C., for negligence in misdiagnosing her and causing her not to receive a liver transplant because of the misdiagnosis. Georgetown University Hospital settled and the case was tried against the treating physicians and Metropolitan Gastroenterology Group.

The case was tried before D.C. Superior Court trial judge Combs-Greene. The Plaintiff produced a Johns Hopkins gastroenterologist , Dr. Esteban Mezey, who would testify that if Mrs. Perkins had been correctly diagnosed for purposes of the liver transplant list, she probably would have received a liver transplant and survived. Defense counsel claimed that he was not sufficiently familiar with local liver organ transplant data, and the trial judge struck Dr. Mezey as a causation expert. Counsel for Mr. Perkins appealed.

The D.C. Court of Appeals ruled that the trial court was wrong in preventing Dr. Mezey from testifying and sent the case back to the trial court for a new trial. They held that under the case law, the extensive experience of Dr. Mezey with liver transplants was sufficient to require the trial judge to have allowed him to testify at the trial. The D.C. Court of Appeals cited the cases of Dyas v. United States, 376 A.2d 827 (D.C. 1977); Aikman v. Kanda, 975 A.2d 152, 161 (D.C. 2009); D.C. v. Anderson, 597 A.2d 1295 (D.C. 1991); and Rotan v. Egan, 537 A.2d 563 (D.C. 1988). It should be noted that the D.C. Court of Appeals found that the trial judge, Judge Combs Greene, abused her discretion in preventing Dr. Mezey from offering causation testimony at trial. Dr. Combs Greene is married to a physician, and the D.C. Court of Appeals previously considered whether she was precluded from serving in medical malpractice trials because of implicit bias.

The D.C. Court of Appeals also stated that it was not necessary for Dr. Mezey to opine that Ms. Perkins would have been offered a liver, received that liver, and survived in order to testify on causation, relying upon Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 624 (D.C. 1986) .

The D.C. Court of Appeals also recognized the "loss of a chance" doctrine and stated that the loss of a chance doctrine "is applicable in medical malpractice cases such as this that 'involv[e] negligent treatment of a potentially fatal condition … where … the harm [alleged] appears to be brought about by two or more concurrent causes." The Court cited the cases of Grant v. American National Red Cross, 745 A.2d 316, 322 (D.C. 2000) and Ferrell v. Rosenbaum, 691 A.2d 641, 651 (D.C. 1997). The "loss of a chance" doctrine greatly simplifies and eases the patient's burden of proof and this holding is of great benefit to patients.

You can view the opinion here.