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Hardi v. Mezzanotte

3/20/2003

the procedure after multiple attempts because of an apparent obstruction of the colon caused by the diverticulitis. Appellee's expert witness, Dr. Robert Shapiro, explained that such an obstruction is a "red flag," telling the doctor "there is something wrong with the bowel." Dr. Hardi scheduled a more intrusive procedure, a colonoscopy, performed under general anesthesia, for March 2, 1994. He attempted the procedure multiple times, without success, due to the obstruction, and desisted finally because of "fear of perforation." He ordered Dr. Odenwald, a Sibley Hospital radiologist, to perform a third exploratory procedure, a barium enema of the sigmoid colon, but it could not be completed due to the same obstruction. Dr. Odenwald discussed with Dr. Hardi the possibility that the obstruction resulted from a gastrointestinal disease rather than gynecological cancer.


Immediately following the exploratory procedures on March 2, 1994, appellee's condition deteriorated markedly. These procedures had exerted pressure on her sigmoid colon and caused the spread of her diverticular infection. Appellee was admitted as an emergency patient to Columbia Hospital for Women on March 7, 1994. By then, her diverticular abscess had ruptured, resulting in peritonitis (i.e., infection of the abdomen). Dr. Match ordered a CAT-Scan on March 7, 1994. However, appellee's condition precluded the use of contrast media. Dr. Match also ordered an ultrasound that day, which proved to be non-diagnostic. On March 8, 1994, appellee had surgery which involved removal of her non-cancerous reproductive organs. During surgery, multiple infectious abscesses and pus were encountered. Dr. Hafner, the general surgeon who performed the operation, removed the infectious matter from the patient's abdomen, excised the affected portion of her bowel, and performed a colostomy. After surgery, Dr. Hafner informed appellee's husband that she had diverticulitis, not gynecological cancer. Appellee had a slow recovery due to peritonitis and associated complications, and ultimately, she was required to undergo four additional surgical procedures, involving a "take-down" of her colostomy and the correction of hernias caused by the related weakening of her abdominal wall. These surgical procedures extended into March 1996. Appellee spent a total of eighty-three days as an in-patient at Columbia Hospital for Women and George Washington University Hospital, and a nursing home.


B. Procedural History


On March 6, 1997, appellee filed suit in Superior Court against appellants and Dr. Match. Appellants and appellee filed cross-motions for summary judgment related to the statute of limitations defense. The trial court (Judge Retchin) denied appellants' motion and granted appellee's motion to strike the statute of limitations defense, concluding that the suit was filed prior to the third anniversary of the March 8, 1994 surgery, the first date on which the court found that the patient could have "known" that she had diverticulitis. The case was tried before a jury which found for Dr. Match on liability. The jury could not reach a verdict in the claim against appellants, thereby necessitating a new trial.


The parties agreed to a bench trial based on the record from the first trial and supplemental briefing. In a Memorandum Opinion, the trial court (Judge Graae) found in favor of appellee and awarded her $909,259.82 in damages, consisting of $209,259.82 in medical bills and $700,000.00 as other damages associated with Dr. Hardi's failure to diagnose and treat her diverticulitis. Subsequently, the court awarded appellee $14,903.92 as taxable costs. Appellants appeal both decisions.


II.


Appellants argue that

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