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Hardi v. Mezzanotte

3/20/2003

or should have known before the date of her emergency surgery, on March 8, 1994, that diverticulitis and the adverse consequences she experienced were related to some failure on the part of Dr. Hardi. Only after the surgery did any physician inform appellee of the nature of her condition and that the pre-operative procedures performed by Dr. Hardi were contra-indicated. The circumstances show that the wrong was not readily ascertainable before March 8th. Under the discovery rule, the cause of action does not accrue until the plaintiff knows or by the exercise of reasonable diligence should know of the injury, its cause in fact and some evidence of wrongdoing. Morton, supra, 725 A.2d at 468 (citation omitted). We agree with the trial court that, on the record presented, the time when appellee can be charged with such knowledge occurred on or after March 8th. Therefore, the trial court properly granted partial summary judgment in her favor on this issue.


III.


Appellants argue that the trial court's finding of proximate cause lacks evidentiary support. They contend that: (1) the trial court did not find, to a reasonable degree of medical certainty, that Dr. Hardi's actions were the proximate cause of appellee's injuries; and (2) the evidence was insufficient to establish that his failure to diagnose diverticulitis and prescribe antibiotics caused appellee to have to undergo surgery. Appellants argue that the evidence shows that surgery was medically necessary to remove the mass and that the antibiotic (amoxicillin) prescribed by Dr. Match did not resolve the mass. Appellee contends that the trial court's finding of proximate causation is supported by the record. She contends that the trial court properly found, based upon the evidence, that Dr. Hardi's failure to place diverticulitis at the top of the list proximately resulted in his failure to test properly and promptly and provide treatment which would have resolved the infection and avoided the emergency surgery.


"To establish proximate cause, the plaintiff must present evidence from which a reasonable juror could find that there was a direct and substantial causal relationship between the defendant's breach of the standard of care and the plaintiff's injuries and that the injuries were foreseeable." Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 624 (D.C. 1986) (emphasis in original) (citing District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C. 1984); Lacy v. District of Columbia, 424 A.2d 317, 320 (D.C. 1980)). When the trial court's findings of fact lack evidentiary support, this Court must set aside the ruling. See Byrd v. United States, 614 A.2d 25, 30 (D.C. 1992).


The trial court found that there was "little doubt that prompt treatment with antibiotics (intravenously, if necessary) would likely have resolved the infection, thereby obviating the necessity for surgery." This factual finding is supported by the record. Dr. Robert Shapiro, a gastroenterologist, testified that if appropriate antibiotics had been administered, the patient would likely have avoided the March 8, 1994 surgery. He further testified, and the trial court found, that the immediate and direct cause of the "emergency surgery" on March 8th was Dr. Hardi's exploratory procedures several days earlier, which ruptured her diverticular abscess and caused life-threatening peritonitis. According to the evidence, these procedures were contra-indicated, given the patient's condition. There was evidence that the rupture of her diverticular abscess created the necessity for emergency surgery and subsequent medical problems and hospitalizations. Dr. Shapiro testified that appropriate antibiotic therapy should have been started within twenty-four to for

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