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Derzavis v. Bepko12/29/2000
Appeal from the Superior Court of the District of Columbia
(Hon. Geoffrey M. Alprin, Trial Judge)
Argued December 11, 1997
Opinion for the court by Associate Judge Terry.
Dissenting opinion by Chief Judge Wagner.
Appellant, Suzette Derzavis, filed suit against appellees, Dr. Frank Bepko and his professional corporation, Frank Bepko, M.D., P.C. The complaint alleged that Dr. Bepko was negligent in, among other things, "failing to properly insert and/or employ Cytobrush so as to injure plaintiff." In the course of a five-day jury trial, appellant called four witnesses: herself, her mother, Dr. Bepko, and Dr. Deena Kleinerman, her sole expert witness. At the close of the plaintiff's case, appellees moved for judgment as a matter of law, which the trial judge denied, concluding that although the evidence was "not overwhelming," it was "enough to get past this stage." Appellees renewed the motion at the conclusion of the defense case, but the judge again denied it, saying, "I think legally it is thin, but I wouldn't pull it from the jury at this point." Counsel for appellant requested a jury instruction on res ipsa loquitur, but the judge denied that as well.
The jury returned a verdict for Ms. Derzavis in the amount of $500,000. A few days later, appellees filed a written motion for judgment as a matter of law, or in the alternative for a new trial or remittitur. After Ms. Derzavis filed an opposition, the judge granted the motion for judgment as a matter of law without ruling on the two alternative requests. The judge concluded in his order that "the evidence was deficient with regard to all three elements" necessary to prevail in a medical negligence action. He ruled that Ms. Derzavis' expert witness had failed to establish an applicable standard of care because she "refused to testify categorically that the standard of care required a physician `to be familiar with the manufacturer's instructions for use of an endocervical brush.' " In addition, the judge noted that, even assuming the evidence was sufficient to establish a standard of care, "the expert never testified that what defendant Bepko did - inserting the brush just beyond the last bristles - violated such a standard." Finally, the judge stated that because Dr. Kleinerman "could not articulate how defendant used the Cytobrush, when the injury occurred in the course of that use, or even what the injury was," Ms. Derzavis had failed to establish a causal connection between her alleged injury and Dr. Bepko's actions. Ms. Derzavis appeals; we affirm.
I.
On December 30, 1989, Ms. Derzavis went to Dr. Bepko, a gynecologist, for a routine Pap smear and gynecological examination. During the Pap smear, Dr. Bepko inserted a speculum without incident, but when he inserted a Cytobrush, Ms. Derzavis felt "the worst pain [she had] ever experienced," and she yelled out. Dr. Bepko testified that he inserted the Cytobrush "to the point that the last bristle disappeared," rotated the brush, and then withdrew it. The entire procedure, he said, took about three seconds. Ms. Derzavis testified that she noticed that the slide and Dr. Bepko's gloves were full of blood and that Dr. Bepko quickly removed the speculum and left the room. Ms. Derzavis, "very cold but perspiring at the same time," slowly got dressed and met with Dr. Bepko in his consultation room. According to her testimony, she repeatedly told Dr. Bepko that she was in great pain, but he gave her a hug and told her that she would be fine.
Upon arriving home, Ms. Derzavis said, she started to sit down on the edge of her bed but quickly realized that she "couldn't sit down because felt like
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