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Wagner v. Georgetown University Medical Center3/8/2001
prised by Dr. Dohrmann's testimony. (By implication, the Wagners could have addressed the issue in their case-in-chief.) The court also considered the proprioception issue to be collateral to the primary issues (e.g., whether there was a breach of the standard of care) raised by the surgical negligence claim against Dr. Kobrine. In light of these considerations, and desiring not to prolong the trial unduly, the court denied the Wagners permission to call Dr. Traurig in rebuttal (or in the alternative, to recall Dr. Austin).
2. The Jury Verdict
To recapitulate, the Wagners' theory of negligence on the part of Dr. Kobrine in the actual performance of the surgery on Mrs. Wagner was that Dr. Kobrine used a three millimeter rongeur to perform the foraminotomy; that his use of a three millimeter rongeur to perform the foraminotomy breached the applicable standard of care; and that this breach resulted in trauma to Mrs. Wagner's Artery of Adamkiewicz, shutting off the blood supply to her spinal cord and proximately causing her paralysis. The only standard of care that Dr. Kobrine was charged with breaching in the performance of the surgery was the standard for the size of instrument to use in the foraminotomy.
All three components of the Wagners' surgical negligence claim were in dispute. The trial court accordingly instructed the jury without objection by the Wagners that to find Dr. Kobrine negligent in the performance of surgery on Mrs. Wagner, it would have to determine that he used a three millimeter surgical tool to perform the foraminotomy, that the use of a three millimeter surgical tool breached the standard of care, and that such a departure from the standard of care was a proximate cause of injury to Mrs. Wagner. The verdict form, to which the Wagners agreed, mirrored the court's instructions, asking the jury whether it found by a preponderance of the evidence that Dr. Kobrine used a three millimeter instrument, that he breached the applicable standard of care during the performance of the foraminotomy, and, if so, that his breach proximately caused the plaintiffs' damages. See Super. Ct. Civ. R. 49 (a), which permits the court to require the jury to return a special verdict "in the form of a special written finding upon each issue of fact."
In rendering a defense verdict, the jury answered the first two questions in the negative. It found that the Wagners failed to prove that Dr. Kobrine had used a three millimeter rongeur to perform the foraminotomy, and therefore also found that he did not breach the applicable standard of care. As a result, in accordance with the instructions on the verdict form, the jury did not reach the question of proximate cause.
3. Harmless Error Analysis
"Our aim in assessing whether trial court error requires reversal must be to do `substantial justice,' and ` he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.' Super. Ct. Civ. R. 61." R. & G. Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 538 (D.C. 1991). In that case this court approved for use in civil cases the test for harmless error articulated by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 764-65 (1946): whether we can say, "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." See R. & G. Orthopedic, 596 A.2d at 539-40.
The trial court's rulings permitted Dr. Dohrmann to testify without contradiction that Dr. Austin's theory of causation via injury to Mrs. Wagner's Arte
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