No.

11-CV-000468 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

HELEN MCKINNON, Appellant. v PROVIDENCE HOSPITAL AND GAIL D. PEARSON, M.D., Appellees

On Appeal from the Superior Court of the District of Columbia

REPLY BRIEF OF APPELLANT

Noah Clements (DC Bar No. 500019) THE CLEMENTS FIRM 1250 Connecticut Ave NW, ste 200 Washington, D.C. 20036 (202) 630-0544 (202) 640-4437 (fax) noah@theclementsfirm.com Counsel for Appellant Helen McKinnon

INTRODUCTION
The Appellees taunt the D.C. Council, arguing that even if mediation did not occur as required by the Medical Malpractice Act of 2006, the early mediation process was not going to result in settlement between the parties and the matter was going to proceed to summary judgment as it did. PH Brief at 23; see also Pearson Brief at 8 (Mediation was deemed fruitless as neither Defendant was inclined to settle the matter.). Neither Appellee was similarly inclined to forego the 90-day notice letter, which was also enacted by the D.C. Council in the same Act. Mediation is mandated by the Medical Malpractice Act to occur prior to any further litigation; therefore the court below erred in granting summary judgment when the mandatory mediation had not occurred. Even if the court below was free to consider the summary judgment motions in the absence of the mandatory mediation, it erred in granting summary judgment for Providence Hospital and for Dr. Pearson. The trial court erred by assuming that expert testimony is required in all medical malpractice cases and granted summary judgment for the Appellees for failure to designate an expert without finding that such an expert would be required in this particular case. The trial court also erred in granting summary judgment for Providence Hospital on statute of limitations grounds and cutting short the discovery rule inquiry when a jury could have credited evidence that Ms. McKinnon did not learn of any wrongdoing until after the medical professionals treating her did.

ARGUMENT
I. Even If Not Jurisdictional, Mandatory Mediation Is Still A Statutory Requirement That Cannot Be Sidestepped. Providence Hospital has previously argued in this case that the 90-day notice requirement in medical malpractice cases is jurisdictional, PH Mot. to Dismiss at 2 (Dec. 11, 2009), notwithstanding this Courts holding that the requirement was remedial, procedural legislation. 1 Now Providence Hospital changes its tune to argue that the mandatory medical malpractice requirements are not jurisdictional. It does not matter; even if the mandatory mediation requirement is not jurisdictional, it is still a statutory requirement that has not been met. Despite the records clear showing that there was no mediation conference, no session where Dr. Pearson and a corporate representative of Providence Hospital were in attendance as required by DC Code 16-2824, and no mediators report as required by DC Code 16-2826, Providence Hospital claims that the parties did engage in early mediation sufficient for purposes of DC Code 16-2821. PH Brief at 14 (emphasis added). Dr. Pearson further claims that mediation could serve no practical outcome. Pearson Brief at 10. Providence Hospital stops just short of claiming that the meeting with Judge Wright was a mediation session, but claims that Judge Wright excused the parties from any further mediation proceedings as if there were any prior mediation sessions. PH Brief at 15. Providence Hospital further argues that the

Lacek v. Wash. Hosp. Cent. Corp., 978 A.2d 1194, 1198 (D.C. 2009). 3

fact that no mediators report was filed is not evidence that there was no mediation, as it is the plaintiffs responsibility to file the report. Id. (citing Initial Order and Addendum, JA 55). Providence Hospital ignores the fact that the mediators report is a report prepared by the mediator. Initial Order and Addendum, JA 55; DC Code 162826. There was no such report prepared by Judge Wright. Judge Wright, as the Superior Courts foremost expert on the Medical Malpractice Mediation requirements, would not have overlooked such a basic requirement. The only logical conclusion is that, notwithstanding Providence Hospitals carefully drafted affidavit, there was no mediation session as required by the Medical Malpractice Act. The Appellees blame the fact that there was no mediation on an assertion that any failure was due to [Ms.] McKinnons own failure to comply with Court orders regarding scheduling mediation. PH Brief at 24; Pearson Brief at 11. As Providence Hospital notes, the record shows that far from finding that Ms. McKinnon failed to follow its mediation orders, the trial court cancelled several scheduled mediation sessions and granted Ms. McKinnon additional time to retain counsel. PH Brief at 25-27(citing Court Docket, JA 15); see also Pearson Brief at 10-11. Furthermore, even if there were failures by Ms. McKinnon in conforming to mediation requirements, the trial court did not find that Ms. McKinnon had waived her right to mediation. Nor could it. Just as in the Bertorello case discussed at length by Providence Hospital, which supports the proposition that if it is shown that plaintiffs had refused to

comply with the process, dismissal of the mediation request, and with it the right to continue prosecution of the lawsuit, might be a proper remedy, the mediation requirement set out by the DC Medical Malpractice Act is likewise unwaivable.2 If a trial court is faced with a plaintiff who refuses to follow the dictates of the Medical Malpractice Act, the solution is not to waive those requirements and rule on unrelated summary judgment motions, but to dismiss the case for failure to prosecute. Unlike the 90-day notice requirement, which allows the trial court to waiv[e] the requirements of 16-2802 upon a showing of good faith effort to comply or if the interests of justice dictate, there is no corresponding provision in the mediation requirement that would allow the trial court to waive mediation.3 II. The Trial Court Did Not Make Any Findings That Ms. McKinnons Claims Would Require Medical Expert Testimony, But Assumed That An Expert Is Required For All Medical Malpractice Cases. There is no dispute as to the elements for presenting a prima facie case of medical malpractice and the related claims made in the complaints in this case. In her opening brief, Ms. McKinnon demonstrated that the trial court did not make any findings that her case was medically complex in dismissing her case for failure to designate an expert witness. Significantly, neither Appellee disputes this fact. Rather the Appellees argue that expert testimony is required in this case, simply because the claims sound in medical malpractice. PH Brief at 30-36; Pearson Brief at 14. Indeed, Providence Hospital states that in addition to a
2

See Bertorello v. St. Joseph's Hosp. of Marshfield, 685 F. Supp. 192, 195 (WD Wis. 1988). Compare D.C. Code 16-2804(b) with D.C. Code 16-2821. 5

medical expert, hospital administration experts would be needed to explain hospitals duties in supervising and credentialing physicians who perform procedures in a hospital. PH Brief at 33-35. Providence Hospital cites to no DC case where such experts were required. Likewise, Dr. Pearson argues that a plaintiffs medical expert would be required to identif[y] precisely who placed the stent across an intact duct, whether that act was negligent and its role, if any, in terms of proximate causation regarding Ms. McKinnons injuries. Pearson Brief at 15. The first part of this is identification solely a factual issue, and not one for an expert. An expert is not required to explain that the national standard of care would not include placing a stent on the incorrect, non-cut, intact bile duct, and that an incorrectly placed stent would need to be repaired. Factual witnesses can establish that when Ms. McKinnon was seen by Dr. Cameron at Johns Hopkins, the attending physician progress notes stated that Ms. McKinnon was to be returned to CVOL for removal of stent across intact duct [and] placement of stent across Leaking duct. 4 A jury does not need an expert to explain that such an injury might result in pain and suffering. There are good reasons that this Court has never adopted a per se rule requiring expert witness testimony in all medical malpractice cases. Requiring expert witness testimony in all medical malpractice cases would present a serious access to justice issue. A recent study by the Rand Corporation found that over 85% of medical malpractice lawyers have threshold rules to reject cases with an

JH Progress Notes at 6, J.A. 192 (emphasis in original). 6

expected value less than $100,000 and over 64% of medical malpractice lawyers have a threshold value of $250,000 or more for these cases.5 Lawyers routinely spend $50,000-$100,000 on expert witnesses in medical malpractice cases.6 Because of the great expense imposed by an expert witness requirement, courts should make a finding that an expert witness is absolutely necessary in specific medically complex cases before requiring such testimony. This Court has recognized certain circumstances where expert testimony is not required in medical malpractice cases: (1) (2) (3) The disability first emerged coincidentally with or very soon after the negligent act, or the disability was of a type which by its very nature reflected its cause, or the cause of the injury related to matters of common experience, knowledge, or observation of laymen.7

The trial court made no findings that these circumstances were absent in this case. Likewise, neither Appellee has addressed these circumstances or presented facts to the court below to show that any of these three conditions were not present. Therefore the trial court erred in granting summary judgment for failure to designate an expert witness in this case.

Michael D. Greenberg & Steven Garber, Rand Inst. for Civil Justice, Patterns of Specialization in Medical Malpractice Among Contingency Fee Attorneys 14, table 8 (Sept. 2009), available at http://www.rand.org/content/dam/rand/pubs/working_papers/2009/RAND _WR700.pdf. Mary Nell Trautner, Personal Responsibility v. Corporate Liability: How Personal Injury Lawyers Screen Cases in an Era of Tort Reform, ACCESS TO JUSTICE 207 (2009), available at http://bit.ly/nl8tcr. Lasley v. Georgetown Univ., 688 A.2d 1381, 1385 (D.C. 1997) 7

III. The Trial Court Cut Short The Discovery Rule Inquiry, Finding Ms. McKinnons Claims Had Accrued Before There Was Any Evidence Of Any Wrongdoing, And Indeed, Before All Of Her Injuries Had Occurred. Providence Hospital continues to rely on Ms. McKinnons pro se response to its cleverly drafted Request for Admission that it was a true statement that on September 12, she learned that Dr. Gail Pearson had injured her common bile duct, and it was her understanding at the time that the injury occurred during the September 9, 2006 laparoscopic cholecystectomy procedure.8 PH Brief at 3840. Providence Hospital ignores the medical records showing exactly when the medical professionals themselves learned of Ms. McKinnons cut bile duct and incorrectly placed stent. 9 As Appellee Dr. Pearson states, there is an acceptable level of bile leakage that is normal in gall bladder removal. Pearson Brief at 14. Learning of some leakage from a HIDA scan is not the same thing as learning that Dr. Pearson had erroneously cut her bile duct during surgery. Dr. Pearson herself did not learn that she had erroneously cut Ms. McKinnons bile duct during surgery until her later exploratory surgery on the evening of September 16. 10 Prior to that exploratory surgery, Dr. Pearson had suspected that the leakage stemmed from gallstones. Id. Likewise, Ms. McKinnon could not have learned that a stent was placed over an intact bile duct

8 9

February 4 Order, slip op. at 3, J.A. 140. See 90-Day Ltr. at 2, J.A. 26; Pearson Sept. 16 Operative Rpt., J.A. 182; PH Compl. 21-24, J.A. 48. Pearson Sept. 16 Operative Rpt, J.A. 182. 8

10

rather than the one that had been cut until the medical professionals themselves learned this fact, which did not occur until September 27, 2006. 11 The cases cited by Providence Hospital all dealt with circumstances where the plaintiffs filed suit many years after being injured and claimed to have first learned of the full extent of their injuries years afterwards. For example, in Baker v. A.H. Robins Co., the plaintiff filed suit more than ten years after being injured and almost ten years after she admitted to having first learned of serious medical problems stemming from her treatment. 614 F. Supp. 994, 995-96 (D.D.C. 1985). Likewise, in Colbert v. Georgetown University, the plaintiff filed suit seven years after having been told that her doctor had performed the wrong operation. 641 A.2d 469, 470 (D.C. 1994). Lastly, in Morton v. National Medical Enterprises, the plaintiffs all filed suit against a psychiatric hospital from five to ten years after their alleged mistreatment, which they were aware of at the time of their hospitalizations or soon thereafter. 725 A.2d 462, 468 (D.C. 1999). None of these cases involved defendants who sought to charge the plaintiff with knowledge of wrongdoing on the first day of admission to begin a period of intense treatment and medication. There is no dispute that Ms. McKinnon learned of her injuries and the malpractice she suffered at the time of [her] hospitalization[] or shortly thereafter. Ms. McKinnon was hospitalized and on

11

JH Progress Notes at 6, J.A. 192 (stating that Ms. McKinnon was returned to CVOL for removal of stent across intact duct [and] placement of stent across Leaking duct.) (emphasis in original). 9

painkillers from September 12, 2006 to October 17, 2006. 12 The trial court ignored evidence that could lead a jury to conclude that she did not discover any wrongdoing until after she could consciously be aware of the malpractice. Therefore, the trial court erred in granting summary judgment for Providence Hospital on statute of limitations grounds.

CONCLUSION
For the foregoing reasons, Ms. McKinnon respectfully requests that the Court vacate the trial courts orders granting summary judgment for the Defendants and remand the case so that the parties can participate in the mandatory mediation prescribed by the Medical Malpractice Act of 2006 prior to instituting any further litigation.

September 26, 2011

Respectfully submitted,

Noah Clements (DC Bar No. 500019) THE CLEMENTS FIRM 1250 Connecticut Ave NW, Suite 200 Washington, D.C. 20036 (202) 630-0544 (202) 640-4437 (fax) noah@theclementsfirm.com Counsel for Appellant Helen McKinnon

12

90-Day Notice Letter at 2, J.A. 26; PH Physicians Order Sheets, J.A. 154-81. 10

No. 11-CV-000468 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS ) ) ) ) ) No. 11-CV-000468 ) ) ) ) ) )

HELEN MCKINNON, Appellant. v. PROVIDENCE HOSPITAL AND GAIL D. PEARSON, M.D., Appellees

CERTIFICATE OF SERVICE I certify that on September 26, 2011, I caused the parties to be served by sending the attached Reply Brief via first class mail to:
Counsel: Donald M. Temple 1229 15th St. NW Washington, DC 20005 Counsel: Hugh W. Farrell & Eric W. Gunderson 8840 Standford Blvd, Ste 2000 Columbia, MD 21045

September 26, 2011

______________________________ Noah Clements (DC Bar No. 500019) Counsel for Appellant Helen McKinnon

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