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Wagner v. Georgetown University Medical Center3/8/2001
Appeals from the Superior Court of the District of Columbia
(Hon. Michael L. Rankin, Trial Judge)
Argued January 4, 2000
Irene Wagner awoke from back surgery performed at Georgetown University Medical Center to find herself permanently paralyzed from the waist down. Mrs. Wagner and her husband Francis Wagner sued Georgetown and Arthur I. Kobrine, M.D., the primary operating surgeon, for malpractice. After protracted pretrial proceedings and a three-week trial, a jury returned a defense verdict on all counts.
The Wagners have appealed, raising four claims of error. First, the Wagners challenge the trial court's ruling that their cause of action for negligent failure to obtain Mrs. Wagner's informed consent to her surgery, which the Wagners first raised in an amended complaint, was barred by the statute of limitations. The Wagners argue that the court erred in concluding that the informed consent count did not relate back to the date of the Wagners' original complaint, which alleged negligence in the performance of her surgery. Second, the Wagners contend that the trial court abused its discretion in permitting their expert witness to be impeached with the fact that a professional association had censured him for testifying "unethically." Third, the Wagners charge that the trial court abused its discretion in allowing a second defense expert called by Dr. Kobrine to testify on the issue of proximate causation, despite a claim by the Wagners of unfair surprise. Fourth, the Wagners urge that the trial court abused its discretion by refusing to allow them to present testimony to rebut the defense expert on the causation issue.
Although he prevailed at trial, Dr. Kobrine has cross-appealed. He claims that the trial court erred in failing to grant him judgment as a matter of law on the ground that no jury could reasonably have found for the Wagners on their claim that he negligently performed the surgery on Mrs. Wagner.
We hold that under Super. Ct. Civ. R. 15 (c)(2), a subsequently pled claim of lack of informed consent to surgery may relate back to an original complaint that pleads a claim of negligence in the performance of that surgery. As to Georgetown, we therefore conclude that the Wagners' informed consent claim was not barred by the statute of limitations. We reach the opposite conclusion as to Dr. Kobrine, however, because the Wagners dismissed their original complaint against him before they renamed him in their amended complaint. In Dr. Kobrine's case there was, therefore, no complaint to which the newly pled informed consent claim could relate back.
We conclude that the other claims of error raised by the Wagners on appeal do not entitle them to relief. We hold that the trial court did not abuse its discretion in permitting the impeachment of the Wagners' expert witness. We further hold that if there was error in the remaining rulings at issue, which we do not decide, the error was harmless in light of the special verdict that the jury rendered. We therefore affirm the jury's verdict in favor of Dr. Kobrine and Georgetown, and remand solely for further proceedings as to Georgetown with respect to the Wagners' informed consent claim. In light of that disposition, we hold that Dr. Kobrine's challenge to the trial court's denial of judgment in his favor as a matter of law is moot.
I.
A. Factual Background
The surgical operation that gave rise to this case took place on October 3, 1990. Mrs. Wagner was then 65 years old. For a period of some two years Mrs. Wagner had been experiencing worsening pain and weakness in her lower back and legs. In July 1990, after having been treat
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