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Wagner v. Georgetown University Medical Center3/8/2001
ntarily dismissed their original complaint against Dr. Kobrine without prejudice, the running of the statute of limitations on their claims was not tolled. See Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996); York & York Constr. Co. v. Alexander, 296 A.2d 710, 712 (D.C. 1972). To preserve the Wagners' ability to rename Dr. Kobrine as a defendant after the statute had run, the stipulation of dismissal therefore had to provide expressly that he would not assert the statute as a defense to a new complaint against him. The trial court found, however, that the stipulation did not prevent Dr. Kobrine from invoking the statute as to the Wagners' informed consent claim, because that claim was not brought on the basis of newly discovered evidence. The Wagners have abandoned any challenge to that ruling, which in any event we do not find to be either "clearly wrong or without evidence to support it." D.C. Code ยง 17-305 (a) (1997).
The three-year statute of limitations had run by the time the Wagners first asserted their informed consent claim against Dr. Kobrine. The original complaint against him having been dismissed, there was no earlier pleading extant to which the claim could relate back under Rule 15 (c)(2). While the order of Judge Christian granted the Wagners leave to file their amended complaint against Dr. Kobrine, it did not reinstate, nunc pro tunc to its filing date, the original complaint that the Wagners had filed against him. We therefore affirm Judge Rankin's decision to grant Dr. Kobrine's motion in limine.
c. Insufficiency of the Evidence
Georgetown argues that even if the informed consent claim did relate back to the original complaint against it, we should affirm Judge Rankin's decision to grant its motion in limine because independent grounds preclude the Wagners from pursuing the claim against Georgetown. Specifically, Georgetown argues that no reasonable jury could find that Dr. Wiesel failed to disclose accurately the probability of success of the surgical procedure he proposed. Additionally, Georgetown argues that Mrs. Wagner did not rely on Dr. Wiesel's statements in deciding to proceed with surgery, and that those statements therefore could not have been the proximate cause of her injuries. In asking us to uphold Judge Rankin's ruling on these grounds, Georgetown invokes the principle that "if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason." Helvering v. Gowran, 302 U.S. 238, 245 (1937); see also Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C. 1982).
Judge von Kann rejected Georgetown's arguments about the inadequacy of the evidence, and found that only a jury could resolve the merits of the Wagners' informed consent claim, when he denied Georgetown's motion for summary judgment. Georgetown is, in effect, asking us to review that denial in light of the entire record, including the testimony and other evidence adduced at trial. The denial of a motion for summary judgment is usually not reviewable on appeal, as it is not a final judgment. Even on appeal from a final judgment after trial, the correctness of a pretrial denial of summary judgment is ordinarily not subject to review, because that denial is superseded by the trial of the case on the merits. See Morgan v. American Univ., 534 A.2d 323, 326-29 (D.C. 1987).
In this case, however, a trial on the merits did not moot the issue of the viability of the Wagners' informed consent claim that was presented by Georgetown's motion for summary judgment. Judge Rankin's determination that the informed consent claim was time-barred was akin to a grant of summary judgment for the defendants on that theory. "An appel
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