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Wagner v. Georgetown University Medical Center3/8/2001
late court has discretion to uphold a summary judgment under a legal theory different from that applied by the trial court, and rest affirmance `on any ground that finds support in the record,' provided it proceeds cautiously so as to avoid denying the opposing party a fair `opportunity to dispute the facts material' to the new theory." United States v. General Motors Corp., 171 U.S. App. D.C. 27, 48, 518 F.2d 420, 441 (1975) (citations omitted). This principle has been applied where the trial court erroneously relied on the statute of limitations to grant summary judgment. See, e.g., Holt v. KMI-Continental, Inc., 95 F.3d 123, 131, 134-35 (2d Cir. 1996); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1124 (10th Cir. 1979).
Nonetheless, it usually will be neither prudent nor appropriate for this court to affirm summary judgment on a ground different from that relied upon by the trial court. "Often it will be wise to deny review because the summary judgment questions are quite separate from the issues resolved by the final judgment, because the trial court is in a better position to reconsider the summary judgment question in light of the disposition on appeal, because the summary judgment issues are not ripe or are not clearly presented by the record, or because it is better to leave to the [trial] court the arduous task of being first to sift through a lengthy summary judgment record." 15B Charles Alan Wright et al., Federal Practice and Procedure: Jurisdiction 2d ยง 3914.28, at 213- 15 (2d ed. 1991).
Virtually all these considerations counsel against accepting Georgetown's invitation to uphold the preclusion of the Wagners' informed consent claim on the alternative ground of evidentiary insufficiency. Most important, we think, is the fact that Georgetown relies on testimony that it elicited at trial, after its motion in limine was granted. While Georgetown may have a strong defense to the claim that Mrs. Wagner was misinformed, we are loath to preclude that claim based on the record of a proceeding in which the Wagners were denied a "fair opportunity" to present their side of the issue. See General Motors, 171 U.S. App. D.C. at 48, 518 F.2d at 441.
Our concern that the Wagners might be able to rebut Georgetown's evidentiary contentions if they were given a fair chance to prove their informed consent claim at trial, as Judge von Kann concluded, is not merely theoretical. The evidence of record is not as conclusive as Georgetown suggests. On the issue of whether Mrs. Wagner was misadvised about the likelihood of a favorable outcome to her surgery, Dr. Wiesel testified that he told her that a laminectomy (with foraminotomy) together with a spinal fusion would have a 50-60 percent chance of success. Dr. Austin, the Wagners' expert witness, opined that the laminectomy had only a 20-30 percent chance of success. Because Dr. Austin conceded that he would defer to an orthopedic surgeon's opinion as to any additional benefit from the fusion, Georgetown contends that a reasonable jury could not find that a laminectomy with spinal fusion had less than a 50-60 percent probability of success. But Georgetown's own orthopedic expert, Dr. Hanley, testified that a spinal fusion without a laminectomy would have been of only "slight" benefit to Mrs. Wagner. A reasonable jury, crediting Dr. Hanley and Dr. Austin rather than Dr. Wiesel, therefore could conclude that Dr. Wiesel materially overestimated the odds of surgical success.
We are also unconvinced by Georgetown's contention that Dr. Wiesel's advice to Mrs. Wagner could not have been the proximate cause of her injuries. Mrs. Wagner testified that when Dr. Wiesel advised her of the risks of the proposed surgery, she decided to "step ba
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