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Wagner v. Georgetown University Medical Center3/8/2001
ck" from the procedure. Only after Dr. Kobrine reassured her, she said, did she resolve to go forward. Georgetown argues that Mrs. Wagner therefore did not rely on Dr. Wiesel's statements in deciding to proceed with surgery. This argument is wide of the mark. "A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it." Canterbury v. Spence, 150 U.S. App. D.C. 263, 281, 464 F.2d 772, 790 (1972). The record in its present state does not establish conclusively that Mrs. Wagner would still have undergone surgery if Dr. Wiesel had told her that there was only a 20-30 percent chance of success rather than a 50- 60 percent chance.
" here the correctness of the lower court's decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury." Securities & Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 88 (1943); see also Ibn-Tamas v. United States, 407 A.2d 626, 635-36 (D.C. 1979). We cannot, therefore, affirm Judge Rankin's ruling on Georgetown's motion in limine on the alternative grounds, predicated on evidence adduced at trial, that Georgetown proffers. As to Georgetown, reversal of that ruling is required.
B. Impeachment of Dr. Austin
The Wagners claim that the trial court erred in allowing Dr. Kobrine to impeach Dr. Austin with his pending censure by the American Association of Neurological Surgery (AANS) for providing unethical testimony as an expert witness in a prior medical malpractice case. We conclude that the trial court ruled correctly on the only objection to the impeachment that the Wagners made, and that other aspects of the impeachment, which might have been subject to objection but were not, are not grounds for relief.
1. Procedural Background
During his cross-examination of Dr. Austin, Dr. Kobrine's counsel Mr. Nash asked him if he was a member of the AANS. The Wagners' counsel, Mr. Camenisch, aware of what was coming, immediately asked to approach the bench. There Mr. Camenisch represented to the court that a committee of the AANS had recommended discipline against Dr. Austin based (he said) on the complaint of a doctor against whom Dr. Austin had testified. Mr. Camenisch objected to cross examination of Dr. Austin about that recommendation because the matter was still pending in the AANS and had not been finally resolved. Mr. Nash confirmed that he intended to impeach Dr. Austin with the AANS censure recommendation which, he represented, had been adopted and ratified by the full executive committee of the organization. Acknowledging that he did not know the exact status of the recommendation within the AANS, Mr. Camenisch asked for a proffer and a ruling precluding cross examination about "something that is not final." He added that "if this situation is final, we still would need some evidence. The prejudicial [effect] outweighs the probative value."
The trial court decided to permit a voir dire of Dr. Austin outside the presence of the jury in order to clarify the status of the AANS sanction. In a brief examination conducted by Mr. Nash, Dr. Austin confirmed that both the Ethics Committee and the "full executive committee" of the AANS had recommended that he be reprimanded for "unethical conduct with regards to providing testimony." Dr. Austin further testified that he had "one more level of appeal," to the full membership of the AANS. Mr. Camenisch did not elect to examine Dr. Austin. No one asked the doctor to reveal the nature of the alleged "unethical conduct" or to describe the events that triggered the AANS disciplinary recommendation.<
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