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Wagner v. Georgetown University Medical Center3/8/2001
l, while Dr. Kobrine moved for a judgment "notwithstanding the verdict" (i.e., renewing his request for judgment as a matter of law, pursuant to Super. Ct. Civ. R. 50 (b)). After extended argument, the trial court denied both post-trial motions. These appeals followed.
II.
A. Preclusion of the Informed Consent Claim
1. Procedural Background
The issue of whether the Wagners would be permitted to assert their claim that Drs. Kobrine and Wiesel were negligent in performing surgery on Mrs. Wagner without obtaining her informed consent has a complicated but pertinent procedural history. The Wagners filed their original complaint on March 23, 1993, within the three-year limitations period for claims of negligence. See D.C. Code ยง 12-310 (8) (1995). That complaint alleged that the defendants were negligent "in their care and treatment of" Mrs. Wagner, "specifically including but not limited to" four particular acts of negligence during the performance of the surgery and the negligent selection and supervision of the anesthesiologist who participated in the surgery. Additionally, the complaint alleged, "defendants were otherwise negligent." The original complaint did not specifically allege negligent failure to obtain Mrs. Wagner's informed consent to the surgery.
On August 13, 1993, after the Wagners had deposed Dr. Kobrine, their then-counsel sent a letter to Dr. Kobrine's counsel offering to dismiss him from the lawsuit without prejudice, on condition, inter alia, that he "agree not to raise a statute of limitations defense if I have to bring him back in as a result of something that might surface in discovery, e.g., one of Georgetown's experts blames the whole thing on Dr. Kobrine." This overture led to the preparation of a stipulation among the Wagners, Dr. Kobrine and Georgetown, dismissing Dr. Kobrine without prejudice. In the stipulation, which was filed September 1, 1993, Dr. Kobrine agreed that "should it be necessary for Plaintiffs to file an Amended Complaint naming Dr. Kobrine as a defendant, Dr. Kobrine will not assert any legal defenses that were not available to him at the time of the filing of the original Complaint, including the defense of the statute of limitations." (In contrast to the language of the letter, the stipulation did not state that Dr. Kobrine agreed to waive the statute of limitations only if he was brought back into the lawsuit as a result of new information surfacing in discovery.)
For its part, Georgetown agreed to the dismissal of Dr. Kobrine, see Super. Ct. Civ. R. 41 (a)(ii), on the understanding, confirmed in an August 17, 1993, letter to the Wagners' counsel, that the Wagners "do not intend to pursue a lack of informed consent claim against Georgetown." Georgetown sought this assurance so that it would not find itself in the "distasteful" position after Dr. Kobrine's dismissal of having either to defend an informed consent case on its own, or to file a third-party complaint against Dr. Kobrine ("a fellow physician"). The stipulation itself does not refer to this side agreement between Georgetown and the Wagners.
On January 4, 1994, a few months after Dr. Kobrine's dismissal by stipulation and more than three years after Mrs. Wagner's surgery, the Wagners moved pursuant to Super. Ct. Civ. R. 15 (a) for leave to file an amended complaint renaming Dr. Kobrine as a defendant and specifically alleging additional acts of negligence. The Wagners' motion stated that they had determined during discovery that Mrs. Wagner's surgery "was unnecessary surgery and should not have been performed" in view of the results of pre-operative diagnostic tests. The proposed amended complaint alleged three additional
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