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Wagner v. Georgetown University Medical Center3/8/2001
acts of negligence on the part of Dr. Kobrine and Georgetown in their care and treatment of Mrs. Wagner: (i) that they misdiagnosed her underlying medical condition, (ii) that they performed unnecessary and inappropriate surgery, and (iii) that they failed to obtain Mrs. Wagner's informed consent to the surgery, "including the failure to accurately inform of the anticipated results of the surgery and the alternatives thereto." As the informed consent claim was elaborated in the subsequent joint pretrial statement, the Wagners contended that Dr. Kobrine and Dr. Wiesel overstated the probability that surgery would alleviate Mrs. Wagner's back pain and failed to disclose that the surgery was not indicated by diagnostic testing; and, further, that Dr. Kobrine secured Mrs. Wagner's consent "only by assuring her that there would be no complications arising from [the surgical] procedure that the proposed surgical procedure would alleviate her pain."
Dr. Kobrine and Georgetown opposed the motion for leave to file the amended complaint on the ground that the new allegations of negligence were barred by the three-year statute of limitations and did not "relate back" to the date of the original complaint under Super. Ct. Civ. R. 15 (c). In particular, they argued that the informed consent count did not arise out of the "conduct, transaction or occurrence" set forth in the original complaint, as required by Rule 15 (c)(2), because it concerned pre-surgery communications and events rather than the surgery itself. Dr. Kobrine further contended that he did not waive the statute of limitations as to the new claims in the stipulation of dismissal, and that those claims were barred for the additional reason that they were not based on new information generated following his dismissal. Georgetown urged that leave to amend to add the informed consent count should also be denied, even if the new claims were not time-barred, because the Wagners had earlier represented that they would not pursue an informed consent claim against Georgetown. According to Georgetown, allowing the amended complaint would mean "robbing Georgetown"of the consideration that the Wagners provided to induce Georgetown to assent to the dismissal of Dr. Kobrine - at least if Dr. Kobrine was not reinstated as a defendant himself.
On January 27, 1994, Judge Kaye K. Christian granted the Wagners' motion for leave to amend over the defendants' objections and ordered that the amended complaint be received for filing. Judge Christian's order did not address the objections raised by Dr. Kobrine and Georgetown specifically. The order stated only that discovery was still in process and "there appears to be no prejudice to defendants."
Following the close of discovery, on November 7, 1994, Dr. Kobrine moved for summary judgment with respect to all of the Wagners' claims of negligence except the claim based on lack of informed consent. As to that claim, Dr. Kobrine conceded that it was "supported by expert medical testimony" and that a genuine factual dispute existed "based upon the deposition testimony of the parties and other witnesses." On November 8, 1994, Georgetown filed its motion for summary judgment. Unlike Dr. Kobrine, Georgetown did seek summary judgment on the informed consent claim. Citing its earlier opposition to the motion for leave to file the amended complaint, Georgetown reiterated without elaboration its contentions that the informed consent claim was time-barred and that the Wagners had "waived" the claim. In addition, Georgetown argued that Drs. Kobrine and Wiesel did obtain Mrs. Wagner's informed consent before proceeding with surgery, and that, in any event, Mrs. Wagner had not relied on anything Dr. Wiesel said to her
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