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Wagner v. Georgetown University Medical Center3/8/2001
in deciding to undergo the operation.
On March 31, 1995, Judge Curtis E. von Kann denied Dr. Kobrine's and Georgetown's motions for summary judgment. Judge von Kann's order did not discuss specifically any of the points raised by the motions.
Three months later, on June 28, 1995, Georgetown filed a motion in limine to preclude the Wagners from asserting their informed consent claim against Georgetown. In that motion, Georgetown resurrected its contentions that the claim was barred by the statute of limitations and did not relate back to the date of the original complaint, and that the Wagners had waived the claim by representing that they would not pursue it. Dr. Kobrine followed suit with a similar motion, in which he renewed the arguments that he had made in opposing the filing of the amended complaint. The Wagners opposed the motions in limine, arguing inter alia that the informed consent claim related back to the claim of negligence asserted in the original complaint. They also argued that Dr. Kobrine waived his right to assert the statute of limitations against the informed consent claim when he entered into the stipulation of dismissal. Alternatively, the Wagners contended that under the so- called "discovery rule," the informed consent claim was still timely because the statute of limitations did not start to run until they acquired requisite evidence of wrongdoing in the course of discovery.
The motions in limine were argued before Judge Michael Rankin on January 4, 1996. Persuaded that the earlier rulings of Judge Christian and Judge von Kann had not settled the issue, Judge Rankin concluded that the informed consent claim did not arise out of "the conduct, transaction or occurrence set forth or attempted to be set forth" in the original complaint, which Judge Rankin deemed to be the actual performance of the surgery on Mrs. Wagner. The focus of informed consent is different, Judge Rankin reasoned:
The question of informed consent goes to whether there would have been an operation at all. When a person prevails on a claim of lack of informed consent, they prevail because they show that they didn't have sufficient information on which to make a reasonable judgment and people who were in a position to give them the information failed to honor the duty to give them the information.
In other words, because an informed consent claim focuses on what the doctor told the patient prior to the surgery, and not on what the doctor did during the surgery, Judge Rankin ruled that the claim did not relate back to the original complaint under Rule 15 (c)(2).
With respect to the other issues before him, Judge Rankin was not persuaded by Georgetown's alternative contention that the Wagners waived their informed consent claim against Georgetown when their counsel said that they did not intend to pursue that claim in exchange for Georgetown's acquiescence in the dismissal of Dr. Kobrine. It appears that Judge Rankin found that the agreement between counsel was not sufficiently specific to constitute a waiver of the claim, and that in any event the claim was not waived against Georgetown so long as Dr. Kobrine was brought back into the case.
On the other hand, Judge Rankin agreed with Dr. Kobrine that he did not waive the right to assert the statute of limitations against the informed consent claim when he entered into the September 1, 1993, stipulation dismissing him from the lawsuit. Based on the August 13, 1993, letter in which the Wagners' counsel first broached the subject of Dr. Kobrine's dismissal, Judge Rankin found that Dr. Kobrine agreed to waive the statute of limitations only as to claims that might surface in subsequent disc
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