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Wagner v. Georgetown University Medical Center3/8/2001
overy. Concluding that the Wagners knew or should have known of the factual basis of their informed consent claim before they dismissed Dr. Kobrine, Judge Rankin ruled that Dr. Kobrine was not estopped by his stipulation from contending that it was time-barred.
Finally, Judge Rankin rejected the Wagners' reliance on the discovery rule, concluding that the Wagners were on inquiry notice from the date of injury of the potential informed consent claim.
Having so ruled, Judge Rankin granted the motions in limine and prohibited the Wagners from asserting lack of informed consent at trial.
2. Analysis
On appeal, the Wagners challenge Judge Rankin's ruling that the informed consent claim did not relate back to the original complaint and was, therefore, barred by the statute of limitations. The Wagners have abandoned their arguments that the claim was timely under the discovery rule and that Dr. Kobrine waived his right to raise the statute of limitations as a defense. Georgetown asks us to affirm Judge Rankin's ruling on relation back, and also argues that a lack of sufficient credible evidence to support an informed consent claim against it constitutes an independent ground on which to uphold the preclusion of that claim. Georgetown has not, however, pursued in this court its argument that the Wagners waived their informed consent claim. Dr. Kobrine also argues that we should affirm the ruling on relation back. As an alternative basis on which to uphold the trial court's ruling, Dr. Kobrine argues that because the original complaint was dismissed against him, the informed consent claim in the amended complaint cannot relate back to it and was for that reason properly held to be time-barred as to him.
a. Relation Back
Rule 15 (c)(2) of the Superior Court Rules of Civil Procedure provides that an amendment of a pleading "relates back" to the date of the original pleading for statute of limitations purposes when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." The original pleading in this case, the complaint of March 23, 1993, alleged negligence in the care and treatment of Mrs. Wagner, "including but not limited to" negligence in the execution of particular aspects of her surgery and the selection and supervision of the anesthesiologist who participated in that surgery. The amended complaint added the allegation that Dr. Kobrine and Georgetown were negligent in performing Mrs. Wagner's surgery without her informed consent. Thus both the original and the amended complaint sought to recover damages for injuries resulting from Mrs. Wagner's surgery because her physicians were negligent, either in performing that surgery (original complaint) or in obtaining her consent to perform it (amended complaint). Does the new claim in the amended complaint therefore arise out of the same "conduct, transaction or occurrence set forth or attempted to be set forth" in the original complaint for purposes of Rule 15 (c)(2)? This is a question of law, subject to our de novo review. For the reasons that follow, we answer it in the affirmative.
No prior decision of this court has addressed whether a claim of lack of informed consent to medical treatment relates back to a claim of negligence in the provision of that treatment. Other courts have split rather evenly on that question. For example, in Jolly v. Russell, 611 N.Y.S. 2d 232, 233 (App. Div. 1994), the court (one judge dissenting) held that there was no relation back under the New York analog of Rule 15 (c)(2). The majority reasoned that because "lack of informed consent is a
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