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Wagner v. Georgetown University Medical Center3/8/2001
to question." 6A Clark Alan Wright et al., Federal Practice and Procedure: Civil 2d § 1497, at 93 (2d ed. 1990). The rationale of the relation back rule is that "the filing of a suit . . . warns the defendant to collect and preserve his evidence in reference to it. . . . he defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of the action or the relief prayed or the law relied on will not be confined to their first statement." Barthel v. Stamm, 145 F.2d 487, 491 (5th Cir. 1944). Thus, " he fact that an amendment changes the legal theory on which the action initially was brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant's attention by the original pleading." Wright et al., § 1497, at 95. "It is not unreasonable to require [the defendant] to anticipate all theories of recovery [for the damages claimed in a complaint] and prepare its defense accordingly." Zagurski v. American Tobacco Co., 44 F.R.D. 440, 443 (D. Conn. 1967) (where original complaint sought damages from smoking cigarettes based on theories of negligent manufacture and implied warranties of fitness for personal use, amended complaint charging negligent failure to warn the plaintiff of the dangers of smoking held to relate back).
In light of these principles, we conclude that the requirements of Rule 15 (c)(2) were met by the informed consent allegation in the Wagners' amended complaint. At a minimum, the original complaint notified Dr. Kobrine and Georgetown that the Wagners sought to recover damages for injuries resulting from the surgery that they had performed on Mrs. Wagner. The "occurrence" set forth in that complaint was the surgery; the legal theory justifying recovery of damages was that the defendants had performed that surgery in a negligent manner. The amended complaint merely added another legal theory, that the defendants had performed that surgery without Mrs. Wagner's informed consent to accept the risk of surgery which proximately caused her injuries. See Lasley v. Georgetown Univ., 688 A.2d 1381, 1384 (D.C. 1997); Jones v. Howard Univ., Inc., 589 A.2d 419, 422 (D.C. 1991). Although that theory was new, it was still a theory for recovering the same damages for the same injuries attributable to the same event. The informed consent claim in the amended complaint still arose, therefore, out of the same occurrence - the surgery - as was set forth in the original complaint. As "reasonably prudent" defendants, Dr. Kobrine and Georgetown ought to have expected that other aspects of that surgery "might be called into question"; that the circumstances of the surgery would be "fully sifted"; that they would have to "anticipate all theories of recovery" for the injuries caused by the surgery; and that they would therefore need to "collect and preserve" their evidence and prepare to defend against any such theories. For the amended claim to relate back, Rule 15 (c)(2) requires nothing more.
For these reasons, we do not think it fatal to relation back that, as Dr. Kobrine and Georgetown argue, "informed consent claims concern a duty of the physician `which is completely separate and distinct from his responsibility to skillfully diagnose and treat the patient's ills.'" Cleary v. Group Health Ass'n, 691 A.2d 148, 155 (D.C. 1997) (quoting Wilkinson v. Vesey, 295 A.2d 676, 685 (R.I. 1972)). Nor can Dr. Kobrine and Georgetown legitimately claim surprise because the informed consent claim focuses on events occurring prior to rather than during the surgery itself. Any competent lawyer defending a physician accused of performing surgery in a negligent manner would investigate not only t
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