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Wagner v. Georgetown University Medical Center3/8/2001
he narrow issue of how the surgery was conducted, but also the facts and circumstances surrounding the surgery, including the events leading up to it. Whether or not an informed consent claim had been asserted, communications between physician and patient prior to the surgery would be a prime subject of inquiry. Defense counsel would need to learn what the physician said in obtaining the patient's consent to the surgery, because counsel would need to know, for example, whether the physician said anything - e.g., about the condition of the patient, the surgery to be performed, or the risks involved - that could be evidence of negligence on the physician's part. Thus, even if the original complaint in this case did not mention lack of informed consent specifically, that complaint was nonetheless calculated to cause counsel for Dr. Kobrine and Georgetown to focus on the facts that would underlie such a claim as a routine part of defense preparation. To say that is to say that Dr. Kobrine and Georgetown could not claim surprise when the Wagners eventually advanced an informed consent claim based on those facts.
There is corroboration in the record that the Wagners' original complaint sufficed to require the defendants to anticipate a potential informed consent claim. Georgetown argues that it had no notice of a possible informed consent claim until after the running of the statute of limitations because counsel for the Wagners represented that they did not intend to make such a claim when they asked Georgetown to agree to the stipulation dismissing Dr. Kobrine. But the fact that Georgetown inquired about an informed consent claim demonstrates that Georgetown actually did anticipate that the claims in the original complaint might be broadened to include lack of informed consent. Although that fact is not the basis for our conclusion that the Wagners' original complaint put Dr. Kobrine and Georgetown on notice that an informed consent claim might be added, it confirms the soundness of that conclusion.
Nor have Dr. Kobrine and Georgetown made a credible claim of unfair prejudice from the "late" assertion of a claim of lack of informed consent. At the hearing on the motion in limine, Judge Rankin asked Georgetown's counsel, "how are you hurt by the amended complaint bringing in this claim [i.e., informed consent] since the amended complaint also brought your co-defendant back in the case?" Counsel responded that "we're not hurt in respect of Dr. Kobrine being brought back into the case. It is true that now we are in the situation where we're defending the case and Dr. Kobrine is defending the informed consent claim and we both can present the evidence on those issues." Judge Rankin then asked if it was true that "you're not in a worse position than you would have been if they [the Wagners] had phoned it in initially [i.e., asserted lack of informed consent in the initial complaint against both defendants]." Counsel responded, "That's true."
We therefore conclude, contrary to the trial court, that an amended complaint adding a claim of lack of informed consent to surgery relates back under Rule 15 (c)(2) to an earlier complaint alleging negligence in the performance of that surgery. Since the original complaint against Georgetown was filed within the three year period prescribed by the applicable statute of limitations, we conclude that the Wagners' informed consent claim against Georgetown was not time-barred. We do not, however, reach the same conclusion as to Dr. Kobrine. As we now explain, because the original complaint against Dr. Kobrine was dismissed, the amended complaint cannot relate back to it.
b. Dismissal of the Original Complaint
When the Wagners volu
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