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HARTKE v. MCKELWAY

October 8, 1981

Sandra J. HARTKE, Plaintiff,
v.
Dr. William McKELWAY, Defendant



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

This case is currently before the Court on defendant's motions for judgment notwithstanding the verdict and for a new trial. After considering the submissions of the parties and reviewing the record in this case, and in particular, the transcript of the testimony of Dr. Suryabala Goswami, the Court concludes that the defendant's motions must be granted in part and denied in part, as appears more fully below.

 This is what is sometimes known as a "wrongful conception" case. The plaintiff, Sandra Hartke, fearful of becoming pregnant due to previous problems such as an ectopic pregnancy, went to Dr. McKelway, the defendant, for a second opinion on the best method of assuring that she would not become pregnant. It was subsequently discovered that Ms. Hartke was pregnant at the time she consulted Dr. McKelway. On his advice, she agreed to undergo a surgical procedure known as laproscopic cauterization, which essentially involves the burning of the fallopian tubes. This procedure has a failure rate of between 1 and 3 in 1,000. Nonetheless, there was considerable evidence that defendant told plaintiff that she need not concern herself with the possibility of becoming pregnant in the future once she had this operation. In March 1978, Dr. McKelway performed an abortion to terminate plaintiff's existing pregnancy and performed the laproscopic cauterization in an effort to prevent her from becoming pregnant in the future. Despite the surgery, in September of 1979 plaintiff again became pregnant. She elected to carry this child to term, and in June 1980 gave birth, via a Caesarian section, to a normal baby girl.

 Plaintiff presented three theories on which to base recovery in this case: negligence in performing the operation, failure to obtain the patient's informed consent to the procedure performed, and breach of a warranty that plaintiff would not become pregnant. At the close of plaintiff's case, the Court granted the defendant's motion for a directed verdict on the warranty claim, holding that as a matter of law plaintiff had failed to provide sufficient proof that defendant had guaranteed favorable results, in view of the fact that plaintiff signed consent forms which stated that no guarantee of favorable results was given. See Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). The Court denied defendant's motions for directed verdict on the negligence and informed consent counts. The case was submitted to the jury with a special verdict form (a copy of which is appended). The jury found for plaintiff on both remaining theories, and awarded her $ 310,000 in damages, broken down as follows: $ 10,000 for medical expenses; $ 100,000 for pain, suffering, and mental anguish; and $ 200,000 for the future cost of raising the child less the benefits of the child's comfort and society. Defendant renews his motions for directed verdict here, as well as moving for new trial on several grounds. In addition, he asks for judgment on the ground that plaintiff has not stated a claim for relief, and maintains that damages are not recoverable as a matter of law for the costs of raising a healthy child. The Court will address these contentions in turn.

 I. Failure to State a Claim

 Defendant urges that the Court should not recognize a cause of action where an unplanned conception results from defendant's tortious conduct, but should wait for the legislature to create such a claim. While the District of Columbia courts have yet to confront the issue, the weight of authority in other jurisdictions clearly supports the existence of such a claim as a matter of common law. See cases cited in Section IV, infra. The cases cited by defendant as denying recovery altogether for wrongful conception in fact deal only with whether certain elements of damages are recoverable, such as the cost of raising a child. See Coleman v. Garrison, 349 A.2d 8 (Del.1975); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), as clarified in Garwood v. Locke, 552 S.W.2d 892 (Tex.Civ.App.1977). Since all recent cases appear to contemplate some sort of recovery in tort for negligent failure of a physician to sterilize effectively, the Court concludes that the District of Columbia courts would be likely to follow the clear weight of authority and recognize such a cause of action. See Julander v. Ford Motor Co., 488 F.2d 839 (10th Cir. 1973) (upholding district court determination that Utah courts would follow the weight of authority in adopting strict products liability, despite the fact that they had not yet done so). This is not a case like the collateral estoppel issue in Gatewood v. Fiat, S. p. A., 617 F.2d 820, 826 n.11 (D.C.Cir.1980) where the D.C. courts had addressed the issue and had not yet adopted the trend of the case law; rather, this issue is like the jurisdictional issue in that case, where there was no D.C. case law and the court therefore looked to the law of other jurisdictions. Id. at 824-25.

 II. The Negligence Claim

 In support of his claim that he is entitled to judgment as a matter of law on the negligence claim, defendant points to the general rule that expert testimony is required to support a claim that defendant's conduct did not meet the applicable standard of care. Robbins v. Footer, 179 U.S. App. D.C. 389, 553 F.2d 123 (D.C.Cir.1977). He also points to the lack of qualifications of the plaintiff's only expert, Dr. Goswami, who is not, as the defendant is, Board certified in obstetrics and gynecology, but rather is a certified Family Practitioner. In response, plaintiff cites the case of Baerman v. Reisinger, 124 U.S. App. D.C. 180, 363 F.2d 309 (D.C.Cir.1966), which holds generally that a physician is competent to testify even though not a specialist in the field of which she speaks, and that specialization goes to weight rather than admissibility.

 Dr. Goswami was invited by plaintiff and admitted by her then doctor (not the defendant) to witness the Caesarian delivery. During this procedure, she literally observed with her eyes the fallopian tubes which had been the object of the unsuccessful sterilization attempt by defendant.

 Dr. Goswami received her medical training in India and Great Britain. She did not specialize in obstetrics and gynecology, serving only one year in residency in that field, while three years are required for certification. Transcript of the Testimony of Dr. Goswami at 116-17. While Dr. Goswami has had considerable practice as a result of her Family Practice in the United States from 1971 until present, she has performed no surgical procedure since then. Id. at 217. She has never performed the operation in question, has never assisted in the performance of such an operation, and has observed such operations on only two occasions. The Court originally granted plaintiff's motion to qualify Dr. Goswami as an expert.

 This decision rested on her training and experience in gynecology and obstetrics in India, England and at the University of Maryland. Her uncontradicted testimony that she performed several hundred tubal ligations, id. at 49, coupled with her experience and training in the United States qualified her to testify as to the standard of care in respect of conventional tubal ligations by surgery-actual cutting of the tube. Any difference between her opinion as to the correct standard and the opinion of other physicians with better or more elegant qualifications would be for the jury. But the evidence as it unfolded indicated that her knowledge of the standard of care in respect of tubal ligations by separation of the fallopian tubes did not extend to knowledge of the standard of care for sterilization by the laproscopic cauterization procedure. She had no training or experience with that procedure. Laproscopic cauterization is relatively new, and the evidence revealed significant differences between the two procedures. Her reading of literature and conferring with other physicians on the eve of trial did not qualify her to testify about the standard of care for laproscopic cauterization. Specifically, she was not able to address with any authority the question of whether the relevant standard of care contemplated the sterilizing effect of cauterizing and thereby congealing a fallopian tube without actually severing it. In fact, she testified that a major reason for her conclusion that there was negligence was that the result was unfavorable. Id. at 155-56.

 Upon reflection, the Court concludes that although she was competent to testify about her observations, Dr. Goswami was not a qualified expert on the standard of care for laproscopic cauterization procedures. While Baerman holds that a doctor need not be a specialist to testify, it does not remove the requirement that, in order to give an opinion on whether the defendant complied with the applicable standard of care, the witness must be familiar with that standard. Robbins v. Footer, supra. The trial court must weigh the qualifications of the witness and determine whether or not she is qualified to express an opinion on the subject. Sher v. DeHaven, 199 F.2d 777, 782 (D.C.Cir.1952), cert. denied, 345 U.S. 936, 73 S. Ct. 797, 97 L. Ed. 1363 (1953). Although her eye-witness account of her observations in the delivery room were essential and admissible, the Court now concludes that Dr. Goswami was not competent to express an opinion on the defendant's due care or lack thereof, and should not have been allowed to testify about the standard of care for laproscopic cauterization.

 Moreover, the Court is convinced that its failure to prevent Dr. Goswami from testifying concerning the standard of care was not harmless. Except for the testimony of Dr. McKelway, who was called by the plaintiff and testified that the standard of care required cauterization of both left and right fallopian tubes, Dr. Goswami was plaintiff's only expert. The Court cannot conclude that the jury necessarily would have reached the same result on the negligence issue without the benefit of her opinion. In addition, much of Dr. Goswami's testimony was to the effect that it violated the standard of care for defendant to perform the laproscopic cauterization technique on a patient with a history of peritonitis and on a patient more than twelve weeks pregnant. But the dangers of such violations of the standard of care did not materialize in this case and are concededly causally unrelated to the plaintiff's pregnancy. The Court originally admitted this evidence on the ground that the jury was entitled to know the context in which the operation occurred. It now appears to the Court that the prejudicial effect of this "negligence in the air" testimony outweighed its rather minimal probative value, and that it should have been excluded. This is particularly so where its importance was seemingly highlighted by what the Court has now determined to be an unqualified witness. Accordingly, the jury's verdict that defendant was negligent cannot stand.

 The Court concludes nonetheless that there was sufficient evidence of negligence, even without Dr. Goswami's opinion, to create an issue for the jury so that defendant's motion for a judgment notwithstanding the verdict must be denied. The plaintiff called the defendant, Dr. McKelway, and he testified that the standard of care requires some cauterization of the tube so that failure to cauterize one of the plaintiff's fallopian tubes would violate the standard of care. In addition to Dr. McKelway's standard of care testimony which required submission of the case to the jury, experts called by the defense confirmed that the standard of care required substantial cauterization of each tube. There was evidence, albeit weak, from which the jury could have concluded that Dr. McKelway failed to cauterize the right tube at all. Dr. Goswami testified that when she observed the plaintiff during her delivery by Dr. Barter in June 1980, plaintiff's right fallopian tube was intact. Even though Dr. Goswami was incompetent to testify concerning the standard of care, she was competent to testify concerning what she observed during plaintiff's subsequent delivery, and that testimony was sufficient to create a jury issue. Defendant's ...


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