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STEWART v. BEPKO

September 7, 1983

DEBORAH L. STEWART, et al., Plaintiffs,
v.
FRANK BEPKO, M.D., Defendant



The opinion of the court was delivered by: GREENE

 In this action plaintiffs claim that defendant was guilty of medical malpractice when he allegedly failed properly to perform a sterilization procedure on the female plaintiff. A child was born to that plaintiff on March 19, 1979, and she claims various consequent injuries and damages, including injury to her relations with her husband and damages resulting from the cost of raising the child. Defendant has moved for summary judgment. The motion will be granted.

 First. It is, of course, axiomatic that in a malpractice action plaintiff must, among other things, establish that the alleged negligence caused the injury. See W. Prosser, Law of Torts, ยง 30 at 143 (4th ed. 1971); Kosberg v. Washington Hospital Center, 129 U.S. App. D.C. 322, 394 F.2d 947, 949 (D.C. Cir. 1968). With respect specifically to the element of causation, it is the plaintiffs' burden to produce a medical expert who can testify that, in his opinion, and to a reasonable decree of medical certainty, the alleged negligence caused the injury. See Kosberg v. Washington Hospital Center, supra; Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C. App. 1980). What is at issue here in regard to the element of causation is whether the female plaintiff was already pregnant when defendant performed the sterilization procedure. If so, obviously the procedure could not have caused the injury that is now being claimed.

 The only medical expert identified by plaintiff during the pretrial proceedings is Dr. Marc L. Chaiken. In his deposition Dr. Chaiken stated in response to questions that

 
Q. Well, if the delivery on March 19, 1979 was a mature or term baby, 38 weeks or more, *fn1" working backwards when would you contemplate that conception probably took place?
 
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Q. If we look at the spin wheel and say it was full term at 40 weeks on March 19, 1979, conception is indicated to occur sometime during the last week in June, first week in July or sometime around there.
 
A. That would be most probable or very probable.
 
Q. So it is most probable or very probable, then, that in this case the conception occurred prior to the tubal ligation?
 
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A. Again, it is hard to say, but I would think that conception could have occurred right around the ...

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