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May 1, 1992


Appeals from the Superior Court of the District of Columbia; (Hon. Eugene A. Hamilton, Trial Judge in No. 89-CV-181); (Hon. Robert A. Shuker, Trial Judge in No. 89-CV-1331)

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : These are consolidated appeals in two separate but related cases. In Street v. Hedgepath ("the Hedgepath case"), appellant Joseph Street sued Dr. Leslie Hedgepath, his late wife's physician, for medical malpractice allegedly resulting in Mrs. Street's death from cancer. *fn1 The case proceeded on the theory that Dr. Hedgepath breached the applicable standard of care by failing to diagnose Mrs. Street's thyroid cancer in time to prevent its fatal spread to other parts of her body. After a trial before Judge Hamilton, the jury was unable to agree on a verdict, and the Judge declared a mistrial. Hedgepath then filed a motion for directed verdict. From the order granting that motion, Street noted the first appeal (No. 89-CV-181). *fn2

Mr. Street then filed a civil action, Street v. Georgetown University, et al. ("the Georgetown case"), against Dr. Hedgepath's attorney, Steven A. Hamilton, Mr. Hamilton's law firm, three physicians who had treated Mrs. Street after her cancer had been diagnosed, and Georgetown University Hospital. This was not a medical malpractice action. The basis of Street's complaint was his allegation that the treating physicians, in the course of ex parte communications with Mr. Hamilton, had improperly disclosed information they had learned while treating Mrs. Street. The complaint alleged that some of the treating physicians had testified at trial that any negligence on the part of Dr. Hedgepath could not have proximately caused Mrs. Street's injuries. Mr. Street sought damages for this supposed breach of the confidential physician-patient relationship, asserting that the breach had "resulted in a hung jury" in the Hedgepath case. Appellees filed an answer and then moved to dismiss the complaint under Super. Ct. Civ. R. 12 (b)(6) for failure to state a claim upon which relief could be granted. Judge Shuker granted the motion, and Mr. Street noted the second appeal (No. 89-CV-1331). *fn3

In the Hedgepath case we hold that the trial court did not err in striking the testimony of Mr. Street's expert witness. Because that was the only testimony offered by Mr. Street to establish the relevant standard of care, we further hold that the evidence properly before the jury was insufficient to prove his malpractice claim. In the Georgetown case we hold that by filing the malpractice complaint in the Hedgepath case, Mr. Street waived, as a matter of law, the physician-patient privilege on which his tort claim in the Georgetown case was based. Accordingly, we affirm the dismissal of the latter claim.


A. The Hedgepath case

Victoria Street first saw Dr. Hedgepath for treatment of her diabetes in 1982. Over the next three years Mrs. Street saw Dr. Hedgepath approximately every four to six weeks. On each of these occasions, Dr. Hedgepath examined Mrs. Street and made notes of his examinations. When Mrs. Street visited Dr. Hedgepath on September 6, 1985, her thyroid appeared normal, with no swelling.

On October 19, 1985, Mrs. Street had her portrait taken at a social gathering. This photograph, which was introduced into evidence at trial, purports to show a swelling in Mrs. Street's neck, in the general area of the thyroid gland. Mrs. Street saw Dr. Hedgepath a few days later, on October 24, and again Dr. Hedgepath did not notice any swelling in her thyroid. When she saw him again on December 13, however, Dr. Hedgepath observed that the right lobe of her thyroid was enlarged. He referred her to the Washington Hospital Center for some thyroid tests.

On January 2, 1986, Mrs. Street called Dr. Hedgepath to complain about a pain in her right shoulder which she had first noticed on Christmas Day. Dr. Hedgepath prescribed a pain killer, and on January 10, when he next saw her, he continued her on the prescription. A few days later, on January 15, Mrs. Street saw Dr. Herbert Baraf, a rheumatologist, for treatment of the pain in her shoulder. Dr. Baraf soon discovered that Mrs. Street had cancer of the thyroid, which had metastasized to the bones in her shoulder. Mrs. Street was admitted to Georgetown University Hospital, where Dr. John Dillon removed her thyroid on January 28. She was then referred to Dr. Jerry Earll, Chief of the Division of Medicine at Georgetown University Hospital, for treatment of her cancer. Unfortunately, Mrs. Street's cancer progressed, and she died on November 24, 1986.

Mr. Street then sued Dr. Hedgepath for medical malpractice. He proceeded on the theory that Dr. Hedgepath had a duty to diagnose Mrs. Street's illness correctly, and that he had breached that duty by failing to notice her enlarged thyroid during the office visit on October 24, 1985.

At trial, after an extensive voir dire, the court accepted Dr. Christopher Asplin as an expert in the field of endocrinology. Mr. Street presented Dr. Asplin's testimony to establish the applicable standard of care and to prove that Dr. Hedgepath had breached that standard. Street also relied on Dr. Asplin's testimony to prove that the failure to diagnose Mrs. Street's thyroid cancer in a timely manner proximately caused her injuries and untimely death.

Dr. Asplin testified that he had reviewed the pertinent medical records in the case as well as the photograph of Mrs. Street which we have already mentioned. Dr. Asplin looked at the photograph and testified that he could see a swelling in her neck. He said that if the photograph was taken on October 19, 1985, then the swelling evident in the photograph should have been detected by Dr. Hedgepath when he saw Mrs. Street in his office on October 24. Asplin further testified that Dr. Hedgepath had breached the applicable standard of care by failing to notice the swelling during that office visit and then failing to take steps to diagnose and treat the swelling as thyroid cancer. He stated that, in his medical opinion, Dr. Hedgepath's failure to diagnose Mrs. Street's thyroid cancer on October 24 was "a substantial contribution to the poor outcome in this case," and that Dr. Hedgepath's alleged negligence was the proximate cause of Mrs. Street's death.

Dr. Asplin admitted on cross-examination that he was not an expert in photography. He also admitted that he could not tell from the photograph whether the swelling he saw there was a hard or soft spot, whether it was tender or not, or whether the skin was attached to it. He further conceded that he would have to speculate in order to say that the swelling he saw in the photograph was the enlarged thyroid that was ultimately removed. Finally, he acknowledged that all of his opinions in this case were based on his evaluation of the photograph. If that evaluation was wrong, he said, all of the opinions he had rendered in the case would have to be "withdrawn."

Dr. Earll, Mrs. Street's treating physician, testified for the defense. He gave his opinion that even if the cancer had been detected during the October 24 office visit, by that point the cancer had spread throughout Mrs. Street's body to such an extent that she could not have been effectively treated. He concluded that diagnosing the tumor on October 24 would not have saved Mrs. Street's life because she had "a very bad tumor" of a type that is often fatal "even when it is very, very small." The size of the tumor when it was first discovered in January showed that it had metastasized "long, long before ." When asked about his treatment of Mrs. Street once her cancer was diagnosed, Dr. Earll said that he used the standard treatment, radioactive iodine, but that it was ineffective in her case, as it sometimes is. Because the cancer did not respond to treatment, he testified, an earlier diagnosis and treatment would not have led to a different result.

Looking at the photograph, Dr. Earll testified that all he could see in it was a shadow, and that he could not tell from an examination of the photograph whether Mrs. Street's thyroid was enlarged. He later said that, even if the photograph depicted a swollen neck, there were other possible explanations for such swelling, not the least of which was the fact that Mrs. Street was overweight.

Counsel for Dr. Hedgepath moved for a directed verdict at the close of the plaintiff's case and again at the close of all the evidence. The court denied both motions, and the case went to the jury. When the jury reported that it was deadlocked, the court declared a mistrial and then entertained both parties' renewed motions for a directed verdict. Dr. Hedgepath sought a directed verdict on two grounds: first, that Mr. Street had never established that using color photographs to diagnose was generally accepted in the field of medicine, and second, that Mr. Street had failed to prove proximate cause.

In a written order, the court granted the motion for a directed verdict, ruling that expert testimony was necessary to establish both that Dr. Hedgepath had breached the applicable standard of care and that the breach ...

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