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12/30/92 MAXFORD WOLFE v. BEN S. FINE

December 30, 1992

MAXFORD WOLFE, PERSONAL REPRESENTATIVE, APPELLANT
v.
BEN S. FINE, M.D., APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Steadman, Schwelb and Sullivan, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Before us is an appeal from a dismissal with prejudice for want of prosecution of a medical malpractice action against appellee Dr. Ben S. Fine. We are not quite convinced on the present record before us that the trial court's action was undertaken in full compliance with our existing case law governing dismissals with prejudice for want of prosecution and therefore must vacate the order and remand for further proceedings consistent with this opinion.

I

Ingrid Wolfe, the original plaintiff in this action, *fn1 first sought treatment for pain above her right eye from her health maintenance organization, Kaiser Permanente Foundation Health Plan of the Mid-Atlantic States, Inc. ("Kaiser"), in May of 1986. Dissatisfied with the diagnosis of migraine headaches and sinus problems, Ms. Wolfe consulted Dr. Fine, a specialist in ophthalmology, on June 4, 1986, to whom she again related her symptoms. After conducting a general eye examination, but not a CT (computerized tomography) scan, Dr. Fine concluded that Ms. Wolfe suffered from migraine headaches and sinus problems that possibly were exacerbated by an allergy. Ms. Wolfe returned to Kaiser approximately 10 months later, in April 1987, complaining of a loss of vision as well as pain above her eye. A CT scan performed at this time revealed a mass behind the right eye, which was later diagnosed as adenocarcinoma of the lacrimal gland, a particularly rare form of lacrimal gland cancer. The complaint alleged that Kaiser and Dr. Fine were negligent in failing to diagnose Ms. Wolfe's condition promptly and to take certain diagnostic steps, including a CT scan, that allegedly would have revealed the lacrimal gland adenocarcinoma nearly a full year prior to its actual discovery. *fn2

On April 11, 1989, appellant identified Dr. Mary Stefanyszyn as an expert witness on the issue of causation pursuant to Super. Ct. Civ. R. 26(b)(4). Dr. Stefanyszyns 26(b)(4) statement explained that she would testify that a timely CT scan would have revealed the cancerous mass, that prompt treatment thereafter more probably than not would have cured the decedent of the cancerous condition, and that the failure to conduct a CT scan would to a reasonable degree of medical certainty result in her death. At her deposition, Dr. Stefanyszyn made clear that her testimony on causation would be based on the work of a Dr. John Wright, a British surgeon and researcher. *fn3 According to Dr. Stefanyszyn, Dr. Wright had achieved a 70% cure rate in promptly treating lacrimal gland adenocarcinoma, and that the chances of survival dropped from 50% if the cancer was diagnosed within six months of the onset of symptoms to near 0% if more than a year passed without diagnosis.

Thereafter, on November 6, 1989, Dr. Fine filed a supplemental Rule 26(b)(4) statement identifying Dr. Wright as his expert witness on the issue of causation. Dr. Wrights statement explained that:

[Dr. Wright] is expected to state his opinion that there are insufficient numbers of cases of lacrimal gland adenocarcinoma reported in the literature for any researcher to make conclusive statements regarding survival rates from this disease process. . . .

Dr. Wright is also expected to testify that the figures cited by plaintiff's expert, Dr. Stefanyszyn, in support of the general Conclusions stated in her deposition regarding cure rates and/or survival rates are invalid. The Conclusions reached by Dr. Stefanyszyn cannot be properly extrapolated from Dr. Wright's work.

On December 6, 1990, thirteen months after Dr. Fine had filed the supplemental Rule 26(b)(4) statement listing Dr. Wright as a proposed witness, appellant took Dr. Wright's deposition. *fn4 In the deposition, Dr. Wright characterized as "ridiculous" Dr. Stefanyszyn's Conclusion that he could achieve a 70% cure rate by operating on lacrimal gland adenocarcinoma within six months of its development. More fundamentally, Dr. Wright testified that starting about two months subsequent to the filing of his Rule 26(b)(4) statement he began to conduct a ten-year follow-up analysis of research on lacrimal gland cancer that he had published in a 1982 article, and that his colleagues, who had reviewed slides of the previously-diagnosed lacrimal gland cancers as part of the follow-up review, had eventually concluded that only one or two of the ten cancers identified in the 1982 article as adenocarcinoma of the lacrimal gland, and only four or five of all the lacrimal gland cancers Dr. Wright had treated in the past 22 years, actually were lacrimal gland adenocarcinoma. *fn5 Thus, whereas Dr. Stefanyszyn's testimony had been based on her understanding that Dr. Wright had treated 20 cases of lacrimal gland adenocarcinoma overall, 10 of which were discussed in his 1982 article, the follow-up analysis indicated that Dr. Wright had in fact encountered only one-fifth to one-quarter of that number.

When counsel for appellant revealed to Dr. Stefanyszyn in January 1991 that Dr. Wright had effectively repudiated the underlying data relating to lacrimal gland adenocarcinoma in his 1982 article and that gathered after that time, Dr. Stefanyszyn withdrew as a witness, leaving appellant -- in the view of both parties and the trial court -- without an expert witness on the issue of causation. On February 27, 1991, about six weeks prior to the scheduled trial date, counsel for appellant filed a "motion to defer trial for additional discovery," in order to give appellant time to have an ophthalmologist, who had indicated a willingness to undertake the project, develop a database of cases of adenocarcinoma of the lacrimal gland that would enable him to reach Conclusions on the importance of early diagnosis to the successful treatment of lacrimal gland adenocarcinoma. The motion also identified a second ophthalmologist as someone who thought such a project could contribute to the field of ophthalmology. *fn6 If such a database could not be developed, appellant indicated that he would seek to draw analogies from comparable adenocarcinomas of other organs. *fn7

At a March 7, 1991 hearing on appellant's motion, the trial court found that Dr. Wright's 26(b)(4) statement "put on notice that there was a serious problem and that [appellant was] wrong not to take [Dr. Wright's] deposition right away." However, it postponed taking any action at that time, and instead ordered appellant to depose the two specialists whom appellant had identified in his motion to determine whether "there is a reasonable likelihood that the results will be that can conclude to a reasonable degree of medical certainty" that early diagnosis would lead to successful treatment of lacrimal gland adenocarcinoma. *fn8

On March 18, the trial court held an unrecorded telephone conversation with the parties, at which time the case apparently was removed from the trial calendar. *fn9 When the parties reconvened before the trial court on April 8, the originally scheduled trial date, the trial court reviewed the deposition testimony of Drs. Cooper and Miller and concluded that their testimony did not meet the standard articulated on March 7. The trial court also reiterated its earlier Conclusion that Dr. Wright's Rule 26(b)(4) statement put appellant on notice of the need to take some action, such as deposing Dr. Wright or providing Dr. Stefanyszyn with a copy of Dr. Wright's 26(b)(4) statement, to ensure that appellant would have an expert on causation at the time of trial. The trial court then indicated that ...


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