Before Wagner, Chief Judge, and Schwelb, Associate Judge, and Belson, Senior Judge.
The opinion of the court was delivered by: Per Curiam
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Appeal from the Superior Court of the District of Columbia (Hon. Patricia Wynn, Trial Judge)
Appellant, Michael D. Patton, personal representative of the estate of Pamela Onder, filed this medical negligence case against appellee, Mark Klein, M.D., a radiologist, alleging that Dr. Klein's negligence in reporting the results of his examination of Mrs. Onder resulted in delayed diagnosis and treatment of her cancer and proximately contributed to her premature death. The trial court granted summary judgment for Dr. Klein, concluding that Mr. Patton's prior unsuccessful suit against Mrs. Onder's surgeon bars the claim. Mr. Patton argues for reversal on the grounds that res judicata principles do not operate to bar the action because (1) the nature of the two claims is different; and (2) there was no fair and full opportunity to litigate in the prior action the claim presented here. We hold that res judicata does not preclude the second suit because Dr. Klein is not in privity with the defendant in the first action. We also conclude that the record has not been developed sufficiently to determine which, if any, issues are barred from relitigation based upon collateral estoppel. Therefore, we reverse and remand the case to the trial court for further proceedings.
In the prior action, Mr. Patton filed a complaint under the Survival Act*fn1 and Wrongful Death Act*fn2 against Mrs. Onder's surgeon, Joseph E. Gutierrez, M.D., alleging that he negligently failed to diagnose cancer in her breast in 1988. Dr. Gutierrez' defense "in essence, was that Mrs. Onder did not have cancer in 1988, that a lump in the upper right area of her chest which he examined in 1988, was an enlarged (and non-malignant) lymph node, and that her breast cancer did not develop until 1989." Patton v. Gutierrez, No. 93-CV-1391 (D.C. May 26, 1995) (Patton I). A jury returned a verdict in favor of Dr. Gutierrez, and this court affirmed the judgment in an unpublished memorandum opinion. Id.
During the trial in Patton I, Dr. Klein testified as a witness on behalf of Dr. Gutierrez. Dr. Klein testified that a benign nodule, which he felt at the time of the examination, was visible on a mammogram x-ray on May 6, 1988, the date of the examination. Dr. Klein admitted in testimony that there was an error in his written report which he sent to Dr. Koch, Mrs. Onder's gynecologist, with a copy to Dr. Gutierrez. Specifically, he testified that in the report he stated that he found "a palpable nodule in the upper outer quadrant of the right breast" of Mrs. Onder, which likely represented a lymph node which could not be seen on "either the mammogram or sonogram." However, Dr. Klein testified that the lump he found was not actually in Mrs. Onder's breast tissue, but in the axilla, an area adjacent to the breast.*fn3 He further testified that his written report was incorrect in stating that the nodule "was not visualized on the mammogram as a cyst," instead of that "it was not visualized on the sonogram as a cyst." According to Dr. Klein's trial testimony, the nodule which appeared on the x-ray was "in the same area" where he felt the nodule upon examination, but he could not say at trial that both were the same.*fn4
While the appeal was pending in Patton I, Mr. Patton filed the complaint in this case (Patton II) naming as a defendant Dr. Klein.*fn5 In the complaint, Mr. Patton alleged that Mrs. Onder discovered a lump in the upper, outer quadrant of her right breast in early May 1988 and consulted her gynecologist, Dr. Koch. Dr. Koch felt the suspicious mass, instructed her to have a mammogram, and referred Mrs. Onder to Dr. Gutierrez. Mrs. Onder promptly scheduled the mammogram at Washington Radiology, where Dr. Klein, examined the mass, took the mammogram and sonogram, and interpreted them. Dr. Klein informed Mrs. Onder, and reported to Drs. Koch and Gutierrez, that he saw no indication of cancer in the mammogram or sonogram. Based, in part on Dr. Klein's negative findings from the x-ray and sonogram, both Dr. Gutierrez and Dr. Koch continued to reassure Mrs. Onder that she did not have cancer. The complaint alleged that Dr. Klein's revelations during the trial of Patton I reflect that he negligently failed to reveal to Dr. Koch that he was not examining the suspicious lump in the upper outer quadrant of Mrs. Onder's chest which Dr. Koch had felt. According to the complaint, Dr. Klein's negligence in this regard, along with the negligence of the other physicians, contributed to the delayed diagnosis of Mrs. Onder's cancer which resulted in her premature death.
Dr. Klein moved for summary judgment, contending that the action was barred by principles of res judicata and collateral estoppel. He contended that the two claims arose out of the same cause of action and had the same factual nucleus. Mr. Patton argued in opposition that the complaint against Dr. Klein raised a different claim of negligence against the radiologist which he had no fair opportunity to litigate in the first action against Dr. Gutierrez. Mr. Patton further contended that it was only after Dr. Klein changed his position during the trial of the claim against Dr. Gutierrez that it became apparent that there was a basis for a cause of action against the radiologist for malpractice. Applying the doctrine of res judicata, the trial court ruled that Mr. Patton's present claim is barred in that the case arises from the same "factual nucleus" as the claim in the first action and raised no new issues which could not have been ...