Before Steadman, Farrell and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeals from the Superior Court of the District of Columbia
(Hon. Michael L. Rankin, Trial Judge)
Irene Wagner awoke from back surgery performed at Georgetown University Medical Center to find herself permanently paralyzed from the waist down. Mrs. Wagner and her husband Francis Wagner sued Georgetown and Arthur I. Kobrine, M.D., the primary operating surgeon, for malpractice. *fn1 After protracted pretrial proceedings and a three-week trial, a jury returned a defense verdict on all counts.
The Wagners have appealed, raising four claims of error. First, the Wagners challenge the trial court's ruling that their cause of action for negligent failure to obtain Mrs. Wagner's informed consent to her surgery, which the Wagners first raised in an amended complaint, was barred by the statute of limitations. The Wagners argue that the court erred in concluding that the informed consent count did not relate back to the date of the Wagners' original complaint, which alleged negligence in the performance of her surgery. Second, the Wagners contend that the trial court abused its discretion in permitting their expert witness to be impeached with the fact that a professional association had censured him for testifying "unethically." Third, the Wagners charge that the trial court abused its discretion in allowing a second defense expert called by Dr. Kobrine to testify on the issue of proximate causation, despite a claim by the Wagners of unfair surprise. Fourth, the Wagners urge that the trial court abused its discretion by refusing to allow them to present testimony to rebut the defense expert on the causation issue.
Although he prevailed at trial, Dr. Kobrine has cross-appealed. He claims that the trial court erred in failing to grant him judgment as a matter of law on the ground that no jury could reasonably have found for the Wagners on their claim that he negligently performed the surgery on Mrs. Wagner.
We hold that under Super. Ct. Civ. R. 15 (c)(2), a subsequently pled claim of lack of informed consent to surgery may relate back to an original complaint that pleads a claim of negligence in the performance of that surgery. As to Georgetown, we therefore conclude that the Wagners' informed consent claim was not barred by the statute of limitations. We reach the opposite conclusion as to Dr. Kobrine, however, because the Wagners dismissed their original complaint against him before they renamed him in their amended complaint. In Dr. Kobrine's case there was, therefore, no complaint to which the newly pled informed consent claim could relate back.
We conclude that the other claims of error raised by the Wagners on appeal do not entitle them to relief. We hold that the trial court did not abuse its discretion in permitting the impeachment of the Wagners' expert witness. We further hold that if there was error in the remaining rulings at issue, which we do not decide, the error was harmless in light of the special verdict that the jury rendered. We therefore affirm the jury's verdict in favor of Dr. Kobrine and Georgetown, and remand solely for further proceedings as to Georgetown with respect to the Wagners' informed consent claim. In light of that disposition, we hold that Dr. Kobrine's challenge to the trial court's denial of judgment in his favor as a matter of law is moot.
The surgical operation that gave rise to this case took place on October 3, 1990. Mrs. Wagner was then 65 years old. For a period of some two years Mrs. Wagner had been experiencing worsening pain and weakness in her lower back and legs. In July 1990, after having been treated by other health care providers without success, Mrs. Wagner consulted Dr. Kobrine, a neurosurgeon, and Sam W. Wiesel, M.D., the Chairman of the Department of Orthopaedic Surgery at Georgetown. Diagnosing the cause of Mrs. Wagner's pain as spinal stenosis with degenerative scoliosis, *fn2 Dr. Kobrine and Dr. Wiesel proposed surgery. The surgery would consist of a decompressive laminectomy and a foraminotomy *fn3 to be performed by the neurosurgeon, Dr. Kobrine, and a fusion of the lumbar spine to be performed by the orthopedist, Dr. Wiesel.
When Dr. Wiesel told Mrs. Wagner that the proposed procedure had a success rate of between 50 and 60 percent and could result in serious complications, including paralysis, infection and death, she was initially reluctant to go forward with surgery. According to Mrs. Wagner, Dr. Kobrine assuaged her anxiety, telling her not to worry because "everything will be okay." Mrs. Wagner elected to proceed with the operation.
On October 2, 1990, Mrs. Wagner was admitted to Georgetown. The surgery took place the next day. Dr. Wiesel and his orthopedic team began and closed the procedure, while Dr. Kobrine performed the neurosurgical portion. When Mrs. Wagner awoke from the surgery, she was paralyzed from the waist down. She was returned to surgery immediately, and efforts were made to determine the cause and allay her condition. No hematoma or other cause was found, and Mrs. Wagner has remained paraplegic since the surgery.
B. Overview of the Lawsuit
The Wagners filed their initial malpractice complaint, naming Dr. Kobrine, Dr. Wiesel, Georgetown, and an anesthesiologist, in 1993. Dr. Wiesel and the anesthesiologist were subsequently dismissed by stipulation, because they were full time employees of Georgetown who were covered by its self insurance trust. The lawsuit proceeded against Dr. Kobrine (who was not an employee of Georgetown) and Georgetown itself. In August 1996, after three-and-a-half years of complicated and sometimes tortuous pretrial proceedings (which we describe, to the extent they are relevant, in our discussion below of the issues raised on appeal), the case came on for trial.
Following a pretrial ruling (discussed in detail below) that precluded the Wagners from pursuing their claim that Dr. Kobrine and Dr. Wiesel were negligent in operating on Mrs. Wagner without her informed consent, the Wagners proceeded to trial on theories of misdiagnosis, unnecessary surgery, and (against Dr. Kobrine only) surgical negligence. Specifically, the Wagners contended that Dr. Kobrine and Dr. Wiesel misdiagnosed the cause of Mrs. Wagner's back pain when they attributed it to stenosis, and that they recommended and went ahead with surgery that was inappropriate and not warranted by the results of diagnostic tests. In addition, the Wagners contended that Dr. Kobrine performed the surgery negligently by using an unduly large surgical instrument during the foraminotomy phase, impinging on a key artery as a result and causing an occlusion of the blood supply to Mrs. Wagner's spinal cord.
At the close of the plaintiffs' case, Dr. Kobrine and Georgetown moved for directed verdicts (i.e., for judgment as a matter of law pursuant to Super. Ct. Civ. R. 50 (a)). The court took the motions under advisement. At the close of all the evidence, the defendants renewed their motions. The court in effect granted the motions with regard to the misdiagnosis claim, *fn4 denied or took the other motions under advisement, and submitted the case to the jury on the unnecessary surgery and surgical negligence claims. After four days of deliberations, the jury returned a verdict in favor of the defendants. Thereafter, the Wagners moved for a new trial, while Dr. Kobrine moved for a judgment "notwithstanding the verdict" (i.e., renewing his request for judgment as a matter of law, pursuant to Super. Ct. Civ. R. 50 (b)). After extended argument, the trial court denied both post-trial motions. These appeals followed.
A. Preclusion of the Informed Consent Claim
The issue of whether the Wagners would be permitted to assert their claim that Drs. Kobrine and Wiesel were negligent in performing surgery on Mrs. Wagner without obtaining her informed consent has a complicated but pertinent procedural history. The Wagners filed their original complaint on March 23, 1993, within the three-year limitations period for claims of negligence. See D.C. Code § 12-310 (8) (1995). That complaint alleged that the defendants were negligent "in their care and treatment of" Mrs. Wagner, "specifically including but not limited to" four particular acts of negligence during the performance of the surgery *fn5 and the negligent selection and supervision of the anesthesiologist who participated in the surgery. Additionally, the complaint alleged, "defendants were otherwise negligent." The original complaint did not specifically allege negligent failure to obtain Mrs. Wagner's informed consent to the surgery.
On August 13, 1993, after the Wagners had deposed Dr. Kobrine, their then-counsel sent a letter to Dr. Kobrine's counsel offering to dismiss him from the lawsuit without prejudice, on condition, inter alia, that he "agree not to raise a statute of limitations defense if I have to bring him back in as a result of something that might surface in discovery, e.g., one of Georgetown's experts blames the whole thing on Dr. Kobrine." This overture led to the preparation of a stipulation among the Wagners, Dr. Kobrine and Georgetown, dismissing Dr. Kobrine without prejudice. In the stipulation, which was filed September 1, 1993, Dr. Kobrine agreed that "should it be necessary for Plaintiffs to file an Amended Complaint naming Dr. Kobrine as a defendant, Dr. Kobrine will not assert any legal defenses that were not available to him at the time of the filing of the original Complaint, including the defense of the statute of limitations." (In contrast to the language of the letter, the stipulation did not state that Dr. Kobrine agreed to waive the statute of limitations only if he was brought back into the lawsuit as a result of new information surfacing in discovery.)
For its part, Georgetown agreed to the dismissal of Dr. Kobrine, see Super. Ct. Civ. R. 41 (a)(ii), on the understanding, confirmed in an August 17, 1993, letter to the Wagners' counsel, that the Wagners "do not intend to pursue a lack of informed consent claim against Georgetown." Georgetown sought this assurance so that it would not find itself in the "distasteful" position after Dr. Kobrine's dismissal of having either to defend an informed consent case on its own, or to file a third-party complaint against Dr. Kobrine ("a fellow physician"). The stipulation itself does not refer to this side agreement between Georgetown and the Wagners.
On January 4, 1994, a few months after Dr. Kobrine's dismissal by stipulation and more than three years after Mrs. Wagner's surgery, the Wagners moved pursuant to Super. Ct. Civ. R. 15 (a) for leave to file an amended complaint renaming Dr. Kobrine as a defendant and specifically alleging additional acts of negligence. The Wagners' motion stated that they had determined during discovery that Mrs. Wagner's surgery "was unnecessary surgery and should not have been performed" in view of the results of pre-operative diagnostic tests. The proposed amended complaint alleged three additional acts of negligence on the part of Dr. Kobrine and Georgetown in their care and treatment of Mrs. Wagner: (i) that they misdiagnosed her underlying medical condition, (ii) that they performed unnecessary and inappropriate surgery, and (iii) that they failed to obtain Mrs. Wagner's informed consent to the surgery, "including the failure to accurately inform [her] of the anticipated results of the surgery and the alternatives thereto." As the informed consent claim was elaborated in the subsequent joint pretrial statement, the Wagners contended that Dr. Kobrine and Dr. Wiesel overstated the probability that surgery would alleviate Mrs. Wagner's back pain and failed to disclose that the surgery was not indicated by diagnostic testing; and, further, that Dr. Kobrine secured Mrs. Wagner's consent "only by assuring her that there would be no complications arising from [the surgical] procedure [and] that the proposed surgical procedure would alleviate her pain."
Dr. Kobrine and Georgetown opposed the motion for leave to file the amended complaint on the ground that the new allegations of negligence were barred by the three-year statute of limitations and did not "relate back" to the date of the original complaint under Super. Ct. Civ. R. 15 (c). In particular, they argued that the informed consent count did not arise out of the "conduct, transaction or occurrence" set forth in the original complaint, as required by Rule 15 (c)(2), because it concerned pre-surgery communications and events rather than the surgery itself. Dr. Kobrine further contended that he did not waive the statute of limitations as to the new claims in the stipulation of dismissal, and that those claims were barred for the additional reason that they were not based on new information generated following his dismissal. Georgetown urged that leave to amend to add the informed consent count should also be denied, even if the new claims were not time-barred, because the Wagners had earlier represented that they would not pursue an informed consent claim against Georgetown. According to Georgetown, allowing the amended complaint would mean "robbing Georgetown"of the consideration that the Wagners provided to induce Georgetown to assent to the dismissal of Dr. Kobrine - at least if Dr. Kobrine was not reinstated as a defendant himself.
On January 27, 1994, Judge Kaye K. Christian granted the Wagners' motion for leave to amend over the defendants' objections and ordered that the amended complaint be received for filing. Judge Christian's order did not address the objections raised by Dr. Kobrine and Georgetown specifically. The order stated only that discovery was still in process and "there appears to be no prejudice to defendants."
Following the close of discovery, on November 7, 1994, Dr. Kobrine moved for summary judgment with respect to all of the Wagners' claims of negligence except the claim based on lack of informed consent. As to that claim, Dr. Kobrine conceded that it was "supported by expert medical testimony" and that a genuine factual dispute existed "based upon the deposition testimony of the parties and other witnesses." On November 8, 1994, Georgetown filed its motion for summary judgment. Unlike Dr. Kobrine, Georgetown did seek summary judgment on the informed consent claim. Citing its earlier opposition to the motion for leave to file the amended complaint, Georgetown reiterated without elaboration its contentions that the informed consent claim was time-barred and that the Wagners had "waived" the claim. In addition, Georgetown argued that Drs. ...