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Berkow v. Lucy Webb Hayes International Training School for Deaconesses and Missionaries Conducting Sibley Memorial Hospital

February 5, 2004


Appeals from the Superior Court of the District of Columbia (CA-4876-99) (Hon. Susan R. Winfield, Trial Judge)

Before Glickman and Washington, Associate Judges, and Ferren, Senior Judge. *fn1

The opinion of the court was delivered by: Ferren, Senior Judge

Argued January 7, 2003

In this medical malpractice suit for damages resulting from a cancer misdiagnosis, plaintiff Edward D. Berkow appeals the trial court's grant of summary judgment for the defendant-appellees, Lucy Webb Hayes National Training School for Deaconesses and Missionaries Conducting Sibley Memorial Hospital ("Sibley"), Margaret M. Shaffer, M.D., Thomas A. Fleury, M.D., R. Scott Klappenbach, M.D., Gary P. Fisher, M.D., and Fisher & Kanovsky, P.C. The trial court granted Sibley's and Dr. Fleury's motions after concluding that Berkow had failed to state a prima facie case. The court granted the motions of Drs. Shaffer, Klappenbach, and Fisher, and of Fisher & Kanovsky, P.C., on the ground that the amended complaint as to them was time barred, and that neither the discovery rule nor the continuing treatment rule served to toll the statute of limitations. We affirm.


Dr. Fleury, head of pathology at Sibley, diagnosed a pelvic mass in Berkow as a malignant, "high grade sarcoma" and treated him for that malady with chemotherapy at Sibley between February 15 and April 18, 1995, and thereafter on an outpatient basis. In December 1995, Berkow collapsed of congestive heart failure but recovered. In May 1996, he was informed that his ongoing chemotherapy had been ineffective and that his tumor was inoperable. After seeking a second opinion at Johns Hopkins Hospital in Baltimore, Berkow learned that his tumor was a B-cell lymphoma, not a sarcoma, whereupon he underwent radiation treatments that were completed successfully in October 1996. He thus claimed in the lawsuit here that the negligence of Dr. Fleury and Sibley in misdiagnosing and improperly treating his cancer caused an unnecessary year of pain and suffering, heart failure, and diminished quality of life resulting in damages measured by the costs incurred for the illness, loss of ability to work and earn a living, and a debilitated, restricted lifestyle.

Later, in amending his complaint, Berkow claimed that Drs. Klappenbach and Shaffer, too, had been at fault because, as pathologists at Sibley, they reviewed the slides of the specimen used for Berkow's biopsy and concurred in Dr. Fleury's misdiagnosis. Berkow also claimed that Dr. Fisher, a cardiologist, had been negligent in a way that contributed to his injury. After examining Berkow at Sibley in 1994 for complaints of swelling in his left leg (and other discomforts), Dr. Fisher found Deep Venous Thrombosis in Berkow's left leg and had not been able to find the usual, femoral pulse there. These signals, according to Berkow, should have alerted Dr. Fisher to the existence of a physical condition, such as a cancerous growth, that was impeding proper blood circulation to his pelvic region - a diagnostic failure that allowed Berkow's malignancy to grow substantially, for six months, before it was discovered (albeit inaccurately) by Dr. Fleury.

This case became a procedural nightmare. Sometimes before pro se plaintiff Berkow retained counsel, and at other times thereafter, the trial court issued rulings, among others, that dismissed then reinstated certain claims (against Sibley and Dr. Fleury), set aside a default judgment (against Dr. Fleury), vacated then reinstated summary judgment (for Drs. Fleury and Fisher), and granted leave to file an amended complaint adding defendants (Drs. Klappenbach, Shaffer, and Fisher, as well as Dr. Frederick Barr and two professional corporations, Fisher & Kanovsky, P.C. and Schwartz, Barr, Burrell & Hendricks, M.D.'s, P.C.). *fn2 The court's actions reflect painstaking care that Berkow receive fair consideration of his claims, but in the end his own defaults in light of clear rules of law and procedure gave the trial court - and now this court - no alternative to ruling in favor of all defendants.


A. Dr. Fleury and Sibley

In evaluating Dr. Fleury's and Sibley's motions for summary judgment, the trial court concluded that without expert testimony, Berkow would not be able to establish the requisite standard of care imputable to th ese defendants. See Allen v. Hill, 626 A.2d 875, 877 (D.C. 1993). Berkow had failed to proffer qualified experts and their expected testimony in response to defense requests pursuant to Super. Ct. Civ. R. 26 (b)(4), despite court-extended deadlines for doing so. The trial court accordingly granted judgment for Dr. Fleury and Sibley as a matter of law and denied Berkow's subsequent motions to vacate under Super. Ct. Civ. R. 59 (e) and 60 (b).

Berkow argues that but for the misdiagnosis attributable to Dr. Fleury and Sibley, he would not have received ineffective, indeed damaging chemotherapy for over a year. Perhaps. But that allegation alone, even in a verified complaint, is insufficient to show - or even to raise a genuine issue of material fact leaving room for a finding - that Dr. Fleury's diagnosis, while incorrect, amounted to a deviation from the applicable standard of care. See Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984). Doctors may disagree from time to time on a diagnosis or course of treatment. Accordingly, in most cases alleging medical malpractice, testimony of a qualified expert will be required to establish the applicable standard of care. Dada v. Children's Nat'l Med. Ctr., 715 A.2d 904, 908 (D.C. 1998); Allen, 626 A.2d at 877. "Only when a lay person, relying on common knowledge and experience, can find that the harm would not have occurred in the absence of negligence may the standard be established without the aid of an expert." Meek, 484 A.2d at 581 n.4. That is not the case here. When the question is one of distinguishing the subtleties between lymphoma and sarcoma from a set of biopsy samples, "common knowledge and experience" will not equip one to discern whether a doctor failed to use the required care; the fact-finder must be informed by expert testimony.

Despite extended deadlines, Berkow never filed a statement naming an expert or experts who satisfied the requirements of Rule 26 (b)(4), and the trial court accordingly entered summary judgment for Dr. F leury on August 29, 2001 (filed September 4, 2001). Earlier, on February 22, 2001, Berkow had submitted a statement under that rule naming four expert physicians, three of whom eventually turned him down. The other proffered expert, Dr. M. Hossein Tirgan, apparently was willing to testify, but Berkow never explained how Dr. Tirgan, as a physician board-certified in internal medicine and oncology, would have been qualified as an expert in D r. Fleury's field of pathology. Berkow argues, nonetheless, that under Abbey v. Jackson, 483 A.2d 330 (D.C. 1984), he was entitled to rely on cross-examination of Dr. Fleury and other defense witnesses to establish the standard of care, without proffering his own experts. He never notified the defendants that he intended to do so, however, and, in any event, there is no record basis (such as Dr. Fleury's deposition testimony or defense admissions) for believing that Berkow could have used defense witnesses to establish the standard of care and defendants' departure from it. Accordingly, after reviewing the trial co urt's rulin g de novo, see Diamond v. Davis, 680 A.2d 364, 381 (D.C. 1996) (opinion of Ruiz, J.), we agree with the trial court that Dr. Fleury and Sibley were entitled to summary judgment based on Berkow's failure, for lack of expert testimony, to establish a prima facie case.

Later, in his motion of September 17, 2001 to vacate summary judgment for Dr. Fleury, Berkow noted that he had retained several other doctors, including a pathologist, Dr. John J. Shane, who would testify that Dr. Fleury's services fell below the applicable standard of care. But, because Berkow had never completed the proffer by moving to amend his Rule 26 (b)(4) statement to include Dr. Shane (or anyone else) before summary judgment was entered, and because the trial court had bent over backwards to extend filing deadlines under that rule with which Berkow never fully complied, we find no abuse of discretion in the trial ...

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