Appeal from the Superior Court of the District of Columbia. (CA-9054-99). (Hon. Jeanette Clark, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before TERRY, WAGNER,*fn1 and GLICKMAN, Associate Judges.
Mary C. Gubbins and Shelton Davis appeal the judgment entered against them following the trial by jury of their medical malpractice claims against Susan Hurson, M.D., Jae-Koo Kim, M.D., Northwest Anesthesiology Group, P.C., and Sibley Memorial Hospital. We hold that the trial court erred in admitting previously undisclosed expert opinion testimony and in refusing to instruct the jury on the doctrine of res ipsa loquitur. Taken together, these errors entitle appellants to a new trial.
In late December 1996, Mary Gubbins underwent surgery at Sibley Memorial Hospital to repair a leaking bladder and remedy an associated condition known as urinary stress incontinence. After Dr. Jae-Koo Kim administered anesthesia through an epidural catheter, Dr. Susan Hurson performed a hymenal remnant excision and anterior and posterior repair. The surgery was seemingly without complication, and it appeared to alleviate Gubbins's bladder problems. After the surgery, however, Gubbins experienced numbness and weakness in her legs, fell to the floor, and was unable to stand or walk.
Dr. Hurson referred Gubbins to Dr. Frank Anderson, a neurologist, who in turn referred Gubbins to a second neurologist, Dr. John Kelly, for an electromyography (EMG). Dr. Kelly conducted the EMG and diagnosed nerve damage at the L3-L4 level of the spine. Gubbins received physical therapy, but she still was confined to a wheelchair when she was discharged from the Hospital in mid-January 1997. After further therapy on an outpatient basis, Gubbins regained the use of her legs but continued to experience pain and impaired mobility.
Gubbins was unable to obtain an explanation of her nerve injury from her health care providers. Drs. Anderson and Kelly told her only that the anesthetic medication she was given during her surgery had injured her nerves somehow. Sibley Memorial Hospital conducted a review and, according to a letter from its Chief Executive Officer, investigated a number of possible causes, including: a problem with the anesthetic medication as provided by the drug manufacturer; the "remote possibility" that someone tampered with the medication; pharmacy error; improper programming or malfunction of the pump that was used to administer the medication; an "allergic type reaction to the medication"; "surgical positioning"; an "anesthesia technique problem with respect to the placement of the epidural catheter or subsequent migration of the catheter causing a central nervous system paralysis and/or peripheral nerve injury"; "complications from the administration of the anesthesia via an epidural catheter"; and unspecified other "complications associated with the surgical procedures." The Hospital's investigation ruled out some possibilities, such as pharmacy error, pump misuse or malfunction, and a problem with the medication. Further, the Hospital reported, "[a]ll of the physicians we talked to and the pharmacy consultant agreed that it was unlikely that Ms. Gubbins experienced a drug allergy." There did exist "a possibility," the report continued, "that the complication was related to surgical positioning," but this had not been established and would have been "very unusual." Finally, regarding "anesthesia technique," the investigation found no evidence of any problem with the "placement or functioning of the epidural catheter." In short, the Hospital had "no definitive answer" to provide.
In December 1999, Gubbins and her husband, Shelton Davis, filed suit in Superior Court, alleging malpractice by Drs. Hurson and Kim and the Hospital staff who participated in the operation. At trial, which took place in June 2003, appellants advanced alternative theories of negligence, focusing primarily on the administration of anesthesia by Dr. Kim and the positioning of the patient's legs by Dr. Hurson during the surgery. Appellants also sought to establish negligence by invoking res ipsa loquitur, but the trial court precluded reliance on that doctrine. The jury returned a defense verdict, and this appeal followed.*fn2
Appellants claim that the court made a number of prejudicially erroneous rulings against them in the course of a rather lengthy trial. It is unnecessary to address all of appellants' assignments of error. We conclude that the trial court erred in two key rulings. In combination, these two errors require us to reverse and remand for a new trial.
The first ruling allowed defense counsel to present expert opinion testimony regarding causation from a treating physician whom appellants had called only as a fact witness. Appellants contend that the court erred in admitting this surprise testimony over their objection that no party had designated the physician as an expert in pretrial discovery pursuant to Superior Court Civil Rule 26 (b)(4). Because the defendants did not establish, and it did not otherwise appear, that the physician had reached his critical opinions in the course of treating Gubbins, rather than in anticipation of litigation or trial, we hold that appellants' objections to the testimony should have been sustained.
Appellants called Dr. John Kelly as their first witness. In his direct examination, Dr. Kelly, who had been identified in appellants' pretrial disclosures solely as a fact witness, testified about the EMG he performed on Gubbins in January 1997. The EMG showed "marked denervation bilaterally in [her] quads and IP [iliopsoas] muscles," meaning that in both her legs, the nerves had suffered damage ("severe axonal lesions") and become detached from the knee extensor and hip flexor muscles. The principal damage was localized "inside the spine, affecting the nerve roots, before they left the spinal column to go down the legs, on both sides." As a result, Dr. Kelly explained, Gubbins had lost voluntary control of her legs; the interruption of nerve impulses caused the muscles to fibrillate or "twitch" without coordination, involuntarily and spontaneously.
Dr. Kelly next examined Gubbins in April 2002. By then, he testified, her legs had regained much of their strength, and her walking was more stable. She continued, however, to experience pain and hypersensitivity "from the hips to the feet." Diagnosing this condition as "a post-neuritic pain syndrome" attributable to residual irritation of the previously damaged nerves, Dr. Kelly prescribed medication that diminishes nerve pain by slowing nerve impulses.
Although the direct examination of Dr. Kelly was confined to his testing, diagnosis and treatment of Gubbins, the cross-examination was not so limited. Over appellants' objection, the court permitted the defendants, who had not listed Dr. Kelly as an expert witness in pretrial discovery, to elicit his opinions concerning the cause of Gubbins's nerve damage. Based on his overall experience with other patients in his EMG referral practice,*fn3 Dr. Kelly agreed with defense counsel that surgical patients "can have reactions like [the nerve damage sustained by Gubbins] even in the absence of any health-care provider, whether it be a surgeon, or an anesthesiologist, or  hospital personnel deviating from any standards of care." The occurrence of nerve complications, therefore, did not suggest to Dr. Kelly that Gubbins's medical treatment was faulty; on the contrary, even if everything is done "perfectly fine," he believed, "the so-called idiosyncratic, or unusual reaction can occur, and it can cause problems like this." Although he had written in his January 1997 EMG report that "[t]his is a peculiar case, and the etiology is not at all certain," Dr. Kelly was allowed on cross-examination to express his further opinion -- based upon his examination of Gubbins, his experience, and his education -- that Gubbins's nerve damage ...