Appeal from the Superior Court of the District of Columbia. (CA-8613-00) (Hon. Anna Blackburne-Rigsby, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Before FARRELL and GLICKMAN, Associate Judges, and FERREN, Senior Judge.
On appeal of this medical malpractice case, the appellants, Marianne Caulfield and her husband, Robert (claiming loss of consortium), contend that the trial court erred when it granted judgment as a matter of law (JMOL) to appellees, Howard A. Stark and his medical group, on the Caulfields' claims of fraudulent misrepresentation, unlawful trade practice, and punitive damages. In addition, the Caulfields assert that the trial court erred in two evidentiary rulings: admitting Dr. Stark's writing sample; and failing to permit Dr. Stark's impeachment with a learned treatise while he was testifying as an adverse witness. We find no error and affirm.
On March 15, 1995, Ms. Caulfield telephoned Dr. Stark, a gastroenterologist, to schedule an appointment to discuss colonoscopy procedures.*fn1 Dr. Stark suggested that Ms. Caulfield come into the office because she reported to him that she had noticed "a bit of blood in [her] stool." Ms. Caulfield did not immediately make an appointment with Dr. Stark but waited until after her law school studies and examinations were completed. Ms. Caulfield met with Dr. Stark on May 17, 1995 and described various symptoms that are associated with colon cancer. Dr. Stark did not perform a physical examination of Ms. Caulfield at that time but said he would check with her insurance carrier to obtain approval for scheduling a colonoscopy.
After leaving the office, Ms. Caulfield believed that either she was to call the Medical Group's offices to follow-up on the insurance carrier's approval and the scheduling of the colonoscopy, or someone from the Medical Group's administrative staff would phone her. According to her testimony, Ms. Caulfield phoned the Medical Group's office within a week and learned that insurance carrier approval had not been obtained. She called two weeks later and was told again that the procedure had not been approved by the insurance carrier.*fn2 Ms. Caulfield also testified that she believed that Dr. Stark had diagnosed her with irritable bowel syndrome, and that because the insurance carrier had not approved the colonoscopy, it was not warranted. Ms. Caulfield never consulted Dr. Stark again. She continued to be treated by Dr. McMackin as her primary care physician, but, according to her testimony, they never discussed the need for a colonoscopy.
In February 1998, after watching a television program about colon cancer, Ms. Caulfield scheduled an appointment with another gastroenterologist, Dr. Alan Blosser. He provided Ms. Caulfield with printed information about the dangers of colon cancer in a patient who has had family members die at an early age from that disease.*fn3 He performed a colonoscopy on Ms. Caulfield in April and discovered a mass in her rectum and two smaller polyps in her colon. After consulting with other specialists about her treatment options, Ms. Caulfield had surgery at Mt. Sinai Hospital in New York on June 26, 1998 to remove a large portion of her rectum. Between December 1998 and November 1999, Ms. Caulfield underwent three additional reconstructive surgeries to repair incisional hernias. As a result of all of these surgeries, Ms. Caulfield claims that she has suffered extreme pain, permanent damage to her abdomen and intestinal tract, severe and embarrassing post-operative side effects, and depression, and that she cannot safely carry a pregnancy to term because of mesh inserted in her abdominal cavity to repair the hernias.
In January 2004, a jury trial was held before the Honorable Anna Blackburne-Rigsby. At the close of the Caulfields' case, Dr. Stark and the Medical Group moved for JMOL on the Caulfields' claims of fraudulent misrepresentation, unlawful trade practices, and punitive damages. After hearing oral arguments, Judge Blackburne-Rigsby granted Dr. Stark and the Medical Group JMOL on these claims. The case was submitted to the jury only on the negligence claim. The jury found that the Medical Group had breached the standard of care but that its breach of care was not a proximate cause of the Caulfields' injuries. This timely appeal followed after the trial judge denied appellant's motion for a new trial.
II. CLAIMS GRANTED ON JMOL
"[J]udgment as a matter of law is proper only when the material facts are undisputed and when reasonable jurors could reach only one possible conclusion based on those facts."
Bushong v. Park, 837 A.2d 49, 53 (D.C. 2003). "[T]he record must be viewed in the light most favorable to the non-moving party, and that party . . . is entitled to the benefit of every reasonable inference from the evidence." Washington Metro. Transit Auth. v. Jeanty, 718 A.2d 172, ...