Appeal from the Superior Court of the District of Columbia (CM-7439-03) (Hon. Patricia A. Broderick, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON,Associate Judges.
Opinion for the court by Associate Judge THOMPSON.
Dissenting opinion by Associate Judge FISHER at p. 27.
Appellant Angel Miller-McGee sustained an extensive tear of her perineum during a forceps-assisted vaginal delivery of her first child and thereafter suffered fecal incontinence, necessitating a series of corrective surgeries. She appeals from the trial court's order dismissing, with prejudice, the action in which she sought to pursue a claim that the defendant hospital and obstetrician performed the assisted delivery without her informed consent. The trial court dismissed the action on the ground that MillerMcGee had failed to amend her complaint to add the lack of informed consent claim after the court had dismissed her other claims. In light of the procedural history of this case, we hold that the trial court abused its discretion in dismissing the suit without affording MillerMcGee an opportunity to amend her complaint. We therefore reverse and remand.
Factual and Procedural Background
On September 1, 2000, appellant gave birth to a baby girl at the Washington Hospital Center. During the delivery, she suffered a large tear of her vagina that was caused by her baby being pulled through her vaginal canal with forceps. The tear developed into a rectovaginal fistula,*fn1 causing appellant to have uncontrollable bowel movements through her vagina. She underwent two surgical procedures to correct the problem. On October 31, 2003, she filed a two-count amended complaint in the Superior Court against defendants/appellees Washington Hospital Center Corporation and Dr. Scott Muangman,*fn2 alleging medical malpractice-negligence (Count I) and negligent infliction of emotional distress (Count II).*fn3 The trial court dismissed Count II after defendants filed an unopposed motion to dismiss that count.
On February 14, 2005, defendants filed a motion for summary judgment, arguing that because Miller-McGee had no expert witness who would testify in the case,*fn4 she would be unable as a matter of law to establish the standard of care, a breach thereof, and proximate causation. On April 11, 2005, the trial court issued its order dismissing the negligent delivery claim. Noting that Miller-McGee contended that her injuries were caused by her child having been delivered forcibly with forceps, the court found that there was no question that expert testimony would have been required to determine the standard of care and to establish what constituted the proper use of force in the delivery of a child. As to Miller-McGee's theory that appellees failed to obtain her informed consent to the assisted vaginal delivery that was performed, the court stated, "[w]hile Plaintiff's complaint fails to mention a lack of informed consent it is the Court's understanding that Defendants had notice of this theory, as evident by their Interrogatory Requests of Plaintiff . . . . Defendants were further put on notice of this theory during the deposition of Defendant Muangman, if not earlier." The court also found that an "expert opinion was not necessary for the Plaintiff's claim of lack of informed consent." Accordingly, the court's April 11, 2005 order granted only partial summary judgment to defendants, stating that "[p]laintiff may go forward with the lack of informed consent issue only."
On April 28, 2005, defendants/appellees filed another motion to dismiss and/or for summary judgment, asserting that Miller-McGee had not pled a claim of lack of informed consent in either her original or amended complaint and had not sought leave of court to amend her complaint a second time to add such a claim, and arguing that her "failure to amend her complaint to allege Lack of Informed Consent is fatal." Defendants/appellees also asserted that Miller-McGee "cannot prove her claim of Lack of Informed Consent as a matter of law." Defendants/appellees argued, and contend again in this appeal, that:
Even if this Court could allow a late amendment, Plaintiff cannot prove that the risk of laceration is a material risk and that there was a viable alternative to an assisted vaginal delivery. Moreover, Plaintiff cannot prove that had she been informed of the risk of vaginal laceration, she would not have consented to the assisted vaginal delivery of her child. As demonstrated by the testimony of Defendants' expert witness, upon whom Plaintiff intends to rely to support her claim of Lack of Informed Consent, an expectant mother is not routinely given the option of a caesarian section. There must be a medical indication for surgery. In this case a caesarian section was not medically indicated. Therefore, the risk of laceration, and more specifically, rectovaginal tear, was not considered to be a material risk . . . . Accordingly, Plaintiff cannot prove that the risk of laceration was a material risk and that had she been so advised, she would not have consented to the assisted vaginal delivery of her child.
In opposing the motion to dismiss and/or for summary judgment, Miller-McGee submitted an affidavit in which she stated that:
Immediately prior to the delivery of my child at Washington Hospital Center, the birth of my child was discussed and I was specifically advised that because of the size of my unborn child, if there were any complications during the natural delivery process, a caesarian section would be performed. Because a caesarian was a real possibility, I was told that I needed to execute a consent form for that procedure prior to beginning the delivery as it may have needed to be performed without delay. As a result of my discussions, I was led to believe that I would either have a normal delivery or if complications arose, I would have a caesarian birth. At no time did anyone discuss a vaginally assisted birth with me, and at no time did anyone discuss with me the possibility of a recto-vaginal tear that could result from a vaginally assisted birth. No one advised me that as a result of a recto-vaginal tear that I could potentially lose control of my bowels and have uncontrollable bowel movements from my vagina. Had anyone informed me of this possibility, I would have vehemently objected to a vaginally assisted birth especially since I had already agreed to a caesarian if any complications arose during the delivery process.
Miller-McGee also attached to her opposition a copy of her responses to defendants'/appellees' interrogatories, in which she stated that she did "not have any specific discussions with anyone regarding the risks, benefits and alternatives of a vaginal delivery."
On September 30, 2005, the court granted defendants'/appellants' motion. Considering matters outside the pleadings and therefore treating the motion as a motion ...