Appeal from the Superior Court of the District of Columbia (CA4184-01) (Hon. James E. Boasberg, Motions Judge) (Hon. Patricia A. Broderick, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, REID, Associate Judge, and PRYOR, Senior Judge.
In this medical malpractice case appellant, Helen Warren, challenges the motions court's order granting summary judgment in favor of appellees Dr. Steven K. Kaufman, and Kaufman & Zinsmeister ("K&Z"), and granting summary judgment to all defendants on her claim for damages for pain and suffering. She also argues that the trial court committed reversible error during the trial involving appellees Medlantic Healthcare Group, Inc. ("Medlantic") and Associated Anesthesiologists Service, P.C. ("Associated Anesthesiologists") by curtailing her cross-examination of defendants' medical expert. We reverse the order of the motions judge granting summary judgment to Dr. Kaufman & K&Z and remand the case for trial with respect to those defendants. However, we affirm the judgment of the trial court with respect to the jury verdict in favor of Medlantic and Associated Anesthesiologists.
The record before us shows that in March of 2000, Ms. Warren's husband, decedent Kenneth M. Warren, underwent a CT scan of his chest which revealed a small nodule or lesion in the lower lobe of his left lung. Mr. Warren's primary care physician recommended surgery to remove the nodule, and also referred Mr. Warren to the office of K&Z, a cardiology practice group (then Oboler, Kaufman, Zinsmeister, M.D., P.A.), where he was examined by Dr. Kaufman. Dr. Kaufman was aware of Mr. Warren's planned pulmonary surgery, noting in his records that cardiac studies would be performed promptly "so that lung surgery could be scheduled." A dual isotope study performed by Dr. Oboler revealed Mr. Warren had "severe coronary artery disease in more than one artery," including "severe disease of the left anterior descending" branch of the coronary artery system. On May 26, 2000, Dr. Kaufman performed cardiac surgery on Mr. Warren at the Washington Hospital Center (owned by Medlantic), stretching an artery and placing two stents there to prevent it from collapsing. Dr. Kaufman noted in Mr. Warren's medical record, "[i]t is felt that [decedent] can undergo pulmonary surgery with low to moderate risk." On May 27, 2000, Dr. Bruce Zinsmeister of K&Z examined Mr. Warren instead of Dr. Kaufman, and discharged him from the hospital on May 27, 2000, with instructions to follow up in seven to ten days.
On May 31, 2000, Mr. Warren had lung surgery to remove the nodule. Immediately following the surgery he was admitted to the Post-Anesthesia Care Unit ("PACU") of Medlantic, and he was moved out of that unit into a regular ward on the morning of June 1, 2000. On that day, Dr. Bruce Zinsmeister of K&Z performed a post-operative examination of Mr. Warren and ordered a "12-lead" electrocardiogram ("EKG"). Mr. Warren's condition deteriorated during the evening of June 1. He was taken to the intensive care unit and died around 1:30 a.m. on June 2, 2000. The autopsy report listed the cause of death as "a myocardial infarction following stent placement and left lower lobe lung resection."
The Summary Judgment Issue
Ms. Warren contends that the motions court improperly granted summary judgment in favor of Dr. Kaufman and K&Z. She asserts that Dr. Kaufman violated the national standard of care in allowing her husband to undergo lung surgery so soon after having heart surgery; that Dr. Zinsmeister, who "was rendering care on behalf of [K&Z]," together with Dr. Kaufman, was negligent in assessing Mr. Warren's condition on June 1, 2000, and in failing to follow up on the results of the 12-lead EKG; and that K&Z is liable under the doctrine of respondeat superior. Dr. Kaufman and K&Z in essence argue that summary judgment was proper because Ms. Warren did not establish a prima facie case of negligence or medical malpractice, and that the unstated claim against Dr. Zinsmeister was barred by the statute of limitations and unsupported by evidence.
"A motion for summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Williams v. District of Columbia, 902 A.2d 91 (D.C. 2006); see also Super. Ct. Civ. R. 56 (c) (stating, in part, that summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."). We review the trial court's decision to grant summary judgment de novo. Allman v. Snyder, 888 A.2d 1161 (D.C. 2005). "In order to avoid summary judgment there must be some significant probative evidence tending to support the complaint so that a reasonable fact-finder could return a verdict for the non-moving party." Lowrey v. Glassman, 908 A.2d 30 (D.C. 2006). "A motion for summary judgment should be granted only if (1) taking all reasonable inferences in the light most favorable to the nonmoving party, (2) a reasonable juror, acting reasonably, could not find for the nonmoving party, (3) under the appropriate burden of proof." Fred Ezra Co. v. Psychiatric Inst. of Washington, D.C., 687 A.2d 587, 591 (D.C. 1996) (quoting Sherman v. District of Columbia, 653 A.2d 866, 869 (D.C. 1995)) (internal quotation marks omitted). "To defeat a motion for summary judgment in a medical malpractice action, the non-movant must establish a prima facie case of medical malpractice, consisting of 1) establishing the applicable standard of care, 2) showing that the appropriate standard has been violated, and 3) proving a causal relationship between the violation and the alleged harm." Ferrell v. Rosenbaum, 691 A.2d 641, 646 (D.C. 1997) (citations omitted). "If the case turns on controverted facts and the credibility of the witnesses, the case is properly for the jury," [not summary judgment.] In re Estate of Walker, 890 A.2d 216 (D.C. 2006), and those matters dealing with negligence "frequently are not susceptible of summary adjudication but should be resolved by trial in the ordinary manner . . . ." Childs v. Purll, 882 A.2d 227 (D.C. 2005). Thus, "[t]he role of the court [on a summary judgment motion] is not to try an issue as a fact finder, but rather to decide whether there are genuine issues of material fact to be decided by the jury." LaPrade v. Rosinsky, 882 A.2d 192 (D.C. 2005).
The record shows that the following evidence and pleadings were available to the motions judge, the Honorable James E. Boasberg, prior to his October 6, 2004 order granting summary judgment to Dr. Kaufman and K&Z. On June 1, 2001, Ms. Warren filed a complaint in which she alleged, in part, that Dr. Kaufman had cleared Mr. Warren for "low to moderate risk" lung surgery; that he and others "were aware that Mr. Warren was scheduled to undergo lung surgery the next week;" that lung surgery took place on May 31, 2000; that there were "warning signs of a post-operative myocardial infarction"; that "Mr. Warren was assessed by a cardiologist (identity unknown)"; that the unknown cardiologist "ordered a 12-lead EKG"; and that "[t]he results of the 12-lead EKG performed on June 1, 2000 were not contained in the medical records obtained from the Washington Hospital Center." In Count III of her complaint, Ms. Warren alleged, in part, that Dr. Kaufman was negligent in providing "careful and competent medical care" to Mr. Warren. Count IV of the complaint asserted that Dr. Kaufman, "both individually and on behalf of a Professional Corporation  known as [K&Z] owed a duty to . . . [Mr. Warren], to provide reasonable medical care and was negligent in doing, or failing to do so." Ms. Warren also asserted allegations of negligence against Medlantic and Associated Anesthesiologists.
The significant developments in this case began when Mr. Warren's primary care physician, Dr. Arthur M. West, referred him to Dr. David C. Gross of Capital Pulmonary Internists, P.C. In a letter to Dr. West, dated April 10, 2000, Dr. Gross reported the results of a chest x-ray and a CAT scan revealing a nodule in Mr. Warren's lower left lung. Dr. Gross instructed Mr. Warren "to see Dr.  Kaufman for cardiac clearance," as well as Dr. Chris Eger, a thoracic surgeon. After his cardiac consultation with Mr. Warren on April 25, 2000, Dr. Kaufman recorded his "impression," stating: "The patient has a pulmonary nodule which will require chest surgery. In view of his risk factors, dual isotope imaging will be performed in consideration of possible associated coronary artery disease. This will be done at earliest convenience so that surgery can be scheduled." Dr. Oboler, then of Oboler, Kaufman, Zinsmeister, MD, reported the results of the dual isotope imaging study on May 12, 2000; his "overall impression" was that Mr. Warren had "severe ischemic heart disease, either triple vessel or left main." Around the same time, Dr. Kaufman noted that Mr. Warren displayed "[s]evere disease of the left anterior descending [coronary artery]," and stated: "In view of the findings, and to minimize [Mr. Warren's] risk for thoracic surgery, it is felt that coronary intervention is indicated." After Mr. Warren's cardiac ...