Abbey v. Jackson

• Decision Date: 30 October 1984
• Docket Number: No. 82-1379.,82-1379.
• Citation: 483 A.2d 330
• Parties: Pamela ABBEY, Appellant, v. Michael A. JACKSON, et al., Appellees.
• Court: D.C. Court of Appeals

Page 330

483 A.2d 330

Pamela ABBEY, Appellant, v. Michael A. JACKSON, et al., Appellees.

No. 82-1379.

District of Columbia Court of Appeals.

Argued June 23, 1983.

Decided October 30, 1984.

Jonathan M. Owens, Washington, D.C., for appellant.

Kenneth W. Curtis, Burke, Va., for appellees.

Before MACK and NEWMAN, Associate Judges, and URBINA,^* Associate Judge, Superior Court of the District of Columbia.

URBINA, Associate Judge:

Appellant Abbey challenges the trial court's summary dispositions of Counts I and II of her amended complaint which alleged medical malpractice in the form of negligent nondisclosure and infliction of emotional distress, respectively. The trial court's granting of summary judgment on Count I resulted from Abbey's failure to declare on her Super.Ct.Civ.R. 26(b)(4) Statement the intended use of expert testimony. On Count I, we reverse, finding that the trial court's summary judgment ruling improperly deprived Abbey of her opportunity to present her case on the merits. We agree with the trial court's dismissal of Count II for failure to state a claim because the count's assertion of negligent infliction of emotional distress was unaccompanied in the record by any cognizable allegation of resultant physical injury.

I

Appellant, Pamela Abbey, underwent an abortion at the Hillcrest Clinic and Counseling Service on June 27, 1981. Shortly thereafter, appellant experienced complications and was treated for an incomplete abortion at D.C. General Hospital.

On September 10, 1981, appellant filed a complaint against Dr. Jackson and Dr. Ward as owners/operators of Hillcrest Clinic, alleging: (1) negligent malpractice on a res ipsa loquitur theory; and (2) infliction of emotional distress. On May 24, 1982, appellant filed a Rule 26(b)(4) Statement stating that she would not use medical expert testimony at her trial. On July 16, 1982, Abbey filed an Amended Complaint alleging that appellees negligently failed to inform appellant of alternatives to and risks inherent in an abortion procedure. On July 21, appellees filed a Rule 26(b)(4) Statement listing Dr. Sewell and Dr. Ames as experts who might be called to testify.

Pretrial of this action was held on August 4, 1982. Appellees' Pretrial Statement listed four doctors as potential witnesses: Dr. Jackson and Dr. Ward, the defendants; Dr. McLeod, the physician who performed appellant's abortion; and Dr. Kirkpatrick, the physician who treated appellant at D.C. General Hospital.

Appellant's Pretrial Statement included, as potential witnesses: (1) the parties; and (2) all witnesses identified by defendants.

On August 9, 1982, the trial court granted appellees leave to file a Motion for Summary Judgment and granted appellant leave to file a Motion to Amend her Pretrial Statement and her 26(b)(4) Statement. On September 1, 1982, the trial court heard Summary Judgment arguments.

C Appellees asserted that they had fully explained to appellant the risks associated with abortions and that appellant had signed a consent form to that effect. In addition, appellees argued that in order to establish a prima facie case of negligent disclosure, appellant was required to establish the existence and nature of risk through expert testimony; and, that because Abbey had failed to amend her 26(b)(4) Statement to list an expert, she was precluded from pursuing her claim.

In opposition to summary judgment, appellant stated in her affidavit that no one at the Clinic discussed the risks of abortions with her; rather: "The lady simply pushed some papers in front of me and told me to sign." Abbey also argued that she would establish the existence of risk, and therefore a prima facie case, by calling as witnesses the four doctors she had adopted by reference as witnesses in her Pretrial Statement.

On September 23, 1982, the trial court granted the Motion for Summary Judgment, stating:

That Plaintiff, having not filed a statement pursuant to Superior Court Civil Rule 26(b)(4), would be unable to establish a prima facie case as to Count I [lack of informed consent] of the Amended Complaint in the premises, pursuant to Crain v. Allison, 443 A.2d 558, 563 (D.C. 1982).

Appellant filed a Motion for Reconsideration on September 20, 1982, arguing that: (1) defendant physicians and physicians listed by defendants as ordinary witnesses and adopted by plaintiff could testify as experts regarding the risks associated with abortions; and (2) because these witnesses did not develop their facts or opinions in anticipation of trial, but were ordinary witnesses, plaintiff was not required to list them as expert witnesses on her 26(b)(4) Statement.

The trial court denied appellant's Motion for Reconsideration on September 20, 1982, and this appeal followed.

II

In Crain v. Allison, 443 A.2d 558, 562 (D.C.1982), principally relying on the landmark opinion of Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972), this court held that physicians have a mandatory duty to disclose all material risks to their patients, i.e., risks which a reasonable person would consider significant in deciding whether to undergo a particular medical treatment. Addressing the role of expert testimony in Crain, we stated:

Although expert testimony is not needed to establish the scope of the breach of the duty to inform one's patients before treating them, . . . expert testimony is necessary to establish the nature and degree of the risks of the proposed and alternate treatments.

* * * * * *

Although there was no expert testimony on the standard of care of a physician in obtaining informed consent from his patients, there was expert testimony on the actual risks involved. Thus, appellees established a prima facie case of medical malpractice.

Id. at 563-64.

The trial court's apparent reliance on the statements quoted above is misplaced. Crain merely requires expert testimony to establish the existence and nature of risk. Appellant in this case clearly apprised the appellees and the trial court of her intention to me4t the Crain requirement by questioning defendant physicians and defense physician witnesses. Thus, the question before the trial court was not whether experts would testify but whether appellant could rely on defendants and defense witnesses for expert testimony; and, if so, whether plaintiff was required to identify them as expert witnesses on a 26(b)(4) Statement after identifying them in her Pretrial Statement.

A. Appellant can establish a prima facie case of lack of informed consent through the expert testimony of defendant physicians and defense witnesses without introducing independent medical testimony

Appellant contends that plaintiff, in a medical malpractice case, can establish a prima facie case of lack of informed consent through the expert testimony of defendant physicians and defense witnesses without calling independent experts. The application of the District of Columbia's adverse witness statute, considerations of public policy and fairness, as well as the fact that such is the law in a substantial majority, if not all, other jurisdictions, indicate the validity of appellant's contentions. See Anderson v. Florence, 288 Minn. 351, 181 N.W.2d 873 (1970) (J. Nogosheske) (for an especially scholarly discussion of this issue). See, e.g., the following negligent treatment cases: LaRocque v. LaMarche, 130 Vt. 311, 292 A.2d 259 (1972); Console v. Nickou, 156 Conn. 268, 240 A.2d 895 (1968); McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469 (1964); State v. Brainin, 224 Md. 156, 167 A.2d 117 (1961); Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604 (1944) (cited in reverse chronological order). See also the following informed consent cases: Canterbury v. Spence, supra, 150 U.S.App.D.C. at 282-83, 464 F.2d at 791-92; Calabrese v. Trenton State College, 413 A.2d 315 (N.J.1980); Sauro v. Shea, 390 A.2d 259 (Pa.1978); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676, 688-89 (1972).

The adverse witness statute of the District of Columbia states that a party or a party's witness in a civil suit may be called as a witness by his adversary and questioned as to matters relevant to the dispute at issue.¹ The statute makes no exception for information acquired by special training or rendering professional services. Moreover, such an exception would be at odds with the remedial nature and purpose of the adverse witness rule, which is intended to ensure that persons who are eyewitnesses to and participants in the event giving rise to an action fully disclose all matters pertinent and relevant to the issues in dispute. See, e.g., Lawless v. Calaway, 24 Cal.2d at 85-86, 147 P.2d at 608-09; State v. Brainin, 224 Md. at 161-62, 167 A.2d at 119-20; McDermott, 15 N.Y.2d at 28, 255 N.Y.S.2d at 72, 203 N.E.2d at 474. See also 2 S. GARD, JONES ON EVIDENCE § 14-18 (6th ed. 1972).

Despite the clear implications of the adverse witness statute, appellees argue that allowing plaintiff to prove a malpractice case solely through defense witnesses is unfair to defendant physicians and will encourage frivolous lawsuits.

Whatever may be the validity generally (or lack thereof) of the argument that a lawyer or his client has unfairly avoided the bother and expense of using his own independent experts, this argument has no merit where the witness is not an expert hired by the adversary but is the adversary himself or defense witnesses actually involved in the events from which the claim arose. See Anderson v. Florence, supra, 181 N.W.2d at 879; Oleksiw v. Weidener, 2 Ohio St.2d 147, 207 N.E.2d 375 (1965). Defendants in a civil suit, unlike a criminal case, have no inherent right to remain silent or to answer only those inquiries which will have no adverse effect on their case. McDermott, 15 N.Y.2d at 28, 255 N.Y.S.2d at 72, 203 N.E.2d at 474. Nor do witnesses with personal knowledge of relevant facts...