Colbert v. Georgetown University, 91-CV-100.

• Decision Date: 05 May 1994
• Docket Number: No. 91-CV-100.,91-CV-100.
• Parties: Edward COLBERT, Individually and as Personal Representative of the Estate of Susan Colbert, Appellant, v. GEORGETOWN UNIVERSITY, d/b/a Georgetown University Hospital, and Thomas C. Lee, M.D., Appellees.
• Court: D.C. Court of Appeals

641 A.2d 469

Edward COLBERT, Individually and as Personal Representative of the Estate of Susan Colbert, Appellant, v. GEORGETOWN UNIVERSITY, d/b/a Georgetown University Hospital, and Thomas C. Lee, M.D., Appellees.

No. 91-CV-100.

District of Columbia Court of Appeals.

Argued En Banc February 14, 1994.

Decided May 5, 1994.

Barry J. Nace, Washington, DC, for appellant.

Carolyn H. Williams, with whom David C. Kiernan and Julie Gross Adelson, Washington, DC, were on the brief, for appellees.

Before FERREN, Acting Chief Judge^*, and TERRY, STEADMAN, SCHWELB, FARRELL, WAGNER and KING, Associate Judges.

SCHWELB, Associate Judge:

In this medical malpractice case, the trial judge granted summary judgment in favor of the defendants, Georgetown University Hospital and Thomas C. Lee, M.D., holding, inter alia, that the action was barred by the District's three-year statute of limitations. A divided panel of this court reversed the judgment. Colbert v. Georgetown University, 623 A.2d 1244 (D.C.1993) (Colbert I). We granted the defendants' petition for rehearing en banc, and now affirm the decision of the trial court.

I. THE FACTS¹

In July 1982 Susan Colbert felt a lump in her left breast. She went to see her gynecologist, who referred her to an oncologist, Dr. Stanley Kirson. Although a mammogram revealed no evidence of malignancy, a biopsy on August 9 established that the lump was cancerous. Dr. Kirson urged Mrs. Colbert to have the breast removed by a modified radical mastectomy.

On August 13, Mrs. Colbert and her husband, Edward Colbert, met with Dr. Thomas Lee, one of the surgeons recommended by Dr. Kirson and a full-time employee of Georgetown Hospital. Dr. Lee suggested a lumpectomy as an alternative treatment option. He told the Colberts that a lumpectomy was cosmetically more attractive than a mastectomy, and that studies in Europe had shown that, when coupled with radiation treatments afterwards, it was as effective as a mastectomy at removing cancerous cells from the body. The Colberts agreed to the proposed lumpectomy and scheduled the procedure with Dr. Lee.

On August 19, Dr. Lee performed a lumpectomy on Mrs. Colbert's left breast. At the same time, he removed several of her left axillary lymph nodes. When one of the nodes tested positive for cancerous cells, he set up a program of systemic chemotherapy. Mrs. Colbert began receiving chemotherapy treatments under the direction of Dr. Richard Goldberg on September 7.

A couple of weeks later, Mrs. Colbert felt more lumps in her left breast. She tried at that time to obtain another appointment with Dr. Lee, but she was unsuccessful, so she brought the lumps to Dr. Goldberg's attention. On September 28, Dr. Goldberg asked Dr. Patrick Byrne to examine the lumps in Mrs. Colbert's breast. Dr. Byrne arranged for two biopsies to be performed on October 4 and 5.

When these biopsies disclosed the continued presence of cancer in Mrs. Colbert's left breast, Dr. Lee told her that she needed a mastectomy. Mrs. Colbert then asked Dr. Lee if the delay in performing the mastectomy had caused any increased risk. According to her answer to an interrogatory, Dr. Lee replied that "the delay caused enhanced risk of a very high nature." Dr. Lee performed the mastectomy on Mrs. Colbert's left breast on October 21.

Shortly after the mastectomy, Dr. Lee met with Mr. Colbert. At that meeting, according to Mr. Colbert's deposition, Dr. Lee "said that it took him a long time to do the operation because in his entire career he had never seen so much tumor mass." Dr. Lee also said that Mrs. Colbert's chances of survival had decreased from ninety percent to ten percent, and he admitted to Mr. Colbert that he had done "the wrong operation" in August, i.e., when he performed the lumpectomy instead of the mastectomy recommended by Dr. Kirson. Mr. Colbert also stated in his deposition that Dr. Lee said he had "forgotten" that a lumpectomy was not the proper procedure for a patient with multicentric disease, such as Mrs. Colbert.

On the following day, Mr. Colbert met with Dr. Philip Schein, the chief of the medical oncology division at Georgetown University Hospital, along with other hospital personnel. Dr. Schein told Mr. Colbert that Mrs. Colbert would need an "aggressive" treatment program, combining radiation with chemotherapy. This was "not the usual" treatment after a mastectomy, he said, but because of the extensive growth of the tumor, it was called for in Mrs. Colbert's case. The treatment began very soon thereafter.

Mr. Colbert testified at his deposition that on October 25, 1982, he was in his wife's hospital room when Dr. Goldberg came in. The doctor told them both that he had examined Mrs. Colbert's liver scan and found that the cancer had spread to her liver.² He said that Mrs. Colbert should "go home and get her affairs in order because she was going to die," apparently in the immediate future. After more sophisticated tests were run, however, other doctors determined that Dr. Goldberg's reading of the liver scan was in error. There was no liver metastasis, and Dr. Goldberg's conclusion that Mrs. Colbert was "going to die" immediately was also wrong. Dr. Goldberg was then taken off the case.

Mrs. Colbert claimed to have suffered numerous hardships as a result of the chemotherapy and radiation treatment, including third-degree burns, loss of body function, premature menopause,³ loss of hair, nausea, dizziness, weakness, a cracked bladder and resultant bleeding, blistering, and scars. In addition to these physical problems, Mrs. Colbert became extremely depressed and began seeing a psychiatrist for counseling and treatment.

On March 7, 1983, Mrs. Colbert had a prophylactic mastectomy performed on her right breast. This operation was recommended by the doctors at Georgetown, because they were virtually certain that the cancer would spread to the right breast as a result of what they had found in the left breast. The Colberts, however, no longer wanted Dr. Lee or anybody else at Georgetown to operate on Mrs. Colbert, and the operation was performed at Sibley Memorial Hospital. In his deposition Mr. Colbert testified that, "based on what the physicians at Georgetown told me," he believed the prophylactic mastectomy of the right breast would not have been necessary if a mastectomy of the left breast had been performed in August 1982 instead of the lumpectomy.⁴

After the first mastectomy, Dr. Lee and others told the Colberts that they were not sure whether the cancer would recur. Dr. Lee specifically told Mr. Colbert that his wife "may never have a recurrence." Nevertheless, the Colberts received another scare in late 1984 or early 1985, when they were told that the cancer had metastasized to her spine. This proved once again to be a false alarm, for further tests revealed no evidence that the cancer had spread.

In late August 1986, Mrs. Colbert began to experience some pain in her lower back. On August 30, she went to see her regular internist, who sent her to Sibley Hospital to have x-rays taken of her back. When the x-rays revealed some evidence of abnormality, the internist told the Colberts that there was a possibility that the cancer had spread. He recommended that Mrs. Colbert see an oncologist for further testing. Additional tests revealed that Mrs. Colbert's cancer had indeed metastasized to her spine and hip. Beginning in September, 1986, Mrs. Colbert received treatment for the cancer in her spine, hip and elsewhere.

Mr. and Mrs. Colbert filed this action on August 31, 1989.⁵ After the close of discovery, Dr. Lee and Georgetown University filed two separate motions for summary judgment. In one of the motions, the defendants asserted that the Colberts' claim was barred because it was filed after the expiration of the three-year statute of limitations. In the other motion, they contended that the various malpractice allegations must fail because they were not supported by any testimony or affidavit from a medical expert. The trial judge granted the second motion as to all claims except that involving the defendant's alleged failure to warn the Colberts of the risks involved in the lumpectomy procedure initially performed on Mrs. Colbert.⁶ That exception was moot, however, because the judge also granted the first motion based on the statute of limitations. From the judgment entered for Georgetown and Dr. Lee, the Colberts noted this appeal.

Susan Colbert died on January 4, 1992. Her husband was substituted for her as an appellant in his capacity as the personal representative of her estate. He is also, of course, an appellant in his own right.

II. LEGAL DISCUSSION

In order to be entitled to summary judgment, Georgetown and Dr. Lee must demonstrate that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Super.Ct.Civ.R. 56(c); Clyburn v. 1411 K Street Limited Partnership, 628 A.2d 1015, 1017 (D.C.1993). The record is viewed in the light most favorable to the party opposing the motion. Graff v. Malawer, 592 A.2d 1038, 1040 (D.C.1991). On appeal, we must assess the record independently, but the substantive standard applied is the same as that utilized by the trial court. Northbrook Ins. Co. v. United Servs. Auto Ass'n, 626 A.2d 915, 917 (D.C.1993).

In the District of Columbia, an action for medical malpractice must be brought within three years "from the time the right to maintain the action accrues." D.C.Code § 12-301(8) (1989). If, as a matter of law, the Colberts' right of action accrued in 1982 (when Dr. Lee allegedly advised the Colberts that he had performed the wrong operation and that Mrs. Colbert's chances of survival had decreased from ninety percent to ten percent) or even in 1983 (when Mrs. Colbert's right breast was removed, allegedly as a result of Dr. Lee's admitted negligence), then the complaint was necessarily time-barred. If, on the other hand, a genuine issue of material fact arises as...