Taylor v. Washington Hospital Center
| Decision Date | 03 October 1979 |
| Docket Number | No. 13511.,13511. |
| Citation | 407 A.2d 585 |
| Parties | Gloria TAYLOR, Appellant, v. WASHINGTON HOSPITAL CENTER, Basil Economopoulos, and Adolfo DePerio, Appellees. |
| Court | D.C. Court of Appeals |
John F. Mahoney, Jr., Washington, D. C., for appellee Washington Hospital Center.
Christopher L. Allen, Wheaton, Md., with whom James A. Welch, Wheaton, Md., was on the brief, for appellees Economopoulos and DePerio.
Before KERN, HARRIS and MACK, Associate Judges.
This appeal is from the trial court's dismissal with prejudice under Super.Ct.Civ.R. 41(b) of Gloria Taylor's claim of medical malpractice in the care and treatment rendered to her during an operation to remove a brain tumor. Specifically, appellant challenges the trial court's adverse rulings on her related day-of-trial motions (1) for leave to amend her pretrial statement and (2) for a continuance. Following the denial of those motions, appellant refused to go forward to trial; the court then granted defense motions to dismiss with prejudice for failure to prosecute. We affirm.
On December 21, 1973, appellant underwent the surgical removal of a brain tumor (which proved to be benign) in an operation performed by staff personnel of the Washington Hospital Center. Apparently as a result of a momentary deficiency of blood (and, hence, of oxygen) flowing to the brain during surgery, Taylor came out of the operation with paralysis of her left side and some mental impairment. Both the motor and mental impairments improved substantially during a three-and-one-half-month post-operative hospital stay; however, she was left with certain intellectual deficiencies and a marked motor deficiency of her left leg which may be permanent.
After obtaining the relevant hospital records, appellant Taylor, then proceeding pro se, filed suit on December 20, 1976, naming as defendants — allegedly jointly and severally liable for negligence — the two neurosurgeons who performed the operation, the attending anesthesiologists, who were appellees Drs. Economopoulos and DePerio, and appellee Washington Hospital Center. Miss Taylor claimed $1,000,000 in damages.
At a status hearing in April 1977, trial was scheduled for April 10, 1978. After consulting with a specialist in neurosurgery and with her present attorney, on July 12, 1977, appellant voluntarily dismissed with prejudice the claims against the two neurosurgeons. On the following day, appellant's counsel filed a praecipe formally entering the case. Later, counsel attempted to schedule depositions of the appellee anesthesiologists during the fall, but those depositions ultimately were not taken until February 27, 1978. While the record reflects that appellant was thwarted from taking those depositions at an earlier date by the anesthesiologists' (and their counsel's) scheduling problems, at no time before the depositions were taken did appellant take steps to expedite discovery (or move for a postponement of trial). On the day of the depositions (with trial only six weeks away), appellant's counsel did address a letter to the trial judge informing him that it would take some weeks to have the depositions transcribed and available for review by appellant's expert anesthesiologist, and that appellant therefore would find it extremely difficult to go ahead with the April 10 trial date. Appellant requested that, in light of the circumstances, a scheduled March 3 conference be devoted to establishing new dates for pretrial and trial.
At the March 3 status hearing, counsel expanded on these and other difficulties which appellant would have in becoming ready for trial in the five weeks remaining. After a lengthy colloquy between the judge and all counsel on the possibility and ramifications of a continuance, it was agreed (1) that the trial date tentatively would remain as calendared, (2) that perhaps trial could be pushed back a few days or a week if need be, and (3) that appellant's counsel would exert his best efforts to speedily obtain the crucial expert opinion and any other necessary discovery. Subsequently, the trial date was postponed two days to April 12 and another pretrial conference was scheduled for April 4.1
In the meantime, plaintiff's counsel had conveyed to their expert a summary of the anesthesiologists' depositions, but the actual transcribed texts did not become available until March 27. The plaintiff's expert did not have these in hand (as yet unreviewed by the deponents) until a few days thereafter. (Counsel did not order expedited copies of the deposition from the court reporter.) Appellant did not move for a continuance at the April 4 pretrial conference. Instead, appellant submitted her pretrial statement putting forth various theories of the defendants' negligence which reflected her expert's recent study of the deposition transcripts and hospital records. The trial court then issued its pretrial order incorporating appellant's statement, appellees' statements (denials), and appellee hospital's cross-claim against the appellee anesthesiologists.
Pursuant to agreement, on April 10 appellant filed with the court and opposing counsel a Statement of Principal Contentions by her expert. However, that statement put forth revised theories of negligence against the anesthesiologists, and named as an additional defendant a Dr. Fatehi, a former resident in neurosurgery at the Washington Hospital Center who had taken over from the operating surgeons to close Miss Taylor's surgical wound.
Two days later, on the morning of trial, upon appellees' objection to such an enlargement of the issues, appellant formally moved for leave to amend her pretrial statement in order to incorporate the latest opinion of her expert. In support of her motion, appellant reminded the court that her original pretrial statement had been based on the expert's perusal of the deposition transcripts as unreviewed for corrections by the deponents, that appellant had not received those corrections until April 7 (three days after the pretrial conference), and that one of the appellee anesthesiologists had made a few crucial changes in his answers — forcing appellant, in last-minute consultation with her expert, to alter her allegations of negligence against the anesthesiologists and to focus as well on the possible negligence of Dr. Fatehi. Specifically, appellant vigorously argued that her pretrial statement's focus on the negligence of the anesthesiologists and of the hospital support personnel in taking too long to respond to appellant's in-surgery cardiac arrest, and to revive her, reflected a virtual admission by Dr. DePerio in his deposition that there had been a ten-minute lapse from the time the patient showed an irregular heartbeat to the time it was restored to normal. On his review of the transcribed deposition, Dr. DePerio had changed two answers so as to eliminate this supposed "admission," thus forcing appellant to reconsider all the evidence and pinpoint other possible instances of negligence (including any on the part of Dr. Fatehi). Appellant urged that in view of the timing problems encountered through no fault of her own, and in view of her prior pleas (in her counsel's letter of February 27, and at the March 3 conference) for the judge to recognize the difficulties of going ahead with trial on schedule, fairness would dictate that the court allow her to modify her pretrial statement and proceed to trial accordingly.
The court denied that motion, concluding that the deposition transcript corrections made by Dr. DePerio, viewed in the context of the whole record, did not really present appellant with new evidence such as to justify allowing a modification of her pretrial statement. The court noted as well that despite appellant's previously expressed reservations about the scheduled trial date, she had engaged in the April 4 pretrial conference without objection and without then requesting a continuance.
Counsel for appellant then framed his request in a different way, asking for a continuance to allow the appellees time to meet the new matters appellant wished to address, with the hope that the court then would view the request to amend more favorably. This request the court also denied. At that point, counsel expressed what he perceived to be the impossibility of going forward as limited by the original pretrial statement, and refused to do so. Appellees then joined in a motion to dismiss for failure to prosecute. After a lengthy colloquy during which appellant requested that the action be stayed rather than dismissed with prejudice, the motion to dismiss was granted. Appellant then noted this appeal2
Although appellant focuses on the trial court's adverse rulings on her procedural motions, we deem it desirable to call attention first to the circumstances of the dismissal with prejudice which followed. Appellant refused to go forward to trial after the court denied her motions to amend her pretrial statement and for a further continuance, appellees then joined in a motion to dismiss for failure to prosecute under Super.Ct.Civ.R. 41(b), and that motion was granted after a discussion of other alternatives.3
Initially, we emphasize that dismissal under Rule 41(b) generally rests within the broad discretion of the trial judge, to be disturbed only in case of obvious abuse. See Beckwith v. Beckwith, D.C. App., 379 A.2d 955, 958-59 (1977); Akinyode v. Hawkins, D.C.App., 292 A.2d 795, 796-97 (1972); accord, D.C. Transit System, Inc. v. Young, D.C.App., 293 A.2d 488, 489-90 (1972). See also 5 Moore's Federal Practice ¶ 41.11[2] at 41-117 (1978 ed.) and cases cited therein.4
Of course, dismissal under this rule is a harsh sanction — "a final and definitive doom" precluding a preferred disposition on...
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