Tompkins v. Washington Hospital Center, 80-123.

• Decision Date: 22 July 1981
• Docket Number: No. 80-123.,80-123.
• Citation: 433 A.2d 1093
• Parties: Laura H. TOMPKINS, Appellant, v. WASHINGTON HOSPITAL CENTER, Appellee.
• Court: D.C. Court of Appeals

433 A.2d 1093

Laura H. TOMPKINS, Appellant, v. WASHINGTON HOSPITAL CENTER, Appellee.

No. 80-123.

District of Columbia Court of Appeals.

Argued November 26, 1980.

Decided July 22, 1981.

John T. Coyne, Washington, D. C., with whom Paul D. Krause and William J. Carter, Washington, D. C., were on the briefs, for appellant.

James P. Schaller, Washington, D. C., for appellee.

Before KELLY and NEBEKER, Associate Judges, and GALLAGHER,^* Associate Judge, Retired.

GALLAGHER, Associate Judge, Retired:

This is an appeal from an order granting a motion for summary judgment filed by the defendant below in a negligence action. Appellant contends that there are material factual issues in dispute and that therefore summary judgment was improperly granted. She also contends that the trial court committed reversible error by granting appellee's motion for summary judgment prior to the lapse of ten days from the time the motion was served on appellant.¹

Appellee contends that the ten-day notice requirement of Rule 56(c) is not applicable to renewals of summary judgment motions and was not triggered in the instant case, for the trial judge was acting on a simple renewal of an earlier motion for summary judgment to which appellant already had responded. Even if the ten-day rule were applicable, however, appellee contends that the lack of ten days' notice did not prejudice the appellant. Appellee asserts that the pleadings, depositions, and affidavits before the court indicate that appellant could not establish a prima facie case of negligence;² that no reasonable juror could find for appellant on the merits; and that therefore any error on the part of the trial judge was harmless.

Appellant disagrees with the characterization of appellee's second motion for summary judgment as a simple renewal and maintains that the requirements of Rule 56(c) are applicable. In the alternative, however, appellant argues that if the second motion for summary judgment were a simple renewal, and did not require the application of the ten-day requirement of Rule 56(c), then the entry of summary judgment in favor of appellee, which followed the first judge's denial of the motion, violated the "law of the case" doctrine.

Our review of the record convinces us that the second motion for summary judgment was not a simple renewal of the first motion and that the trial judge did not violate the "law of the case" doctrine by entertaining and granting appellee's second motion for summary judgment. The second motion, therefore, did trigger the ten-day notice requirement of Rule 56(c). We consider that summary judgment is a drastic measure that may be taken only upon strict adherence to proper procedure. The ten-day notice requirement of Rule 56(c) is essential to assure that the summary judgment process is fair, and, in this case, the trial court's failure to comply with the ten-day notice requirement cannot be deemed "harmless error." Accordingly, we reverse the trial court's decision and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Appellant Mrs. Laura Tompkins brought this wrongful death action against appellee Washington Hospital Center³ and alleged that the hospital breached the applicable standard of care by failing to provide pressure monitoring equipment in its radiology room during the performance of a pulmonary angiogram on her husband, Dr. Tompkins. Appellant asserts that this breach of the standard of care was the proximate cause of her husband's death.

Dr. Marder, one of appellant's expert witnesses, and Dr. Oboler, the physician who performed the pulmonary angiogram, gave deposition testimony describing the medical procedure and the complications that developed during the treatment of Dr. Tompkins. To perform a pulmonary angiogram a catheter must be inserted in a vein of the arm. The catheter is then manipulated through the right atrium and ventricle of the patient's heart and into the pulmonary artery where it should remain throughout the procedure. There are several methods to determine or confirm whether the catheter is properly positioned. These methods include: (1) pressure monitoring equipment; (2) giving a test dose of contrast material; (3) visual determination by using a fluoroscope; and (4) using and developing right angle "scout" x-ray films. Contrast medium is then injected through the catheter so that suspected emboli, or blood clots, might be visualized under x-ray.

In this case, Dr. Oboler testified that the patient, Dr. Tompkins, was taken to the catheterization room on the third floor where Dr. Oboler inserted a catheter into the main pulmonary artery. Pressures were monitored during the placing of the catheter and its position was confirmed by injecting a test dose of contrast material.

Following the insertion of the catheter, the patient was placed on a liter and moved to the x-ray room in the basement of the hospital. After developing right angle "scout" x-ray films, Dr. Oboler determined that the catheter had moved. He then repositioned the catheter under visual inspection by using a fluoroscope and injected the contrast material. He did not use pressure monitoring equipment to aid him in repositioning the catheter. Such equipment was not immediately available in the radiology room. He did not confirm the position of the catheter by any other means, although he could have done so by two methods immediately available to him in the radiology department: (1) test dose of contrast material, and (2) right angle "scout" x-ray films. Dr. Oboler testified at his deposition that he had confidence in his ability to reposition the catheter by using a fluoroscope, and apparently he did not find it necessary to confirm the position of the catheter by the other methods. See note 11 infra.

Washington Hospital Center originally moved for summary judgment on June 22, 1979, based on the failure of appellant to supply information concerning experts pursuant to Super.Ct.Civ.R. 26(b)(4). The hospital submitted a memorandum in support of its motion which argued that appellant had made no showing that its experts would testify that the hospital had breached the applicable standard of care. Appellant filed a general written opposition to the motion for summary judgment and attached portions of the depositions of her two experts who indicated that if pressure monitoring equipment were not available to physicians in the radiology department, this probably would constitute a breach of the standard of care. Appellant also attached two affidavits relating to the applicable standard of care. See note 4 infra. There was some question, however, as to whether appellant's experts gave adequate foundations for their opinions.⁴

The trial judge denied the motion for summary judgment on July 23, 1979, without hearing argument on the motion. He found that the affidavits filed by appellant constituted 26(b)(4) statements although they were ten months late, but awarded the hospital one hundred dollars costs and attorney's fees because appellant's delay prompted the hospital to file the motion for summary judgment. The court, however, explicitly reserved its ruling until the time of trial on an important preliminary question — "The adequacy of the foundation for plaintiff's experts' opinions regarding the standard of care required of the Washington Hospital Center."

The trial originally was scheduled for November 19, 1979 before another judge. On that date, the hospital orally "renewed" its previous motion for summary judgment. Appellee based its "renewed motion" on two main grounds. First, the appellee argued that under Morrison v. MacNamara, D.C.App., 407 A.2d 555 (1979), which had just been decided on October 2, 1979, appellant had the burden of establishing the applicable national standard of care. The affidavits that had been submitted by appellant, however, were addressed to a local and not a national standard and therefore the hospital argued that appellant did not meet its burden. Secondly, the appellee argued that appellant could not establish the required element of causation because Dr. Oboler testified at his deposition that he usually does not use pressure monitoring equipment even if it is available. See note 11 infra. Counsel for appellant objected that he had not been given the required ten days to respond to what he viewed as a new, expanded motion for summary judgment. The court took the motion under advisement and the trial date was rescheduled for November 26, 1979.

On November 26, appellee served appellant with a document entitled "Supplemental Memorandum of Points and Authorities in Support of Motion of Defendant, Washington Hospital Center." Appellee also submitted the affidavits of James M. Bacos, M.D. and Juan Obolle, Chief Cardiovascular Technician of Washington Hospital Center. These new affidavits indicated that, as a matter of hospital policy, pressure monitoring equipment and other special monitoring equipment would have been transported and made available to the attending physician in the radiology room upon request.⁵

On that afternoon, counsel for appellee presented oral argument on the second motion for summary judgment. Counsel for appellant again objected and insisted that pursuant to Rule 56(c), appellant was entitled to ten days from the time of service of the supplemental memorandum in support of appellee's motion for summary judgment to respond to the motion. On November 27, 1979, the trial judge granted appellee's motion for summary judgment.

II. THE "LAW OF THE CASE" DOCTRINE

Before focusing on the ten-day requirement of Rule 56(c), we briefly consider the "law of the case" doctrine. We conclude that, in the specific context of this case, the trial judge did not violate this doctrine by entertaining and granting appellee's second motion for summary judgment after appellee's initial motion for summary judgment had been denied by another judge.

The "law of the case" doctrine bars a...