*1 III, I con- part in which reservations about only as COLBERT, Individually
cur to result. Edward and as Representative Personal of the Estate go lengthy no to into such a I see need Colbert, Appellant, of Susan motive discussion of the nuances exception under For me it would Drew.1 simply appellant’s to say be sufficient UNIVERSITY, GEORGETOWN D/B/A engaged videotaped statement that had University Hospital, and drugs-for-sex other women liaisons with Lee, M.D., Appellees. Thomas C. value, probative either absolutely
had No. 91-CV-100. theory, on any under Drew or other of Appeals. District of Columbia Court its admission was not harmless be- inflammatory. is utter cause it was so It Argued Jan. 1992. does, speculation say, government as the to 4,May Decided 1993. appel- “explains” this statement what meant when he said to Boddie that he lant she didn’t
had stabbed a woman “because to supposed
do what she was do.” Once testimony judge Boddie’s trial excluded (a thought appellant meant
about what he correct),
ruling plainly which was to
drugs-for-sex statement had be excluded
also there was no demonstrable because it “supposed
connection between and the obviously
do” remark. does not estab- manner appellant’s
lish motive the same challenged
as v. Unit- evidence Hill States, (D.C.1991).2 Al-
ed
though the is correct in
ing is not that a situation like that Hill -type one in evidence which Drew motive,
is establish I do not admissible to acceptable
see rationale here
admitting drugs-for-sex statement.
That, think, say. I all that we need to States, prove defendant had motive U.S.App.D.C. sible that the Drew v. United (1964). September. admissi- "[T]he 331 F.2d the victim in kill bility as here such that at issue of evidence charged with the In Hill defendant was i.e., identity parties, depends on on girl friend on murder of his former a motive to the defendant had the fact that argument he had had a violent 4. Evidence that victim, al- particular whom he harm this May admitted under the with her relationship.” 600 ready an established exception recognized We held in Drew. motive omitted). (citations A.2d at 62 argument May, and of that evidence of it, relationship hostile that led was admis-
I July lump 1982 Susan Colbert felt a gyne- her left She breast. went see her cologist, oncologist, her to an who referred *3 Although Stanley Dr. Kirson. a mammo- gram malignancy, of revealed evidence Nace, DC, Washington, ap- for Barry J. biopsy August a on 9 established that the pellant. lump urged Dr. was cancerous. Kirson by Mrs. to have the breast removed Colbert Williams, Carolyn H. with David whom mastectomy. a modified radical Because Adelson, C. Kiernan and Julie Gross Wash- town, go he was to out of Dr. Kirson about DC, ington, brief, appel- were on the gave surgeons her of two at the names lees. Hospital University who could perform operation. the ROGERS, Judge, Before and Chief SCHWELB, Judges. TERRY and Associate August On Colbert her hus- Mrs. and Lee, Dr. Thomas one of the
band met with TERRY, Dr. Judge: surgeons by Kirson and Associate recommended employee Georgetown Hospi- a full-time of malpractice presents This medical case meeting suggested At Dr. Lee tal. impression an issue of first the District op- lumpectomy as an alternative treatment of Columbia: whether metastatic cancer lumpecto- tion. told the He “injury,” can be discovery an the of which cosmetically my was more attractive than a by running the commences of Europe mastectomy, and that studies in three-year appli- statute of limitations that, coupled when radia- shown cable The actions. trial afterwards, tion it as effec- treatments nega- question court answered this in the removing cancer- mastectomy tive as a at tive, reasoning that Colbert’s discov- Susan body. ous cells from the The Colberts ery injury long of her her occurred before lumpectomy and agreed to the scheduled ultimate of metastatic cancer. procedure Lee. with Dr. The consequently court ruled that Mrs. Col- performed Dr. a lum- bert’s claim and that of her On Lee husband breast, left pectomy barred on Mrs. statute limitations and Colbert’s granted several of her the defendants’ motion for sum- at same time removed mary judgment. axillary lymph hold the Col- left nodes. When one We cells, he positive did reason- nodes for cancerous berts’ assertion that tested up ably program systemic Mrs. “in- set chemothera- believe Colbert had been receiving py. began chemo- jured” finally until she learned that her Mrs. Colbert therapy cancer had treatments under direction metastasized raises fact, summary Goldberg on precluding issue of material Dr. Richard judgment. later, felt A couple of weeks court in her tried granted lumps trial defendants’ more left breast. She get appointment with summary judgment motion for on the addi- that time to another Lee, unsuccessful, so she ground plaintiffs tional had not Dr. she was prima Goldberg’s malprac- brought lumps case Dr. atten- established a facie nothing in Goldberg Dr. did tice. We are satisfied that the defendants’ tion. At first concerns, admissions, her last pleadings, response her but at as set forth Sep- depositions, chemotherapy session interrogatories, answers to scheduled Patrick plaintiffs, Goldberg asked Dr. presented by the es- Dr. affidavits tember prima lumps in Mrs. Col- malpractice. Byrne examine the tablish a facie ease arranged for two grant Byrne Dr. We therefore reverse the trial court’s bert’s breast. 4 and biopsies performed on October summary judgment grounds on both to be case trial. remand the biopsies
When these disclosed the contin- He said liver.1 that Mrs. Colbert should presence “go get ued of cancer in Mrs. Colbert’s home and affairs order [her] breast, left Dr. Lee going told her that she need- because to die.” After [she was] mastectomy. run, ed a sophisticated Mrs. Colbert then asked more tests were howev- er, Dr. if the delay performing Lee other doctors determined that Dr. mastectomy had caused risk. Goldberg’s reading increased scan liver According interrogato- metastasis, to her to an answer error. There was no liver ry, replied Dr. Lee delay Goldberg’s that “the caused Dr. conclusion that Mrs. Colbert very high enhanced risk of a “going wrong. nature.” Dr. was to die” was performed Goldberg Lee on Mrs. was then taken off her case. Colbert’s left breast on October 21. Mrs. Colbert suffered numerous hard-
Shortly after the mastectomy, ships Dr. Lee chemotherapy as a result of the meeting, treatment, met with Mr. At including Colbert. radiation third-degree according deposition, burns, function, to Mr. Colbert’s body Dr. loss of premature long Lee “said that it took him menopause,2 hair, nausea, dizziness, time to do loss of operation weakness, because in his entire career a cracked bladder and resultant he had seen so much bleeding, blistering, never tumor mass.” and scars. In addition Dr. Lee also said that Mrs. physical problems, Colbert’s to these Mrs. Colbert chances of survival had decreased from extremely depressed became began ninety percent percent, to ten seeing psychiatrist and he admit- counseling for ted to Mr. Colbert that he had done “the treatment. wrong operation” August, i.e., when he 7, 1983, On March Mrs. Colbert had a performed lumpectomy instead of the prophylactic mastectomy performed on her recommended Dr. Kirson. right operation breast. This was recom- Mr. Colbert also deposition stated in his by the Georgetown, mended doctors at be- forgotten” Dr. Lee said he “had that a they virtually cause were certain that the lumpectomy proper procedure was not the spread right cancer would to the breast as patient for a disease, with multicentric they a result of what had found the left such as Mrs. Colbert. performed, however, by breast. It was Dr. day
The next
Mr. Colbert met with Dr.
Sibley
Peter Petrucci at
Hospital
Memorial
Philip Schein, the chief of the medical on-
longer
because the
no
wanted Dr.
cology
Georgetown
division
University
anybody
Lee or
op-
else at
Hospital, along
hospital person-
with other
erate on
deposition
Mrs. Colbert.
In his
nel. Dr.
that,
Schein told Mr. Colbert that Mrs. Mr. Colbert testified
“based on what
“aggressive”
Colbert would need an
physicians
me,”
treat-
Georgetown] told
[at
program,
ment
combining radiation with he
prophylactic mastectomy
believed the
chemotherapy. This was “not the
right
usual”
breast would not have been neces-
mastectomy,
said,
treatment after a
sary
he
but
if mastectomy
of the left breast
growth
because
extensive
performed August
the been
1982 instead of
tumor, it was called for in Mrs.
lumpectomy.
Colbert’s
began very
case.
treatments
soon
mastectomy,
After the first
Dr. Lee and
thereafter.
others told the Colberts that
were not
Mr.
testified in
deposition
Colbert
his
sure whether the cancer would recur. Dr.
that on October
he was in his
specifically
Lee
told Mr. Colbert that his
hospital
Goldberg
wife’s
room
“may
when Dr.
wife
never have a recurrence.” Ne-
vertheless,
came in. The doctor told them both that he
the Colberts received another
had examined Mrs. Colbert’s liver scan and scare in
early
late 1984 or
when
spread
found that the cancer had
to her were told that the cancer had metastasized
Lee,
disagreed
point
thirty-five years
1. On this
with Dr.
who
2. Mrs. Colbert was
old at the
showing
had read the liver scan as
“no metasta-
time.
said,
Goldberg
sis." Dr.
position,
“I know that’s Dr. Lee’s
disagree
I
with him.”
January
Colbert
proved
again
This
once
to be
Susan
died
spine.
to her
Her
an
husband
substituted
her as
after further tests revealed
a false alarm
appellant
capacity
personal
in his
as the
spread.3
cancer had
no evidence
also,
her
representative of
estate. He is
August
began
1986 Mrs. Colbert
late
course,
appellant
right.
in his own
an
experience
in her
back.
pain
some
lower
regular
she
to see her
On
went
II
internist,
Sibley
Hospital
sent
who
her
Summary judgment may
granted
be
x-rays taken
her back.
have
When
if
are
by the
court
there
trial
x-rays
some
of abnormal-
revealed
evidence
jury
for the
to de
issues of material fact
ity, the internist
told the Colberts that
56(c).
re
Super.Ct.Civ.R.
cide.
“When
cancer
possibility
there
of metastatic
viewing
granting
trial court order
sum
see an
and recommended that
inde
mary judgment, this court makes an
testing.
Additional
oncologist
further
pendent review the record.” Holland
Smith,
performed by
tests
Fred
(D.C.1983)(ci
Hannan,
A.2d
her
cancer had indeed
who
that her
advised
so,
omitted).
doing
must
tations
we
hip. This
spine
to her
metastasized
light
most favorable
view
record
September 2 or
From
occurred on
re
opposing the motion and
party
to the
*5
Colbert received
that
time onward Mrs.
against
moving party any doubts
solve
the
hip,
spine,
for the
in her
treatment
cancer
dispute.
about the existence of a factual
and elsewhere.
Acceptance
Brown v.
Motors
General
filed
medical
Mr. and Mrs. Colbert
this
(D.C.1985)(cit
1125,
Corp.,
A.2d
1126
490
1989.4
malpractice action on
ing cases).
discovery,
Lee
After
close of
Dr.
the
that, for
of
The
statute
trial court ruled
(the defendants)
Georgetown University
genuine
was
purposes,
limitations
there
summary
separate
filed
motions
two
for
date on
issue of material fact as
asserted
judgment. One of
motions
of
ac-
plaintiffs’ cause
action
which the
claim was barred be-
that
the Colberts’
summary
crued. The court also ruled
expiration of
cause it was filed after the
judgment
appropriate because
limitations,
three-year
of
statute
presented
proffered
or
plaintiffs had not
12-301(8) (1989). The other
D.C.Code §
testimony,
in the court’s
any expert
which
malprac-
motion asserted that the various
a
necessary for them establish
view was
they
allegations must fail because
tice
prima
malpractice.
case of medical
facie
expert testimony.
supported by
not
were
in
rulings
hold
of these
were
We
that both
granted the second motion
The trial court
error.
involving
except
as to
claims
all
Limitations
Statute of
A.
alleged failure to warn the Col-
defendants’
lumpecto-
risks
in the
berts of the
involved
Columbia,
ac
an
of
In the District
procedure initially performed on
my
Mrs.
must be
tion for medical
moot,
exception
That
howev-
Colbert.5
“from the time
brought
years
three
within
er,
granted
also
the first
because
court
right
the action accrues.”
to maintain
deciding
(1989).
of limitations.
12-301(8)
motion
the statute
based
D.C.Code §
mal
George-
judgment
From
entered for
for medical
of action
when
cause
Lee,
of the statute
practice
purposes
Dr.
the Colberts noted this
town and
accrues
limitations,
has
applied
this
of
court
appeal.
damages
sought
for loss
physicians;
not
Mr. Colbert
incident did
involve
Lee
3. This second
physician.
Georgetown
is rele-
any
or
of consortium.
case, however,
vant
this
because it reinforced
unreliability
prelim-
the
inary findings
belief in the
of
Colberts’
(D.C.
Jackson,
A.2d
Abbey
See
growth.
of
cell
abnormal
required
1984)
estab
testimony
not
(expert
in
on the issue of
prima
case
lish
facie
alleged
damages
sought
Colbert
for the
consent).
formed
Georgetown
malpractice of Dr. Lee and other
Bussineau,
“discovery
Bell,
citing
supra,
rule.” Burns v.
409 A.2d
The
state of mind is the
presented
confronted with the issue
here
paramount factor in this court’s definition
patient’s
of
have held that a
awareness
injury
purposes
of the relevant
for
that,
trigger
pur
for
discovery rule.
metastasis is the relevant
We have held
under
poses
A Flori
discovery
key
of the statute of limitations.
issue is
“[t]he
[the
court,
instance,
plaintiff’s] knowledge
appellate
da
for
reversed
injury,
of some
its
cause,
summary judgment
wrongdoing.” Knight
grant
and related
trial court’s
of
Furlow,
1232,
(D.C.1989),
grounds
v.
553 A.2d
1236
of limitations
and held
statute
"Summary judgment
discovery
inappropriate
rule. "The issue
is often
accrued under the
where state of mind is crucial
plaintiff]
to the ultimate
us is not whether
knew
[the
before
Attorney
People,
1987;
factual issue.”
General v. Irish
July
had cancer in
she admits
that she
Inc.,
229, 233,
520,
U.S.App.D.C.
F.2d
254
796
having
knowledge.
larger
The
issue
this
(1986) (citations omitted);
Co-
524
see Poller v.
reasonably should have known that
whether she
Inc.,
464,
Broadcasting System,
lumbia
368 U.S.
so,
metastasize. If
her ac-
the condition would
486, 491,
473,
(1962).
82 S.Ct.
1250
she did more extensive treatment.” DeBoer v.
plaintiffs assertion that
that the
168, 170,
912,
Brown,
138 Ariz.
673 P.2d
injured
not believe she had been
(citations omitted).
(1983)
reversing
diagnose
cancer
914
her
defendants’ failure
grant
summary judgment
court’s
presented
a trial
discovery of metastasis
until the
case,
the Illinois
in a medical
genuine issue of material fact:
injury
the relevant
Appellate Court defined
the radical
At the time
purposes
discovery
rule as the
of action
performed, she had
cause
original
cancer: “The evi-
metastasis of
there
against appellee doctor because
primarily through
dence adduced
affidavits
alleged negli-
that his
was no evidence
disputed
depositions indicates a
materi-
harm to her.
gence had resulted
or,
plaintiff
al fact as to when
knew
1975,
February
when the
It was
diligence, should
through use of reasonable
parts
of her
appeared
cancer
injury,
of her
the metastasis of
have known
body,
she
her cause
discovered
lymph
malignant
nodes
schwannoma to
action.
groin."
Ill.
Kaplan
Berger,
her
v.
184
1038,
Mullee,
So.2d
1040
v.
385
Johnson
224, 231,
461, 466,
Ill.Dec.
539
App.3d
132
denied,
(Fla.Dist.Ct.App.1980),
392
review
(1989)
added);
1267,
(emphasis
1272
N.E.2d
(Fla.1981).
Appel-
The Illinois
So.2d 1377
Zirkle,
Ga.App.
v.
188
see also Whitaker
the rea-
similarly
has
held that
late Court
106,
(1988) (“The
108
S.E.2d
plaintiffs
vel non of the
belief
sonableness
subsequent me-
injury complained of is the
injured until she
she had not
cells”).
In each of
tastasis of cancerous
her cancer
the metastasis of
discovered
cases,
had discovered
these
fact.
issue of material
Mar
presence
negli-
of cancer and the
both
381,
O’Connor,
Ill.App.3d
ciniak v.
long
her
before she discov-
gence of
doctor
507,
536,
504,
Ill.Dec.
430 N.E.2d
cancer had metastasized.
ered that
Rubenstein,
(1981);
see also Catz
plaintiff’s assertion that
it was the
(1986);
513 A.2d
201 Conn.
metastasis,
rather than the
Brabson, supra note 7. But
Jennings v.
cancer,
original diagnosis
triggered
N.J.Super.
Lathrop, 168
see Silverman v.
limitations was viewed to be
the statute of
(1979)
(plaintiffs
A.2d 18
cause
enough
jury consideration in
reasonable
malpractice accrued at
action for medical
each instance.
negli-
the doctor’s
time he discovered
discovery, plain-
upon making that
gence;
the same
The case at bar follows
*7
investigate
mela-
duty
had a
whether
tiff
they
admitted that
pattern. The Colberts
metastasized).
findWe
spot
noma
had
negligence in 1982.
Dr. Lee’s
discovered
case
rule consistent with our own
majority
however,
asserted,
they
did not
They
law,
here for the
adopt
hence we
it
negligence caused a com-
that his
discover
of Columbia.
District
diagnosis
the ultimate
pensable injury until
The
of metastasis
affidavits
defining “injury”
purposes
of the
Colbert, Mrs.
an
explicit- Mr. and Mrs.
Colbert’s
courts have
discovery
several
interrogatories, and Mr. Colbert’s
of cancer
swers to
recognized that the metastasis
ly
testimony all reflect their belief
deposition
from
cause of action distinct
gives rise to a
possi
had at least a fair
that Mrs. Colbert
stemming
original
cancerous
from
recovery
she learned of
bility
full
until
Arizona has
injury.
Supreme
The
Court of
The
belief
the metastasis.
Colberts’
“[wjhere a medical
malpractice
said
injured until the man
not
misdiagnosis
or a fail-
on a
claim is based
sup
further
metastasis was
‘injury’
ifestation of
diagnose
...
ure to
a condition
that the doctors had
ported by the evidence
problem into a
development of the
is the
the can
consistently
the Colberts that
greater
told
poses
which
more serious condition
might
forever cured.8
requires
cer
be
patient or which
danger to the
pa-
require
malpractice
“To
knowledge
patients
actions.
medical
disparity
between
8. The
degree the advice
to a fine
tient to scrutinize
of the main reasons
doctors is one
and their
given by
treating physician, at the risk of
discovery
adopted
rule in
why
this court has
The defendants’ assertion that the
tempered
the defendant is “somewhat
by
spread
aware of
proof
the fact that the burden of
remains
September
upon
plaintiff.”
Colbert’s cancer before
of 1986
Ehrenhaft,
supra,
ignores
important
(citation omitted).
several
is
facts.
cer
There are additional reasons to
view the Colberts’ discovery of metastatic
Our decision
discovery
that the
of metas-
clock-starting
cancer as a
injury
pur
tatic cancer can
running
start
poses of
First,
the statute of limitations.
statute of limitations also obviates the fil-
and other
ing
cases11 make clear
speculative
of a
lawsuit whenever a
Ehrenhaft
that the
plaintiffs’
protection patient
interest
discovers
form of cancer.
afforded
rule more
com
holding part
we rested our
on
Ehrenhaft
pelling than the defendants’
interest
“the
judicial economy,”
interests of
con-
having to deal with stale claims. The re
cerned that
apply
our failure to
the discov-
sulting obligation to defend which rests
ery
involving
rule to cases
latent construc-
redress,
losing
right
legal
his
Appellees
seems unwise.”
also assert that the Colberts could
Bell, supra,
Burns v.
tion defects would
precluding summary judgment
instance,
question,
rather than as a last
the first
(citation
on the statute of limitations.
A.2d at 1203
omit- based
resort.” 483
ted).
applying
rule to the facts of
Appeals
The United States Court
remand,
Wilson,
11,
the trier of fact must
supra note
focused on this
this case on
on what the Colberts believed
holding
that the “manifesta-
focus
same risk
was.
does
reasonable that belief
any
asbestos-related disease”
how
tion
trigger
running
of the statute
Testimony
Expert
B.
separate and distinct dis-
limitations on “a
granted summary
The trial court also
expo-
by the same asbestos
ease” caused
ground
on the
that the Colberts
judgment
mani-
“until
that disease becomes
sure
prima
case
had failed to establish
338,
facie
684 F.2d
U.S.App.D.C.
fest.” 221
at
malpractice,
in that
had not
of medical
added).
(emphasis
112
The court noted
at
any expert testimo-
presented
proffered
or
just
if Mr.
one indivisible
Wilson
appellees’
ny
opposing
second motion
potential
for all
conse-
cause of action
summary judgment. Viewing the record
quences
exposure
of his
to asbestos which
Colberts,
light
as
most favorable to the
illness,
at
the onset of
accrued
must,12
admissions of
we
we hold that the
go
powerful
“a
incentive to
to
would have
requisite prima
Dr. Lee established the
at that time with a claim for future
court”
trial
case. We therefore reverse the
specula-
facie
damages
at
be
which would
best
grant
summary judgment
on this
court’s
uncertain, and hence unable to
tive and
ground as well.
alternative
345,
damage
684
support a
award.
Id.
file
F.2d at 120. The incentive to
claims
prima
To establish a
facie case
injuries
re-
for unknowable future
“would
malpractice,
medical
must
unnecessary
imposition
in the
of an
sult
(1)
applicable standard of
demonstrate
Pierce,
judicial system.”
burden on the
care, (2)
by
deviation from that standard
666,
Md. at
464 A.2d at
supra note
296
defendant,
(3)
relationship
a causal
injury.
deviation and the
between that
(D.C.
A.2d
Shepard,
Meek v.
judicial economy also
The interests of
1984);
Hospital
Kosberg Washington
support our conclusion in the instant case.
Center,
U.S.App.D.C.
of action for all
If the Colberts’ cause
pri-
(1968).
presenting
F.2d
upon
potential injuries had accrued
their
case,
malpractice plain
a medical
ma facie
negligence in
discovery of Dr. Lee’s
expert
usually
rely
to
on
tiff will
have
obliged
specu-
file
have
to
would
composed
lay
testimony, “[sjince juries
might
any injury which
lative claims for
pass
normally incompetent
to
men are
someday afflict them. Such claims would
science
judgment
questions
on
of medical
very likely
fail and leave the Col-
be
technique_”
or
W.P.
Keeton, Prosser &
like them—with no reme-
berts —or others
32, at 188
§
allegedly
caused
dy for the metastasis
Keeton
the Law of Torts
however,
held,
(5th
1984).
ed.
We have
negligence.
Judicial
their doctor’s initial
expertise of
may utilize the
plaintiffs
re-
effort would nevertheless be
time and
elicit
agents
or
the defendants
their
Allowing
claims.
quired
reject
such
necessary
expert opinion
them the
from
they discover
bring
suit after
prima
malpractice.
facie case of
establish
them
provides
of cancer
the metastasis
Jackson,
A.2d
333-334
Abbey v.
alleged
remedy
their
an effective
(D.C.1984).
*9
injuries.
considering motion for
a
When
there is a
therefore conclude that
We
must
the trial court
summary judgment,
fact as to when
genuine issue of material
pleadings, depositions, answers
“the
injury. The
review
their
the Colberts discovered
file,”
on
interrogatories, and admissions
to
enough evidence
have submitted
Colberts
Waldman,
(D.C.
Diebold, Inc.,
A.2d
U.S.
Swann v.
Kg.,
United States v.
cases).
1983)
(1962);
(citing
wrong operation” August. Mrs. Colbert reason- establish that did not dence to interrogatories that said in her answers such ably Mrs. Colbert had suffered believe Dr. Lee had admitted to her that there was We hold injury until multicentricity present August an before the is a Dr. Lee this belief was reasonable lumpectomy. told Mr. Colbert that whether fact, thing, adding forgotten” that that he “had of material same issue for a lumpectomy appropriate was not the statute summary judgment based on patient Finally, with multicentric cancer. erroneously limitations was therefore said Dr. her that Mrs. Colbert Lee told Likewise, judgment summary granted. per from delay to October testimony is of expert on the lack based “en forming mastectomy caused an of Dr. with the admissions inconsistent nature, very high hanced risk of Lee, to establish are sufficient tell.”14 only time would The Col- prima malpractice. facie case their expert offer an berts’ failure concerning Dr. Lee’s state- This evidence negli- testify independently about to the Colberts must be viewed own ments clearly of care established governing discov- standard one of the 15.The 13. Rule rules doctors, agree it ery, requests parties and the with for admissions deals several all stated, they are made. Briefly effect of such admissions after rele- has been demonstrated. be is that a should vant standard deposition several in his 14. Dr. Lee stated times patient has docu- breast performed if a cancer any conversations he had no recollection of multicentricity. mented or Mrs. either Mr. Colbert. *10 biopsy the results of the showed is thus not fatal to because gence and causation (Susan “suspicious In- cells.” Colbert’s their claims. 11). time, At that Ms. ter.Ans. No. Col- reverse the trial court’s We therefore asked him what the result of the bert judgment on both grant summary be, delay had or would and Dr. Lee this case for trial or grounds and remand delay performing told her that the [in proceedings consistent with this for other mastectomy] caused enhanced risk of a opinion. (Susan very high In- nature. Colbert Reversed and remanded. 31). ter.Ans. No. On October performed mastectomy after Dr. Lee SCHWELB, Judge, concurring Associate breast, spoke Ms. left Dr. Lee Colbert’s dissenting part: part admitted with Mr. Colbert and Dr. Lee’s agree majority I with the Lee) (Dr. performed wrong oper- to the Colberts were alleged admissions ation, and that Ms. Colbert’s chances of sufficient, expert in the absence of even surviving greatly had been reduced. genuine issue of mate testimony, to raise-a (Edw. 98). Depo. at Before the Colbert George as to whether Dr. Lee and rial fact operation, Dr. Lee told the Colberts that negligent. I likewise have town were chance of surviv- Ms. Colbert had a 90% my particular problem with what col al; mastectomy Dr. Lee told after leagues “majority as the rule” characterize Ms had a Edward Colbert that cases, rule insofar as that in metastasis Basically, chance of survival. 10% provides that the claim arises when (Id.). going Lee said she was to die. At or should have known knew point, plaintiffs made aware of this negligent and as a that, the defendant was injury (deprivation of her Susan’s negligence, result of that metastasis recovery) Dr. Lee’s chances of and that See, v. Mul likely e.g., to result. Johnson malpractice. possible constituted conduct lee, (Fla.Dist.Ct.App. 385 So.2d Opinion, Memorandum at 9. 1980). is consistent with our That doctrine Moreover, the metastasis which was dis- a medical claim does rule that by any in 1986 was not means covered patient not accrue until the has “discovered only injury claimed to reasonably discovered all of or should have of Dr. Lee’s and have incurred as a result possible cause the essential elements of her Georgetown’s negligence. Judge As Levie breach, causation, action, i.e., duty, explained, damages.” President and Bussineau v. College, 518 A.2d
Directors plaintiffs injuries all of the (D.C.1986)(quoting Ohler v. Taco a result of de- allege they sustained as Hospital, 92 Wash.2d ma General negligence were sustained and fendants’ (1979) (en banc)). part I P.2d inju- These occurred in 1982 and 1983. however, company majority, with the in her ries Ms. Colbert as elaborated respect application of that rule to the interrogatories as fol- are answers my opinion, in this case. record lows: latest, accrued, at the claim Colberts’ resulting degree from the Third burns time-barred. and is therefore unnecessary application joint otherwise chemotherapy. Loss of radiation and I pain associated body function issue which di- The facts critical to the unnecessary radiation with otherwise by Judge stated vides the court were well mas- prophylactic therapy. Need side_ thoughtful opinion in the trial in his Levie Addi- right tectomy on out, pointed the Col- judge As the court. hormone chemotherapeutic and tional in 1982 that the cancer berts were aware radiation to con- Continued treatment. all certain to metastasize: disease. Emo- spread of pain trol self, and chil- husband October, 1982, tional trauma to Dr. Lee informed Ms. dren. she needed a Colbert that
1255
Inter.Ans.,
30).
certainty
have
(Susan
Mr.
learned with
that
Colbert
No.
Colbert
deposition
his
Colbert also testified at
cancer would metastasize as a result of
her
that
in 1982-83 Ms. Colbert went
negligence.
the defendant’s
Baker v.
See
through premature menopause, suffered
Co.,
994,
F.Supp.
Robins
613
996
A.H.
nausea,
hair,
her
dizziness and loss
(D.D.C.1985).
in
Since the Colberts knew
cracked
and she became
bladder
and bled
probability
1982 that there was a
90%
(Edw.
extremely depressed.
Colbert
death,
metastasis and
could have
135-142).
Depo. at
brought
probability,
armed
.that
suit
Id. at 12.
entitled to “re-
would have been
sought to
complaint,
In their
the Colberts
covery
damages
on future conse-
based
injuries
though they
for these
even
recover
quences.”
v. Johns-Manville
Wilson
years after Mrs.
filed suit more than six
Corp.,
U.S.App.D.C.
221
Sales
in
allegedly suffered them.
It is
Colbert
111,
(1982).1 Assuming
684 F.2d
119
that
this factual context that the Colberts’ con-
of metastasis starts the clock
considered.
tentions must be
where,
running again in a situation
at the
or
time the
first knew should have
II
negligence,
known of the defendant’s
by
majority,
cases relied on
possibility of such metastasis was at most
apparent-
the metastasis of the cancer was
speculative,
assumption provides
such an
ly
only injury
plaintiffs
for which the
where,
here,
no solace to the
as
seeking to recover. None of these
1982,
them in
contra-
Lee told
without
in
decisions involved a situation which the
diction,
probability
there
that
was a 90%
told,
date,
plaintiff was
at a much earlier
spread
that the cancer
and that Mrs.
would
that metastasis and death were all
cer-
die.
Colbert would
Johnson,
example,
swpra,
tain.
Moreover,
Jackson,
Judge
applying
as
appellate
Florida
court stated that
law, correctly pointed
District of Columbia
the time the radical
was
[a]t
Baker,
out in
performed, she had no cause of action
against appellee doctor because there
compre-
fact that she did not then
[t]he
alleged negli-
evidence
his
possible seque-
hend the full extent of all
gence
ang
had resulted in
harm to her.
matter,
does not
for the law of limita-
lae
only
February
in
when
inquiry
she
requires
tions
have
appeared
parts
in
of her°
cancer
of a cause of
notice of the existence
body,
she
her
discovered
cause
personal injury.
action for
action.
(emphasis
original;
F.Supp.
613
at 996
added).
(emphasis
These differences litigation, principles articulated tice view, dispositive. In order for her claim Hulver, accrued, Baker, necessary and Toal: have it is not chance) (a greater that the ‘reasonably than 50% certain' standard than not [for 1. “To meet the Wilson, consequence su- consequences], generally projected will occur.” have re- future courts U.S.App.D.C. F.2d at 119. likely quired plaintiffs prove pra, is more that it *12 the able that her cancer would have metasta- necessary is that all or even not sized, in greater part damages have to oc- could sue 1983 for nevertheless function, burns, cause of action arises. body pain, pro- cur before the loss of Any appreciable actual harm flow- trauma, and phylactic mastectomy, emotional negligent ing attorney’s conduct nausea, dizziness, loss, from the premature hair upon action which establishes a cause of bladder, depression, and cracked severe may the client sue. out of her suit claim for metasta- leave sis, bring separate and then suit in 1987 1232, Furlow, A.2d 1235 Knight v. 553 years probability three after the had added; 90% (D.C.1989) (emphasis citations and accompli court, omitted). a fait No to the become quotation internal marks We key my knowledge, has reached a in best of ever Knight went on to note “[t]he knowledge injury, is client of some result like that! issue cause, wrongdoing.” its and related Id. added). (emphasis III Wilson, supra, reliance on The Colberts’ allegations complaint if the in the Even 337, 111, is mis- U.S.App.D.C. 684 F.2d respect with to the metastasis were not case, had placed. plaintiff, In that who already expressed I time-barred—and have products, exposed to asbestos devel- been my disagreement premise with this —Dr. in and cancer in oped mild asbestosis Georgetown Lee and would be entitled at in and his widow filed 1978. He died partial summary judgment. I least wrongful death in 1979. The court suit argument principled know of no for main- limitations one-year held that the statute of taining timely suit is Colberts’ began discovery run with respect injuries with to those which Mrs. appear- cancer in rather than with the alleged to have suffered in 1982 in The court ance of mild asbestosis 1983. Counsel for the Colberts virtual- and more disease con- reasoned that the serious argument, oral ly conceded as much at separate injury not stituted a which was nothing contrary in counsel’s there is brief in could
predictable and that Wilson to that near-concession. sought damages for cancer at that not have case, present on the other time.2 IV hand, apprised had of a Colberts probability of metastasis and death. 90% Judge observed in the introduc- As Levie proving If succeeded what opinion, his “this case is a difficult ‘tion to alleged, any argument on behalf of one, If evoking sympathy.” much the alle- damages the claimed were too defense that true, complaint are then Dr. gations of the demonstrably speculative would have been negligent, consequences and the Lee was unavailing.3 disastrous. More- for Mrs. Colbert were over, adoption expansion logic majority opinion The this Bussineau, see, e.g., case leads to the conclusion that Col- tempered rigors bert, prob- supra, this court has knowing in 1982that it was 90% contend- pointed Counsel for Dr. Lee and out in Wilson that 2. The court pleur- incorrectly argument sufferers later contract "15% of asbestosis ed at oral that Wilson peritoneal mesothelioma and 12% contract Nothing opinion al mesothelioma,” this is intended to decided. view, so that any support I to that with which lend Wilson, altogether likely upon that had disagree. suggestion it is emphatically that the The diagnosis, receiving the “mild asbestosis” right plaintiff his to sue for should have lost might sought to recover for a cancer he failed to sue for mild asbesto- cancer because (or not) might develop, would Johns-Manville sis, development not of the cancer was when the argued forcibly probability of that the have predictable, when the could 50%, development less than such a was far brought if the suit recovered for it have conjectur- speculative, and was therefore too justice nothing or with to do with has al, support damage uncertain to [and] judicious statutory interpretation. award. U.S.App.D.C. & n. F.2d at 120 at 346 & n. 45. decision, I limitations, majority re- portion has con- of the statute of spectfully dissent. way that the such strued statute plaintiff is accorded a reasonably vigilant litigate the merits. We opportunity
fair far, however, my as gone as
have never are
colleagues today. take us view, excused, my assert-
being
ing rights timely fashion after their plainly ripened. From rights had
those