Gubbins v. Hurson
885 A.2d 269, 2005 WL 2665431, 2005 D.C. App. LEXIS 535 (2005)
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Rule of Law:
A treating physician's expert opinions formed in anticipation of litigation, rather than during the course of treatment, must be disclosed prior to trial under Rule 26(b)(4). Additionally, a plaintiff in a medical malpractice case is entitled to a jury instruction on res ipsa loquitur when their experts testify the injury ordinarily would not occur absent negligence and the defense fails to present an equally plausible, non-speculative, non-negligent explanation.
Facts:
- In December 1996, Mary Gubbins underwent surgery at Sibley Memorial Hospital to repair a leaking bladder.
- Dr. Jae-Koo Kim administered anesthesia through an epidural catheter, and Dr. Susan Hurson performed the surgical repair.
- Immediately following the surgery, Gubbins experienced severe numbness and weakness in her legs, fell, and was unable to stand or walk.
- A neurologist, Dr. John Kelly, later conducted an electromyography (EMG) and diagnosed Gubbins with significant nerve damage at the L3-L4 level of her spine.
- Despite extensive physical therapy, Gubbins continued to experience pain and impaired mobility.
- Gubbins's healthcare providers could not provide a definitive explanation for the nerve injury.
- An internal investigation by Sibley Memorial Hospital ruled out several potential causes but ultimately could not determine the cause of Gubbins's injury.
Procedural Posture:
- Mary Gubbins and her husband, Shelton Davis, filed a medical malpractice suit in Superior Court against Dr. Susan Hurson, Dr. Jae-Koo Kim, and Sibley Memorial Hospital.
- During the trial, the court permitted defense counsel to elicit expert opinions on causation from Dr. John Kelly, a treating physician whom the plaintiffs had called as a fact witness.
- The trial court denied the plaintiffs' request for a jury instruction on the doctrine of res ipsa loquitur.
- A jury returned a verdict in favor of the defendants.
- Gubbins and Davis, the plaintiffs, appealed the judgment to the District of Columbia Court of Appeals.
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Issue:
Did the trial court commit reversible error by (1) admitting undisclosed expert opinion testimony from the plaintiff's treating physician on the issue of causation, and (2) refusing to instruct the jury on the doctrine of res ipsa loquitur?
Opinions:
Majority - Glickman, Associate Judge
Yes. The trial court committed two errors that, in combination, require a new trial. First, the court erred by admitting expert opinion testimony from a treating physician that was not properly disclosed before trial. The disclosure requirement of Rule 26(b)(4) applies to opinions an expert acquires in anticipation of litigation, not those formed during the course of treatment. Here, the defendants did not establish that Dr. Kelly formed his opinions—that Gubbins's injury was an 'idiosyncratic' reaction and not caused by negligence—while treating her. The evidence suggested these opinions were formed later, specifically on the eve of trial after speaking with defense counsel, and thus should have been disclosed. Admitting this surprise testimony was prejudicial to the appellants. Second, the court erred in refusing to instruct the jury on res ipsa loquitur. A plaintiff is entitled to this instruction when expert testimony establishes that the injury ordinarily does not occur without negligence. Appellants' experts provided such testimony. The defense's counter-theory of a rare, 'idiosyncratic' reaction was speculative and not sufficiently substantiated to be considered an 'equally plausible' non-negligent cause. Therefore, appellants met the requirements for the instruction.
Analysis:
This decision clarifies the scope of the 'treating physician' exception to expert witness disclosure rules, emphasizing that the focus is on when an opinion was formed (during treatment vs. for litigation), not merely the witness's title. It prevents litigants from ambushing opponents by eliciting undisclosed expert opinions from treating physicians called as fact witnesses. The ruling also strengthens the res ipsa loquitur doctrine in medical malpractice cases by setting a higher bar for defendants seeking to defeat the instruction; a merely possible or speculative alternative cause is insufficient to rebut expert testimony that the injury implies negligence. This ensures plaintiffs can get to a jury on a res ipsa theory when the circumstances of an injury strongly suggest a breach of the standard of care.
