# Ferrell v. Rosenbaum

> District of Columbia Court of Appeals · April 3, 1997 · 691 A.2d 641

URL: https://www.frixlaw.com/law-library/cases/9749064

## Case

- **Full name:** Susan FERRELL, Et Al., Appellants, v. Kenneth N. ROSENBAUM, M.D., Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** April 3, 1997
- **Citations:** 691 A.2d 641; 1997 D.C. App. LEXIS 57; 1997 WL 152788
- **Precedential status:** Published
- **Opinion:** Dissent by Terry
- **Judges:** Terry, Ruiz, Newman
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749064

## How later opinions describe it (automated extraction)

- concluding that where the evidence “demonstrated that the claimed negligence was a substantial factor in the loss of [patient’s] best chance for survival,” the “trial court’s conclusion that [plaintiff] did not make a prima facie showing of proximate cause was erroneous”

## Opinion text

TERRY, Associate Judge,
dissenting:
In this medical malpractice case, the plaintiff mother claims that the doctor and the hospital failed to diagnose her child’s illness as Fanconi anemia, a very rare but potentially fatal blood disorder. The complaint alleged that if the right diagnosis had been made early enough, the parents could have conceived another child who might have served as a bone marrow donor for his or her older sister. Because the parents have now separated, that is no longer possible, and thus the mother has filed this suit.
Although there is evidence from which a jury could find that the doctor breached the standard of care, I think the trial judge *653 correctly granted summary judgment for the doctor and the hospital because the mother cannot possibly establish proximate cause. The mother asserts in her brief that she and Mr. Ferrell would have “taken action to produce a matched sibling donor for Alexis’ transplant,” but there is no evidentiary support for that assertion, and hence no factual predicate on which to base the testimony of any expert that Alexis was deprived of a substantial chance of survival. There is, of course, no deposition or other testimony from Mr. Ferrell that he would have agreed to father another child with Mrs. Ferrell. As for the mother, she testified in deposition that she and her husband had separated in June 1987 without any expectation of reconciling, and that she had not seen him since September 1989, when he left for California and never returned. She also stated that she had no interest in a reconciliation in the time between their separation in 1987 and the father’s departure for California in 1989. There is nothing in the record to suggest that either parent made any attempt, or had any intention, to reconcile once the diagnosis of Fanconi anemia was made in October 1990 in order to conceive another child. I simply cannot agree with my colleagues that “the record supports an inference that Mr. Ferrell would have been supportive of such efforts.” Ante at 651. The fact that Mr. Ferrell might have been willing to reconcile with his estranged wife prior to June 1987 could not reasonably permit a trier of fact to infer that he might have been interested in doing so after October 1990.
The father is the irreplaceable missing link in the chain of causation. Without a clear showing that he would have consented to sire another child in the hope of producing a possible bone marrow donor, I do not see how the mother can possibly establish that the doctor’s breach of the standard of care proximately caused her child’s injury. As I read the record, such a showing has not been made. Since my colleagues take a different view, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749064. Public record. Not legal advice.