DocketNumber： 54592-8
Judges： Utter, Dore, Callow, Brachtenbach, Dolliver, Pearson, Andersen, Durham
Filed Date： 3/30/1989
Status： Precedential
Modified Date： 10/19/2024
Plaintiff brought this action for medical malpractice and product liability before the King County Superior Court. That court granted summary judgment of dismissal in favor of all the defendants, and plaintiff appealed to the Court of Appeals. Finding this case to present "urgent issues of broad public import requiring prompt and ultimate determination," the Court of Appeals certified the matter to this court under RCW 2.06.030(d).
This case raises two issues. The first is whether the appointment of a guardian ad litem to a legally incompetent person activates the statute of limitations, overriding the tolling statute for such persons, RCW 4.16.190. We hold that it does not and reverse the ruling of the trial court. The second issue is whether, in opposing a summary judgment motion, the affidavit of a licensed pharmacist alone is sufficient to raise issues of material fact regarding the standard of care owed by a physician to a patient. We hold that it is not and affirm the trial court's ruling on this issue.
Devan Young sought treatment for acute asthma at Children's Orthopedic Hospital and Medical Center. As part of his treatment, Devan took the drug theophylline. The therapeutic qualities of theophylline vary with the level of the drug in the patient's bloodstream. The optimum blood level
Dr. Ronald Case was one of the doctors who treated Devan at Children's Orthopedic Hospital. When he first saw Devan in September 1978, Devan was taking the theophylline preparation Elixophyllin, 20 cc every 5 to 6 hours. Clerk's Papers, at 56. Because this medication required Devan's mother to get up in the middle of the night to administer one of the doses, Dr. Case changed Devan's prescription to Theo-Dur. Theo-Dur is a timed-release theophylline preparation which requires fewer doses per day to achieve the proper blood level. Dr. Case prescribed 200 mg of Theo-Dur to be taken twice daily. Clerk's Papers, at 56-57. Sometime in the middle of January 1979, Devan's prescription was changed to 300 mg twice daily. Dr. Case saw Devan on January 26, 1979 and checked his theophylline level, which was 11.8 micrograms per milliliter — well within the therapeutic range. Clerk's Papers, at 58.
On February 1, 1979, Devan began to have seizures. Brought to Children's Orthopedic Hospital for emergency treatment, his theophylline level was found to be 68 micrograms per milliliter. Clerk's Papers, at 58. As a result of this high level, Devan became disabled and will probably need custodial care for life as a result of permanent brain damage.
Early in 1982, Rosa Young was appointed her son's guardian ad litem. In that capacity she filed suit in federal District Court for the Western District of Washington on June 1, 1982. She named as defendants the Hospital and Key Pharmaceuticals, Inc., the manufacturer of Theo-Dur. By stipulation of the parties, that court dismissed the action without prejudice. Over 3 years later, on June 11, 1986, Ms. Young filed the present medical malpractice and
At trial, each of the defendants moved separately for summary judgment. All defendants argued that Devan's claim was barred by the applicable statutes of limitation. See Laws of 1975, 2d Ex. Sess., ch. 56, § 1, p. 214 (former RCW 4.16.350) (medical malpractice); RCW 4.16.080(2) (products liability). The trial court dismissed plaintiffs case on this ground. The medical defendants also presented two affidavits — from Dr. John Neff (Chief of Staff at Children's Orthopedic) and Dr. Case — in response to plaintiff's allegations of medical malpractice. The plaintiff responded with an affidavit by Ms. Jan Dotson, a licensed pharmacist. Ms. Dotson alleged that Devan's physicians did not meet the accepted standard of care in prescribing the dosage of Theo-Dur and monitoring blood levels. The trial court ruled that this latter affidavit failed to raise genuine issues of material fact over whether the treating physicians or the Hospital breached the standard of care. The plaintiff appealed these summary judgment rulings.
I
It is alleged that plaintiff brought the present action after the time allowed by the relevant statutes of limitations had run. In cases of minority or mental disability, however, RCW 4.16.190 tolls the statute of limitations. RCW 4.16.190 provides:
If a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability shall not be a part of the time limited for the commencement of action.
The tolling statute's plain language indicates that the right it confers on the "person entitled to bring an action" is not diminished by the appointment of a guardian. The words "the time of such disability" refer to the person's disabling condition itself, not merely the disability to bring suit. This focus on the disabling condition is reinforced by the reference to RCW 11.88. This reference incorporates the following definitions into the tolling statute:
An "incompetent" is any person who is either:
(a) Under the age of majority, as defined in RCW 11.92.010, or
(b) Incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his property or caring for himself or both.
. . . [T]he term "disabled person" means an individual who is in need of protection and assistance by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, but cannot be found to be fully incompetent.
RCW 11.88.010(1), (2). These definitions focus on the disabling conditions themselves, not merely their legal consequences.
The tolling statute makes no mention of the effect of a guardian's appointment, which we believe means that the statute was intended to operate regardless of the guardian's presence. We cannot assume the Legislature made this omission through oversight; it was aware of the practice of appointing guardians for legally incompetent persons for
We have acted on this principle in the past. In Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957), we recognized the right of a minor plaintiff to bring an action any time during her legal disability regardless of the general statute of limitations. 49 Wn.2d at 699-700. In that same case, we held that the minor's guardian, who had brought the action on the minor’s behalf as well as his own, was time barred in his own personal claim. Hatzenbuhler, at 698. Thus, the guardian's appointment did not affect the right of the minor to toll the statute of limitations.
The language of RCW 4.16.190 requires that the legally incompetent person who claims the protection of the statute must be "a person entitled to bring an action". In other words, the cause of action must vest in the incompetent person directly, not solely in the guardian acting on the person's behalf. If the cause of action is available to the guardian alone, then the statute of limitations will apply. Huntington v. Samaritan Hosp., 101 Wn.2d 466, 469, 680 P.2d 58 (1984). In Huntington, the personal representative of the decedent brought a wrongful death action that would benefit the decedent's minor children. The action was brought after the time normally allowed by the statute of limitations. We held that RCW 4.16.190 did not apply because the children themselves could not bring the wrongful death action; only the decedent's personal representative was so entitled. Therefore, the children in Huntington were not "person[s] entitled to bring an action" and were not protected by the tolling statute.
Respondents argue that Huntington controls the present case. When viewed in light of the above discussion, however, this argument has no merit.
The rule that we follow is the majority rule in this country. See Annot., Tolling of State Statute of Limitations in
Respondents also argue that even if the statute of limitations remained tolled upon Ms. Young's appointment as Devan's guardian, it nonetheless began to run upon the filing of the 1982 action in federal district court. This argument has no merit. RCW 4.16.190 tolls the statute of limitations for a legally incompetent person notwithstanding the appointment of a guardian. This is so because the right to the tolling statute vests in the incompetent person not in the guardian. From this premise, it follows that the guardian's subsequent actions on the incompetent person's behalf should have no additional effect upon the statute of limitations unless they result in res judicata. The Youngs' first suit ended in dismissal without prejudice, and therefore was not a final judgment. Thus, the statute remained tolled. This is also the majority rule in the United States:
In case of the appointment of a guardian ad litem for an infant, it is held that such guardian can sue within the prescribed period of limitation, but is not obligated to do so, and that if he fails to sue, or having instituted an action within the statutory period, discontinues it, the*224 rights of the infant are not prejudiced thereby, and he may still take advantage of his disability . . .
Annot., 86 A.L.R.2d at 976; see also Snare & Triest Co. v. Friedman, 169 F. 1 (3d Cir.), cert. denied, 214 U.S. 518, 53 L. Ed. 1065, 29 S. Ct. 700 (1909); McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913).
Respondents argue that such a construction of RCW 4.16.190 would result in the statute of limitations never running in the case of a permanently disabled or incompetent person. This outcome, they claim, would frustrate the purpose of the statute of limitations by removing it altogether. Nevertheless, this result flows from unmistakably clear statutory language. We will not imply exceptions to statutes of limitation where they have not been expressly provided by the Legislature. Citizens Interested in Transfusion of Yesteryear v. Board of Regents, 86 Wn.2d 323, 327, 544 P.2d 740 (1976) (provisos regarding statute of limitations in SEPA strictly construed); Seamans v. Walgren, 82 Wn.2d 771, 775, 514 P.2d 166 (1973). Moreover, if one reads RCW 4.16.190 as a whole, the indefinite time span allowed a permanently incompetent person in which to sue is not an absurd result. The statute tolls the statute of limitations for a potential plaintiff "imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life . . ."A prison term less than the plaintiff's natural life may in fact not be any shorter than the life-span of a person with a permanent mental disability. Further, it would be incongruous, without a clear directive from the Legislature, to construe arbitrarily the rights of such a disabled person to be less than a person sentenced to, for example, 40 years in prison. We therefore find that the statute of limitations has remained tolled since the time of Devan's disability, regardless of Ms. Young's appointment as his guardian ad litem and regardless of the previous case filed and dismissed without prejudice in federal district court. Because the trial court dismissed respondent Key Pharmaceuticals, Inc., solely
II
In addition to its interpretation of RCW 4.16.190, the trial court had additional grounds for granting summary judgment for the medical malpractice defendants — that the plaintiff had not produced competent evidence of malpractice to raise an issue of material fact. We affirm this latter ruling.
In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. See LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). If the moving party is a defendant and meets this initial showing,
In making this responsive showing, the nonmoving party cannot rely on the allegations made in its pleadings. CR 56(e) states that the response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing
While Celotex is not binding upon us, Washington courts treat as persuasive authority federal decisions interpreting the federal counterparts of our own court rules. See, e.g., American Discount Corp. v. Saratoga West, Inc., 81 Wn.2d 34, 499 P.2d 869 (1972); Rinke v. Johns-Manville Corp., 47 Wn. App. 222, 225, 734 P.2d 533 (1987). Indeed, our own Court of Appeals has noted the Celotex rule. See Controlled Atmosphere, Inc. v. Branom Instrument Co., 50 Wn. App. 343, 350, 748 P.2d 686 (1988).
The Celotex standard comports with the purpose behind the summary judgment motion: "to examine the sufficiency of the evidence behind the plaintiff's formal allegations in the hope of avoiding unnecessary trials where no genuine issue as to a material fact exists." Zobrist v. Culp, 18 Wn. App. 622, 637, 570 P.2d 147 (1977). Thus, a defendant may move for summary judgment on the ground the plaintiff lacks competent medical evidence to make out a prima facie case of medical malpractice.
In this case, although not required to, the medical defendants supported their motions with affidavits. These affidavits are unanimous that Devan received proper treatment while in the medical defendants' care. Defendants'
III
Is a pharmacist competent to testify to whether Devan's physicians breached their standard of care when that pharmacist's sole connection to this case is that she reviewed Devan's medical records? Even granting the benefit of every leniency to the plaintiff as the nonmoving party, the answer must be no. As one court put it:
"More than twenty-three hundred years ago Aristotle, in his work on Politics, wrote: 'As a physician ought to be judged by the physician, so ought men to be judged by their peers.' And for centuries the courts of this and other countries have, almost without exception, held that expert medical evidence is required to establish negligence respecting the service a physician or a surgeon renders his patient."
Rodriguez v. Jackson, 118 Ariz. 13, 17, 574 P.2d 481 (1977), quoting Shea v. Phillips, 213 Ga. 269, 98 S.E.2d 552 (1957). In Rodriguez, the court held that affidavits by a pharmacologist, a professor of biology, and a registered nurse were insufficient to establish a standard of care for a physician, and granted the defendant physician's motion for summary judgment in a medical malpractice action.
It is true that this court has rejected the rule that non-physicians are per se disqualified from testifying as experts in medical malpractice actions. Harris v. Groth, 99 Wn.2d 438, 450, 663 P.2d 113 (1983). This court has never accepted, however, a rule that would allow a nonphysician to testify as an expert regarding the proper standard of care for a physician practicing a medical specialty. Such a rule would severely degrade administration of justice in medical malpractice actions.
In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson. . . . Medical facts in particular must be proven by expert testimony unless they are "observable by [a layperson's] senses and describable without medical training". . . . Thus, expert testimony will generally be necessary to establish the standard of care . . . and most aspects of causation ..."
Harris, at 449. This rule comports with the common law, as set forth in 2 J. Wigmore, Evidence § 568 (1979).
Nonexpert testimony is sometimes admissible for matters such as observations of health, disease, or injury. Where the determination of negligence does not require technical medical expertise, such as the negligence of amputating the wrong limb or poking a patient in the eye while stitching a wound on the face, the cases also do not require testimony by a physician. See, e.g., Killingsworth v. Poon, 167 Ga. App. 653, 656, 307 S.E.2d 123 (1983); Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589, 594 (1977). However, we have found no cases in which a nonphysician is found competent to testify on a physician's technical medical standard of care in a medical malpractice case. Rather, the cases uniformly hold that a physician's testimony is necessary in such cases to defeat a defendant's motion for summary judgment. See, e.g., Hoopiiaina v. Intermountain Health Care, 740 P.2d 270 (Utah App. 1987); Majeed v. McBryar, 184 Ga. App. 807, 363 S.E.2d 59 (1987); Solon v. Godbole, 163 Ill. App. 3d 845, 516 N.E.2d 1045 (1987); Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649, cert. denied, 469 U.S. 854 (1984); Peterson v. Kilzer, 420 N.W.2d 754 (N.D. 1988). As the Missouri Supreme Court stated:
What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.
"The only exception to such rule is that where the want of skill or lack of care is so apparent as to be within*229 the comprehension of laymen and requires only common knowledge and experience to understand and judge it, expert evidence is not essential."
Hart v. Steele, 416 S.W.2d 927, 932, 37 A.L.R.3d 456, 462 (Mo. 1967), quoting Modrzynski v. Lust, 88 N.E.2d 76 (Ohio Ct. App. 1949). In fact, not even a medical degree bestows the right to testify on the technical standard of care; a physician must demonstrate that he or she has sufficient expertise in the relevant specialty. E.g., Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867, 872-73 (1986).
The case of Bell v. Hart, 516 So. 2d 562 (Ala. 1987) is directly on point. In Bell, plaintiff's physician prescribed the antidepressant drug Elavil for plaintiff's complaints of headaches, weakness, insomnia, agitation, depression, and painful leg cramps. 516 So. 2d at 563. After taking the first prescribed dosage, plaintiff became incoherent and confused, and was treated in an emergency room. 516 So. 2d at 564. Plaintiff sued her physician for medical malpractice and he moved for summary judgment, alleging she had failed to present expert medical testimony that he was negligent. The defendant sought to exclude the testimony of plaintiff's witnesses, a pharmacist and a psychologist, on the ground that they were not competent to testify as experts.
The credentials of the pharmacist in Bell were even more impressive than those of the pharmacist in the instant case. He had earned a Doctor of Pharmacy degree and had taken courses in pharmacotherapeutics. He was an assistant professor of family medicine and a consultant in drug therapy for medical students and medicine residents. He was responsible for a drug and toxicology laboratory at a hospital and screened blood for quantities of various drugs, and was familiar with literature on various prescriptive drugs. Despite these credentials, the court in Bell held the trial court properly excluded his testimony on the ground that a pharmacist is not competent to testify as an expert on the standard of care of a physician in prescribing a drug. 516 So. 2d at 566. The Bell court distinguished cases in which
In the instant case, lay testimony may be admitted to show Devan's obvious impairments. However, the physician's standard of care regarding proper dosages of medication is not within the scope of matters on which nonphysicians are competent to testify. Although a pharmacist may be more familiar with the names of medication, the literature, and perhaps the usual practice of physicians prescribing certain medications than other nonphysicians, a pharmacist is not competent to testify on the physician's standard of care for treatment using medication.
The affidavits introduced at trial in this case illustrate the discrepancy between a physician's and a pharmacist's expertise and why the pharmacist's affidavit should not be considered. To allow a pharmacist's testimony on a physician's standard of care runs counter to public policy in the administration of justice in medical malpractice trials. With all due respect to the pharmaceutical profession, pharmacists are not doctors and are not licensed to prescribe medication because they lack the physician's rigorous training in diagnosis and treatment. As Dr. Case's second affidavit in response to Ms. Dotson's affidavit illustrates, this lack of training might lead to error in a pharmacist's assessment of proper treatment. Clerk's Papers, at 143-45.
This case presents troubling questions about how a young child came to be injured in the course of being treated for an acute asthma condition. Perhaps we will never know the answers to these questions. Nevertheless, the only competent evidence presented shows that Devan's injuries were not caused by medical malpractice. It is unjust to subject defendants to a trial in the absence of a showing that the plaintiff can make out a prima facie case. To rule
IV
Because the plaintiff here has not presented competent evidence regarding the physicians' standard of care, we affirm the summary judgment in favor of the medical defendants. We reverse, however, the trial court's ruling as it relates to Key Pharmaceuticals, Inc., as it is based on an incorrect interpretation of RCW 4.16.190.
The moving defendant may meet the initial burden by "'showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The dissent in Celotex specifies what the nonmoving plaintiff must do upon the moving party's successful initial showing:
(1) rehabilitate the evidence attacked in the moving party's papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).
477 U.S. at 332 n.3 (Brennan, J., dissenting).