Adcox v. Children's Orthopedic Hosp. and Medical Center
| Decision Date | 23 December 1993 |
| Docket Number | No. 58986-1,58986-1 |
| Citation | 864 P.2d 921,123 Wn.2d 15 |
| Parties | Keri J. ADCOX, individually, and Degel Guardianship and Trust Services, as guardian of the person and of the estate of Brandan W. Briggs, a minor and incompetent, Respondents, v. CHILDREN'S ORTHOPEDIC HOSPITAL AND MEDICAL CENTER, Appellant. En Banc |
| Court | Washington Supreme Court |
Reed McClure, William R. Hickman, Peter M. Fabish, Jensen, Ellis & Botteri, Christopher H. Howard, Gibbs & Houston, Heather Houston, Seattle, for appellant.
Paul N. Luvera & Associates, Paul N. Luvera, Jr., Mt. Vernon, Edwards, Sieh, Wiggins & Hathaway, Charles K. Wiggins, Seattle, for respondent Adcox.
Donovan R. Flora, Seattle, James L. Holman, Tacoma, for respondent Degel Guardianship.
Linda B. Clapham, Kimberly Baker, Seattle, amicus curiae, for appellant on behalf of Washington Defense Trial Lawyers.
Bryan P. Harnetiaux, Gary N. Bloom, Spokane, amicus curiae, for respondents on behalf of Washington State Trial Lawyers Ass'n.
A 12-week-old boy suffered severe and permanent brain damage after undergoing cardiac arrest at Children's Orthopedic Hospital and Medical Center (hereinafter Hospital). A jury found the Hospital negligent in failing to prevent the cardiac arrest and awarded damages of approximately $10 million. On appeal, the Hospital argues the trial court erred in failing to allocate fault between the Hospital and two physicians who settled with the plaintiffs before trial. We conclude the Hospital failed to preserve this issue for appeal and we reject the Hospital's other challenges. We affirm the trial court's judgment.
Brandan Briggs was born to Keri Adcox on April 24, 1984. He was delivered by Dr. David Lush. During his first few weeks of life, whenever Brandan cried he became short of breath and turned blue. Adcox asked Dr. Lush about Brandan's condition and was eventually referred to Dr. Paul Herndon, a pediatric cardiologist.
After some preliminary examinations, Dr. Herndon placed Brandan into Children's Orthopedic Hospital and Medical Center for diagnosis and surgery.
On July 17, 1984, when Brandan was 12 weeks old, Dr. Herndon performed a cardiac catheterization. Cardiac catheterization is a diagnostic procedure to study the internal workings of the heart. After the catheterization was completed, Brandan spent 1 1/2 hours in a recovery room, and then returned to his room in the infant acute care unit at approximately 11 a.m. Nurse Canfield-Lucius and Student Nurse Menefee were the two nurses working in the room at the time.
When Brandan arrived at the room, the nurses placed him under an oxygen hood pursuant to Dr. Herndon's orders. Dr. Herndon had instructed the nurses to keep Brandan calm. The nurses removed Brandan from the oxygen hood at 1 p.m. after he became fussy and agitated. While Brandan was not under the hood, he received oxygen through a hose held near his nose and mouth.
Brandan suffered a cardiac arrest at approximately 3:15 p.m. From 1 p.m. until the time of his cardiac arrest, Brandan had not been returned to the oxygen hood. A nursing aide administered cardiopulmonary resuscitation to Brandan. Brandan was resuscitated. Some infant formula was found in Brandan's trachea. Brandan suffered extensive and severe brain damage as a result of this incident.
Brandan later underwent successful surgery to correct his heart defect. However, as a result of his brain damage, he will never be able to provide for himself or take care of himself. He suffers from cortical blindness and can see only peripherally. He will never walk. He cannot move himself in a wheelchair. He will never have control over his bodily functions. He will always require attendant supervision and care. His brain injury places him at risk of airway problems, respiratory infection, prolonged seizures, and orthopedic problems due to immobility. He will never be able to speak in sentences. Brandan is expected to reach a mental age of no more than 1 year.
Keri Adcox filed suit on behalf of Brandan and herself on February 25, 1988. She sought recovery for the damages flowing from Brandan's cardiac arrest. 1 The three primary defendants were Dr. Lush, Dr. Herndon, and Children's Orthopedic Hospital and Medical Center.
The complaint generally made the following allegations against each of these defendants: Dr. Lush should have realized the potential for cardiac problems and failed to seek timely consultation with heart specialists; Dr. Herndon negligently performed the catheterization, failed to recognize Brandan's precarious condition, and failed to instruct the nursing staff of Brandan's condition and the appropriate level of care; and the Hospital failed to properly monitor Brandan's condition, failed to recognize the severity of Brandan's vital signs and symptoms, failed to set proper nursing care standards, and generally failed to reasonably and prudently care for Brandan.
The plaintiffs settled their claims against Dr. Lush and Dr. Herndon prior to trial. Dr. Lush agreed to pay the plaintiffs $20,000 and loan them an additional $77,500 to be repaid from proceeds of the suit against the remaining defendants. A reasonableness hearing was held, and Pierce County Superior Court Judge Waldo Stone approved the settlement on February 10, 1989.
Dr. Herndon agreed to settle with the plaintiffs for $600,000. The Hospital objected to the settlement amount, and it cited the testimony of four expert medical witnesses who had concluded Dr. Herndon was negligent. A reasonableness hearing was held, and Judge Stone approved the $600,000 settlement on April 20, 1990.
The Hospital moved for a partial summary judgment seeking dismissal of Keri Adcox's claim under the applicable statute of limitations, RCW 4.16.350. The trial court denied the motion.
The plaintiffs twice moved to compel discovery of documents that the Hospital generated during its internal investigation into Brandan's cardiac arrest. Judge Stone denied both motions, concluding these documents were immune from discovery. Judge Stone subsequently granted discovery after the plaintiffs brought a third motion, this time contending the Hospital had waived its right to immunity. Judge Stone subsequently allowed the plaintiffs to use the internal documents in deposing a number of witnesses. At trial, Judge Stone allowed the parties to use the documents in questioning witnesses, but did not allow them to be admitted into evidence.
In other pretrial rulings, the judge considered two alternative methods for determining how the Hospital's potential share of damages should be affected by the plaintiffs' prior settlements with Dr. Herndon and Dr. Lush. One alternative was to have the jury allocate percentages of fault among the Hospital and the two doctors. Under this allocation theory, the Hospital's proportionate share of damages would be determined by applying the Hospital's percentage of fault against the plaintiffs' total damages. The second alternative was to hold the Hospital responsible for the entire amount of the damages, then to offset the settlement amounts already paid by the doctors, those settlements already having been adjudged reasonable as noted above.
This allocation/offset issue first arose during oral argument on November 27, 1991 of the plaintiffs' motion in limine to exclude evidence of fault of Dr. Herndon and Dr Lush. The plaintiffs argued for offset and for exclusion of evidence of fault. The Hospital did not clearly commit itself on the allocation/offset issue. Judge Stone tentatively indicated being in favor of offset rather than allocation, but did not formally enter an order on this issue.
On December 4, 1991, just moments prior to the delivery of opening statements, the Hospital sought a final ruling to clarify the issue of allocation versus offset. Judge Stone rejected allocation in favor of offset. Under this ruling, if the Hospital were found to be negligent, it would be entitled to an offset, or credit, from the settlement with the doctors. As part of his ruling, the trial judge determined the Hospital could not present expert evidence the doctors violated any standard of care. However, the trial court did not entirely foreclose the issue of the doctors' negligence. The trial court indicated the performance and credibility of the doctors would be appropriate areas of inquiry at trial. At no point during these pretrial rulings excluding evidence of the doctors' negligence did the Hospital offer any proof as to what fault or negligence its evidence would have shown.
The Hospital's theory of the case at trial was that no one, including the Hospital and the doctors, was negligent. The Hospital argued Brandan's cardiac arrest resulted from Brandan's sudden aspiration of infant formula. Aspiration is the regurgitation of stomach contents into the throat and inhalation of those contents into the lungs. The Hospital pointed to the fact that infant formula was found in Brandan's trachea after his cardiac arrest and resuscitation. The Hospital did not attempt to introduce evidence, or make an offer of proof, that either of the two doctors had been negligent.
The plaintiffs' theory of the case was that Brandan's arrest was caused by progressive hypoxia, and this occurred because Brandan did not receive sufficient oxygen after the nurses removed him from the oxygen hood. Plaintiffs argued the nurses should have recognized and acted upon Brandan's deteriorating condition.
After a 5-week trial, the jury found the Hospital negligent and determined this negligence proximately caused Brandan's injury. The jury awarded to Brandan the following damages:
Past Economic Damages $ 56,346
Future Economic Damages $4,400,000
Noneconomic Damages $4,628,750
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Brandan's Total Award $9,085,096
The jury also awarded Keri Adcox damages of $1,250,000.
The jury specifically found Keri Adcox had...
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