Burnet v. Spokane Ambulance

Decision Date25 April 1989
Docket NumberNo. 9102-3-III,9102-3-III
Citation54 Wn.App. 162,772 P.2d 1027
PartiesWilliam BURNET and Elene S. Burnet, Individually, and as Guardian ad Litem of Tristen L. Burnet, their minor child, Appellants, v. SPOKANE AMBULANCE, a wholly owned subsidiary of Hospital Corporation of America, a Foreign Corporation doing business in Washington; St. Luke's Memorial Hospital, Inc., a non-profit Washington Corporation, d/b/a Valley Hospital and Medical Center; Robert Rosenthal, an individual, Defendants, Sacred Heart Medical Center, a non-profit Washington Corporation, and Jeffrey Graham, an individual, Respondents.
CourtWashington Court of Appeals

David Goicoechea, Frank Johnson, Macgillivray & Jones, Curtis Shoemaker, John Riseborough, Paine, Hamblen, Coffin & Brooke, Spokane, for respondents.

Marcia Meade, Dawson & Meade, Spokane, for appellants.


William and Elene S. Burnet, individually and as guardians for their minor child Tristen, brought a medical malpractice action for damages sustained by Tristen. The amended complaint alleged eight different causes of action against numerous defendants, including Sacred Heart Medical Center and Dr. Jeffrey Graham. In response to motions for summary judgment filed by Sacred Heart and Dr. Graham, the trial court dismissed claims arising out of breach of contract, Consumer Protection Act (CPA) violations, and informed consent. The Burnets appeal, arguing the court erred in dismissing the CPA and informed consent claims. We affirm.

Tristen suffered from a seizure disorder, which required numerous hospitalizations. Dr. Graham was her attending neurologist from June 22, 1983 until the events occurred which resulted in this action.

On December 9, 1983, as a result of a prolonged seizure, Tristen suffered neurological damage and lost some of her previous abilities. She had begun to recover from that episode when she had a prolonged seizure on September 28, 1985. On October 2, 1985, while still hospitalized at Sacred Heart, she developed cerebral edema and suffered additional, extensive brain damage from which she has not recovered. This action followed.

The first issue is whether the trial court erred in granting the motions for summary judgment when neither Dr. Graham nor Sacred Heart submitted affidavits supporting their position.

The Burnets, citing Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915, 757 P.2d 507 (1988), maintain summary judgment was improper because neither Sacred Heart nor Dr. Graham submitted supporting affidavits with their motions. They further contend Dr. Graham bears the burden of proving there is no issue of fact under Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985).

In Hash the court considered whether a summary judgment may properly be granted to a defendant in a personal injury action, absent any statement of that party's version of the facts surrounding the injury. The court stated, 110 Wash.2d at pages 915-16, 757 P.2d 507:

In reviewing a summary judgment, an appellate court must review material submitted for and against a motion for summary judgment in the light most favorable to the nonmoving party. Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 567, 731 P.2d 497 (1987). Therefore, this court must review the record as it existed before the trial court in the light most favorable to Hash. The record before the trial court showed only that Hash, a 6-year-old girl, suffered a fracture of the left femur during physical therapy. The court had no evidence from which to determine how the fracture occurred. At the very least, to support a motion for summary judgment the moving party is required to set out its version of the facts and allege that there is no genuine issue as to the facts as set out. In this case, those facts should have included an account of the circumstances surrounding Hash's injury from the only adult witness to the injury, the physical therapist who had been treating her at the time. We find it impossible to uphold a ruling that there is no genuine issue as to any material fact when the record contains all questions and no facts.

In Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 274 (1986), the court held there is no requirement under Rule 56 that the moving party support its motion with affidavits or other material negating the opponent's claim. Celotex, at first glance, conflicts with Hash. However, if one assumes the truth of the facts which constitute the negligence claim asserted in Hash, that claim cannot be defeated by a simple conclusory statement negligence did not occur. See also Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 132, 769 P.2d 298 (1989); Nicholson v. Deal, 52 Wash.App. 814, 821, 764 P.2d 1007 (1988). Baldwin, Hash and Nicholson reviewed summary judgments on a factual analysis. A summary judgment motion may, however, be reviewed under either a factual or a legal analysis or both. Hartley, 103 Wash.2d at 774-75, 698 P.2d 77. Here, Sacred Heart and Dr. Graham made their motions without supporting affidavits. 1 Both Sacred Heart and Dr. Graham argue, even assuming the truth of the Burnets' allegations and supporting documents, the Burnets have, as a matter of law, failed to state a claim for violation of the CPA and the informed consent law. See Peterick v. State, 22 Wash.App. 163, 179-80, 589 P.2d 250 (1977), overruled on other grounds in Stenberg v. Pacific Power & Light Co., Inc., 104 Wash.2d 710, 719, 709 P.2d 793 (1985) (when State did not file affidavits but chose to rely on its pleadings and plaintiff's admissions, summary judgment is properly granted). Assuming the truth of the Burnets' version of the facts, they have failed as a matter of law to state a cause of action; therefore, controverting factual affidavits were not necessary and summary judgment is appropriate as a matter of law. We find no error.

Next, did the trial court err in dismissing the Burnets' CPA claim for damages against Sacred Heart and Dr. Graham?

The Burnets contend they presented a question of fact regarding Dr. Graham's asserted "deceptive practice" of holding himself out as a pediatric neurologist when he was not board certified. They rely on the advertisement in the telephone book and construe it to be a purposeful solicitation of pediatric neurology patients for entrepreneurial purposes, citing Quimby v. Fine, 45 Wash.App. 175, 724 P.2d 403 (1986), review denied, 107 Wash.2d 1032 (1987). They further claim the CPA also applies to Sacred Heart, because it allowed Dr. Graham hospital privileges as a pediatric neurologist even though he was not board certified to provide that type of care.

In Jaramillo v. Morris, 50 Wash.App. 822, 750 P.2d 1301, review denied, 110 Wash.2d 1040 (1988), the plaintiff claimed the hospital and podiatrist were negligent in allowing or performing surgery on the plaintiff's ankle because a podiatrist is limited by licensing statutes to surgery on the foot. Jaramillo, at 826-27, 750 P.2d 1301, addressed whether plaintiffs had stated a cause of action for violation of the CPA:

An individual may sue under the CPA, RCW 19.86.090, if: (1) the conduct in question is unfair or consists of deceptive acts; (2) in the sphere of trade or commerce; (3) the conduct impacts the public interest; and (4) causes the plaintiff injury to business or property. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 785-91, 719 P.2d 531 (1986). With regard to the "learned professions", such as law or medicine, the question is whether the claim involves entrepreneurial aspects of the practice; mere claims of professional negligence or malpractice are exempt. Haberman v. WPPSS, 109 Wn.2d 107, 169, 744 P.2d 1032 (1987); Short v. Demopolis, 103 Wn.2d 52, 61, 691 P.2d 163 (1984); Quimby v. Fine, 45 Wn.App. 175, 180, 724 P.2d 403 (1986), review denied, 107 Wn.2d 1032 (1987). In Quimby, a plaintiff's professional negligence claim against a doctor was held outside the scope of the CPA. The court held claims which relate to the competence and performance of the profession do not fall within the sphere of trade or commerce and are thus exempt from the CPA.

Here, the Jaramillos' claims against the hospital concern its alleged negligence in not determining Dr. Morris' qualifications to perform ankle surgery and, if the ankle surgery is not within his podiatry license, negligence in not determining that fact. Also, there was a claim the hospital negligently supervised the operation by failing to provide a staff surgeon to oversee Dr. Morris' surgery. The entrepreneurial aspects of the hospital's business, such as billing, were not implicated. The standard of care applied to doctors, podiatrists, and hospitals is contained in RCW 4.24.290, i.e., "that degree of skill, care, and learning possessed at that time by other persons in the same profession ..." We see no reason to distinguish here between claims against doctors or hospitals for failure to meet that standard. Thus, we hold the Jaramillos' negligence claims against Sunnyside Hospital are not properly cognizable under the CPA.

(Footnote omitted.)

The same rationale is applicable here. Neither claim asserted by the Burnets against Sacred Heart involves the entrepreneurial aspect of the hospital's operation, so they fall outside the scope of the CPA. This would include the assertion Sacred Heart allowed Dr. Graham hospital privileges in order to draw a large clientele.

With respect to Dr. Graham, the Burnets have failed to show board certification is required by Washington law and have failed...

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