Burnet v. Spokane Ambulance, 63443-2

Decision Date05 June 1997
Docket NumberNo. 63443-2,63443-2
Citation933 P.2d 1036,131 Wn.2d 484
CourtWashington Supreme Court
PartiesWilliam BURNET and Elene S. Burnet, individually and as guardian ad litem for Tristen L. Burnet, their minor child, Petitioners, 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, Jeffrey Graham, an individual, and Michael Donlan, an individual, Defendants, Sacred Heart Medical Center, a non-profit Washington corporation, Respondent.

Page 484

131 Wn.2d 484
933 P.2d 1036
William BURNET and Elene S. Burnet, individually and as
guardian ad litem for Tristen L. Burnet, their
minor child, Petitioners,
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, Jeffrey
Graham, an individual, and Michael Donlan, an individual, Defendants,
Sacred Heart Medical Center, a non-profit Washington
corporation, Respondent.
No. 63443-2.
Supreme Court of Washington,
En Banc.
Argued May 30, 1996.
Decided April 3, 1997.
As Amended on Denial of Reconsideration
June 5, 1997.

Page 486

[933 P.2d 1037] Dawson & Meade, Marcia Meade, Spokane, for Petitioner.

Randall & Danskin, Michael Myers, Spokane, for Respondent.

ALEXANDER, Justice.

The issue before us is whether the

Page 487

Court of Appeals erred in affirming a trial court's decision disallowing evidence and limiting discovery by the plaintiffs on the issue of whether a hospital negligently granted privileges to two doctors who, according to the plaintiffs, were unqualified to recognize or treat their daughter's serious neurological condition. We reverse the Court of Appeals and remand the case for trial on that issue.

Tristen Burnet was born on July 3, 1982. At about the time Tristen turned five months old, she began to suffer from seizures. On December 9, 1983, Tristen had a prolonged seizure that required her to be hospitalized, and which resulted in damage to her brain. Her parents, William and Elene Burnet (hereinafter referred to as the Burnets), individually and as guardians for Tristen, filed a medical malpractice suit in Spokane County Superior Court against Spokane Valley General Hospital, Spokane Ambulance, and Tristen's attending physician, Dr. Robert Rosenthal. The Burnets alleged that these defendants failed to provide an adequate supply of oxygen to Tristen at the time she was under their care, and that this failure caused the damage to Tristen's brain.

Following the 1983 injury, Tristen became a patient of Dr. Jeffrey Graham. She was under Dr. Graham's care, when, on September 28, 1985, she experienced another prolonged seizure. As a result, she was hospitalized in the pediatric intensive care unit at Sacred Heart Medical Center (Sacred Heart). On October 2, 1985, while still hospitalized at Sacred Heart, Tristen developed cerebral edema, an accumulation of fluid in the skull that causes an increase of pressure on the brain. Consequently, Tristen sustained additional, extensive neurological damage.

On July 29, 1986, the Burnets amended their complaint to include claims relating to the 1985 injury and to add Dr. Graham and Sacred Heart as additional defendants. Thereafter, Dr. Rosenthal, Spokane Valley General Hospital, and Spokane Ambulance were voluntarily

Page 488

dismissed from the lawsuit. The complaint against the remaining defendants, Dr. Graham and Sacred Heart, alleged negligence, breach of contract, failure to disclose the risks of health care services (informed consent), and a violation of the Consumer Protection Act.

On March 7, 1987, Sacred Heart propounded interrogatories to the Burnets, asking for "the particular acts or omissions" including "each JCAH [Joint Commission on Accreditation of Hospitals] standard which [the Burnets] allege that Sacred Heart Medical Center did not follow which forms the basis of [the] complaint" against it. Clerk's Papers (CP) at 203, 205. The Burnets answered, indicating that, among other things, Sacred Heart "was on notice that Dr. Jeffrey Graham was not capable of handling the neurological difficulties" that Tristen was experiencing, and, as a consequence, failed to provide her with appropriate medical care. CP at 204. The Burnets also indicated that, because depositions of Sacred Heart officials had yet to be conducted, they were unable to identify which of the JCAH standards relating to special units, such as Sacred Heart's pediatric intensive care unit, had been violated.

In November 1987, Sacred Heart and Dr. Graham each moved for summary judgment, seeking dismissal of all of the Burnets' claims. In a memorandum supporting its motion, Sacred Heart's then-counsel acknowledged that "a hospital owes an independent duty of care to its patients [and] ... must exercise reasonable care to insure that [933 P.2d 1038] the physicians selected as members of a hospital medical staff are competent," but argued that the Burnets "ha[d] failed to establish a prima facie case of medical negligence, thereby foreclosing a showing of corporate negligence." CP at 213. The Burnets countered that Sacred Heart had yet to provide them with complete discovery on what it knew about Dr. Graham's qualifications, explaining that Sacred Heart should have known that Dr. Graham was not certified in pediatric neurology and should have monitored him more closely.

Page 489

The trial court denied the summary judgment motions "with respect to the negligence issue," including the claim against Sacred Heart "with respect to [its] potential corporate liability." CP at 166. It did, however, enter a judgment dismissing the Burnets' other claims. The Burnets appealed the order to the Court of Appeals, Division Three, contending only that its consumer protection and informed consent claims should not have been dismissed. The Court of Appeals affirmed the trial court. Burnet v. Spokane Ambulance, 54 Wash.App. 162, 772 P.2d 1027, review denied, 113 Wash.2d 1005, 777 P.2d 1050 (1989). While that appeal was pending, the Burnets again amended their complaint, this time joining Dr. Michael Donlan, the director of Sacred Heart's pediatric intensive care unit, as a defendant.

Following the appeal, new counsel was substituted as attorney for Sacred Heart. In a set of interrogatories and requests for production filed on July 26, 1990, Sacred Heart's counsel asked the Burnets to name the expert witnesses they expected to call at trial and the "substance of facts and opinions to which [each expert] is expected to testify." CP at 595-96. On October 2, 1990, Sacred Heart received from the Burnets a list of 18 experts they intended to call as witnesses, together with a description of their expected testimony. Although none of the experts was identified as having an opinion on the issue of whether Sacred Heart had been negligent in "credentialing" Drs. Graham and Donlan under the JCAH standards, the Burnets' response included the names of at least three persons who were expected to testify on "the standard of care for physicians providing care to patients such as Tristen Burnet." CP at 594-615. On October 12, 1990, Sacred Heart sought a scheduling order requiring the Burnets to "identify all [of its] experts by December 1, 1990[and] make available any such experts for deposition by defendants within sixty (60) days thereafter[.]" CP at 2439. The trial court granted Sacred Heart's request.

The discovery process, which was essentially conducted

Page 490

in December 1990, was replete with verbal exchanges between counsel for the defendants and the Burnets' trial attorney which indicated a degree of enmity between them. For example, the Burnets' counsel frequently noted for the record what she contended was "obstreperous conduct" by counsel for Sacred Heart and the other defendants, and obstruction of the Burnets' efforts to obtain discovery. See, e.g., CP at 789, 936-38; see also CP at 2398-2412. On the other hand, attorneys for each of the defendants complained during these depositions that opposing counsel was inquiring into matters outside the scope of the deposition, and was engaging in what they characterized as "reprehensible abuse of discovery rules and procedures." CP at 931.

During a deposition on December 13, 1990, the Burnets' attorney stated that the position of the plaintiffs was that they believed that Sacred Heart "had some problems with what they were letting Dr. Graham and Dr. Donlan do." CP at 764-65. However, it was not until April 18, 1991, when the Burnets filed a supplemental answer to the interrogatories that Sacred Heart had earlier propounded to them, that the Burnets clearly stated that they were contending that Sacred Heart was negligent in failing to properly review the physicians' credentials.

In response to the Burnets' supplemental answer to interrogatories, Sacred Heart requested of the trial court a discovery conference and a protective order prohibiting discovery on "the credentialing claim," arguing that the Burnets had not pleaded that cause [933 P.2d 1039] of action. CP at 2380-82. 1 At a hearing on its request for a protective order, Sacred Heart's counsel contended, essentially, that the Burnets' October 2 response to interrogatories and

Page 491

requests for production led Sacred Heart to believe that the Burnets' experts would testify only with respect to the physicians' treatment decisions, and not with respect to the actions of Sacred Heart in granting hospital privileges to Dr. Graham and Dr. Donlan. The trial court agreed with Sacred Heart, indicating that "claims based on the doctrine of corporate negligence regarding credentialing have not been sufficiently pleaded nor have responses to discovery given sufficient notice of any such claim." CP at 194. It then issued an order stating that "no claim of corporate negligence regarding credentialing is at issue in this litigation and there shall be no further discovery from [Sacred Heart] on that issue." CP at 195.

Before trial, the Burnets settled their claims against Drs. Graham and Donlan for $550,000. Sacred Heart then moved for summary judgment on all claims against it based on vicarious liability for the physicians' alleged negligence. The trial court granted its motion.

The case went to trial in January 1993 with Sacred Heart as the only defendant. The...

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