Coggle v. Snow

• Decision Date: 08 January 1990
• Docket Number: No. 23015-8-I,23015-8-I
• Citation: 56 Wn.App. 499,784 P.2d 554
• Parties: Vernon COGGLE, Appellant, v. Lawrence W. SNOW, M.D., and Jane Doe Snow, husband and wife, and the marital community they comprise; Respondent, and Valley Medical Center, Defendant.
• Court: Washington Court of Appeals

Page 499

56 Wn.App. 499

784 P.2d 554

Vernon COGGLE, Appellant, v. Lawrence W. SNOW, M.D., and Jane Doe Snow, husband and wife and the marital community they comprise; Respondent and Valley Medical Center, Defendant.

No. 23015-8-I.

Court of Appeals of Washington,

Division 1.

Jan. 8, 1990.

Harvey Grad, Seattle, for appellant

Schwabe, Williamson, Wyatt, Moore & Roberts, David R. Antal, Seattle, for respondent.

RINGOLD, Judge Pro Tem. ^*

The plaintiff, Vernon Coggle, appeals an order granting the motion for summary judgment of Dr. Lawrence W. Snow, the defendant in a medical malpractice action. We reverse and remand for trial.

In May, 1983, Coggle was treated for low back pain by Dr. Snow, an orthopedic surgeon, at Valley General Hospital (now Valley Medical Center). A Methadone "pain cocktail" In November 1985, Coggle was again admitted to Valley General Hospital for treatment of an ankle fracture. Several times during his treatment, when asked whether he had any known allergies, Coggle responded in the negative. Dr. Snow performed surgery on Coggle's ankle on November 16, 1985. Because of the plaintiff's continuing complaints of pain, Dr. Snow again authorized the administration of a "pain cocktail." Several days later Coggle developed respiratory symptoms subsequently diagnosed as ARDS and was treated by Dr. Mitchell.

                was administered to the plaintiff.   Several days later Coggle developed respiratory symptoms diagnosed as adult respiratory distress syndrome ("ARDS").   Dr. Snow then called in Dr. Donald Mitchell, an internist, to treat Coggle's respiratory problem
                

In July, 1986, Coggle commenced this action for negligence, lack of informed consent, and strict liability, seeking damages for pain, medical expenses, and loss of earnings attributed to the administration of the "pain cocktail" in November, 1985. On August 12, 1988, the defendant filed a motion for summary judgment noted for hearing August 26, 1989. In support of the motion Snow filed his own affidavit and portions of Dr. Mitchell's deposition. Snow stated: (1) Coggle, when asked by medical staff whether he had any known allergies, stated that he did not; (2) as an orthopedic surgeon Snow was neither trained nor experienced in the diagnosis and treatment of respiratory disorders and he thus relied on Dr. Mitchell's expertise in both instances in treating Coggle's respiratory illness; (3) Snow is not required, according to the applicable standard of care, to advise a patient of the nature of prescribed medications when the patient has denied having allergies; (4) Snow had no reason to believe in 1985 that administering the pain cocktail would cause another ARDS episode; and (5) he had informed Coggle of all material risks involved in the procedure. Referring to the 1983 episode, Dr. Mitchell stated in his deposition: "Although I raise the possibility of reaction to the drugs, the drugs that he had been given were not On August 19, 1988, Harvey Grad filed a notice of association as counsel and a motion for continuance pursuant to Civil Rule 56(f). ¹ In support of the motion for continuance, counsel stated:

                ones that were at least commonly associated with this", concluding that "more likely than not," viral pneumonitis had caused the 1983 ARDS episode.   He also stated that he reached a "tentative conclusion" after the 1985 episode that the ARDS was caused by the pain cocktail.
                

1. Declarant. I am Harvey Grad, attorney for plaintiff in this motion. Matt L. Alexander, plaintiff's attorney, who is in the process of retirement and has moved from his downtown office, has asked that I substitute as plaintiff's counsel. I met with Mr. Alexander on 16 August 1988, and on that same date, called plaintiff's physician. My declaration is based upon that which I learned that date.

2. Unavailability of Affidavits. Mr. Alexander has prepared and transmitted to Mr. Coggle, plaintiff, a reply declaration for his execution and return for filing, in response to defendant's motion. Mr. Coggle was also seen by a Tacoma physician, whose declaration is intended to rebut that of defendant and the deposition testimony of Doctor Mitchell upon his earlier finding that the defendant breached the applicable standard of care for the administration of medication, and that such breach was the proximate cause of injuries of which plaintiff has complained. However, it was not possible to obtain his affidavit within the time required by LR 56. ²

3. Continuance. The current motion date should be continued an additional thirty (30) to forty-five (45) days, because plaintiff "cannot, for reasons stated, present by affidavit facts essential to justify his opposition ...", Civil Rule 56(f) and the court should therefore deny defendant's motion and continue this case for that reason.

The trial court denied the motion for continuance and granted Snow's motion for summary judgment on August 26, 1988. Coggle then filed a Motion for Reconsideration, supported by his own declaration and that of a Tacoma pulmonary specialist, Dr. James Billingsley. Billingsley stated that he examined Coggle in March, 1988, and reviewed Valley General Hospital's records of Coggle's treatment in 1983 and 1985. He stated that in 1983 "Doctor Mitchell noted the association between the onset of [ARDS] and the methadone prescribed by Doctor Snow, i.e., the 'pain cocktail'." Billingsley also stated:

Doctor Snow knew, or should have known of the prior adverse reaction to this medication. He should have checked the records from the prior admission to establish no adverse consequence from medications or treatment previously administered. Under the circumstances, Doctor Snow breached the standard of care required of a reasonably prudent practitioner possessing the degree of skill, care and learning possessed by other members of the same profession in this state.

Billingsley stated further that Coggle's injuries were a result of the administration of the pain cocktail which "posed a known risk of injury."

Coggle's declaration submitted in support of the motion for reconsideration stated that he does not have any allergies but that, if he had been specifically asked regarding adverse drug reactions, he would have informed Snow and other hospital personnel of the effect of the pain cocktail administered in 1983. Coggle further stated that he was advised by Dr. Mitchell in 1983 that his respiratory problems at that time were probably due to an allergic reaction to the pain cocktail. He would not have requested a pain cocktail or accepted such medication had he been aware of its nature.

The trial court denied Coggle's motion for reconsideration. Coggle appeals the summary judgment dismissing his action and the denial of his motions for a continuance and for reconsideration. We conclude that without consideration of the declarations of Dr. Billingsley and Coggle there was not a sufficient showing to establish a genuine issue of

                material fact, necessary to survive the summary judgment motion.   We hold, however, that the trial court erred in denying the motion for a continuance and for reconsideration.
                

JUDICIAL DISCRETION

The ruling on the motions for a continuance and for reconsideration is within the discretion of the trial court and is reversible by an appellate court only for a manifest abuse of discretion. Turner v. Kohler, 54 Wash.App. 688, 693, 775 P.2d 474 (1989); Perry v. Hamilton, 51 Wash.App. 936, 938, 756 P.2d 150 (1988).

The rule is simply stated, but the standard by which to determine whether a trial court has properly exercised its discretion is in disarray in this state. Thus it is necessary to review this standard.

Ruggero J. Aldisert, in The Judicial Process (1976) at 742, states:

Bouvier's Dictionary defines discretion as "that part of the judicial function which decides questions arising in the trial of a cause, according to the particular circumstances of each case, and as to which the judgment of the court is uncontrolled by fixed rules of law. The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court." Hart and Sacks define certain other types of discretion as "the power to choose between two or more courses of action each of which is thought of as permissible".... Knowing simply that one is invested with discretion does not tell much. The crucial inquiry, necessarily, is the extent of the discretionary power conferred. Thus, while the recent commentators have outlined sophisticated nuances, it remains for the courts to calibrate its full measure.

Justice Benjamin Cardozo in his series of lectures collected in The Nature of the Judicial Process (1921), reflected on the nature of judicial discretion:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated The precise meaning of discretion is affected by the reasons and the purposes for which the decision maker is to exercise his or her discretion. Discretion may mean that the decision maker is not bound by standards; on the other hand, it may mean simply that the decision-maker must exercise judgment in applying certain standards or that he or she has final authority in the matter, without review by other authority. See Dworkin, The Model of Rules, 35 U.Chi.L.Rev. 14, 32-34 (1967). Another scholarly commentator has stated that the central idea of discretion is choice: the court has discretion in the sense that there are no "officially wrong" answers to the questions posed. Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635, 636-37 (1971).

                benevolence.   He is to exercise

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