Dalton v. State

• Decision Date: 20 February 2003
• Docket Number: No. 19517-1-III.,19517-1-III.
• Citation: 115 Wash.App. 703,63 P.3d 847
• Court: Washington Court of Appeals
• Parties: Casey DALTON, Individually, and as Personal Representative of the Estate of Dirk Devlin Dalton, Deceased; and James J. Hines, individually, Appellants, v. STATE of Washington, a governmental entity; Jean Soliz, Secretary of the Washington State Department of Social and Health Services; Merrildine Ely, an employee of the Washington State Department of Social and Health Services; Lydia Angle, an employee of the Washington State Department of Social and Health Services; Connie Murphy Dillard, an employee of the Washington State Department of Social and Health Services; Sheila Weber, an employee of the Washington State Department of Social and Health Services; Carylon Williams, an employee of the Washington State Department of Social and Health Services; Jeanne Wessel, an employee of the Washington State Department of Social and Health Services; Suzanne Smith, an employee of the Washington State Department of Social and Health Services; Tri-State Memorial Hospital, Inc., a Washington Corporation; Lewis-Clark Early Childhood Education and Assistance Program, Inc. d/b/a Lewis-Clark Head Start Early Childhood Program, an Idaho Corporation, Defendants, Craig Ambroson, M.D., a physician; Cindy Rae Norman, M.D., a physician; Spectrum Emergency Care, Inc., a Missouri Corporation; and Kimberly Grijalva Cross Berry, a former licensed foster mother, Respondents.

63 P.3d 847

115 Wash.App. 703

Casey DALTON, Individually, and as Personal Representative of the Estate of Dirk Devlin Dalton, Deceased; and James J. Hines, individually, Appellants, v. STATE of Washington, a governmental entity; Jean Soliz, Secretary of the Washington State Department of Social and Health Services; Merrildine Ely, an employee of the Washington State Department of Social and Health Services; Lydia Angle, an employee of the Washington State Department of Social and Health Services; Connie Murphy Dillard, an employee of the Washington State Department of Social and Health Services; Sheila Weber, an employee of the Washington State Department of Social and Health Services; Carylon Williams, an employee of the Washington State Department of Social and Health Services; Jeanne Wessel, an employee of the Washington State Department of Social and Health Services; Suzanne Smith, an employee of the Washington State Department of Social and Health Services; Tri-State Memorial Hospital, Inc., a Washington Corporation; Lewis-Clark Early Childhood Education and Assistance Program, Inc. d/b/a Lewis-Clark Head Start Early Childhood Program, an Idaho Corporation, Defendants, Craig Ambroson, M.D., a physician; Cindy Rae Norman, M.D., a physician; Spectrum Emergency Care, Inc., a Missouri Corporation; and Kimberly Grijalva Cross Berry, a former licensed foster mother, Respondents.

No. 19517-1-III.

Court of Appeals of Washington, Division 3, Panel Six.

February 20, 2003.

Ron Perey, Carla Tachau Lawrence, Law Office of Ron Perey, Seattle, James W. Grow, Jr., Lewiston, ID, for Appellants.

Marc A. Lyons, Ramsden & Lyons, Coeur d'Alene, ID, Christopher H. Howard, Kelly D. Cadigan-McGee, Holland, Knight LLP, Seattle.

Kimberley Cross Berry, Pro Se, for Respondents.

SCHULTHEIS, J.

In 1994, four-year-old Dirk Dalton was brutally beaten and killed by the foster father with whom he was temporarily residing while his mother was in a drug rehabilitation program. In the week prior to his death, Dirk's foster parents had brought him first to the office of pediatrician Dr. Craig Ambroson, and then, on three subsequent occasions, to the emergency room of Tri-State Memorial Hospital where he was treated by Dr. Cindy Rae Norman. The doctors noted bruises on Dirk's head and body during each of these visits, but accepted the foster parents' explanations of how they occurred.

Following Dirk's death, his estate and parents (Daltons) sued the foster mother, the two doctors, and Spectrum Emergency Care, Inc.¹ They contended the doctors committed malpractice in failing to recognize that Dirk was the victim of abuse. In addition, Daltons alleged that a factor in Dr. Norman's negligence in not recognizing abuse was her addiction to pain killers. They asserted that Spectrum, the agency that placed Dr. Norman at Tri-State Memorial, was liable both as her principal and separately for its own alleged lack of due care in performing its business of providing emergency room physicians to hospitals. The jury found only the foster mother negligent, and it awarded the plaintiffs only $4,900—the amount of Dirk's funeral expenses.

Daltons now appeal. They contend that the superior court erred when it denied their motion for a new trial. We agree with them that the trial was not fair because a juror intentionally concealed his actual bias against Casey Dalton. We therefore reverse the jury verdict and remand the cause to the superior court for retrial. In light of our holding, we do not address the remaining issues raised by Daltons in their appeal.²

Daltons' lawsuit arose out of the following facts: On the afternoon of May 1, 1994, emergency workers responded to a call from the home of Kirk and Kim Cross. On their arrival, Mr. Cross showed them Dirk Dalton, who was lying on the floor. The paramedics could not detect a pulse in Dirk and transported him to the hospital, where efforts to revive him were unsuccessful. Dirk had died of a ruptured duodenum, caused by some sort of blunt trauma to his abdomen, which he must have sustained several hours earlier. As a result of the trauma, the contents of Dirk's stomach and intestine had spilled into his abdominal cavity. Acute peritonitis set in, and death followed.

The Department of Social and Health Services had placed Dirk in temporary foster care with the Crosses on April 14, 1994, when Dirk's mother, Casey Dalton, entered a three-week drug rehabilitation program. On April 25th, Mrs. Cross took Dirk to the office of Dr. Craig Ambroson. She told Dr. Ambroson she was concerned because Dirk had several bruises. Mrs. Cross stated that Dirk had attended a carnival with her the day before and may have been jostled around during the carnival rides, but she thought the bruises were more than one would expect. Mrs. Cross asked Dr. Ambroson whether Dirk might be bruising too easily and whether that might indicate something serious. The doctor drew blood from Dirk to test for idiopathic thrombocytopenic purpura, a condition that leads to easy bleeding. The test results were normal. Dirk's hematocrit level was 35.7.

Two days later, on April 27, Mrs. Cross brought Dirk to the emergency room at Tri-State Memorial Hospital. Dr. Cindy Norman was the physician on duty. Mrs. Cross told Dr. Norman that Dirk had fallen from the top bunk of a bunk bed. According to Mrs. Cross, he had hit the floor head first, and he had a laceration on his forehead from landing on what she described as matchbook toys that were on the floor at the time. Dr. Norman sutured the wound.

Dirk went to his regularly scheduled Head Start class on April 28. For several days, the staff there had noticed a reluctance on Dirk's part to get on the bus at the end of the class to return to his foster home. They were alarmed by the appearance of Dirk's head and asked Child Protective Services to investigate. The staff told Kirk Cross, who came to pick up Dirk, that Head Start would require the written permission of a physician before Dirk could return to school. Mr. Cross took Dirk to the emergency room where he was again examined by Dr. Norman. She signed the permission slip for Dirk's return to school.

On Saturday night, April 30, at 10:15 P.M., Mrs. Cross once again brought Dirk to the emergency room. Dr. Norman was again in attendance. Dr. Norman noted increased bruising which she attributed to blood moving gravitationally from the original trauma. Dirk now had the appearance of "raccoon eyes." Report of Proceedings (RP) at 2228. He vomited before he arrived at the emergency room and also after getting there. A CAT (computed axial tomography) scan of Dirk's skull did not reveal a fracture, but his hematocrit level had dropped to 25.3. Dr. Norman phoned Dr. Ambroson at his home and conferred with him about Dirk's case. The two doctors decided that Dirk could be sent home for the night, if the foster parents brought him in the next day for further testing. Early the next morning, Mrs. Cross looked in on Dirk before she went to church. He was resting at that time. Mr. Cross remained at home with Dirk. At about 2 P.M., he called 911, telling the operator that Dirk was unconscious and nonresponsive. As stated above, Dirk was dead on arrival at the hospital. On June 2, 1994, hospital workers found Dr. Norman unconscious in her office. She tested positive for cocaine, opiates, and benzodiazepines.

A jury subsequently determined that Dirk died as a result of abuse by the foster father, Kirk Cross. The jury convicted Mr. Cross of homicide by abuse. He received a 60-year exceptional sentence.

Almost three years after Dirk's death, his estate and his mother and father brought this action against Drs. Ambroson and Norman for medical malpractice and failure to report suspected child abuse. They also sued Spectrum Emergency Care, as Dr. Norman's principal and for its alleged separate negligence in placing a drug impaired physician at Tri-State Memorial Hospital and not properly monitoring her performance. Pretrial discovery had revealed that Dr. Norman had been suspended from the practice of medicine because she was abusing alcohol and hydrocodone, a drug prescribed for pain relief, and had obtained the latter drug illegally. She was reinstated at some point before she began work at the hospital, and she was practicing medicine under a Washington monitoring program when she treated Dirk. However, she had relapsed before Dirk's death, was taking large doses of pain medication that she had fraudulently obtained, and was also abusing alcohol.

At trial, the parties called expert witnesses who gave conflicting opinions as to whether the doctors' treatment of Dirk fell below the standard of care and whether Dr. Norman's drug use caused her to misdiagnose the source of Dirk's bruises. The jury returned a verdict in favor of the doctors and Spectrum. It found only Kim Cross negligent, and it awarded Dirk's estate $4,900 damages against her, for Dirk's funeral and burial expenses.

The dispositive issue in Daltons' appeal from the judgments entered on the jury verdict is whether the superior court should have granted their motion for new trial based upon evidence that juror Donald Polumsky was biased against Casey Dalton and had concealed that bias during voir dire.

Daltons' motion for new trial alleged that in the same week as jury selection, prospective juror Donald Polumsky had his hearing aid serviced at Pure Tone Hearing Aid Service. According to an affidavit filed posttrial by Starla Rae Beckley, a worker at Pure Tone, Mr. Polumsky stated that "he thought that Casey Dalton was an opportunist trying to profit from her child's death. He asked, where was the family then? Where was the Dad? He questioned why anyone would want to profit from a child's death." Clerk's Papers (CP) at 2187. She also stated that "he was very negative about Casey Dalton due to [a] prior run[-in] she had with [a] member [of his family]." CP at 2187. She did not recall the...