Davies v. Holy Family Hosp.

• Decision Date: 21 February 2008
• Docket Number: No. 25960-9-III.,25960-9-III.
• Citation: 144 Wn. App. 483,183 P.3d 283
• Parties: William DAVIES, individually and as Personal Representative of the Estate of Anita Davies, Appellant, v. HOLY FAMILY HOSPITAL, Respondent, Stephen Anthony, D.O. and Jane Doe Anthony; Cancer Care Northwest; and John Does I-III, Defendants.
• Court: Washington Court of Appeals

183 P.3d 283

144 Wn. App. 483

William DAVIES, individually and as Personal Representative of the Estate of Anita Davies, Appellant, v. HOLY FAMILY HOSPITAL, Respondent Stephen Anthony, D.O. and Jane Doe Anthony; Cancer Care Northwest; and John Does I-III, Defendants.

No. 25960-9-III.

Court of Appeals of Washington, Division 3.

February 21, 2008.

Publication Ordered May 13, 2008.

Dustin Douglass Deissner, Van Camp & Deissner, Spokane, WA, for Appellant.

Carole Lynne Rolando, Attorney at Law, Angela Marnel Hayes, Randall & Danskin PS, Spokane, WA, Mary H. Spillane, William Kastner & Gibbs, Seattle, WA, for Respondent.

KULIK, J.

¶ 1 William Davies brought an action against Holy Family Hospital for medical negligence after his wife died following kidney surgery. Holy Family moved for partial summary judgment, seeking dismissal of Mr. Davies's claims that were based on the care provided by the hospital's employees. Mr. Davies must present competent expert medical testimony to defeat summary judgment. Mr. Davies fails to establish that the radiologist is qualified to render an opinion and Mr Davies does not allege specific facts to establish a cause of action. Accordingly, we affirm the trial court's grant of summary judgment.

FACTS

¶ 2 On March 25, 2004, Anita Davies was admitted to Holy Family after receiving treatment at Mount Carmel Hospital in Chewelah, Washington. On admission to Holy Family, Ms. Davies was placed on a heparin drip, an anti-coagulant. Shortly afterward, Ms. Davies was placed on Coumadin, also an anti-coagulant.

¶ 3 A CT-guided¹ renal biopsy procedure was ordered on March 30. The physician's order indicated that the Coumadin was to be discontinued, but the order did not address the heparin drip. The next day, during the procedure, the renal capsule was detached. Detachment of the renal capsule was a recognized risk of the procedure.

¶ 4 Following the procedure, Ms. Davies was returned to her hospital room. Soon, Ms. Davies began experiencing episodes of hypotension, indicative of internal bleeding. Over several hours, Ms. Davies "coded" on three separate occasions. Clerk's Papers (CP) at 86. On each occasion, hospital staff and employees responded but attributed Ms. Davies's condition to a reaction to narcotic medication rather than internal bleeding. Ms. Davies's internal bleeding went unrecognized and untreated. Ms. Davies died on April 1, 2004, while hospitalized at Holy Family Hospital following kidney surgery. Her death was the result of undiagnosed and untreated internal bleeding caused by damage to the renal capsule during the surgery.

¶ 5 Procedural History. William Davies, in his individual capacity and as the personal representative of Ms. Davies's estate, filed a medical negligence claim against Holy Family and three "John Doe" defendants on February 8, 2006. The complaint was later amended to add additional defendants.

¶ 6 Mr. Davies's complaint and amended complaint alleged that the biopsy procedure was undertaken without appropriately discontinuing the prescribed anti-coagulants or performing appropriate laboratory work. He further asserted that the hospital's actions and failure to act, in response to Ms. Davies's post-operative condition, fell below the applicable standard of care in violation of chapter 7.70 RCW and constituted negligence.

¶ 7 First Motion for Summary Judgment. On June 23, Holy Family filed its first motion for partial summary judgment, based on actual and ostensible agency. In its motion, Holy Family moved to dismiss any claims against the hospital related to the care and treatment provided by various independent physicians who Mr. Davies alleged were operating as actual or ostensible agents of Holy Family. The parties stipulated to the dismissal of those claims with prejudice. Holy Family's first motion for partial summary judgment is not the subject of this appeal.

¶ 8 Second Motion for Summary Judgment. On August 17, Holy Family filed a second motion for partial summary judgment, seeking dismissal only of those claims against Holy Family based on the care provided to Ms. Davies by the hospital's employees and actual agents. Those individuals expressly included the "nurses, respiratory therapists, physical therapists, certified nurse assistants (CNA), registered dieticians, and other actual employees of the hospital who may have been involved in the care of Mrs. Davies." CP at 186. In its motion, Holy Family asserted that Mr. Davies lacked competent evidence to support a prima facie case of medical negligence. Specifically, Holy Family asserted that Mr. Davies failed to produce any qualified expert witness.

¶ 9 A hearing on the motion for partial summary judgment was originally scheduled for September 15. Mr. Davies requested a continuance to allow his counsel time to receive a response to outstanding discovery requests, which was filed August 18. On August 25, a hearing was held regarding the motion for a continuance. The court denied the motion and ordered Mr. Davies to produce an affidavit from a qualified expert in response to Holy Family's motion for partial summary judgment by September 13. The court, nonetheless, moved the hearing on the motion for partial summary judgment to December 1.

¶ 10 On September 11, Mr. Davies filed a disclosure of lay and expert witnesses. This document identified Dr. Randall Patten, Dr. George Lindholm, and other "[t]reating healthcare providers" as expert witnesses. CP at 219. Then, on September 13, Mr. Davies responded with a memorandum opposing Holy Family's motion for partial summary judgment and an affidavit from his attorney. Attached to the affidavit, Mr. Davies submitted the supplemental declaration of Dr. Patten, a physician practicing in Washington and board certified radiologist. Dr. Patten's declaration offered his opinion as to a breach of the standard of care by hospital and nursing staff. In a subsequent declaration, Dr. Patten also stated that based on a review of Ms. Davies's medical records, it did not appear that Coumadin was in fact discontinued and the heparin drip was in place up to the time the renal biopsy was performed. Holy Family filed its reply brief on September 14, arguing that Dr. Patten was not qualified to render an expert opinion as to the standard of care for nurses.

¶ 11 On December 1, the trial court considered Holy Family's motion for partial summary judgment at a hearing with oral argument. Mr. Davies's attorney had withdrawn without explanation, effective November 27. Consequently, Mr. Davies appeared at the hearing pro se. The trial court issued a verbal order granting Holy Family's motion and scheduled presentment of the order for December 22.

¶ 12 Mr. Davies's new counsel appeared for Mr. Davies on December 13. Subsequently, Mr. Davies, through his second attorney, filed two motions on December 20: a motion for reconsideration, and a motion to submit an untimely response because of the change of counsel. In support of the motion to submit an untimely response, Mr. Davies submitted the declarations from his attorney and Karen Crowe, R.N. Ms. Crowe is Mr. Davies's niece, but was never identified as an expert witness.

¶ 13 On December 22, as scheduled, the trial court signed the order granting Holy Family's motion for partial summary judgment. On January 9, 2007, the court ordered Holy Family to file a response brief to Mr. Davies's motion for reconsideration. Holy Family filed its response to Mr. Davies's motion. Mr. Davies was provided with time to file a reply, but he did not do so.

¶ 14 Holy Family also moved to strike Ms. Crowe's declaration on the basis that it was untimely and failed to present a sufficient foundation for admissibility in the action under CR 56(e). The trial court struck the declaration and ultimately denied Mr. Davies's motions for reconsideration and for leave to submit an untimely response. Mr. Davies filed a timely notice of appeal.

¶ 15 Although additional defendants were named in this action, Mr. Davies voluntarily dismissed the remaining parties and issues by stipulation.

ANALYSIS

¶ 16 Standard of Review. Summary judgment rulings are reviewed de novo. Seybold v. Neu, 105 Wash.App. 666, 675, 19 P.3d 1068 (2001). When reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Kahn v. Salerno, 90 Wash. App. 110, 117, 951 P.2d 321 (1998). Summary judgment is appropriate if the record before the court shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff v. County of King, 125 Wash.2d 697, 703, 887 P.2d 886 (1995). An appellate court may affirm a trial courts disposition of a summary judgment motion on any basis supported by the record. Redding v. Virginia Mason Med. Ctr., 75 Wash.App. 424, 426, 878 P.2d 483 (1994).

¶ 17 As a threshold matter, the order granting partial summary judgment was properly preserved for review by Mr. Davies's notice of appeal, even though the notice did not specifically identify the trial court's underlying summary judgment order as the ruling for which he sought review. RAP 2.4(c) provides that an appellate court will review a final judgment not designated in the notice of appeal if the notice designates an order deciding a timely posttrial motion based upon CR 59, which includes a motion for reconsideration. Thus, an appeal from an order on a motion for reconsideration, as in this case, allows review of the propriety of the final judgment itself.

¶ 18 Summary Judgment. To prevail on a claim of medical negligence, the plaintiff must prove that the defendant health care provider "failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of...