Guile v. Ballard Community Hosp.

• Decision Date: 12 April 1993
• Docket Number: No. 30270-1-I,30270-1-I
• Citation: 851 P.2d 689,70 Wn.App. 18
• Court: Washington Court of Appeals
• Parties: Angelina GUILE, Appellant, v. BALLARD COMMUNITY HOSPITAL, and Frank Crealock, M.D., Respondents. Division 1

Page 18

70 Wn.App. 18

851 P.2d 689

Angelina GUILE, Appellant, v.BALLARD COMMUNITY HOSPITAL, and Frank Crealock, M.D., Respondents.

No. 30270-1-I.

Court of Appeals of Washington,

Division 1.

April 12, 1993.

Publication Ordered May 19, 1993.

Ross Taylor, Tacoma, for appellant.

Mary Spillane, Williams Kastner & Gibbs, David Gross and Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, for Respondents.

COLEMAN, Judge.

Angelina Guile appeals the trial court's orders of summary judgment, dismissing her medical malpractice claims against Frank Crealock, M.D., and Ballard Community Hospital (Ballard).Guile argues that Crealock and Ballard failed to establish the absence of genuine issues of material fact and that the affidavit of Dr. Sherman Meyer, an osteopath licensed in Arizona, was sufficient to defeat the summary judgment motions.We affirm.

In 1986Angelina Guile began periodically seeing Dr. Frank Crealock, a Seattle area obstetrician/gynecologist, for various gynecological concerns.On August 31, 1988, Guile went to the emergency room of a hospital in Olympia, suffering from what she thought was a sudden prolapse of the uterus.She was seen by Crealock on September 7, 1988, who diagnosed her as having a "large rectocele and posterior enterocele."¹

Surgery to repair the condition took place at Ballard Community Hospital on September 20, 1988.Ten days later, Guile began suffering from extreme pain in her rectum and again went to the emergency room.A culture for bacteria revealed the presence of a streptococcus infection.Crealock referred Guile to another physician for treatment.

Guile continued having vaginal pain and began seeing a third physician.She also complained that she was unable to engage in sexual intercourse.In 1990, she underwent corrective surgery because, as Guile alleges, Crealock had sewn up the vaginal wall too tightly.

On September 6, 1991, Guile filed an action against Crealock and Ballard Community Hospital, alleging that they breached their duty to adequately perform her surgery.According to the schedule set by the trial court, the cutoff date for disclosure of possible primary witnesses was set for November 12, 1992.In September 1991 and November 1991, Crealock and Ballard sent Guile interrogatories requesting, among other things, the identity of any expert witnesses she expected to call at trial.Guile answered that she was "currently compiling this information" and that it would be "provided prior to the date specified in the court's scheduling order for listing witnesses."

On January 9, 1992, the trial court considered Ballard's motion for summary judgment.The court ordered that the motion be renoted for February 7 and granted unless Guile produced "competent expert testimony as to the hospital's breach of the standard of care and its causal connection to plaintiff's injuries" by February 4, 1992.On January 13, 1992, Crealock also moved for summary judgment.On February 4, 1992, Guile submitted the affidavit of Dr. Sherman W. Meyer, an osteopath licensed in Arizona, in opposition to the motions.On February 7, 1992, the trial court granted summary judgment to both defendants.Guile appeals.

We first determine whether Crealock's and Ballard's motions for summary judgment were sufficient to shift the burden of proof to Guile.

A defendant can move for summary judgment in one of two ways.First, the defendant can set out its version of the facts and allege that there is no genuine issue as to the facts as set out.Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 916, 757 P.2d 507(1988).Alternatively, a party moving for summary judgment can meet its burden by pointing out to the trial court that the nonmoving party lacks sufficient evidence to support its case.Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225 n. 1, 770P.2d 182(1989)(citingCelotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265(1986)).In this latter situation, the moving party is not required to support its summary judgment motion with affidavits.Young, 112 Wash.2d at 226, 770 P.2d 182.However, the moving party must identify those portions of the record, together with the affidavits, if any, which he or she believes demonstrate the absence of a genuine issue of material fact.White v. Kent Medical Center, Inc., 61 Wash.App. 163, 170, 810 P.2d 4, 9(1991)(citingCelotex, 477 U.S. at 323, 106 S.Ct. at 2553;Baldwin v. Sisters of Providence in Washington, Inc., 112 Wash.2d 127, 132, 769 P.2d 298(1989)).

In Young, the plaintiff's son suffered permanent brain damage as a result of a drug he had been taking for his acute asthma.Young, 112 Wash.2d at 218, 770 P.2d 182.The defendants moved for summary judgment on two grounds.First, they argued that the action was barred by the statute of limitation.Second, they submitted affidavits establishing that the plaintiff received adequate treatment while under their care.Youngat 220, 226, 770 P.2d 182.The plaintiff responded with an affidavit from a pharmacist, stating that the physicians did not meet the required standard of care.Young at 220, 770 P.2d 182.The trial court concluded that the action was barred by the statute of limitations and that the plaintiff's affidavit failed to raise genuine issues of material fact.Young at 220, 770 P.2d 182.The plaintiff appealed and the case was certified to the Supreme Court.Young at 218, 770 P.2d 182.

The Supreme Court affirmed the summary judgment in favor of the medical defendants.Young at 231, 770 P.2d 182.The court adopted the Celotex standard, set forth above, which allows a defendant to move for summary judgment by pointing out that the plaintiff lacks competent medical evidence to make out a prima facie case of medical malpractice.Young at 225, 770 P.2d 182.The court then concluded that the plaintiff lacked competent medical evidence because "a pharmacist is not competent to testify on the physician's standard of care for treatment using medication."Young at 230, 770 P.2d 182.The court also noted that the defendants' affidavits in support of their summary judgment motions, although unnecessary under the Celotex rule, demonstrated that the plaintiff received adequate treatment while under their care.Young at 226, 770 P.2d 182.

In the present case, Guile argues that Crealock's and Ballard's motions for summary judgment were insufficient to establish the absence of a genuine issue of material fact.First, Guile argues that the standard adopted by the court in Young was "merely dicta," and that the proper standard for judging the sufficiency of a summary judgment motion should be as set forth in Hash v. Children's Orthopedic Hosp. & Med. Ctr., supra, andParkin v. Colocousis, 53 Wash.App. 649, 769 P.2d 326(1989).In addition, she argues that, as a matter of policy, her lack of an expert witness at such an early stage of the proceedings should not be grounds for dismissal of her case, especially since the cutoff date for disclosure of primary witnesses had not yet passed.

We agree with Guile that the standard set forth in Hash and Parkin requires a different showing than the standard set forth in Young.However, by adopting Celotex Corp. v. Catrett, supra, Young provides defendants with an alternate means of moving for summary judgment.Consequently, a defendant moving for summary judgment now has a choice: The defendant can attempt to establish through affidavits that no material factual issue exists or, alternatively, the defendant can point out to the trial court that the plaintiff lacks competent evidence to support an essential element of his or her case.Young, 112 Wash.2d at 225 and n. 1, 770 P.2d 182;White, at 170.If a defendant chooses the latter alternative, the requirement of setting forth specific facts does not apply.The reason for this result is that "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

In the present case, both Ballard and Crealock properly pointed out to the trial court that Guile lacked competent medical evidence to establish her case.Because they moved for summary judgment based on Guile's lack of evidence they were not required to support their summary judgment motions with affidavits.²Young, 112 Wash.2d at 226, 770 P.2d 182.

Guile attempts to distinguish Young on the ground that the defendants in that case moved for summary judgment at trial, whereas here the defendants moved for summary judgment more than a year before the trial date.She argues that it is unfair to require a plaintiff to retain an expert at such an early stage in the proceedings.However, if a nonmoving party needs more time to obtain expert witnesses or otherwise respond to a summary judgment motion, CR56(f) allows the court to order a continuance.³SeeCelotex, at 326, 106 S.Ct. at 2554("Any potential problem with such premature motions can be adequately dealt with under Rule 56(f), which allows a summary judgment motion to be denied, or the hearing on the motion to be continued, if the nonmoving party has not had an opportunity to make full discovery."(Footnote omitted.)).

When Ballard initially moved for summary judgment on January 9, 1992, the record indicates that Guile requested a continuance.The trial court gave her until February 4, 1992 to produce an expert witness, at which time she submitted Dr. Meyer's affidavit.Because she did not move for another continuance or otherwise indicate to the trial court that she needed more time to produce an expert witness, she cannot now claim that the trial court granted the summary judgment motions prematurely.If she needed additional time, the proper remedy would have been to request another continuance from the trial court.Because she failed to do this, we agree with the defendants that she isprecluded from raising this issue...