Leighton v. Urology Northwest, No. 56642-3-I (Wash. App. 8/21/2006)
| Decision Date | 21 August 2006 |
| Docket Number | No. 56642-3-I,56642-3-I |
| Court | Washington Court of Appeals |
| Parties | GAIL LEIGHTON and ROBERT LEIGHTON, wife and husband, and the marital community composed thereof, Appellants, v. UROLOGY NORTHWEST, P.S., KARNY JACOBY, M.D. and JOHN DOE JACOBY, wife and husband, and the marital community composed thereof, WALLINGFORD FAMILY PRACTICE, P.S., LINDA J. CLARK M.D. and TIM STEARNS, wife and husband and the marital community composed thereof, Respondents. |
Appeal from Superior Court of King County. Docket No. 01-2-05644-1. Judgment or order under review. Date filed: 06/30/2005. Judge signing: Hon. Gregory P Canova.
Counsel for Appellant(s), Charles A. Kimbrough, Attorney at Law, 11033 NE 24th St Ste 200, Bellevue, WA 98004-2941.
Anne Elizabeth Melley, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), William Robert Hickman, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Pamela A. Okano, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Sherry Hemming Rogers, Reed McClure, Two Union Square, 601 Union St Ste 1500, Seattle, WA 98101-1363.
Gail Leighton appeals the trial court's summary judgment order dismissing her medical negligence and informed consent claims against Dr. Karny Jacoby. She argues that the medical records attached to her expert's original declaration sufficiently support his conclusion in the declaration itself that Dr. Jacoby breached the standard of care and caused her injury and damages. Failing that, she contends the expert's detailed second declaration required the trial court to grant her motion for reconsideration.
It is the medical expert's role, not the court's, to identify which acts or omissions he or she believes violated the standard of care and explain why the defendant physician breached the standard. Here, the medical records themselves do not clearly establish which of Dr. Jacoby's acts or omissions the expert believes fell below the standard of care, nor do they give any indication why he reached that conclusion. Further, the second declaration was based on evidence available well before the expert made his original declaration, and Leighton's trial counsel never offered a good reason why the original declaration did not contain that detailed information. It was not newly discovered evidence, and the trial court was not required to consider it. While we sympathize with Ms. Leighton, there is no basis on which to reverse the trial court.
In 1997, Gail Leighton contacted her primary care physician, Dr. Linda Clark, complaining of bladder problems. Dr. Clark diagnosed the problem as anatomical and in January 1998, she referred Leighton to Dr. Karny Jacoby, a member of the Urology Northwest, P.S., practice group, for a urologic consultation. On January 28, Dr. Jacoby examined Leighton and made the following assessment:
Significant pelvic prolapse with grade IV cystocele, high rectocele, and possibility of vault prolapse without incontinence. Reviewed options utilizing detailed anatomical drawings. Discussed options of pessary versus reconstructive surgery. Patient is interested in reconstructive surgery. Reviewed risks and complications of surgery, as well as expected outcomes. . . .1
On February 23, Leighton had a pre-operation appointment with Dr. Jacoby at which they reviewed the planned surgery and the risks and complications again, and Leighton signed informed consent documents. Dr. Jacoby performed surgery on March 2, 1998, including a 'Raz four corner bladder neck suspension, cystocele, rectocele and perineal repair, sacrospinous ligament fixation, {and} cystoscopy.' She completed an operation procedure report shortly after the surgery.
Following the surgery, Leighton experienced stress urinary incontinence and pain during intercourse. During a follow-up visit on April 8, 1998, Dr. Jacoby noted that Leighton was recovering well but was concerned about her incontinence problems. Dr. Clark referred Leighton to Dr. James P. Gasparich, who examined Leighton on June 15, 1998, and found a small cystocele and some foreshortening of the vagina. Leighton then sought out Dr. Roger C. Andersen of the Women's Urology Center, who first examined her on July 16, 1998. Leighton complained that she had loss of urine when she coughed or bent over, intercourse remained painful, and it felt like there was a barrier near the entrance of her vagina. Dr. Andersen found that Leighton's vagina had been shortened and that rectocele repair may be necessary.
Dr. Andersen performed surgery on Leighton on October 9, 1998, to address her continuing incontinence and painful intercourse problems. He stated in an operative note that Leighton had considerable defects to the posterior vaginal floor with several bands of tissue being tight across the floor which were very tender to palpation with this patient. It appeared that possibly excess vaginal mucosa had been trimmed away as well as sutures being placed too lateral. The plan was to dissect these free in the hopes that she could have normal intercourse. Also, following the previous surgery, she became incontinent, having never suffered from this before and we are therefore doing a sling at this time to correct the incontinence.
This surgery did not resolve all of Leighton's problems, so Dr. Andersen operated again on April 16, 1999. On May 4, 1999, at Leighton's request, Dr. Andersen sent a letter to Dr. Clark summarizing his care of Leighton. He discussed his review of Leighton's March 1998 surgery, noting that apparently there was no 'urodynamic evaluation done pre-operatively{,}' and stating that
{d}ue to missing details in the operative report certain aspects of the surgery were unclear to me. It does appear the bladder was purposefully sutured to the fascia and the levator plate, which is rather unusual for this repair. No preop mention is made of what is described in the op note as a large rectocele. A sacrospinous ligament suspension is mentioned although there is no clarification as to what side or if it was bilateral nor the exact technique used. Vaginal mucosa was trimmed out anteriorly and posteriorly. No mention is made as to how the caliber or length of the vaginal vault was evaluated.
On February 21, 2001, Leighton filed a complaint against Dr. Jacoby and Urology NW, and Dr. Clark and Wallingford Family Practice, alleging negligence and failure to obtain her informed consent. On September 21, 2001, the trial court granted Dr. Clark's and Wallingford Family Practice's summary judgment motion and dismissed Leighton's claims against them, leaving only her claims against Dr. Jacoby and Urology NW. Over the next two years the discovery process became increasingly contentious, with the parties having difficulty agreeing on deposition dates and each party wanting to depose the other's witnesses first.2
On March 6, 2003, Leighton moved to compel discovery and Dr. Jacoby's attendance at a March 13 deposition. But before the court considered Leighton's motion, an Order of Rehabilitation and Appointment of Receiver was entered against Dr. Jacoby's medical malpractice insurer, Washington Casualty Company (WCC), in an unrelated case, requiring a stay of all proceedings in which WCC was a party or was obligated to defend. In May 2003, the trial court stayed Leighton's case pending the outcome of WCC's receivership proceedings. In the fall of 2004, the court set a trial date of November 14, 2005. Discovery problems continued where they had left off, and the relationship between the parties' attorneys remained acrimonious.
On May 25, 2005, Dr. Jacoby moved for summary judgment, arguing Leighton did not have expert testimony showing that she had deviated from the standard of care, caused Leighton's injury, or failed to obtain informed consent. The trial court set a hearing for June 30, 2005. On June 17, Leighton filed several documents in opposition to Dr. Jacoby's summary judgment motion, including Dr. Andersen's declaration. Andersen said he had reviewed all of Leighton's medical records related to her surgery, and he made the following statements:
6. I am familiar with the proper medical treatment for Mrs. Leighton's conditions under the medical standards of care that are expected of reasonably prudent physicians under the same or similar circumstances related to Mrs. Leighton's medical care and treatment rendered by Dr. Jacoby.
7. The acts or omissions by Karny Jacoby, MD, related to her surgery on Gail Leighton on March 2, 1998, in my opinion, were negligent because her medical care and treatment breached the medical standards of practice by failing to exercise that degree of care, skill and learning for a reasonably prudent medical physician, under the same or similar circumstances, and as a result caused Gail Leighton to suffer injuries.
He attached several medical records to his declaration, including Leighton's initial history, physical and intake form, operative reports for the two surgeries he performed, and his letter to Dr. Clark summarizing his care of Leighton.
In her brief opposing Dr. Jacoby's summary judgment motion, Leighton asked the court to either compel Dr. Jacoby's appearance at a deposition or grant summary judgment for Leighton. On June 24, Leighton filed a formal motion to compel Dr. Jacoby's deposition within 15 days and award terms and sanctions for her refusal to comply with discovery rules. She also filed a motion to shorten the time for hearing her motion to compel, so it would be heard before the hearing on Dr. Jacoby's summary judgment motion. The trial court denied the motion to shorten time.
At the July 30 summary judgment hearing, the court declined to hear argument on Leighton's discovery request, ruling that it was not related to the ...
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