Ohler v. Tacoma General Hospital
| Decision Date | 16 August 1979 |
| Docket Number | No. 45247,45247 |
| Citation | 598 P.2d 1358,92 Wn.2d 507 |
| Parties | Lana OHLER, Appellant, v. TACOMA GENERAL HOSPITAL, a corporation, and Air Shields, Inc., a corporation, Respondents. |
| Court | Washington Supreme Court |
Sullivan, Morrow & Longfelder, Kerry D. Kidman, Daniel F. Sullivan, Seattle, for petitioner.
Detels, Draper & Marinkovich, Eric L. Freise, Seattle, Williams, Lanza, Kastner & Gibbs, Thomas H. Fain, Joel D. Cunningham, Seattle, Billett, Comfort & Rosenow, Beverly J. Rosenow, Jack G. Rosenow, Tacoma, for respondents.
Plaintiff Lana Ohler appeals from summary judgments in favor of defendants Tacoma General Hospital and Air Shields, Inc. The trial court ruled that Ohler's medical malpractice and products liability claims were barred by statutes of limitations. We reverse.
Lana Ohler was born 2 months prematurely at Tacoma General Hospital on February 16, 1953. Because of her prematurity, she was placed in an incubator for about 16 days and given oxygen. Lana alleges that the incubator was manufactured by Air Shields. Shortly after Lana was discharged from the hospital, her mother discovered that Lana was blind. Lana was diagnosed as suffering from retrolental fibroplasia (RLF).
RLF is the formation of opaque tissue behind the eye lens. During the 1940's and early 1950's, RLF allegedly blinded a large number of premature infants. It is said that scientific research later established as its cause excessive concentrations and administration of oxygen in the first few days of the infant's life. See generally Arnold, Retrolental Fibroplasia (RLF): History and State of the Art, 1977 Med. Trial Tech. Q. 297.
From a very early age, Lana knew that her blindness resulted from "too much oxygen to (her) eyes." However, she claims that she always believed that the oxygen had been properly administered, that it was necessary for her treatment as a premature baby, and that blindness was a complication of her prematurity.
In the fall of 1974, when she was 21 years old, Lana heard through the news media that a school friend, who also suffered from RLF, had initiated a lawsuit alleging that her blindness had been caused by the wrongful conduct of a hospital and an incubator manufacturer, Air Shields, Inc. Within a week, Lana contacted her friend's attorney and in her affidavit said that she "discovered for the first time that it was possible that (she) did not need as much, if any, oxygen as was actually administered to (her) in (her) infancy and that (her) sightlessness might have been prevented." In March 1975, shortly after her 22nd birthday, Lana commenced this lawsuit.
The statute of limitations governing appellant's medical malpractice action against Tacoma General Hospital provides:
Any civil action for damages . . . against:
. . . a hospital . . . based upon alleged professional negligence shall be commenced within . . . one year of the time the patient . . . discovered . . . that the injury or condition was caused by said act RCW 4.16.350. The statute was amended in 1975, but the amendment applies only to health care provided after June 25, 1976, and is not relevant here.
The trial court granted respondent Tacoma General's summary judgment motion by ruling that appellant had not commenced her action within one year of her discovery that her blindness may have resulted from Tacoma General's wrongful conduct. It ruled that Lana discovered Tacoma General's "wrongful act" when first she learned that her blindness was due to excess oxygen given during her infancy incubation, even though she then may not have realized that the oxygen administration was tortious. Since Lana had known from an early age that she was blinded from "too much oxygen," the trial court ruled that the one-year statute of limitations began to run against Lana's claim when she turned 18 years old, the age of majority in this state. See RCW 4.16.190. Since Lana did not commence her lawsuit until she was 22 years old, the trial court dismissed her suit as time-barred.
The issue here, therefore, is whether the trial court correctly formulated and applied RCW 4.16.350's one-year discovery rule. The correct formulation of the discovery rule poses a question of law, but the application of the rule presents a question of fact. 5A L. Frumer, Personal Injury: Actions, Defenses, Damages § 4.03(3)(d)(iii), at Phy-386, 387 (1977).
The trial court erred as a matter of law when it ruled that appellant's cause of action accrued when she "discovered" the cause of her blindness ("too much oxygen"), even if no fault on the tort feasor's part then was apparent. This formulation of RCW 4.16.350's one-year discovery rule omits an essential element of a negligence cause of action: respondent's breach of duty. W. Prosser, Torts § 30, at 143 (4th ed. 1971). She knew the alleged act, administration of oxygen, and she knew the result, blindness, but there is a factual issue whether she knew or should have known that the result was a breach of the hospital's duty. We refuse to hold as a matter of law that knowledge received at age 4 imparts to that child a realization that administration of "too much oxygen" did or may have constituted a breach of duty.
We hold that appellant's claim against Tacoma General did not accrue until she discovered or reasonably should have discovered all of the essential elements of her possible cause of action, I. e., duty, breach, causation, damages. Our holding accords with rulings on malpractice claims under the Federal Tort Claims Act by the United States Courts of Appeal for five circuits. DeWitt v. United States, 593 F.2d 276, 278 (7th Cir. 1979); Kubrick v. United States, 581 F.2d 1092, 1096-97 (3d Cir. 1978); Exnicious v. United States, 563 F.2d 418, 420 (10th Cir. 1977); Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir. 1977); Jordan v. United States,503 F.2d 620, 622 (6th Cir. 1974). See also Brown v. Mary Hitchcock Memorial Hosp., 117 N.H. 739, 378 A.2d 1138 (1977) and Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973).
As a separate issue, the trial court erred when it granted Tacoma General'ssummary judgment motion. Under CR 56(c), summary judgment is available only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The material submitted for and against the summary judgment motion is considered in the light most favorable to appellant, the nonmoving party. Marino Property Co. v. Port of Seattle, 88 Wash.2d 822, 824, 567 P.2d 1125 (1977); Morris v. McNicol, 83 Wash.2d 491, 495, 519 P.2d 7 (1974). Respondent, Tacoma General, the moving party, has the burden initially to prove by uncontroverted facts that no genuine issue of material fact exists. LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975).
A "material fact" is one on which the litigation's outcome depends. Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977). The outcome-determinative fact here is the timing of appellant's discovery of all the elements of her possible cause of action against Tacoma General.
We are not persuaded that the record supports the conclusion that "no genuine issue" exists about this material fact. At best, Tacoma General points to appellant's deposition statements that she knew from childhood that her blindness was caused by "too much oxygen" and that possibly she may have been told about RLF while she was a student at the State School for the Blind. It does not present uncontroverted facts to dispute Lana's claim that she was unaware of the "wrongful" amount of oxygen given her as an infant. Resolving all inferences arising from Lana's affidavit and deposition most favorably to her, Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966 (1963), it must be said that reasonable persons can differ about when Lana discovered that her blindness may have been caused by Tacoma General's wrongful acts. Yerkes v. Rockwood Clinic, 11 Wash.App. 936, 941-42, 527 P.2d 689 (1974). A genuine issue of material facts exists and its resolution should be left to the trier of fact.
Respondent Tacoma General, however, relies particularly on Brown v. United States, 353 F.2d 578 (9th Cir. 1965). Brown, like Quick v. Aetna Cas. & Sur. Co., 347 So.2d 59 (La.App.), Rev. denied, 350 So.2d 889 (1977), involved a medical malpractice claim for RLF blindness and barred the claim by statute of limitations.
The two cases are not persuasive here. First, in both cases, the parents of RLF children, and not the children themselves, brought suit. While appellant's parents may have had enough knowledge about RLF to know constructively of its possible wrongful cause, their actual or constructive knowledge cannot be imputed to Lana who is the sole plaintiff in this case. If the negligence of a parent is not imputed to a child, as it is not, knowledge of the parent about a possible cause of action should not be imputed to the child, at least absent communication to the child. Vioen v. Cluff, 69 Wash.2d 306, 418 P.2d 430 (1966). Cf. O'Brien v. Woldson, 149 Wash. 192, 195, 270 P. 304 (1928). Second, the record here does not demonstrate manifestly that RLF and its possible wrongful causes were ever explained fully to Lana, as they were explained to the parents-plaintiffs in Brown and Quick.
The statutes of limitations governing appellant's product liability action against Air Shields, Inc. are RCW...
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