Pelton v. Tri-State Memorial Hosp., Inc., TRI-STATE

• Court: Court of Appeals of Washington
• Citation: 66 Wn.App. 350,831 P.2d 1147
• Docket Number: No. 10790-6-III,TRI-STATE,10790-6-III
• Parties: Stephen D. PELTON and Charlene F. Pelton, husband and wife, individually, and Stephen D. Pelton as guardian for Tammy I. Pelton, a minor, Appellants, v.MEMORIAL HOSPITAL, INC., a corporation, G.D. Oh and Jane Doe Oh, husband and wife, and J.S. Dunlop and Jane Doe Dunlop, husband and wife, Respondents.
• Decision Date: 07 July 1992

Page 350

66 Wn.App. 350 831 P.2d 1147 Stephen D. PELTON and Charlene F. Pelton, husband and wife,
individually, and Stephen D. Pelton as guardian
for Tammy I. Pelton, a minor, Appellants,
v.
TRI-STATE MEMORIAL HOSPITAL, INC., a corporation, G.D. Oh
and Jane Doe Oh, husband and wife, and J.S. Dunlop
and Jane Doe Dunlop, husband and wife,
Respondents. No. 10790-6-III. Court of Appeals of Washington,
Division 3, Panel One. July 7, 1992.

[831 P.2d 1148]

Page 351

Eugene G. Schuster, Critchlow, Williams, Schuster, Malone & Skawbania, Richland (Danny Radakovich, Lewiston, Idaho, of counsel), for appellants.

David A. Gittins and Little, Pike & Gittins, Clarkston; Dan W. Keefe, Christopher J. Kerley, Keefe, King & Bowman; William D. Symmes, Brian T. Rekofke, Witherspoon, Kelley, Davenport & Toole, P.S., Spokane, for respondents.

MUNSON, Judge.

In this medical negligence action alleging injuries caused by birth trauma, the trial court granted the doctors' and hospital's joint motion for summary judgment of dismissal, finding the Peltons failed to meet their burden of raising a genuine causation issue based on reasonable medical certainty. The Peltons appeal; we affirm.

Following a normal pregnancy attended by George D. Oh, M.D., and John S. Dunlop, M.D., Charlene Pelton entered Tri-State Memorial Hospital on October 13, 1983. Dr. Dunlop attempted vaginal delivery assisted by forceps; Tammy Pelton was subsequently delivered by Caesarean section.

In December 1984, Tammy experienced seizures and was examined by Dr. James Stockard, a neurologist. Since then, Tammy has evidenced neurological and mental deficits, partial loss of motor function, and a seizure disorder.

In 1985, the Peltons filed a negligence action against the hospital, the attending physician, Dr. Dunlop, and his partner, Dr. Oh. Dr. Oh was later dismissed from the action except for potential derivative liability. The Peltons alleged

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the injuries were caused by perinatal trauma at the hospital.

Trial was set for March 26, 1990. On September 21, 1989, a magnetic resonance imaging (MRI) scan was conducted on Tammy and interpreted by Dr. Zobell, who concluded the scan disclosed no brain damage attributable to birthtrauma. A copy of the report was sent to Tammy's counsel. By November 1, 1989, the doctors and the hospital identified their expert witnesses as Drs. Royce L. Zobell (neuroradiologist), John H. Menkes (pediatric neurologist), Zane Brown (perinatologist) and Roberta A. Pagon (medical geneticist).

On December 28, 1989, Dr. Menkes examined Tammy and drew her blood in the [831 P.2d 1149] presence of her father. The blood sample was tested by the Sacred Heart Medical Center (SHMC) cytogenetic laboratory, and the January 11, 1990 report disclosed a chromosomal defect 9p22: ¹

A deletion of the terminal portion of one chromosome 9 is present in all cells analyzed. The break point appears to be at or near band 9p22.... [A]pproximately one-third of cases result from a parental translocation; cytogenetic analysis of the parents should therefore be considered.

Based on the clinical examination and the cytogenetic report, Dr. Menkes concluded Tammy's deficits were totally caused by chromosome anomaly occurring at conception and not by any conduct of the health care providers. A copy of this report was sent to Tammy's physician, Dr. Stockard, who discussed the genetic material with Tammy's parents and counsel on January 15, 1990.

On February 13, Drs. Dunlop and Oh and Tri-State Hospital jointly moved for summary judgment. The motion was supported by declarations of their four medical experts. On February 21, the Peltons moved to vacate the hearing and trial date, extend discovery and name additional experts. At the February 27 hearing on the motion, the Peltons stated they needed more time to respond to the

Page 353

recently developed genetic theory; to complete interpretation of the February 20 Oregon Health Sciences University (OHSU) test they had requested; to locate experts; and to make further discovery. Defense counsel notified the court that Dr. Pagon, head of the Children's Hospital and MedicalCenter Regional Genetics Clinic in Seattle since 1979, would examine Tammy on March 1 and draw another blood sample for tests by the University of Washington (UW). The motion was granted and the hearing on summary judgment was reset for March 22.

OHSU's March 7 report stated that all cells examined had

a terminal deletion of a chromosome 9 short arm. The deleted portion appears to include most of band 23 to the terminal end of the short arm. However, another possible interpretation is that there is an interstitial deletion of the short arm between p22. 1 and p24. 1.

Recommend chromosome studies of both parents to rule out balanced translocation carrier status, assess potential risk for other family members and to possibly aid in more precise definition of break points.

On March 1, Dr. Pagon examined Tammy and drew blood for UW testing. Based on the clinical examination, she concluded Tammy's neurological...