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

• Decision Date: 07 July 1992
• Docket Number: No. 10790-6-III,TRI-STATE,10790-6-III
• Citation: 66 Wn.App. 350,831 P.2d 1147
• 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.
• Court: Washington Court of Appeals

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.

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 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 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 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 and mental deficits were "definitely not" caused by care during the perinatal period and were consistent with the deletion 9p syndrome. Reviewing the SHMC and OHSU cytogenetic reports, she concluded the reports reached the same results and confirmed Tammy's chromosomal abnormality as the source of her defects.

The Peltons deposed Dr. Pagon on March 2 and Dr. Menkes on March 5. On March 15, the Peltons requested a second continuance of the summary judgment hearing, contending they needed a blood test by the Mayo Clinic to resolve inconsistencies between the SHMC and OHSU tests; to examine the UW test results, not yet received, and identify responsive witnesses; to determine whether Tammy has cerebral palsy in light of recent comments by Markus Lefkovits, an examining psychologist; and to place the recent but not yet transcribed depositions of Drs. Pagon and Menkes before this court.

The doctors and the hospital submitted the supplemental declarations of Drs. Pagon and Menkes, which stated the SHMC, OHSU and UW cytogenetic reports were consistent and confirmed the genetic causation of Tammy's deficits.

After a hearing on March 22, the court found the three cytogenetic test results were consistent; the Mayo Clinic test would be similar to tests already performed; and the Peltons had failed to show additional testing would contradict evidence already obtained. The Peltons' motion was denied. The court also found the defendants met their burden by providing expert testimony establishing the genetic causation of Tammy's deficits, but the Peltons did not meet their burden of showing a genuine issue of material fact based on reasonable medical certainty by competent evidence. The court, therefore, entered an order for summary judgment of dismissal.

The Peltons appeal, contending the trial court erred by granting the summary judgment and refusing to delay the summary judgment hearing to allow additional time for discovery.

In reviewing a summary judgment, the appellate court engages in the same inquiry as the trial court. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). A motion for summary judgment will be sustained only if there is no genuine issue of material fact, viewing the evidence in the light most favorable to the nonmoving party. Marincovich, at 274, 787 P.2d 562.

In a medical negligence action, the defendant may move for summary judgment based on absence of competent...