Peters v. Ballard

• Decision Date: 14 May 1990
• Docket Number: No. 23108-1-I
• Citation: Peters v. Ballard, 795 P.2d 1158, 58 Wn.App. 921 (Wash. App. 1990)
• Parties: Joanne PETERS and Leon Peters, husband and wife, Appellants, v. Jack D. BALLARD and Jane Doe Ballard, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 921

58 Wn.App. 921

795 P.2d 1158

Joanne PETERS and Leon Peters, husband and wife, Appellants, v.Jack D. BALLARD and Jane Doe Ballard, husband and wife, Respondents.

No. 23108-1-I.

Court of Appeals of Washington Division 1.

May 14, 1990.

Publication Ordered Aug. 22, 1990.

Reconsideration Denied Aug. 22, 1990.

Ralph J. Brindley and Karen J. Vanderlaan, Seattle, for appellants, Joanne and Leon Peters.

Tyna Ek, Seattle, for respondents, Jack and Jane Doe Ballard.

THIBODEAU, Judge Pro Tem.^*

Joanne and Leon Peters appeal from a Superior Court order of dismissal following a defense verdict in their medical malpractice claim against Dr. Jack D. Ballard and his wife.

FACTS

On October 15, 1979, Dr. Jack Ballard performed a surgical procedure called horizontal gastroplasty (HG), also known as stomach stapling, on Joanne Peters.The purpose of the surgery was to treat Peters' obesity because she weighed in excess of 300 pounds.The surgery was successful and by July 1980, Peters had lost over 78 pounds.However, by March 1981, Peters had regained 19 pounds.Despite attempts at dietary control, Peters continued to regain weight.

In the spring of 1982, Peters was informed by Dr. Ballard's office of a revision surgery that had been developed to stem the weight gain that often times would occur even after a successful horizontal gastroplasty was performed.Peters met with Dr. Ballard at his office on April 27, 1982, and they discussed the procedure.On June 9, 1982, Dr. Ballard performed the revision surgery on Peters.

The day after the surgery, Peters developed an infection in her abdominal cavity.It is unclear what caused the infection.From June 11 through 13, 1982, Dr. Ballard was out of town at a conference.During that time, he left Peters in the care of Dr. Roger Evans.Drs. Evans and Ballard were both employees and shareholders of the same professional service corporation at that time.Dr. Evans had assisted Dr. Ballard on both of Peters' surgeries.

By June 14, 1982, Peters' condition worsened.The next day, Dr. Ballard surgically explored Peters' abdominal cavity and found evidence of infection, but no stomach perforation.Peters eventually improved and was discharged from Highline Community Hospital on June 26, 1982.

Approximately one week later, Peters was readmitted to the hospital with a fever.The next day, she transferred to Swedish Hospital and came under the care of Dr. Jay Kranz.Dr. Ballard did not treat Peters after this point.

A test performed on July 31, 1982, indicated that Peters had a stomach perforation.It is unclear whether that perforation existed prior to Peters' discharge from Highline Community Hospital on July 26, 1982.After learning of this perforation, Dr. Kranz waited three days to operate on Peters.

Following surgery, Peters was discharged on August 28, 1982.However, three days later she was readmitted with a massive gastrointestinal bleed.Emergency surgery was performed by Dr. Kranz on September 1, 1982.During this surgery, Dr. Kranz ran out of cross-matched blood and had to terminate the procedure before he could reconnect Peters' esophagus and stomach.This procedure was completed at a later date with a piece of Peters' colon being interposed between her esophagus and stomach.Peters remained hospitalized at Swedish Hospital until March 31, 1983.Numerous related admissions followed.

Peters and her husband sued Dr. Ballard for medical malpractice, failure to obtain informed consent, and a violation of the Washington Consumer Protection Act, RCW 19.86 et seq.After trial, the jury found in favor of Dr. Ballard on the medical malpractice claim and the failure to obtain informed consent.Since the jury found in Dr. Ballard's favor on the informed consent claim, they did not reach the Consumer Protection Act claim.Peters appeals.

TESTIMONY OF DR. KRANZ

Peters argues that the trial court misperceived the import of CR26(b)(4)(B) when it permitted Dr. Ballard's counsel to elicit testimony from Dr. Kranz regarding his opinion on the negligence of Dr. Ballard in the treatment of Peters.Peters claims that although Kranz was originally designated as one of her expert witnesses, Peters indicated to the court at trial that Kranz's testimony would be limited to his factual observations as her subsequent treating physician.Peters argues that allowing the defense to expand its inquiry to include Dr. Kranz's expert opinion on the negligence issue effectively enabled Dr. Ballard to call Dr. Kranz as his own expert contrary to the dictates of CR26(b)(4)(B).Dr. Ballard responds that the restrictions imposed by CR26(b)(4)(B) only apply to consulting experts that the proponent chooses not to call at trial.

CivilRule 26(b)(4) provides in pertinent part:

(B)A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

CivilRule 35(b) states:

(1) If requested by the party against whom an order is made under rule 35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his finding, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition.After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it.The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

(3) This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise.This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

While CivilRule 26(b)(4) only addresses pretrial discovery of an expert's opinion, in Crenna v. Ford Motor Co., 12 Wash.App. 824, 532 P.2d 290, review denied, 85 Wash.2d 1011(1975), the court recognized that the protections of the rule continue through trial.In Crenna, the defense attempted to subpoena a metallurgic expert that plaintiff had consulted but had determined not to call at trial.Plaintiff successfully moved to quash the subpoena.On appeal, the court affirmed the trial court and held that although the rule itself concerned only discovery, to effectuate the purpose of the rule, the protections "carry over into the trial."Crenna, at 828, 532 P.2d 290.This rationale was later applied to shield a defendant's medical expert from a plaintiff's deposition in Mothershead v. Adams, 32 Wash.App. 325, 647 P.2d 525, review denied, 98 Wash.2d 1001(1982).

One month after Mothershead was decided, the court rendered its decision in Pimentel v. Roundup Co., 32 Wash.App. 647, 649 P.2d 135(1982), affirmed, 100 Wash.2d 39, 666 P.2d 888(1983).In Pimentel, the plaintiff appealed the trial court's refusal to allow publication of a deposition taken of a defense expert by the plaintiff.The trial court had refused to admit the deposition based upon Crenna.On appeal, the court recognized that generally a party has a right to protect experts called in preparation for trial.Pimentel, at 656, 649 P.2d 135.However, they distinguished Crenna because there was no deposition of the expert witness taken by the opponent in that case.Likewise, Mothershead was distinguished because the expert in question was not listed as a witness to be called at trial.The Pimentel court held that the deposition should have been admitted because not only was it taken by the plaintiff, but the defense had stipulated to its admissibility for all purposes under the Civil Rules.Pimentel, at 657, 649 P.2d 135.This ruling was subsequently affirmed by the Washington Supreme Court in Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888(1983).None of these cases address the precise issue presented in the case at bar, however.

Unlike the experts in the aforementioned cases, Dr. Kranz was not just an expert retained by Peters for trial purposes, he was also Peters' subsequent treating physician and, therefore, an important factual witness.Although he was deposed by Dr. Ballard and rendered his expert opinion during that deposition, no stipulation to the use of the deposition was entered.Further, although Peters first indicated that Dr. Kranz would be an expert witness, Peters changed Dr. Kranz's status at trial to that of only a fact witness.Peters' counsel intended to limit direct examination to the facts observed by Dr. Kranz.

Courts in other jurisdictions have recognized that a witness may be an expert as to some matters and an "actor" or "viewer" as to others.Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984(D.C.Cir.1979)(one, who though an expert, derives information simply as "an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit ... should be treated as an ordinary witness");...