Seattle-First Nat. Bank v. Rankin, SEATTLE-FIRST

• Decision Date: 04 January 1962
• Docket Number: No. 36012,SEATTLE-FIRST,36012
• Citation: 367 P.2d 835,59 Wn.2d 288
• Parties: NATIONAL BANK, a national banking association, as guardian ad litem for Dorothy Earlene Baird, a minor, Respondent, v. Francis W. RANKIN and Margaret A. Rankin, his wife, a marital community, Appellants.
• Court: Washington Supreme Court

Page 288

59 Wn.2d 288

367 P.2d 835

SEATTLE-FIRST NATIONAL BANK, a national banking association, as guardian ad litem for Dorothy Earlene Baird, a minor, Respondent, v. Francis W. RANKIN and Margaret A. Rankin, his wife, a

marital community, Appellants.

No. 36012.

Supreme Court of Washington, En Banc.

Jan. 4, 1962.

Rosling, Williams, Lanza & Kastner, Seattle, for appellants.

Helsell, Paul, Fetterman, Todd & Hokanson, and Smith Lindell, Krutch, Carr & Poliak, Seattle, for respondent.

HUNTER, Judge.

This is an appeal from a judgment entered upon a jury verdict against the defendants, Dr. Francis W. Rankin and his wife, in a malpractice case.

Dr. Rankin (referred to as the sole defendant is a licensed physician in Seattle and does a general practice including obstetrics. Mrs. Dorothy Irene Baird, in June of 1951, employed the defendant to attend her during her pregnancy and ultimate delivery of her child, Dorothy Earlene. In March, 1952, the defendant performed a Caesarean section whereby the child was born with a form of cerebral palsy, technically known as athetoid quadriplegia. The minor child (referred to as the plaintiff) is represented by the Seattle-First National Bank, as guardian ad litem.

The complaint alleged, in substance, that the defendant (appellant) negligently failed adequately to ascertain annd familiarize himself with the pelvic measurements of the plaintiff's mother and that he should have known a normal delivery of the plaintiff was difficult or impossible; that the plaintiff's mother was suffering from a serious anemia during pregnancy and the defendant negligently failed to discover the condition and take proper steps to correct it; that he negligently failed to perform a Caesarean section soon enough, notwithstanding the fact that little or no progress had been noted during labor in the descent of the plaintiff through her mother's contracted pelvis; that he negligently attempted to deliver the plaintiff from below with forceps, although he should have known that normal delivery from below was impossible or difficult; and that as a proximate result of the foregoing negligent acts, the plaintiff suffered permanent brain damage.

The trial lasted twenty-two days and produced a larger record, which consists of considerable testimony by expert medical witnesses for both parties. The above allegations of negligence by the defendant were submitted to the jury. In rendering a verdict for the plaintiff, the jury assessed damages at $89,000. Judgment was entered on the verdict.

The first assignment of error by the defendant goes to the very heart of the plaintiff's case, in that he contends she has failed to state a claim upon which relief can be granted. The precise question presented, therefore, is whether one who is injured prior to birth by the negligence of another may recover, after birth, damages for the injury. Although this court has never been faced directly with the question, courts in many other jurisdictions have considered the validity of claims for prenatal injuries. Both parties have cited cases to support their respective positions. We have examined the cases in point, and conclude that the more just rule is that which permits a claim to recover for prenatal injuries. Without making an exact numerical count of the cases for and against recognition of such a claim, we are satisfied that the position we take here is in accord with the clear trend of recent decisions. Keyes v. Constr. Ser, Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Wendt v. Lillo, 182 F.Supp. 56 (N.D.Ia.1960). Furthermore, we are convinced that our holding does not collide with any unyielding theoretical barrier. The words of the Court of Appeals of New York in Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 695, 27 A.L.R.2d 1250 (1951) are appropriate:

'To hold, as matter of law, that no viable foetus has any separate existence which the law will recognize is for the law to deny a simple and easily demonstrable fact. This child, when injured, was in fact, alive and capable of being delivered and of remaining alive, separate from its mother. We agree with the dissenting Justice below that 'To deny the infant relief in this case is not only a harsh result, but its effect is to do reverence to an outmoded timeworn fiction not founded on fact and within common knowledge untrue and unjustified."

We are not unmindful of the fact that a claim for prenatal injuries is prone to present difficult causation issues. This, however, is no reason to deny the sufficiency of the pleading. Difficulty of proof does not prevent the assertion of a legal right.

The defendant next contends the court committed error when it submitted to the jury the issue of the defendant's liability for injury caused by negligently failing to discover and treat Mrs. Baird's anemic condition. Specifically, it is argued that the evidence was insufficient to support a finding of causation between the alleged negligent treatment for the mother's anemia and the plaintiff's anoxia which is alleged to be the cause of the plaintiff's condition; and inasmuch as the jury could have based its verdict upon this particular neglectful conduct alone, the submission of the issue was prejudicial to the defendant.

From our examination of the record, we are convinced there is sufficient medical testimony to support a jury finding that the plaintiff's mother did have a serious anemic condition during pregnancy, and that the defendant negligently failed to discover and treat that condition according to the standard of practice in the Seattle area where the defendant conducted his practice. The medical testimony further discloses the plaintiff, during the delivery, developed 'anoxia' which is the term used for inability to maintain oxygen. There was medical testimony that the anoxia was a probable cause of the plaintiff's cerebral palsy. On the matter of whether the failure to treat the anemia resulted in the development of anoxia, the following testimony is relevant. To show the purpose of treatment for anemia in a pregnant woman, Dr. Jepson testified:

'I think there are probably more than one. Number one, there is always some blood loss at the delivery of a baby and this could possibly put this lady into shock. Perhaps even more reason than that, fetal anoxia which might be present to cause damage to the baby.' (Italics ours.)

On the same question, Dr. Hauser testified:

'I would say that, in answer to this, that there are accidents of pregnancy which one cannot anticipate which entail severe bleeding. If this should occur at any time after a reading such as this, the patient, who already has a moderately severe anemia, might more easily go into shock. This would be, of course, detrimental to the patient. This would also have the same effect on the baby. The baby would suffer the risk of anoxia if the mother was to go into shock or to lose more blood than she has already here.' (Italics ours.)

The medical testimony further discloses that an episiotomy was performed during the birth which would have resulted in a substantial blood loss.

The foregoing testimony, and the reasonable inferences therefrom, viewed most favorably for the plaintiff, could support a jury finding that the failure to treat Mrs. Baird's anemic condition, more likely than not, caused an environment during delivery in which the plaintiff child could not receive the proper supply of oxygen from the mother to help prevent damage resulting from the prolonged anoxia. The contention that there was no proof of causal relation between the alleged negligent treatment for the mother's anemia and the plaintiff's anoxia is not sustained in the record.

Error is assigned to the use at the trial of the defendant's answers on deposition, as such answers appeared before corrections were made thereto. The original, uncorrected answers were used by the plaintiff on examination of the defendant as an adverse witness and the original and corrected answers were read to the jury by plaintiff's counsel. The defendant asks for an interpretation of Rule of Pleading, Practice and Procedure 30(e) to the effect that a deposition is not the final testimony of the witness until he is given an opportunity to make changes or corrections, and when an answer is changed or corrected, the answer, as originally given, is not admissible in court as substantive evidence.

Plainly, the rule is not to be so interpreted. A clear discussion appears in 4 Moore's Federal Practice (2d ed.) 2053, § 30.20, where the author analyzes Rule 30(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which is identical to our Rule 30(e):

'Rule 30(e) is clear and needs little discussion, except to point out the utility of the second sentence thereof.

'Under some of the state practices, considerable administrative difficulty arose where a witness wished to change his testimony. Was the original testimony to be entirely eliminated and the changed testimony inserted in its place or how was the matter to be handled? It is obvious that the witness should be permitted to change his testimony, but at the same time it is important that the original testimony appear in the deposition as well as the changed testimony, so that if the deposition is used at the trial, a true picture will be presented. Rule 30(e) solves this administrative difficulty by permitting changes in testimony to be made, but both the original and the changed testimony will appear in the deposition along with a statement of the reasons given by the deponent for making the changes.'

The case authority conforms to this interpretation of Rule 30(e). Colin v. Thompson, 16 F.R.D. 194 (D.C.W.D.Mo.1954) and Capra v. Phillips Investment Co., (Mo.) 302 S.W.2d 924 (1957).

The defendant assigns error to the plaintiff's...