Shoberg v. Kelly
| Decision Date | 31 December 1969 |
| Docket Number | No. 20--40110--1,20--40110--1 |
| Parties | Alvin J. SHOBERG and Hazel Shoberg, his wife, Plaintiffs and Cross-Defendants- Appellants, v. Dr. Thorpe M. KELLY and Jane Doe Kelly, hie wife, Defendants and Cross- Complainants-Respondents. |
| Court | Washington Court of Appeals |
John F. Raymond and D. Scott Sandelin, Seattle, for plaintiffs and cross-defendants-appellants.
Williams, Lanza, Kastner & Gibbs, Henry E. Kastner and Gerald A. Palm, Seattle, for defendants and cross-complainants-respondents.
Plaintiffs sued defendants alleging that the defendant, Dr. Kelly, a licensed and practicing physician and surgeon in Seattle, Washington, performed a hysterectomy operation upon the plaintiff wife, negligently puncturing her bladder. Defendants denied the alleged negligence and cross-complained for professional services by answer and cross-complaint filed September 2, 1966. Defendants propounded interrogatories and by answers sworn to on October 17, 1966, plaintiffs stated that they were
not able to state in detail the negligence of the defendant Kelly, but the plaintiffs believe and, therefore, say that while the defendant doctor was operating on a fibroid tumor of the uterus and for removal of the uterus and left ovary, the doctor either cut through the bladder or stitched into the bladder when closing.
and
At the present time the plaintiffs do not have the names of any medical experts upon which they can rely to establish the alleged negligence of the defendant doctor and if and when any expert witnesses are obtained, such information will be furnished immediately * * *
Defendants on July 19, 1967, filed their motion for summary judgment of dismissal of the plaintiffs' claim, supported by Dr. Kelly's affidavit. The affidavit stated that Dr. Kelly was a licensed physician and surgeon in Washington; detailed his other qualifications; reviewed the history of his professional services, including the hysterectomy operation performed for plaintiff wife, and stated:
Standard medical procedure was followed by me in the care and treatment of this patient at all times. There was no departure from accepted medical practice during the surgery or at any other time. The complication of a fistula such as happened here occurs in a certain percentage of cases of such surgeries for a hysterectomy even though proper medical care is given. This patient's previous ureteral surgery and gynecological operations along with the size of her tumor increased the chance of such a complication occurring.
Plaintiffs resisted the motion by filing an affidavit of plaintiffs' attorney dated September 1, 1967. His affidavit stated that, subsequent to the hysterectomy, it was discovered:
that there was a suture in the bladder from the previous operation conducted by Dr. Kelly * * * the suture was removed and a catheterization of the bladder undertaken * * * The condition was technically diagnosed as a 'Vesicovaginal fistula.' (fistula is a hole that protruded through the bladder).
Attached to that affidavit was a copy of a portion of the Ballard General Hospital records relating to the hysterectomy operation, as approved by Dr. Kelly before sending, and a copy of a letter from the medical records librarian from the Ballard General Hospital to the medical records department of the King County Hospital System. The letter set forth a summary of the record of Dr. Kelly's treatment of plaintiff wife at the Ballard General Hospital. Plaintiffs' counsel further asserted in the affidavit that 'finding a suture through the bladder wall from the prior surgery by the defendant' is negligence or that 'the doctrine of Res ipsa loquitur' is applicable. The affidavit concluded with the statement that
the plaintiff by and through her attorney of record is preparing a motion under rule 35 for the matter to be submitted to either the professional liability panel or the supplementary medical testimony panel so that the plaintiff can have the benefit of expert testimony to determine whether or not the defendant doctor's self serving affidavit followed standard medical procedure and accepted medical practice was in fact true.
Plaintiffs made no motion to stay hearing on the motion for summary judgment, nor did they explain their long delay without result in obtaining expert medical testimony to support their claims. The trial court, on the basis of the record before it, granted the motion. The judgment entered does not identify with particularity the matters considered by the trial court in passing on defendants' motion; nor have the plaintiffs filed a duly certified statement of facts embodying the matters considered by the trial court. Instead, they purport to incorporate these matters in the transcript of the record on appeal.
Defendants in their brief and oral argument on the merits moved this court to dismiss the plaintiffs' appeal for failure to file a statement of facts embodying the record considered by the trial court in passing upon the motion for summary judgment. ROA 34; Kataisto v. Low, 73 Wash.2d 341, 438 P.2d 623 (1968). Plaintiffs' counsel at oral argument conceded the motion was well taken, but requested leave to file the required statement of facts. Neal v. Green, 68 Wash.2d 415, 413 P.2d 339 (1966). To grant the motion, however, now that oral argument on the merits has been had knowing what is in the transcript, only to later rule that the contentions of the plaintiffs are untenable, would serve no good purpose. In the interest of economy of effort and expense, therefore, we have examined the plaintiffs' contentions on the merits in passing on the motion to dismiss the appeal. For the reasons next stated, we have concluded that summary judgment of dismissal was properly granted below and, accordingly, no good purpose would be served by granting plaintiffs' motion to file a statement of facts.
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