Steele v. Organon, Inc.

• Decision Date: 25 March 1986
• Docket Number: No. 6719-0-III,6719-0-III
• Citation: 716 P.2d 920,43 Wn.App. 230
• Court: Washington Court of Appeals
• Parties: Doris A. STEELE and Melvin E. Steele, wife and husband, Appellants, v. ORGANON, INC., and Organon Pharmaceuticals, foreign Corporations and/or entities; John Doe I, II and III, Defendants, Skaggs Drugs Centers, Inc., a Washington Corporation; Elizabeth M. Welty, M.D., individually and for her marital community; Welty & Welty, a Professional Service Corporation, Respondents.

Page 230

43 Wn.App. 230

716 P.2d 920

Doris A. STEELE and Melvin E. Steele, wife and husband, Appellants, v. ORGANON, INC., and Organon Pharmaceuticals, foreign

Corporations and/or entities; John Doe I, II and

III, Defendants,

Skaggs Drugs Centers, Inc., a Washington Corporation;

Elizabeth M. Welty, M.D., individually and for her

marital community; Welty & Welty, a

Professional Service

Corporation, Respondents.

No. 6719-0-III.

Court of Appeals of Washington,

Division 3, Panel Four.

March 25, 1986.

Dennis M. Sullivan, Spokane, for appellants.

Michael C. Geraghty, Turner, Stoeve, Gagliardi & Goss, Spokane, for Skaggs.

Diane M. Hermanson, Curtis L. Shoemaker, Paine, Hamblen, Coffin & Brooke, Spokane, for Welty.

THOMPSON, Judge.

Doris Steele appeals the Superior Court's summary dismissal of her medical malpractice action against Skaggs Drug Centers and Elizabeth Welty, M.D. The court determined the action was filed after the applicable statute of limitation had run. We affirm.

In late July 1973, Mrs. Steele was hospitalized under the care of Dr. Welty for a severe migraine headache. Upon discharge, Dr. Welty prescribed a drug called Wigraine, and Mrs. Steele had the prescription filled at a Skaggs drugstore. Directions advised her to take: "Two tablets at onset of headache. [R]epeat every half to one hour for three doses."

Wigraine is an ergot, a vascular constrictor, and though dosage should not exceed 10 to 12 tablets per week, Mrs. Steele began taking 8 tablets a day for her headaches. After approximately 3 weeks, she experienced loss of sensation in her arms and legs and was again admitted to the hospital, this time with ergot poisoning. Drs. Richard Kleaveland and Michael Judd, heart specialists, treated her until her symptoms subsided, at which time she was released. Some months later she returned to Drs. Kleaveland and Judd complaining of tingling in her hands and feet, which they diagnosed as Raynaud's Syndrome.

In September 1974, Mrs. Steele sought advice from an attorney as to whether she had a cause of action for damages resulting from the overdose. The attorney exchanged the following correspondence with Drs. Kleaveland and Judd:

Dear Dr. Judd:

* * *

... [P]lease advise:

1. What [e]ffects abuse of Wigraine can have on the vascular system.

2. Whether you have found indications of any damage to Mrs. Steele's vascular system which could be attributed, either as an original cause or as an aggravating factor, to Wigraine.

3. If you have found indications of damage to or disease of the vascular system in Mrs. Steele, to what do you attribute them if not to Wigraine.

Dr. Kleaveland replied:

January 8 1975

* * *

... In answer to your question one, Wigraine which contains ergot causes diffuse spasm in the vascular system and if this is prolonged can induce ischemia or lack of circulation to the tissues with resultant damage to the tissues. In answer to question number two, Mrs. Steele was fortunate in that she recovered from this medication by withholding the medication permitting the level of ergotamine to fall and thus reduction in the spasm with restoration of normal circulation. In answer to question number three, patients may have a variety of different normally occurring vasospastic disorders causing tingling and color changes in the lower extremities, which may not be related to any medication.... The intervening period of time between the treatment in the hospital and the present symptoms would somewhat militate against being related to the medication.

A more detailed response followed on February 5, 1975. It stated that Mrs. Steele

did have reduction in circulation in the lower extremities [as a result of the overdose] but the pulses came back rather readily while in the hospital without any evidence of any ischemic changes. She was subsequently seen in our office following the discharge ... without significant symptoms.

Dr. Kleaveland was of the opinion: "[I]t is highly improbable that there would be any relationship between this episode and her present symptoms [i.e., Raynaud's Syndrome]."

Based on the foregoing, damages from the overdose appeared limited to the August 1973 hospitalization. Since insurance had covered most of the expenses connected with that hospitalization, Mrs. Steele and her attorney decided the cost of a lawsuit could exceed the amount of recovery.

Then, in early December 1981, Mrs. Steele suffered a heart attack. She reentered the hospital in January 1982 for bypass surgery, and, while hospitalized, she suffered a stroke. Dr. Bozarth, a neurologist, told Mrs. Steele the stroke was unrelated to the heart surgery, but during her hospitalization she overheard Dr. Bozarth and another physician discussing the 1973 overdose episode in relation to her stroke. Subsequently, a doctor she consulted in Hoquiam, Washington, advised her the heart attack and stroke were both related to the Wigraine overdose.

In December 1982, this action was filed against Dr. Welty, Skaggs Drug Centers, and Organon Pharmaceutical, the manufacturer of Wigraine. Organon was dismissed pursuant to stipulation of the parties. Dr. Welty and Skaggs moved for summary judgment contending the statute of limitation had run. The court granted the motion, stating Mrs. Steele "was aware of all of the elements of her cause of action ... in the latter part of April, 1975", more than 7 years prior to commencement of this action.

At that time, RCW 4.16.350 provided:

Any civil action for damages ... against a member of the healing arts including, but not limited to, a physician ... based upon alleged professional negligence shall be commenced within (1) three years from the date of the alleged wrongful act, or (2) one year from the time that plaintiff discovers the injury or condition was caused by the wrongful act, whichever period of time expires last.

Laws of 1971, ch. 80, § 1 (amended by Laws of 1975, 2nd Ex.Sess., ch. 56, § 1). Initially, we note the foregoing statute of limitation does not begin to run until the plaintiff discovers or reasonably should have discovered all of the essential elements of his or her cause of action, i.e., duty, breach, causation, damages. Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358 (1979). Mrs. Steele contends an issue of fact exists as to when she discovered she was damaged.

Here, it is undisputed in April 1975, Mrs. Steele knew that neither her doctor nor the pharmacy, both of whom owed her a duty of care, had warned of the need to limit her intake of Wigraine, and that as a result she overdosed necessitating hospitalization. But Mrs. Steele argues the damage element of a cause of action against the defendants was missing until 1981, when she suffered the heart attack. We disagree.

A plaintiff must suffer actual and appreciable harm, as distinguished from nominal damages, before the statute of limitation commences. Gazija v. Nicholas Jerns Co., 86 Wash.2d 215, 219, 543 P.2d 338 (1975).

"Where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date."

Lindquist v. Mullen, 45 Wash.2d 675, 677, 277 P.2d 724 (1954) (quoting 34 Am.Jur. Limitation of Actions § 160, at 126), overruled on other grounds by Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969); Gazija, 86 Wash.2d at 219, 543 P.2d 338; Streifel v. Hansch, 40 Wash.App. 233, 698 P.2d 570 (1985); see also 51 Am.Jur.2d Limitation of Actions § 135 (1970). Generally, if the plaintiff is aware of some injury, the statute of limitation begins to run even if he does not know the full extent of his injuries. 2 J. Dooley, Modern Tort Law § 34.80, at 528 (rev. ed. 1983); see also, 51 Am.Jur.2d Limitation of Actions § 135, at 704 (1970). Thus, where plaintiff fell from defendant's defective ladder and was hurt but did not have to quit work as disabled until 1 1/2 years later, the court held that the statute of limitation ran from the plaintiff's fall, "[e]ven though the full extent of [his] ... damage or loss ... [was] not ... immediately ascertainable". Christian v. Daniell Battery Mfg. Co., 279 So.2d 214, 216 (La.Ct.App.1973) (quoting Lucas v. Commercial Union Ins. Co., 198 So.2d 560, 563-64 (La.Ct.App.1967)); see also Caudill v. Arnett, 481 S.W.2d 668 (Ky.1972) (the statute of limitation commenced when the plaintiff was injured in a bus accident, not when he discovered 6 1/2 years later when exploratory surgery was performed that he was suffering from chronic pancreatitis as a result of the earlier injury).

The rule recognizes that "accrual of an action should not depend upon a technical breach of duty ... but upon the existence of a practical remedy." Haslund v. Seattle, 86 Wash.2d 607, 620, 547 P.2d 1221 (1976). C. McCormick,Damages § 20, at 85 (1935), defines nominal damages as

damages awarded for the infraction of a legal right, where the extent of the loss is not shown, or where the right is one not dependent upon loss or damage, ...

C. McCormick, § 21, at 87, contrasts nominal damages, which are "usually fixed at some trivial amount" with small compensatory damages, "which are measured by the loss actually suffered".

One court has stated the distinction as follows:

"It is clear that mere possibility, or even probability, that an event causing damage will result from a wrongful act does not render the act actionable.... Of course, it is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action...."

(Italics ours.) Davies v. Krasna, 14 Cal.3d 502, 535 P.2d 1161, 121 Cal.Rptr. 705, 713, 79 A.L.R.3d 807 (1975) (quoting Walker v. Pacific Indem. Co., 183 Cal.App.2d 513, 6 Cal.Rptr. 924 (1960...