Vant Leven v. Kretzler
| Decision Date | 18 December 1989 |
| Docket Number | No. 22513-8-I,22513-8-I |
| Citation | 56 Wn.App. 349,783 P.2d 611 |
| Parties | Christine (Rollman) VANT LEVEN and Louis Vant Leven, husband and wife, Appellants, v. Harry KRETZLER, Jr., and Jane Doe Kretzler, husband and wife, and the marital community composed thereof, Respondents. |
| Court | Washington Court of Appeals |
Weckworth, Barer & Meyer, Charles L. Meyer, Seattle, for appellants.
Merrick, Hofstedt & Lindsey, Robert R. Hoon, Seattle, for respondents.
Christine (Rollman) Vant Leven appeals from a summary judgment in favor of respondent Harry Kretzler, M.D., in a medical malpractice action. Vant Leven contends that the trial court abused its discretion in denying a motion for a continuance and that, in any event, material factual issues remain for trial.
Vant Leven was injured in an automobile accident on November 20, 1984. In March 1985, she sought treatment from respondent Dr. Kretzler, an orthopedic surgeon, for chronic neck and back pain, headaches, and leg pain. In April 1985, Dr. Kretzler performed a laminectomy and removed a "huge amount" of disc material. Dr. Kretzler performed a second operation on Vant Leven in August 1985, during which he removed several disc fragments and scar tissue. Another physician performed a third operation on Vant Leven in February 1986, during which a fragment of disc material and scar tissue were removed. On July 31, 1986, Vant Leven filed the instant action, alleging that Dr. Kretzler had negligently failed to remove a disc fragment that "was open and obvious after a myelogram prior to the first operation," necessitating the second operation.
On April 1, 1988, counsel for Vant Leven served interrogatories on counsel for Dr. Kretzler. On April 21, 1988, Dr. Kretzler moved for summary judgment. In support of the motion, Dr. Kretzler, by declaration, set forth a factual statement describing his treatment of Vant Leven, including a detailed recitation of the procedures performed during the two operations. Dr. Kretzler averred that he was familiar with the applicable standard of care and that the described course of treatment adhered to that standard. Attached to Dr. Kretzler's memorandum in support of the summary judgment motion were 16 pages of Vant Leven's pre- and post-operative medical records.
On May 6, 1988, Vant Leven filed a memorandum in opposition to summary judgment. Relying on CR 56(f), Vant Leven maintained that summary judgment was inappropriate because "discovery is still pending." Counsel for Vant Leven declared that the answers to plaintiff's interrogatories had not yet been received and that in order to obtain an opinion from an expert witness, Dr. L.C. Hoover, it was necessary to obtain the interrogatory answers and to depose Dr. Kretzler. In an attached affidavit, Dr. Hoover, a D.O. who had been Vant Leven's treating physician for several years, declared that he was willing to render an opinion as to whether Dr. Kretzler's treatment of Vant Leven had violated the standard of care, but that he "would need to examine additional records and review deposition testimony of Dr. Kretzler." Dr. Hoover stated that he "should be able" to render an opinion within 30 days of Dr. Kretzler's deposition.
Following a hearing on May 10, 1988, the trial court entered summary judgment in favor of Dr. Kretzler, noting that "no contravening expert testimony has been presented." On May 17, 1988, Vant Leven moved for reconsideration, arguing that she should be afforded the opportunity to complete discovery and obtain an expert opinion. Attached to the motion for reconsideration was a supplemental declaration from Dr. Hoover, who stated in pertinent part:
From reviewing the incomplete files and records that have been supplied to me, it appears more probable than not that the care and treatment provided by Dr. Kretzler fell below the standard of care in this medical community for the treatment given Christine Vant Leven. Before I render my final opinion, it is necessary that I examine the balance of the medical records relating to Christine Vant Leven's treatment by Dr. Kretzler and, particularly, Dr. Kretzler's sworn deposition testimony along with his post-operative notes, and the explanations given by Dr. Kretzler concerning his course of treatment.
After considering Dr. Hoover's supplemental declaration, the trial court denied the motion for reconsideration, concluding that "it appears to the court that there still exists no suitable or sufficient statement pursuant to CR 56(e) and the applicable case law to meet and oppose defendants' motion for summary judgment ..."
On appeal, Vant Leven first contends that the trial court erred in refusing to grant a continuance to permit her to depose Dr. Kretzler and obtain an affidavit from Dr. Hoover. In seeking a continuance, Vant Leven relied on CR 56(f), which provides:
(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Recently, in Turner v. Kohler, 54 Wash.App. 688, 775 P.2d 474 (1989), we reviewed the principles governing CR 56(f):
CR 56(f) provides a remedy for parties who know of the existence of a material witness and show good reason why they cannot obtain the witness' affidavits in time for the summary judgment proceeding.
(Footnote omitted.) Turner v. Kohler, at 693, 775 P.2d 474. Under such circumstances, the trial court has a duty to provide a party with a reasonable opportunity to complete the record prior to ruling on the summary judgment motion. Turner v. Kohler, supra; Lewis v. Bell, 45 Wash.App. 192, 196, 724 P.2d 425 (1986); Cofer v. County of Pierce, 8 Wash.App. 258, 262-63, 505 P.2d 476 (1973).
However, the trial court may deny a motion for a continuance when
(1) the requesting party does not offer a good reason for the delay in obtaining the desired evidence; (2) the requesting party does not state what evidence would be established through the additional discovery; or (3) the desired evidence will not raise a genuine issue of material fact.
Turner v. Kohler, supra at 693, 775 P.2d 474. The trial court's decision on a motion for a continuance will not be disturbed on appeal absent a manifest abuse of discretion. Turner v. Kohler, supra; Lewis v. Bell, supra.
Although few Washington cases have addressed CR 56(f), some guidance is provided by Lewis v. Bell, supra. In Lewis, the plaintiffs, who operated a foster home, sued the parents of one of the foster children for the tort of outrage. Sixteen months following commencement of the action, the defendants moved for summary judgment. In response, the plaintiffs sought a continuance for additional discovery. The trial court denied the motion for a continuance and entered summary judgment. In concluding that the trial court had not abused its discretion, we noted that the plaintiffs had offered no reason why the defendants could not have been deposed during the 16 months the case had been pending and that the plaintiffs "failed to even speculate as to what evidence they hoped to establish through the depositions or what genuine issues of material fact would be developed." Lewis, at 196, 724 P.2d 425. This analysis is persuasive here.
Vant Leven asserted that additional discovery was necessary to permit Dr. Hoover to render an opinion, but offered no explanation why a deposition could not have been held earlier during the 21 months the case had been pending. 1 While appellant also declared that answers to plaintiffs' interrogatories were still outstanding, she failed to identify any interrogatories that might lead to information necessary for the expert opinion.
Dr. Hoover's carefully phrased affidavit was similarly unenlightening. Dr. Hoover stated that he needed to examine "additional records and review deposition...
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