White v. Kent Medical Center, Inc., P.S.

• Decision Date: 06 May 1991
• Docket Number: No. 25757-9-I,25757-9-I
• Citation: 810 P.2d 4,61 Wn.App. 163
• Parties: Gladys M. WHITE and Theodore White, her husband, Appellants, v. KENT MEDICAL CENTER, INC., P.S., a Washington Professional Services corporation; T.W. Bauch, M.D., and Jane Doe Bauch, his wife; D. A. Baruck, M.D., and Jane Doe Baruck, his wife; J. P. Henn, M.D., and Jane Doe Henn, his wife; V. P. Muir, M.D. and Jane Doe Muir, his wife, Respondents.
• Court: Washington Court of Appeals

Page 163

61 Wn.App. 163

810 P.2d 4

Gladys M. WHITE and Theodore White, her husband, Appellants, v. KENT MEDICAL CENTER, INC., P.S., a Washington Professional Services corporation; T.W. Bauch, M.D., and Jane Doe Bauch his wife; D. A. Baruck, M.D., and Jane Doe Baruck, his wife; J. P. Henn, M.D., and Jane Doe Henn, his wife; V. P Muir, M.D. and Jane Doe Muir, his wife, Respondents.

No. 25757-9-I.

Court of Appeals of Washington Division 1.

May 6, 1991.

Jack J. Ackerman, Seattle, for appellants Gladys & Theodore White

Jeffrey P. Downer, Seattle, for respondents Kent Medical Center, et al.

AGID, Judge.

Gladys White appeals a summary judgment order dismissing her medical malpractice claims against Kent Medical Center and four of its doctors (Defendants). She asserts that the trial court erred in concluding that she provided insufficient evidence to withstand the motion, as well as in alternatively dismissing her complaint because of discovery violations. We reverse.

For purposes of this summary judgment motion, the following facts are not in dispute. During the latter half of 1984, White was seen several times at the Kent Medical Center, usually by a different doctor. White, a smoker, complained of hoarseness to each of her doctors. On February 8, 1985, White returned again to the medical center, where she was seen by Dr. Frans Koning. Dr. Koning made note of White's persistent hoarseness and her smoking In July 1986, White filed a personal injury complaint alleging that the Kent Medical Center and four of its doctors negligently failed to conduct appropriate tests or refer her to appropriate specialists. The case proceeded slowly, with defendant conducting minimal formal discovery and White conducting none. Finally, during 1988 and 1989, Defendants deposed White and her husband, and non-defendant Drs. Clark, Caplan, and Koning.

                habit and referred her to a Kent Medical Center ear, nose and throat (ENT) specialist, Dr. Charles Caplan.   Dr. Caplan examined White's larynx and discovered a mass on her left vocal cord.   Further tests established that the mass was malignant.   On March 19, 1985, an ENT surgeon, Dr. Steven Clark, removed White's entire larynx and performed a left neck dissection
                

In October 1989, the matter was preassigned to a judge as part of the court's individual calendaring project. Following an initial pretrial conference, the judge entered an order setting trial and pretrial schedules. Trial was set for March 5, 1990. Under the order, White was required to identify expert and other witnesses 90 days before trial, and discovery was to be completed 35 days before trial. To that end, on December 6, White's attorney notified Defendants by letter that he would call Drs. Clark, Caplan and Koning as expert witnesses. The letter further stated that "[y]ou have deposed these witnesses, and, I want to make sure that you understand that I regard them as expert witnesses in this case." He also deposed two of the defendant doctors in February 1990.

Defendants moved for summary judgment of dismissal. They argued that White's complaint should be dismissed because she lacked any admissible expert testimony regarding the standard of care applicable to the defendants, had not answered interrogatories propounded in July 1989, and had not fully complied with the court's pretrial order.

White responded by offering as evidence excerpts from the depositions of her experts and two of the defendant After White filed her responsive materials, Defendants filed a rebuttal memorandum. In that memorandum, Defendants argued for the first time that White had not shown that defendants caused her any damage. By attorney affidavit, White called the trial court's attention to Defendants' having belatedly raised the proximate cause issue, and asserted that detailed testimony on proximate cause had not been submitted in response to Defendants' motion "because the motion did not raise any issue of proximate cause." Nevertheless, argument on Defendants' motion proceeded as scheduled and encompassed all issues raised by Defendants, including the proximate cause issue first argued in Defendants' rebuttal materials.

                doctors.   White claimed that this evidence established the applicable standard of care;  that is, when a patient who smokes complains about 4 to 6 weeks of hoarseness, he or she should receive a vocal cord examination.   White's evidence included testimony by her ENT surgeon, Dr. Clark, that 4 to 6 weeks of hoarseness in a patient who smokes is cause for that patient to be referred to a specialist, and testimony by Dr. Caplan, the ENT specialist who diagnosed White's cancer, that "a smoker who has intermittent hoarseness needs to have the larynx examined."   She also submitted testimony from two of the defendant doctors, Dr. Baruck and Dr. Bauch.   Dr. Baruck had testified that persistent hoarseness of 4 to 6 weeks would "require" a vocal cord examination, and that if the doctor failed to have the vocal cords examined, he or she "would be neglecting the patient."   Dr. Bauch had testified that "[a] patient having six weeks of hoarseness either by history or by direct observation of a physician should have an exam of the vocal cords."   Both Dr. Baruck and Dr. Bauch are general practitioners.
                

The trial court granted Defendants' motion. The judge ruled that White had not set forth specific facts showing that there was a genuine issue for trial "with regard to the standard of care, with regard to whether or not the standard of care has been breached, and whether or not there is

                any damage as a result of that breach."   He also ruled that White's discovery violations warranted dismissal of her complaint.   This appeal followed.
                

PROXIMATE CAUSE

Preliminarily, we address the trial court's consideration of the proximate cause issue first raised in Defendants' reply memorandum. At oral argument in this court, Defendants contended that it was proper to address proximate cause in their rebuttal materials because the deposition testimony submitted by White in response to their motion included testimony concerning causation. We disagree.

It is the responsibility of the moving party to raise in its summary judgment motion all of the issues on which it believes it is entitled to summary judgment. Allowing the moving party to raise new issues in its rebuttal materials is improper because the nonmoving party has no opportunity to respond. It is for this reason that, in the analogous area of appellate review, the rule is well settled that the court will not consider issues raised for the first time in a reply brief. E.g., In re Marriage of Sacco, 114 Wash.2d 1, 5, 784 P.2d 1266 (1990); Stevens v. Security Pac. Mortgage Corp., 53 Wash.App. 507, 519, 768 P.2d 1007, review denied, 112 Wash.2d 1023 (1989); State v. Manthie, 39 Wash.App. 815, 826 n. 1, 696 P.2d 33, review denied, 103 Wash.2d 1042 (1985); RAP 10.3(c).

Moreover, nothing in CR 56(c), which governs proceedings on a motion for summary judgment, permits the party seeking summary judgment to raise issues at any time other than in its motion and opening memorandum. The rule sets out the timetable for filing and serving the motion and supporting evidence and for the nonmoving party to file its opposing memoranda, affidavits, and other documentation. After the nonmoving party has filed its materials, the rule allows the moving party to "file and serve any rebuttal documents not later than 5 calendar days prior to the hearing." (Emphasis added.) CR 56(c). Rebuttal documents Here, White's responsive materials did not seek summary judgment on or otherwise put into issue the question of proximate cause. Her inclusion of deposition testimony that refers to proximate cause does not raise the issue in the context of a summary judgment motion. There was, therefore, no proximate cause question for Defendants to rebut. Consequently, their unwarranted attempt to do so was beyond what is allowed under CR 56(c).

                are limited to documents which explain, disprove, or contradict the adverse party's evidence.   See Black's Law Dictionary 1139 (5th ed. 1979);  Kremer v. Audette, 35 Wash.App. 643, 647-48, 668 P.2d 1315 (1983)
                

In sum, it is incumbent upon the moving party to determine what issues are susceptible to resolution by summary judgment, and to clearly state in its opening papers those issues upon which summary judgment is sought. ¹ If the moving party fails to do so, it may either strike and refile its motion or raise the new issues in another hearing at a later date. Accordingly, we hold that it was error for the court to consider the proximate cause issue first raised in Defendants' reply memorandum and to rely on that issue as a basis for granting summary judgment. We therefore do not discuss this issue on appeal. ²

STANDARD OF CARE

We next consider whether the trial court properly granted summary judgment on the ground that White presented inadequate evidence of the applicable standard of In a summary judgment motion, the moving party has the initial burden of showing the absence of an issue of material fact. This burden can be met by showing that there is an absence of evidence supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225-26, 770 P.2d 182 (1989). In this situation, the moving party is not required to support the motion by affidavits or other materials negating the opponent's claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552; Young, 112 Wash.2d at 225-26, 770 P.2d 182. The moving party must still, however, identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552 (quoting Fed.R.Civ.P. 56); Baldwin v. Sisters of...