Wilkins v. Grays Harbor Community Hospital, 39074

• Decision Date: 04 May 1967
• Docket Number: No. 39074,39074
• Citation: 71 Wn.2d 178,427 P.2d 716
• Court: Washington Supreme Court
• Parties: Edwin E. WILKINS, Respondent, v. GRAYS HARBOR COMMUNITY HOSPITAL, Appellant.

Page 178

71 Wn.2d 178

427 P.2d 716

Edwin E. WILKINS, Respondent, v. GRAYS HARBOR COMMUNITY HOSPITAL, Appellant.

No. 39074.

Supreme Court of Washington, Department 1.

May 4, 1967.

Parker & Parker, Lester T. Parker, Aberdeen, for appellant.

Vance, Davies, Roberts & Bettis, John M. Darrah, Seattle, for respondent.

BARNETT, Judge. ^*

On the 14th day of May, 1962, the defendant entered into a medical service contract with Grays Harbor Veneer Corp. This contract is best described as a standard non-industrial medical service agreement. The defendant has such agreements with business firms in the community and employees purchase coverage by authorizing deduction from their wages.

The plaintiff in this case was about 55 years old when he went to work for Grays Harbor Veneer Corp. in June, 1962. He was a person who moved about, not putting down roots in any one community. In his earlier years he followed the wheat harvest through Nebraska, Kansas and the Dakotas. During the war he worked in shipyards in Seattle, Pearl Harbor and in California. After the war he shippted out as a merchant seaman until about 1956, at which time he began working for a Portland milling company. Subsequently, the plaintiff moved to the Grays Harbor area and found jobs as a longshoreman and construction laborer until he began full time employment with Grays Harbor Veneer Corp. At this time plaintiff agreed to coverage by said medical contract and authorized the wage deductions. His coverage was begun as of June 1, 1962.

In the first half of July 1962, the plaintiff began experiencing noticeable stomach disorders. On July 14, 1962, he saw Dr. Baker in Aberdeen for the first time in connection with this stomach problem. (Dr. Baker had treated and even hospitalized the plaintiff for severe back pain in April 1962.) Dr. Baker continued his treatment of the plaintiff's stomach disorder to March 1963. In that month the plaintiff injured his foot and was treated by Dr. Vegh, who was associated with Dr. Baker. Dr. Begh took over treatment of plaintiff's stomach disorders and by August 1963, had hospitalized the plaintiff on three separate occasions. In the month of August 1963, Dr. Vegh requested authority from the defendant for exploratory surgery under the medical service contract provisions. This request was denied. The plaintiff received treatment elsewhere and was operated on in the King County Hospital on April 21, 1964, at which time cancerous tissue in the stomach and esophagus was removed. The plaintiff filed a complaint against the defendant for breach of contract and by amended prayer sought damages in the amount of $125,000. A jury returned a verdict of $43,734 for the plaintiff and a judgment upon the verdict was entered.

The defendant appeals from the judgment, presenting four questions based upon ten assignments of error for this court's resolution. These questions are: (1) Did the plaintiff's condition pre-exist coverage by the medical service contract? (2) Had the plaintiff received all the services under the contract he was entitled to prior to August 1963, when his request for exploratory surgery was denied? (3) If there was a breach of contract, should plaintiff's recovery be limited to medical and hospital expenses incurred in the continued treatment of his condition, thereby denying him any recovery for pain and suffering and other damages resulting from the delayed operation? (4) Was there sufficient evidence that plaintiff's condition worsented during the period from the denial by the defendant of the requested surgery in August 1963, to the time he was operated upon in April 1964?

In considering the defendant's challenges to the sufficiency of evidence, we keep in mind that the evidence and all inferences therefrom are to be taken in favor of the plaintiff-respondent. Osborn v. Chapman, 62 Wash.2d 495, 384 P.2d 117 (1963).

In answering the first question posed by the defendant, we take note of the pertinent circumstance as portrayed in the record. Dr. Baker had hospitalized the plaintiff for back pains in April 1962, which is just prior to the date of the instant contract and there is no evidence from Dr. Baker that plaintiff complained of stomach problems at that time. Plaintiff testified that his stomach first started to bother him 'like I was having indigestion,' a week or so before going to see Dr. Baker in July 1962. Dr. Baker had no record of such complaints prior to that time. The plaintiff continued seeking Dr. Baker and continued working at Grays Harbor Veneer Corp. until December 1962, when Dr. Baker recommended that he leave work for several months. After staying off the job for awhile Dr. Baker allowed him to return, but he was able to work only a short time.

The defendant argues that Dr. Baker had expressed an opinion that plaintiff's condition had arisen 18 months prior to August 8, 1963, hence this proves the condition predated the contract and not covered thereby. This argument has reference to Dr. Baker's consultation report dated August 8, 1963, which is worded as follows: 'This patient with epigastric pain, gas, distress, and heartburn for past 18 months with long periods of time loss from his job has recently had gastric hemmorhage.' However, this testimony is only an approximation on the part of Dr. Baker and is not substantiated in his own notes. This was pointed out on cross-examination by plaintiff's counsel as indicated by the following exchange:

Q. Now at this time, when you first saw him in April of '62, did he have any complaints, or do your records indicate any complaints as to heartburn or gastric acidity? A. When I first saw him his complaints were referable to his low back problem, and I don't recall--I have no record at least of his complaints of heartburn at that time. Q. You don't have any recollection of it outside of your notes either, do you Doctor? A. No. Q. Now, when you wrote up the report of August of '63, Doctor, and when you put 18 months of heartburn, I take it this was just a rough estimate from what you knew of Mr. Wilkins? A. Yes, it was on that order. It was an approximation.

It was within the province of the jury to evaluate Dr. Baker's testimony and come to a decision by considering all the evidence adduced.

Several friends of the plaintiff testified about their knowledge of his health. One, a resident of the same rooming house in Aberdeen as the plaintiff, testified that the plaintiff appeared to be in good health prior to working for Grays Harbor Veneer Corp., and only started complaining about stomach problems some two or three weeks after he started working for Grays Harbor Veneer Corp. A second friend of the plaintiff, who had known him over two decades and had last seen him in the spring of 1962, testified that he was in good health and had not complained about his stomach at any time including their last meeting.

The contract provision pertinent to this inquiry reads as follows: 'SECTION IV LIMITATIONS AND EXCLUSIONS (A) The care, services and other benefits herein provided are limited to medical treatment for illnesses and injuries occurring within the period the subscriber has been covered under this agreement.'

To guide the jury in its determination as to whether or not the condition of the plaintiff pre-existed the contract, the court gave the following instruction which became the law of the case since no exception was interposed thereto:

Under the contract between the Plaintiff Wilkins and the Defendant hospital, the hospital was under no obligation to furnish any medical or hospital treatment for any diseased condition of Plaintiff that occurred prior to the date of the contract coverage, which date was June 1, 1962. Such a diseased condition is referred to as 'pre-existing', and one of the reasons given by the hospital for denying the surgery in question was that the Plaintiff's condition pre-existed the date of coverage.

Under the law, an illness or disease is deemed to 'occur' when it first becomes manifest or active or when there is a distinct symptom or condition from which one learned in medicine can, with reasonable accuracy, diagnose the disease. The presence of germs in a body does not cause a disease to occur so long as they are only latent, inactive, and not discoverable. (Instruction No. 7.)

As heretofore stated, this instruction became the law of the case and by the overwhelming weight of authority it is a correct statement of the law. See 53 A.L.R.2d 686 (1957); 10 Couch, Insurance § 41:814 (2d ed. 1962), wherein it is stated:

That is, it is generally recognized that provisions in a health or hospital insurance policy requiring that the illness or disease from which the insured suffers originate a specified time after the date of the policy to be within the policy coverage are strictly construed against the insurer, and the illness, disease, or disability will ordinarily be deemed to have its inception when it first becomes manifest or active, or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease.

We are convinced the record in this case is sufficient to support a determination by the jury that plaintiff's condition did not pre-exist the execution of the contract. The jury was entitled to find that plaintiff's illness became manifest after the time he became a party to the contract.

Schultz v. King Cy. Medical Serv. Corp., 24 Wash.2d 432, 165 P.2d 857 (1946), cited by the appellant, is inapposite; it involves a dissimilar contractual provision. We note that the instant contract refers only to illness occurring within the period of coverage, whereas, the King County contract specifies pre-existing sicknesses whether patent or latent which may have originated or existed prior to the coverage.

The defendant asserts another defense to plaintiff's suit on the medical service contract; that the plaintiff had received 12 months of medical service...