Winbun v. Moore
| Decision Date | 08 March 2001 |
| Docket Number | No. 68967-9.,68967-9. |
| Citation | 18 P.3d 576,143 Wash.2d 206 |
| Court | Washington Supreme Court |
| Parties | Gail WINBUN and Lee Winbun, wife and husband, and the marital community composed thereof, Petitioners, v. Jane A. MOORE, M.D. and John Doe Moore, wife and husband, and the marital community composed thereof; Carter Hill, M.D. and Jane Doe Hill, husband and wife, and the marital community composed thereof; and Highline Community Hospital, a Washington non-profit corporation, Defendants, H. Stephen Epstein and Jane Doe Epstein, husband and wife, and the marital community composed thereof, Respondents. |
Wiggins Law Office, Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, Robert B. Gould, Seattle, for petitioners.
Harbaugh & Bloom, Gary Neil Bloom, Spokane, Longfelder, Tinker & Kidman, Gregg L. Tinker, Seattle, Bryan Patrick Harnetiaux, Spokane, amicus curiae on behalf of Washington State Trial Lawyers Ass'n.
Merrick, Hofstedt & Lindsey, Thomas V. Harris, Seattle, for respondents.
Petitioner Gail Winbun sought review of a Court of Appeals' decision reversing a jury verdict which awarded her damages for negligent medical care provided by Dr. Stephen Epstein. Finding that there is substantial evidence to sustain the jury's verdict that the cause of action was timely filed, we reverse the Court of Appeals and reinstate the trial court's judgment against Epstein.
This case presents the following issues:
(1) Whether there is substantial evidence that the plaintiff commenced her professional negligence action against Epstein within one year of the date that she discovered or with due diligence should have discovered the factual basis of her claim; and
(2) Whether knowledge of suspected professional negligence as to one health care provider necessarily triggers the medical malpractice discovery rule of RCW 4.16.350 as to all other health care providers who treated the plaintiff.
Gail Winbun (Winbun) initially filed a medical malpractice action against her family physician, emergency room physician, and the hospital where she was treated. The action was commenced within the three-year limitation period set by statute. Subsequently, Winbun's attending physician, Dr. Stephen Epstein (Epstein), was joined as a codefendant. Epstein asserts that Winbun's claim against him was untimely.
In March of 1993, Winbun consulted her family physician, Dr. Jane Moore (Moore), about complaints of chest and abdominal pain, nausea, back pain, and vomiting. During March and April, she saw Moore several times, complaining of continued burning in her stomach. Moore noted Winbun's symptoms of dyspepsia (indigestion) and elevated blood pressure. She advised Winbun to decrease stress, smoking, and caffeine, and she recommended over-the-counter antacids. When Winbun's symptoms persisted, Moore prescribed medication.
On April 17, 1993, Winbun, complaining of severe abdominal pain, nausea, and difficulty breathing, was transported by ambulance to Highline Community Hospital (Highline). She was diagnosed by Highline emergency room physician, Dr. Carter Hill (Hill), with pelvic inflammatory disease (PID). Hill prescribed antibiotics and pain medication, and Winbun was discharged.
Winbun's condition worsened, and around noon on April 19, 1993, Winbun's husband took her back to the emergency room at Highline. Because of his previous diagnosis of PID, Hill telephoned Highline's on-call obstetrician/gynecologist, Dr. Epstein, to admit and treat Winbun. Epstein testified that Hill did not provide Winbun's signs and symptoms, and Epstein did not come to the hospital to examine Winbun.
Epstein received several calls from the nursing staff regarding Winbun's condition during the evening. At 9:30 p.m., Winbun was transferred to the telemetry unit. At 10:30 p.m., Epstein was advised that Winbun's kidneys were failing. He did not come to the hospital, but ordered treatment and requested an examination by the on-call cardiologist because of Winbun's rapid heartbeat.
The cardiologist consulted with Dr. Marcia Gonzalez (Gonzalez), the on-call surgeon. Gonzalez examined Winbun at about 3 a.m., determined that immediate surgery was needed, and called Epstein. Epstein arrived at the hospital about 30 minutes later and began surgery, with Gonzalez assisting. The initial exploratory laparotomy revealed that Winbun's medical problems were not gynecological. Thereafter, Gonzalez took over and discovered a perforated gastric ulcer with more than two liters of brownish pus in Winbun's abdominal cavity.
Following the surgery, Winbun remained in the hospital for two months. She required additional surgery due to continued infection. A feeding tube was inserted into her small intestine, a breathing tube was placed in her throat, and a nasal-gastric tube was inserted into her stomach. She suffered kidney failure and developed adult respiratory distress syndrome (a pulmonary condition) and a stricture (narrowing) of her esophagus.
Winbun testified that, from the beginning, she felt that one of her doctors may have made a mistake. She suspected Moore had misdiagnosed her condition. However, she was reluctant to pursue the matter because she liked and respected Moore.
In early 1994, Winbun obtained some of her medical records from Highline, including records for April 17 and partial records for April 19 and 20, 1993. Winbun did not request records for her subsequent hospitalization.
Two years after her hospitalization, on June 12, 1995, Winbun met with Attorney Robert Gould (Gould) to discuss the possibility of bringing a medical negligence suit. Winbun gave Gould the medical records she had obtained, but she asked him not to investigate the claim at that time because she was not certain that she wanted to sue Moore.
In January of 1996, Winbun authorized Gould to seek the opinion of Dr. Robert Nielsen (Nielsen) regarding Winbun's medical care. Winbun testified that she discussed only the potential liability of Moore with Gould; she had no reason to believe that Epstein might have been negligent. Based on his review of the records that Winbun had obtained from the hospital, Nielsen opined "that Dr. Jane Moore and Dr. Carter Hill deviated from the minimum standard of care of reasonable physicians in the same or similar circumstances in their failure to correctly diagnose and treat their mutual patient, the Plaintiff, Gail Sandra Winbun." Clerk's Papers at 57.
Winbun formally retained Gould on February 26, 1996, and her action against Moore, Hill, and Highline was commenced on April 12, 1996. The three-year statute of limitations expired on April 20, 1996.
On October 14, 1996, counsel for Highline asked Gould why Epstein had not been named as a defendant in the action. After the question was raised, Winbun instructed Nielsen to review all of her medical records to determine whether Epstein had acted negligently in her treatment. Nielsen opined that Epstein's conduct constituted a marked departure from the standard of care, was negligent, and had led to increased difficulties for Winbun. On November 6, 1996, Winbun amended the complaint to join Epstein as a codefendant.
Before trial, Epstein sought dismissal of the action, contending that Winbun did not timely file her cause of action against him as a matter of law. In opposition to Epstein's motion for summary judgment, the affidavit of Dr. Gary B. Harris (Harris) was presented. In his affidavit, Harris stated that although Epstein's negligence would be clear to a physician experienced in drafting and reading hospital records, it would not be apparent to a lay person. The court denied Epstein's motion. At the close of Winbun's case and at the close of trial, Epstein moved for a directed verdict on the statute of limitations issue. The trial court denied both motions.
Winbun, who was heavily sedated in the hospital, testified that she remembered few details from April 19 and 20, 1993. She also testified that she thought Dr. Gonzalez was "a saint in my life" and that "Dr. Epstein was right underneath because he helped save me that day at surgery." Verbatim Report of Proceedings at 1157.
Before the case was submitted to the jury, Winbun settled with Hill and Highline. In the special verdict following a two-week trial, the jury awarded damages to Winbun, finding that Epstein's negligence proximately caused 60 percent of those damages.1 The trial court entered judgment for Winbun against Epstein in the amount of $807,629.93 plus costs. Epstein appealed, contending that the trial court erred in denying his motions for directed verdict based on the expiration of the statute of limitations.
The Court of Appeals reversed and remanded with instructions to vacate the judgment against Epstein and dismissed him as a codefendant with prejudice. This court granted Winbun's petition for review of the Court of Appeals' decision.
The determination of when a plaintiff discovered or through the exercise of due diligence should have discovered the basis for a cause of action is a factual question for the jury. Crisman v. Crisman, 85 Wash.App. 15, 23, 931 P.2d 163 (1997). "When a trial court denies summary judgment due to factual disputes, ... and a trial is subsequently held on the issue, the losing party must appeal from the sufficiency of the evidence presented at trial...." Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wash.2d 15, 35 n. 9, 864 P.2d 921 (1993).
In the present case, a factual dispute was presented to the jury: At what point did Winbun discover or should she have discovered the elements of her medical malpractice claim against Epstein? The jury specifically found that Winbun and her attorney neither discovered nor with due diligence should have discovered the factual basis of Winburn's claim more than one year before she filed the action against Epstein.2
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