Wood v. Gibbons
| Decision Date | 24 July 1984 |
| Docket Number | No. 3,No. 5612-III-1,3,5612-III-1 |
| Citation | 685 P.2d 619,38 Wn.App. 343 |
| Parties | Donald J. WOOD and Tracy Wood, Husband and Wife; Tracy Wood, as Guardian of the Estate of Matthew Joseph Wood: Norman Wood and Marjorie Wood, Husband and Wife, Appellants, v. Gerald E. GIBBONS, M.D., and Barbara C. Gibbons, Husband and Wife; Alf J. Stojowski, M.D., and Alice Stojowski, Husband and Wife; Lester E. Bauer, M.D., and Doris F. Bauer, Husband and Wife; Phillip D. Cleveland, M.D., and Sandra Cleveland, Husband and Wife; Okanogan County Hospital District, d/b/a Mid-Valley Hospital; Family Medical Center, P.S. of Omak, Washington; The Wenatchee Valley Clinic, of Wenatchee, Washington; Central Washington Deaconess Hospital Association d/b/a Central Washington Deaconess Hospital, currently known as Central Washington Health Services Association, d/b/a Central Washington Hospital; Affiliated Hospital Products, Inc., a Delaware Corporation; Searle Medical Products USA Inc., a Delaware Corporation, as successor in interest to Will Ross Inc., a Delaware Corporation; Shaw Supply, Inc., a Washington Corporation; American Hospital Supply Corporation, a foreign corporation; Dart Industries Inc., a foreign corporation, Respondents. |
| Court | Washington Court of Appeals |
William Wesselhoeft, Andrew L. Symons, Ferguson & Burdell, Seattle, John S. Biggs, Atty. at Law, Walla Walla, for appellants Wood.
William H. Mays, Darlene Johnson, Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for respondents Gibbons, Hannon, Stojowski and Wenatchee Valley Clinic.
Susan Cawley, Jeffers, Danielson, Sonn & Aylward, P.S., Wenatchee, for respondents Cleveland and Family Medical Center.
Ted Roy, Thomas A. Gish, Roy & Pell, Yakima, for respondent Okanogan County Hospital Dist. No. 3.
Gary R. Eliasen, Thomas R. Merrick, Merrick, Hofstedt & Lindsey, P.S., Seattle, for respondent Central Washington Deaconess Hospital.
Larry Carlson, Carlson & Drewelow, P.S., Wenatchee, for respondent Shaw Supply Inc.
John G. Layman, Layman, Loft, Smythe & Arpin, Spokane, for respondent Dart Industries Inc.
Irene M. Hecht, Burton C. Waldo, Keller, Rohrback, Waldo, Hiscock, Butterworth & Fardal, Seattle, for respondent American Hospital Supply Corp.
This case involves the trial court's granting of a summary judgment having determined all claims were barred by the statute of limitation. We affirm.
In February 1969, Donald Wood, suffering from severe abdominal pain, was admitted to Mid-Valley Hospital. His Dr. Cleveland advised Mr. Wood that his abdominal condition was the result of regional enteritis, or Crohn's disease. A few months later, Dr. Cleveland told Mr. Wood of a letter from another doctor suggesting that Mr. Wood might have suffered a reaction to the starch powder on the gloves used during surgery. However, Dr. Cleveland did not believe that diagnosis was correct. Mr. Wood related the information to his parents and the family contacted an attorney. Presumably, the attorney investigated and reported to Mr. Wood and his parents there was nothing to pursue. The matter was dropped and Mr. Wood continued to understand his condition was regional enteritis.
family physician, Dr. Cleveland, referred Mr. Wood to Dr. Gibbons because Mr. Wood had a short history of gastrointestinal difficulties. Mr. Wood was transferred to Central Washington Deaconess Hospital (Deaconess) where Dr. Gibbons removed Mr. Wood's appendix. A few days later, Dr. Gibbons performed a second operation to relieve an intestinal obstruction. Still later, a third surgery was performed. Approximately 80 percent of Mr. Wood's small intestine was removed because of massive adhesions. Tissue samples were taken and sent to the Armed Forces Institute of Pathology (AFIP) which reported birefringent material. It is now alleged this material showed contamination from starch powder on the surgical gloves.
In 1980, Mr. Wood was referred to Dr. Fenster, who told him he was not suffering from regional enteritis, but from a reaction to starch powder on surgical gloves. Within 1 year of Dr. Fenster's disclosure, Mr. Wood commenced an action against the doctors, two hospitals, the surgical supply companies, and the glove manufacturers. Defendants were granted summary judgment based on the statute of limitation.
In ruling on a motion for summary judgment, the court must consider the material evidence and all reasonable inferences therefrom in favor of the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). The motion may be granted only if there is no genuine We note at the outset that a statute of limitation defense is not unconscionable and is entitled to the same consideration as any other defense. Guy F. Atkinson Co. v. State, 66 Wash.2d 570, 403 P.2d 880 (1965). Statutes of limitation seek to avoid the difficulty of a trial long after witnesses have disappeared and memories have dimmed. See Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969). Such difficulties are apparent in this case.
issue of material fact, and the moving party is entitled to judgment as a matter of law. If reasonable persons might reach different conclusions, the motion should be denied. Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 616 P.2d 644 (1980). This court's inquiry is the same as the trial court's. Wilson v. Steinbach, supra.
As a preliminary matter, Mr. Wood insists the doctors should be estopped from raising statutes of limitation as a defense since they breached their duty to disclose complete information to him. Estoppel in pais is available to prevent fraudulent or inequitable resort to the statutes of limitation. Central Heat, Inc. v. Daily Olympian, Inc., 74 Wash.2d 126, 443 P.2d 544, 44 A.L.R.3d 750 (1968). Also referred to as the fraudulent concealment rule, see Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969), the doctrine applies when a defendant has concealed facts or otherwise induced a plaintiff not to bring suit.
Mr. Wood contends the contents of pathology reports, letters, a medical journal article, and a change in hospital procedure all should have been disclosed to him. But other than his assertions, nothing in the record suggests a physician is obligated to disclose such information. Indeed, the thrust of Mr. Wood's argument is that a doctor has a duty to disclose any information that may be the basis of a lawsuit. There is no proof the doctors deliberately concealed any information that would estop them from asserting the defense of the statute of limitation.
Prior to 1971, medical malpractice actions were subject to Any civil action for damages against a hospital which is licensed by the state of Washington or against the personnel of any hospital, or against a member of the healing arts including, but not limited to, a physician licensed under chapter 18.71 RCW or chapter 18.57 RCW, ... 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.
the general statutes of limitations contained in RCW 4.16.010 and .080. In 1971, the Legislature added RCW 4.16.350:
Laws of 1971, ch. 80, § 1, p. 194. This act applies to injuries which occurred prior to its effective date. See Ohler v. Tacoma Gen'l Hosp., 92 Wash.2d 507, 598 P.2d 1358 (1979). 1 The statute was again amended in 1975, but that version applies only to health care provided after June 25, 1976. RCW 4.16.350.
In this case, health care was provided in 1969; the 3-year period has long since passed. At issue is when the 1-year period began to run. Mr. Wood contends it began in the fall of 1980 when he "actually" discovered all the elements of his cause of action. Respondents suggest the test is when Mr. Wood discovered or reasonably should have discovered the elements of his cause of action.
We find the 1971 version of RCW 4.16.350 requires actual discovery.
The 1971 statute was significantly different from the previous statute of limitations and our interpretation of that statute. The concept of the accrual of a cause of action contained in the general statute of limitations was eliminated. In its place is language that any action shall commence within 1 year of the time plaintiff discovers the injury or condition was caused by the wrongful act. The rule in Ruth v. Dight, supra, thus is limited to 1 (Italics ours.) Bixler v. Bowman, 94 Wash.2d 146, 149, 614 P.2d 1290 (1980); see also Teeter v. Lawson, 25 Wash.App. 560, 610 P.2d 925 (1980). The doctors and hospitals rely heavily on Ohler v. Tacoma Gen'l Hosp., supra, and Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 663 P.2d 473 (1983). In both those cases, the discussion of reasonable diligence pertains to products liability claims, not medical malpractice.
year from the date of actual discovery of the injury or condition.
Legislative history and 1975 amendments lend added support to our actual discovery interpretation. As originally drafted, the statute required due care in discovering any negligence, but this was deleted and replaced with the language quoted above. House Bill 720, 42d Legislature (1971). Furthermore, the statute was amended and now contains a reasonable diligence requirement. RCW 4.16.350. An amendment to an unambiguous statute indicates a purpose to change the...
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