Young v. Key Pharmaceuticals, Inc., 54592-8

CourtUnited States State Supreme Court of Washington
Citation770 P.2d 182,112 Wn.2d 216
Decision Date30 March 1989
Docket NumberNo. 54592-8,54592-8
PartiesE. Rosa YOUNG, Guardian ad Litem for Devan Young, a minor child, Appellant, v. KEY PHARMACEUTICALS, INC., a foreign corporation doing business within the state of Washington; Children's Orthopedic Hospital & Medical Center, a Washington corporation with its principal place of business in Seattle, Washington; C. Warren Bierman and Jane Doe Bierman, husband and wife, and the marital community composed thereof; and Ronald Lee Case and Jane Doe Case, husband and wife, and the marital community composed thereof, Respondents.
John P. Walsh, Seattle, for appellant

Karr, Tuttle & Campbell, Philip A. Talmadge, Carol L. Moody, Seattle, for respondent Key Pharmaceuticals.

Reed, McClure, Moceri, Thonn & Moriarty, William R. Hickman, Heather Houston, Christopher H. Howard, Seattle, for respondent Children's Orthopedic Hosp.

Lee, Smart, Cook, Martin & Patterson, Craig L. McIvor, Seattle, for respondents Bierman.

Williams, Kastner & Gibbs, Elizabeth A. Christianson, Seattle, Williams, Kastner & Gibbs, John A. Rosendahl, Tacoma, for respondents Case.

Brian P. Harnetiaux, Robert H. Whaley, Daniel E. Huntington, Spokane, amicus curiae for appellant Washington Trial Lawyers Ass'n.

Russell C. Love, Seattle, amicus curiae for respondents Washington Defense Trial Lawyers.

UTTER, Justice.

Plaintiff brought this action for medical malpractice and product liability before the King County Superior Court. That court granted summary judgment of dismissal in favor of all the defendants, and plaintiff appealed to the Court of Appeals. Finding this case to present "urgent issues of broad public import requiring prompt and ultimate determination," the Court of Appeals certified the matter to this court under RCW 2.06.030(d).

This case raises two issues. The first is whether the appointment of a guardian ad litem to a legally incompetent person activates the statute of limitations, overriding the tolling statute for such persons, RCW 4.16.190. We hold that it does not and reverse the ruling of the trial court. The second issue is whether, in opposing a summary judgment motion, the affidavit of a licensed pharmacist alone is sufficient to raise issues of material fact regarding the standard of care owed by a physician to a patient. We hold that it is not and affirm the trial court's ruling on this issue.

Devan Young sought treatment for acute asthma at Children's Orthopedic Hospital and Medical Center. As part of his treatment, Devan took the drug theophylline. The therapeutic qualities of theophylline vary with the level of the drug in the patient's bloodstream. The optimum blood level Dr. Ronald Case was one of the doctors who treated Devan at Children's Orthopedic Hospital. When he first saw Devan in September 1978, Devan was taking the theophylline preparation Elixophyllin, 20cc every 5 to 6 hours. Clerk's Papers, at 56. Because this medication required Devan's mother to get up in the middle of the night to administer one of the doses, Dr. Case changed Devan's prescription to Theo-Dur. Theo-Dur is a timed-release theophylline preparation which requires fewer doses per day to achieve the proper blood level. Dr. Case prescribed 200mg of Theo-Dur to be taken twice daily. Clerk's Papers, at 56-57. Sometime in the middle of January 1979, Devan's prescription was changed to 300mg twice daily. Dr. Case saw Devan on January 26, 1979 and checked his theophylline level, which was 11.8 micrograms per milliliter--well within the therapeutic range. Clerk's Papers, at 58.

lies between 10 and 20 micrograms per milliliter. Levels over 20 are potentially toxic and can result in brain damage or death. To achieve the proper blood level, the correct dosage may vary with the size and weight of the child, as well as the rate at which the child metabolizes the drug. Health care providers must monitor the initial doses to insure that the proper blood level is reached.

On February 1, 1979, Devan began to have seizures. Brought to Children's Orthopedic Hospital for emergency treatment, his theophylline level was found to be 68 micrograms per milliliter. Clerk's Papers, at 58. As a result of this high level, Devan became disabled and will probably need custodial care for life as a result of permanent brain damage.

Early in 1982, Rosa Young was appointed her son's guardian ad litem. In that capacity she filed suit in Federal District Court for the Western District of Washington on June 1, 1982. She named as defendants the Hospital and Key Pharmaceuticals, Inc., the manufacturer of Theo-Dur. By stipulation of the parties, that court dismissed the action without prejudice. Over 3 years later, on June 11, 1986, Ms. Young filed the present medical malpractice and At trial, each of the defendants moved separately for summary judgment. All defendants argued that Devan's claim was barred by the applicable statutes of limitation. See Laws of 1975, 2d Ex.Sess., ch. 56, § 1, p. 214 (former RCW 4.16.350) (medical malpractice); RCW 4.16.080(2) (products liability). The trial court dismissed plaintiff's case on this ground. The medical defendants also presented two affidavits--from Dr. John Neff (Chief of Staff at Children's Orthopedic) and Dr. Case--in response to plaintiff's allegations of medical malpractice. The plaintiff responded with an affidavit by Ms. Jan Dotson, a licensed pharmacist. Ms. Dotson alleged that Devan's physicians did not meet the accepted standard of care in prescribing the dosage of Theo-Dur and monitoring blood levels. The trial court ruled that this latter affidavit failed to raise genuine issues of material fact over whether the treating physicians or the Hospital breached the standard of care. The plaintiff appealed these summary judgment rulings.

products liability action in King County Superior Court, naming the Hospital,[770 P.2d 185] the treating physicians and the pharmaceutical company as defendants.


It is alleged that plaintiff brought the present action after the time allowed by the relevant statutes of limitations had run. In cases of minority or mental disability, however, RCW 4.16.190 tolls the statute of limitations. RCW 4.16.190 provides:

If a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than his natural life, the time of such disability shall not be a part of the time limited for the commencement of action.

The trial court held that the appointment of Rosa Young as Devan's guardian ad litem effectively ended the disability envisioned by the tolling statute, causing the statute of limitations to begin running upon the appointment. Respondents argue in addition that the filing of the federal action in 1982 also had the same effect. These interpretations are incorrect and we reverse this portion of the trial court's ruling.

The tolling statute's plain language indicates that the right it confers on the "person entitled to bring an action" is not diminished by the appointment of a guardian. The words "the time of such disability" refer to the person's disabling condition itself, not merely the disability to bring suit. This focus on the disabling condition is reinforced by the reference to RCW 11.88. This reference incorporates the following definitions into the tolling statute:

An "incompetent" is any person who is either:

(a) Under the age of majority, as defined in RCW 11.92.010, or

(b) Incompetent by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either managing his property or caring for himself or both.

* * *

... [T]he term "disabled person" means an individual who is in need of protection and assistance by reason of mental illness, developmental disability, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, but cannot be found to be fully incompetent.

RCW 11.88.010(1), (2). These definitions focus on the disabling conditions themselves, not merely their legal consequences.

The tolling statute makes no mention of the effect of a guardian's appointment, which we believe means that the statute was intended to operate regardless of the guardian's presence. We cannot assume the Legislature made this omission through oversight; it was aware of the practice of appointing guardians for legally incompetent persons for We have acted on this principle in the past. In Hatzenbuhler v. Harrison, 49 Wash.2d 691, 306 P.2d 745 (1957), we recognized the right of a minor plaintiff to bring an action any time during her legal disability regardless of the general statute of limitations. 49 Wash.2d at 699-700, 306 P.2d 745. In that same case, we held that the minor's guardian, who had brought the action on the minor's behalf as well as his own, was time-barred in his own personal claim. Hatzenbuhler, at 698, 306 P.2d 745. Thus, the guardian's appointment did not affect the right of the minor to toll the statute of limitations.

the purpose of bringing lawsuits. The reference to RCW 11.88 bears this out: this source for the tolling statute's definitions concerns the appointment, qualification, and removal of guardians.

The language of RCW 4.16.190 requires that the legally incompetent person who claims the protection of the statute must be "a person entitled to bring an action." In other words, the cause of action must vest in the incompetent person directly, not solely in the guardian...

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