Zaleck v. Everett Clinic

• Decision Date: 07 January 1991
• Docket Number: No. 24848-1-I,24848-1-I
• Parties: Steven W. ZALECK, Appellant, v. The EVERETT CLINIC and Dr. Irving W. Varley, Respondents. Division 1
• Court: Washington Court of Appeals

Page 107

60 Wn.App. 107

802 P.2d 826

Steven W. ZALECK, Appellant, v. The EVERETT CLINIC and Dr. Irving W. Varley, Respondents.

No. 24848-1-I.

Court of Appeals of Washington,

Division 1.

Jan. 7, 1991.

David Welts and Welts & Welts, for appellant.

Rebekah R. Ross, Daniel Ferm, and Williams, Kastner & Gibbs, for respondents.

WINSOR, Judge. ^*

Steven Zaleck appeals a summary judgment order dismissing, on statute of limitations grounds, his medical malpractice claim against Dr. Irving Varley and the Everett Clinic. He contends that summary judgment was improper because there are genuine issues of material fact as to when he discovered, or reasonably should have discovered, his cause of action. We affirm.

Zaleck suffered a work-related wrist injury on November 10, 1981. He was treated at the Everett Clinic by Dr. Varley, who on November 19, 1981, administered an injection of xylocain and hydrocortisone into Zaleck's injured wrist. When Dr. Varley inserted the needle, Zaleck felt immediate intense pain in all five fingertips. The pain soon subsided, but Zaleck continued to feel numbness and tingling in his thumb. Zaleck asked Dr. Varley why the injection was so painful; Dr. Varley explained that the needle might have hit a nerve. According to Zaleck, Dr. Varley also said that the burning and numbness resulting from the shot "wouldn't be a problem and would go away."

The numbness and tingling in Zaleck's thumb did not go away. In March 1982, Dr. Varley referred Zaleck to Dr. James Pinkham, an orthopedist practicing at the Everett Clinic. Dr. Pinkham performed carpal tunnel surgery on Zaleck, but Zaleck's symptoms continued. Dr. Pinkham referred Zaleck to a hand specialist, Dr. Edward Almquist, in August 1983. Dr. Almquist operated on Zaleck's wrist several times. The first operation was in October 1983, the last was in May 1984. After these surgeries Zaleck still had a numb thumb, as well as "a 20 percent impairment of the functions of his wrist from the insertion of the biceps down."

Zaleck's final office visit to Dr. Almquist was January 30, 1985. The Department of Labor and Industries closed his claim in March 1985. Zaleck consulted a lawyer in April 1985 and filed this action against Dr. Varley and the Everett Clinic on March 21, 1986. Dr. Varley moved for summary judgment of dismissal on statute of limitations grounds. The trial court granted Dr. Varley's motion and this appeal followed.

A motion for summary judgment based on a statute of limitations should be granted only if the record demonstrates that there is no genuine issue of material fact as to when the statutory period commenced. Olson v. Siverling, 52 Wash.App. 221, 224, 758 P.2d 991 (1988), review denied, 111 Wash.2d 1033 (1989). All facts and reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, based on all of the evidence, reasonable persons could reach but one conclusion. Olson, 52 Wash.App. at 224, 758 P.2d 991. A reviewing court conducts the same inquiry as did the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

The statute of limitations applicable to this case is RCW 4.16.350(3), which provides in part:

Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976[:] ... based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission[.]

Zaleck contends that his cause of action falls within the 1-year post-discovery period allowed by this statute. That period commences when the plaintiff "discovered or reasonably should have discovered all of the essential elements of [his or] her possible cause of action, i.e., duty, breach,causation, damages." Ohler v. Tacoma General Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358 (1979). ¹ Zaleck argues that in this case, issues of material fact exist as to all but the duty element. We disagree.

Even when the facts are interpreted in the light most favorable to Zaleck, there is no genuine issue as to whether Zaleck discovered, or reasonably should have discovered, the cause of his symptoms more than 1 year before he filed suit. Zaleck developed thumb numbness when Dr. Varley administered the exceptionally painful injection. On that same day, Dr. Varley told Zaleck that he may have hit a nerve. From this a reasonable person could only have concluded that the injection caused at least some of Zaleck's symptoms. Moreover, although Zaleck suffered other problems and symptoms, he could have discovered the cause of his thumb problem in 1983 simply by asking Dr. Almquist. Dr. Almquist's chart entry for Zaleck's office visit on September 26, 1983, states:

With regard to the problem, i.e., numbness in his thumb, this is probably a residual from an injection into the area and could be explored under local to release any scar tissue or repair a small branch of the superficial radial nerve which may have been injured.

Finally, it appears that Zaleck actually knew the cause of the numbness by at least 1983. A February 10, 1983, report from Vocational Services Northwest that was prepared for the Department of Labor and Industries includes this entry:

Mr. Zaleck states that he was employed by Everett Pad and Paper on November 10, 1981 as a broke handler. He picked up a 60 or 70 lb. slab of paper.... It slipped and all of the weight of the paper fell on his right hand twisting it the wrong way, causing severe pain.... Shortly after the accident, the doctor gave him a shot of cortisone in his wrist. It affected his thumb causing it to become numb.

(Emphasis added.)

Zaleck's discovery of the element of damage is also not in serious dispute. Zaleck has suffered a numb thumb since the 1981 injection. Although he may not have known at that time that he would ultimately suffer a permanent partial disability, he knew at the time of injection that some damage had occurred. This is sufficient to establish that Zaleck discovered, or should have discovered, his damage more than 1 year before he filed suit. See generally Steele v. Organon, Inc., 43 Wash.App. 230, 235, 716 P.2d 920, review denied, 106 Wash.2d 1008 (1986) (to have discovered element of damages, plaintiff need not know full amount of damage; she need only know that some actual and appreciable damage occurred). The fact that Dr. Varley assured Zaleck at the time of injection that his symptoms would go away does not change this result. Dr. Varley's assurance was made in November 1981. Zaleck's thumb remained numb throughout the 4 1/2 years before he filed suit. A reasonable person would have begun to doubt Dr. Varley's assurance that the symptoms would subside long before a year prior to his filing suit.

The remaining essential element at issue is breach. Under Ohler and its progeny, the 1-year discovery period is triggered as to this element when the plaintiff knew, or should have known, that the defendant violated the applicable standard of care when he or she caused plaintiff's injury. Ohler, 92 Wash.2d at 510, 598 P.2d 1358; Olson, 52 Wash.App. at 229, 758 P.2d 991; Weisert v. University Hosp., 44 Wash.App. 167, 172-73, 721 P.2d 553, review denied, 107 Wash.2d 1001 (1986). To discover a "breach" in a medical malpractice action, the plaintiff need not have known with certainty that the health care provider was negligent. Instead, the plaintiff need only have had, or should have had,...