Opinion
No. 18481-1-III.
Filed: September 19, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County, No. 97-2-05490-1, Hon. Linda G. Tompkins, May 4, 1999, Judgment or order under review.
Counsel for Appellant(s), Dustin D. Deissner, W.R. Van Camp P.C., W. 1707 Broadway, Spokane, WA 99201.
Counsel for Respondent(s), Gregory J. Arpin, 717 W Sprague Ave #1200, Spokane, WA 99201-3505.
Angela H. Wilkey, 717 W Sprague Ave, Ste 120, 601 Riverside, Ste 1000, Spokane, WA 99201.
In part, the summary judgment motion is designed to eliminate the need for trials on issues that cannot be factually supported.
But it should not be used to eliminate the need for trials on issues where there is a genuine issue of fact. Sacred Heart Medical Center asked the court on summary judgment to dismiss Delores Hutchinson's medical malpractice case because she failed to identify an expert medical witness who could render an admissible opinion regarding the standard of care. In response to the motion, Mrs. Hutchinson filed her declaration that stated the factual basis for her medical malpractice claim and a declaration from a registered nurse licensed in the state of California that contained an opinion that Sacred Heart breached the standard of care. The superior court dismissed Mrs. Hutchinson's lawsuit. The court reasoned that the expert witness's declaration failed to show affirmatively that the expert was competent to testify regarding the standard of care. The court further stated that the expert's opinion was not based on facts established by competent evidence, but was based upon conjecture and speculation. We reverse and remand.
FACTS
After undergoing back surgery at Sacred Heart Medical Center, Delores Hutchinson sued the hospital for medical malpractice, alleging that Sacred Heart and its employees negligently treated her following the surgery.
Specifically, she alleged that Sacred Heart gave her morphine even though she told the Sacred Heart staff that she was allergic to the drug. She further alleged that Sacred Heart failed to properly treat her allergic reaction to the morphine and to timely respond to her summons for help.
After Mrs. Hutchinson failed to identify any expert witnesses in her answers to interrogatories or under a case scheduling order, Sacred Heart moved for summary judgment. Sacred Heart argued that 'plaintiffs have no evidence supported by expert testimony that defendant Sacred Heart Medical Center deviated from the standard of care{.}' In support of its motion, Sacred Heart filed an affidavit from its attorney that identified the unanswered interrogatories regarding expert witnesses submitted to Mrs. Hutchinson. In response to the motion for summary judgment, Mrs. Hutchinson filed a sworn declaration from herself and a sworn declaration from a registered nurse licensed in the state of California.
Mrs. Hutchinson declared that following her surgery, a nurse inserted an IV tube into her arm. When she asked the nurse what the nurse was doing, the nurse reported that she was administering morphine. At that point, Mrs. Hutchinson told the nurse that she was allergic to morphine and she further stated that this information should be in her medical records because she believed that she had told her doctor about the allergy.
Sometime later, another nurse entered Mrs. Hutchinson's room and administered a shot in Mrs. Hutchinson's right hip. Again, Mrs. Hutchinson asked the nurse what she was receiving. The nurse replied 'morphine.' According to Mrs. Hutchinson, she immediately informed the nurse that she was allergic to morphine. The nurse responded by stating, 'I can get something to counter act {sic} it, I'll be right back.'
After 10 to 15 minutes, Mrs. Hutchinson began to get hives and her throat got tight. Some time passed and Mrs. Hutchinson rang the nurses' buzzer several times. When nobody responded, Mrs. Hutchinson got up by herself to go to the bathroom. She was in great discomfort. Because the toilet seat was up, Mrs. Hutchinson fell into the toilet. Mrs. Hutchinson called for help, but nobody responded. She grabbed the emergency cord with her toes and summoned help.
Mrs. Hutchinson also submitted a declaration from Ruth Swiggum, a registered nurse licensed by the state of California. Ms. Swiggum declared that she had extensive training and experience in nursing and opined that she was 'qualified to express an opinion as to the standard of care for nursing care.' She further stated that she was familiar with the standard of care for nurses in Washington.
Ms. Swiggum stated that she had reviewed Mrs. Hutchinson's declaration and the Sacred Heart medical records. She noted that the Sacred Heart medical records did not reflect events reported in Mrs. Hutchinson's declaration. She cautioned that her opinion was 'based upon the hypothetical assumption that the information in Mrs. Hutchinson's declaration is true, and the medical records are inaccurate.'
In Ms. Swiggum's opinion, the nursing care rendered to Mrs. Hutchinson by the nursing staff at Sacred Heart Medical Center fell below the standard of care. Specifically, Ms. Swiggum identified the following violations of the standard of care:
1. Administration of morphine if the nursing staff knew Hutchinson had an allergy to morphine. Mrs. Hutchinson says she advised the nursing staff that she was allergic to morphine.
2. Administration of treatment or medication in spite of patient's refusal of medications. Mrs. Hutchinson says she told the nurse she did not want morphine, but was given it anyway.
3. Failure to treat patient with proper respect. Mrs. Hutchinson says the nursing staff was angry and abrupt with her.
4. Delay in responding to patient's call for assistance. Mrs. Hutchinson says she called for some time, got no response, and finally went to the bathroom by herself, where she fell.
5. Substandard documentation regarding the patient's response to medication, identification of known allergies, physician notification of allergic reaction and injury or incident. Here according to Mrs. Hutchinson, she had an allergic reaction to a drug, and suffered a fall in the bathroom: none of this is reflected in the chart notes, and if it happened it should have been charted.
6. Informing patient of planned treatment and medication administration. According to Mrs. Hutchinson, she was given morphine without first being told that she was being given morphine.
7. Failure to notify physician of allergy, allergic reaction or injury. If, as Mrs. Hutchinson says, she had an allergic reaction to morphine, and then suffered a fall, this information should have been reported to Hutchinson's physician. The records do not indicate such notification was made, so if Mrs. Hutchinson's testimony is correct, this too fell below the standard of care.
In response, Sacred Heart asked the court to strike the two declarations and dismiss Mrs. Hutchinson's case. As to Mrs. Hutchinson's declaration, it stated '{t}he declaration presented by plaintiff is insufficient to defeat this motion for summary judgment, as this motion is based on plaintiffs' lack of expert witness testimony to support a prima facie case of medical negligence. Clearly, plaintiff herself is not an expert who can testify as to the standard of care or causation issues, and the declaration of Delores Hutchinson is therefore irrelevant to this motion.' As to Ms. Swiggum's declaration, Sacred Heart argued that it was 'based entirely on the hypothetical assumption set forth in {Delores Hutchinson's} declaration. The declaration of an expert witness based merely on conclusory allegations, speculative statements, or argumentative assertions is insufficient to defeat a motion for summary judgment, is improper and should be stricken.'
The court did not strike the declarations, but, after considering them, granted Sacred Heart's motion to dismiss the case. The court reasoned that Ms. Swiggum's declaration was insufficient because it was not supported by an adequate factual basis, but rather relied upon the assumption that Mrs. Hutchinson's factual declarations were true and that the medical records were untrue. The court also concluded that there was no factual basis to support Ms. Swiggum's statement in her declaration that she was familiar with the Washington standard of care for nurses.
Standard of Review.
This court reviews an order granting summary judgment de novo. The court engages in the same inquiry as the trial court — is there a genuine issue as to any material fact and is the moving party entitled to judgment as a matter of law? The court considers the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
A party is entitled to summary judgment if the party can show that there is an absence of evidence supporting the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). When the moving party asks for summary judgment based upon the absence of evidence, the moving party is not required to support the motion by affidavits or other materials negating the opponent's claim, but the moving party must identify what evidence in the record demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-23; Young, 112 Wn.2d at 225-26. If the moving party meets this burden and the nonmoving party does not adequately respond, the moving party is entitled to summary judgment. Morinaga v. Vue, 85 Wn. App. 822, 832, 935 P.2d 637 (1997). On the other hand, if the nonmoving party does bring forth the required evidence, even though it is not in a form that would be admissible at trial, all reasonable inferences must be drawn in favor of the nonmoving party. Celotex, 477 U.S. at 324; Hash v. Children's Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915-16, 757 P.2d 507 (1988).
Ultimately, summary judgment is inappropriate 'if the record shows any reasonable hypothesis which entitles the nonmoving party to relief.' White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 175, 810 P.2d 4 (1991) (quoting Mostrom v. Pettibon, 25 Wn. App. 158, 162, 607 P.2d 864 (1980)).
Sufficiency of Standard of Care Evidence.
Sacred Heart moved for summary judgment based upon the absence of expert testimony that Sacred Heart deviated from the standard of care. In most medical negligence cases, the standard of care and a breach of that standard must be shown by expert medical testimony. Noel v. King County, 48 Wn. App. 227, 231, 738 P.2d 692 (1987). The purpose of the summary judgment motion was to test the sufficiency of Mrs. Hutchinson's evidence of the standard of care. In response to that motion, she was required to set forth specific facts showing that there was a genuine issue for trial.
More specifically, Sacred Heart's motion required that Mrs. Hutchinson produce expert medical testimony based on admissible evidentiary facts. Theonnes v. Hazen, 37 Wn. App. 644, 648, 681 P.2d 1284 (1984).
The superior court reasoned that Ms. Swiggum's declaration was insufficient for two reasons. First, the court opined that Ms. Swiggum's statement that she was familiar with the standard of care for nurses in Washington lacked factual support. Second, the court stated that Ms. Swiggum's expert opinion was based upon an inadequate factual foundation.
The court noted that Ms. Swiggum based her opinions upon the assumption that the statements made in Mrs. Hutchinson's declaration were true and that the medical records were inaccurate. Additionally, the court was troubled by Ms. Swiggum's acceptance of information in Mrs. Hutchinson's declaration for which the declarant lacked personal knowledge. Where, the court asked, is the medical record that documents Mrs. Hutchinson's alleged allergy to morphine?
Regarding her qualifications to express an opinion, Ms. Swiggum stated in her declaration:
I am a Registered nurse licensed in the State of California, and I am familiar with the standard of care for nurses caring for patients in hospitals in the State of Washington. I have extensive training and experience in nursing, and I am qualified to express an opinion as to the standard of care for nursing care.
A declaration that contains only conclusory statements without adequate factual support does not create an issue of material fact that defeats a motion for summary judgment. Guile v. Ballard Community Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993).
However, this issue was raised for the first time by the trial court judge when she announced her summary judgment ruling dismissing Mrs. Hutchinson's case. After Mrs. Hutchinson filed the declaration of her expert in response to the hospital's motion for summary judgment, Sacred Heart filed a response. This response did not challenge Ms. Swiggum's qualification to state an expert medical opinion regarding the standard of care for nurses in Washington. Rather, it asked that the declaration be stricken because it was based upon conjecture and speculation. A party seeking summary judgment cannot raise an issue at any time other than in the summary judgment motion and opening memorandum. Allowing issues to be raised later in the summary judgment procedure denies the nonmoving party an opportunity to respond to the issue. White, 61 Wn. App. at 168. How much more difficult is the problem if the issue is raised for the first time when the court announces its decision? See Meridian Minerals Co. v. King County, 61 Wn. App. 195, 202-04, 810 P.2d 31 (1991); Felsman v. Kessler, 2 Wn. App. 493, 498, 468 P.2d 691 (1970).
Sacred Heart does not argue that Mrs. Hutchinson waived this assignment of error by failing to ask for a continuance. See, e.g., Guile, 70 Wn. App. at 25.
Sacred Heart argues that it was appropriate for the court to raise this issue sua sponte because Sacred Heart's motion for summary judgment placed Mrs. Hutchinson on notice that she would have to provide competent expert testimony regarding the standard of care. RCW 7.70.040; LaMon v. Butler, 112 Wn.2d 193, 200, 770 P.2d 1027 (1989); Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983). Even so, the march of this case toward dismissal makes relevant the words of another court:
'Summary judgment procedure is not a catch penny contrivance to take unwary litigants into its toils and deprive them of a trial, it is a liberal measure, liberally designed for arriving at the truth. Its purpose is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer on a trial, it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.'
Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d 605 (1960) (quoting Whitaker v. Coleman, 115 F.2d 305, 307 (1940)). The purpose of the summary judgment procedure is to test what is real and supported by facts from what is insubstantial and not supported by facts. The summary judgment procedure employed in this case did not accomplish that result.
In the context of a motion for summary judgment, based upon the absence of expert testimony, without any supporting materials challenging the qualification or competency of the expert, and in the further context of the issue being raised for the first time by the superior court in announcing its decision, we conclude that the superior court properly refused to strike Ms. Swiggum's declaration. After examining the declaration and the inferences therefrom in the light most favorable to Mrs. Hutchinson, we conclude the declaration is sufficient to allow the court to consider the evidence in Ms. Swiggum's opinions regarding the standard of care and any breach thereof.
Next, we address the issue of whether there is an adequate factual foundation for Ms. Swiggum's opinions. As we understand it, the essence of Mrs. Hutchinson's case is that she communicated to a Sacred Heart nurse that she was allergic to morphine and that she was subsequently injected with morphine because this nurse failed to document her allergy or communicate its existence to other Sacred Heart staff. There is factual support for these allegations in Mrs. Hutchinson's declaration. In rendering her opinion, Ms. Swiggum assumes that these statements are true.
A declaration in support of or in opposition to summary judgment must satisfy the standards of CR 56(e). Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 787, 819 P.2d 370 (1991); Melville v. State, 115 Wn.2d 34, 36, 793 P.2d 952 (1990). The declaration must be made on personal knowledge, set forth admissible evidentiary facts, and affirmatively show that the declarant is competent to testify to the matters stated therein. McKee v. American Home Prods., Corp., 113 Wn.2d 701, 706, 782 P.2d 1045 (1989); Klossner v. San Juan County, 93 Wn.2d 42, 44, 605 P.2d 330 (1980).
Affidavits or declarations verified on belief only and not on personal knowledge do not comply with CR 56(e) and therefore fail to raise an issue. Klossner, 93 Wn.2d at 45.
An expert witness, however, is not restricted by the rule that requires a witness to testify from first-hand knowledge. An expert witness may base his or her opinion upon hearsay, such as reports, observation of others, and statements of a patient. ER 703; 5B Karl B. Tegland, Washington Practice, Evidence § 703.1 (4th ed. 1999); 3 Jack B. Weinstein Margaret A. Berger, Evidence § 703{03} (1991).
Nevertheless, the expert's opinion must be based upon the facts of the case, although it is not necessary that the opinion be based only on undisputed facts. The expert's opinion may be based on disputed facts, so long as those facts could be accepted by the trier of fact. Prentice Packing Storage Co. v. United Pac. Ins. Co., 5 Wn.2d 144, 162-64, 106 P.2d 314 (1940); Theonnes, 37 Wn. App. at 648; Tokarz v. Ford Motor Co., 8 Wn. App. 645, 653, 508 P.2d 1370 (1973); Vaupell Indus. Plastics, Inc. v. Department of Labor Indus., 4 Wn. App. 430, 434-35, 481 P.2d 577 (1971).
Sacred Heart asked the superior court to strike Ms. Swiggum's declaration because it assumed that the statements made in Mrs. Hutchinson's declaration were true and that the medical records were inaccurate. The superior court refused to strike the declaration, but the court articulated the same reason for dismissing the case. Speaking of Ms. Swiggum's declaration, the court stated:
The review of the hospital charts clearly indicated that the records do not demonstrate any sort of evidence of the facts as alleged by the plaintiff, and so she must not only adopt the hypothetical assumption that plaintiff's declaration is true, but she must go further and assume that the medical records are inaccurate.
The court characterized this problem as an inadequate factual foundation.
In considering the motion for summary judgment, the superior court did not have Mrs. Hutchinson's medical records before it. What the court had before it was Ms. Swiggum's statement — 'The events that are related in Mrs. Hutchinson's declaration are not reflected in the medical records.
Therefore the opinion I am expressing in this declaration is based upon the hypothetical assumption that the information in Mrs. Hutchinson's declaration is true, and the medical records are inaccurate.' It is apparent that Ms. Swiggum had reviewed the medical records. In context, it appears likely that the unrecorded events to which Ms. Swiggum refers are what transpired between Mrs. Hutchinson and the two nurses who allegedly administered morphine to Mrs. Hutchinson.
Here, a jury could believe Mrs. Hutchinson and determine that the events stated in her declaration happened as she described them. A jury could further conclude that the nursing staff elected not to record them.
This being the case, it was permissible for Ms. Swiggum to base her opinion upon the assumption that the information in Mrs. Hutchinson's declaration is true and the medical records are inaccurate.
Finally, Sacred Heart asks that Ms. Swiggum's declaration be stricken because it is based upon information contained in Mrs. Hutchinson's declaration for which Mrs. Hutchinson lacks personal knowledge. Specifically, Sacred Heart points to Mrs. Hutchinson's statements that she is allergic to morphine and that she was administered morphine by the Sacred Heart nurses.
In Dennis v. McArthur, 23 Wn.2d 33, 158 P.2d 644 (1945), overruled on other grounds by, State v. Davis, 41 Wn.2d 535, 250 P.2d 548 (1952), the issue on appeal was whether the plaintiff could testify that the treatment employed by her 'sanipractic physician' invaded her uterus. This testimony was important in determining whether the defendant was responsible for producing an abortion during the plaintiff's pregnancy. About that testimony, the Supreme Court stated, 'we are not prepared to say that it falls in the realm of things beyond common experience of women in general, or requires special knowledge, skill, or training not possessed by women generally.' Id. at 37. Likewise, an allergy is a medical condition that may come within the realm of common or personal experience. Knowledge regarding the existence or non-existence of an allergy comes not only from medical diagnosis but also from personal experience. Ms. Swiggum's declaration should not be stricken because it is based upon information for which Mrs. Hutchinson lacks personal knowledge.
Sacred Heart argues that Mrs. Hutchinson lacks personal knowledge that she was administered morphine by the Sacred Heart nurses. The hospital argues that this information is based upon statements attributed by Mrs. Hutchinson to Sacred Heart's nurses. Sacred Heart maintains that these statements are inadmissible hearsay.
At oral argument, Sacred Heart's attorneys conceded that the hospital records document that Mrs. Hutchinson was administered morphine. In her declaration, Ms. Swiggum states that she reviewed the hospital records. As an expert medical witness, Ms. Swiggum may base her opinion upon the information contained in Mrs. Hutchinson's medical records. ER 703; 5B Karl B. Tegland, Washington Practice, Evidence § 703.1 (4th ed. 1999).
Reversed and remanded.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
We concur:
SCHULTHEIS, J.
SWEENEY, J.