*1 sеrvice. The resolution violated both new frost protection time, first in and the right prohibition the rule of first Reso- rules. Because we invalidate discriminatory against basis, we need not and its on this predecessors lution 88-4 claims. statutory process and due plaintiffs' réach invalidating order summary judgment The trial court's YTID Resolution 88-4 is affirmed.
Dore, C.J., and Smith, Guy, Utter, Andersen, Durham, JJ., concur. Johnson, 16, 1991. Reconsideration denied October August 1991.] En Banc. [No. 57266-6. Douglas, Petitioner, v. Mark A. Freeman, Deborah Defendant, Providence Sisters
Washington, Respondent. *3 Williams, & Wal- Riddell, Bullitt and D. Silva Theodore petitioner. by McKinnon, for C. kinshaw, Thomas and R. Ross Gibbs, Rebekah Williams, & Kastner respondent. Spillane, Mary H. J.
Andersen,
Facts Case of At issue in this case is whether there sufficient corporate evidence to support jury's finding negli- on the Providence Dental Clinic. gence part On Deborah April Douglas, plaintiff herein, (hereafter to the Providence Clinic went Dental referred clinic) because of discomfort in the lower left of her McMullan, side mouth. She saw Dr. Candice direc- tor clinic University Washington Dental School member. McMullan faculty Dr. examined plain- recommended tiff and that her three teeth wisdom be extracted.
Plaintiff returned to on the clinic April 1981. She testified that a dental room, assistant escorted her into a asked if she had taken medications, the prescribed put on bib her and some tray, instruments on a and left. According plaintiff, assistаnt returned to the room only give her after postoperative instructions the ex- tractions complete. Freeman, were Dr. Mark whom plain- tiff had not met extracted her previously, wisdom teeth. extractions, After the and mouth tongue felt It numb. was later determined that her nerve lingual damaged extractions, severely limiting her ability to taste feel on right side her tongue and mouth. extractions,
At the time of was practic- Freeman at the clinic ing dentistry to a pursuant University Washington residency Residents program. enrolled in the rotate to various dental clinics in program Seattle. Dr. Freeman had dental school and graduated from had examinations, dental boаrd but was not passed regional At Washington. clinic, licensed practice dentistry *4 Dr. Freeman was Dr. McMullan. Dr. supervised McMullan consulted with Dr. Freeman apparently regard- room when and worked an adjoining case
ing plaintiff's testified, Plaintiff the extractions. Dr. Freeman performed on Dr. Free- never checked however, that Dr. McMullan the extractions. during man and the Dr. Freeman sued plaintiff
On April her lingual from arising injury damages clinic for negligence, on theories of recovery sought nerve. Plaintiff consent, negligence, corporate failure to obtain informed Act. Consumer Protection and violation of the returned jury in 1988. jury The case was tried to on the negligence for Dr. Freeman verdicts separate on the informed and the clinic claim, for Dr. Freeman claims, against Act but Consumer Protection consent and The jury claim. the corporate negligence the clinic on $250,000 damages. awarded plaintiff not for judgment filed a motion thereupon The clinic alternative, for a new or, in the the verdict withstanding on the basis denied the motion trial. The trial court con could have from which the there was evidence assistant to have a dental the clinic's failure cluded that it liable for cor rendered the extractions present the Court of appealed The clinic porate negligence. support evidence to reversed, insufficient finding Appeals Plaintiff then verdict.1 corporate the jury's review and review. We granted this court for petitioned Appeals. the Court of reverse
Three issues are presented.
Issues sufficient to support the evidence One. Was Issue negli- on the corporate the clinic verdict jury's against claim? gence the clinic's denying err in Did the trial court Two.
Issue regarding all limine to bar motion in status? Freeman's unlicensed instructed? the jury properly Three. Was
Issue granted, Freeman, P.2d 1Douglas Wn.2d *5 Decision Issue One. ample testimony
Conclusion. We find in the record to support jury's conclusion that the clinic's proximate plaintiff's lingual injury. was a cause of nerve general question underlying this issue is Appeals properly whether Cоurt reversed the trial judgment court's denial of the clinic's motion for notwith standing corporate negligence the verdict on the claim. In ruling judgment notwithstanding on a motion for the ver dict, a trial court exercises no discretion.2 The court must accept nonmoving party's the truth of the evidence and may reasonably draw all favorable inferences that be light evinced.3 The evidence must be viewed in the most nonmoving party; may grant favorable to the the court only competent the motion where there is no evidence or reasonable inference that would sustain a verdict for the " nonmoving party.4 any justifiable 'If there is evidence upon might which rеasonable minds reach conclusions "5 question jury.' that sustain the verdict, the is for the Appeals judgment
The Court of
concluded that a
not
withstanding
appropriate
the verdict was
because it found
reasonably
no evidence from which
infer
could
negligent
the clinic's
conduct caused
injury.
jury's
The court thus overturned the
verdict find
ing
corporate negligence.6
the clinic liable for
2Sepich Department
Indus.,
312, 321,
v.
Labor &
75 Wn.2d
6Douglas, at 191. in cases such of corporate negligence
The doctrine
that a
duty
hospital
on a nondelegable
as this
based
finds four
commentary
its
One
directly
patients.7
owes
the doctrine of cоr
under
hospital
such duties owed
(1)
in the main
to use reasonable
care
porate negligence:
for the
grounds
protection
and
buildings
tenance
(2)
invitees;
supplies
to furnish the patient
hospital's
(3)
defects;
to select its
with
employees
free of
equipment
(4) to
all
who
care;
supervise
persons
reasonable
duty,
its walls.8 It is this latter
medicine within
practice
case.
is at issue in this
supervision,
*6
in
instructed the jury
The trial court properly
on the corporate
find for plaintiff
order
the
owed to plaintiff by
find a
of care
claim,
duty
it had to
between
and
cause
clinic,
duty,
proximate
a
of that
breach
Since the clinic claims
injury.9
the breaсh and
sufficient
supported by
elements was
that none of these
discuss each.
evidence,
briefly
we will
case,
of care
the standard
In a
malpractice
professional
and usual
customary
practices
of the
is based on proof
the stan
This court has held
the profession.10
within
be
may
should be held
care to which
hospital
dards of
of the Joint Com
accreditation
standards
defined
by
and the hospital's
on Accreditation
of Hospitals
mission
of
found the standard
decisions have
own
Other
bylaws.11
(1984);
226, 230,
Bryant,
9See RCW 7.70.040. — — Disregard Stan- Surgeons Malpractice Court 10Physicians and — Response, Rev. Legislative 51 Wash. L. The
dard the Profession Alexander, 233-34; 11Pedroza, at 240. see also 101 Wn.2d at Usually, by hospitals the stan statute.12 defined care for testimony.13 by expert dard of care must be established statutory duty agree parties clinic had a that the The supervise former RCW 18.32- students under unlicensed (10) .030(3) requires dentistry code.14The code dentistry practicing person to obtain a license before (RCW 18.32.091), exemptions Washington from lists but requirements The code in RCW 18.32.030. this and other portions are as follows: relevant оf RCW 18.32.030 operations excepted acts and are following practices, chapter: of this operation provisions from the (3) board, by colleges approved Dental schools or in dental schools or practice dentistry by students board, under the direc- colleges acting when approved dentists act- tion and and licensed supervision registered ing instructors; (10) operations, dental practicing performing Students or instructors, any supervision competent under reputable college; dental 18.32.030(3), Former RCW statutory exceptions presented to the
These were regarding expert testified and several witnesses supervise thereunder. The Dr. Freeman clinic's expert argues, witness testified however, that no clinic part provide regarding any duty on the clinic's *7 assistant. Freeman with a dental testimony regarding separate
Plaintiff counters that
duty
unnecessary since the
the need for an assistant
denied,
1236,
Madsen,
495, 503,
Byerly
App.
review
41
704 P.2d
12See
v.
Wn.
Comm'ty
(1985);
Grays
Hosp.,
Schoening
40 Wn.
v.
Harbor
to the duty supervise also dentists. Plaintiff clinic's to student testimony that he needed that Dr. Freeman's contends during wisdom tooth extractions constituted assistance regarding dental of care evidence sufficient standard assistants. duty statutory the
We need not decide whether necessary provide supervise the includes by professional own tes since Dr. Freeman his assistance duty. ample timony provided his In evidence of such testimony in in case an adverse witness testifying during examination when chief and times that defense, insisted several Dr. Freeman presence was essential a wis of a dental assistant surgical extraction extraction. "I never do a dom tooth they pretty assistant, . . . are critical an because without doing suctioning holding tissue and you things have hands dоne so that some that have be describing In elevation of the tooth." free to do the actual testimony in his extraction, Dr. Freeman tooth a wisdom importance times to referred several also role. assistant's relying testimony justified on this
Plaintiff was
proof.15
satisfy
Indeed,
her burden of
other
Dr. Freeman
expressly
jurisdictions
defendant,
that a
tes
stated
have
may provide
expert
tifying
witness,
adverse
as an
standard of care in a medi
establishes the
malpractice case.16
cal
173,
(1932);
Foster,
165,
Williams v.
Brockman, 863 Port 193 P.2d 577, 581, Edmonds, App. 52-53, Norris, Smith v. 734 P.2d v. 226 Mont. 16SeeClark (Colo. 1982); Gill, App. 660 P.2d Greenwell v. Hoffman, Ct. 656 P.2d (Colo. App. 1982); Conway, Libby 192 Cal. 2d Ct. Rptr. 830 Cal.
251 is established of care the standard applicable Once to prove is not testimony required expert further experts, a breach of that standard.17 no tes- introduced contends that plaintiff
The clinic its duty supervise kind that it breached timony any if, Dr. McMul- that Dr. Freeman. One testified expert the extrac- claimed, before plaintiff days lan she saw with Dr. tion, plaintiff the treatment plan discussed room the extrac- during Freeman and was in the next Another testi- tions, expert her was supervision adequate. patient days if Dr. McMullan saw the fied beforehand, procedure talked with Dr. Freeman before in him, adjacent was X-rays and went over the with room during during procedure peered Dr. Frеeman her was procedure, supervision adequate. was that Dr. McMullan performed steps "confident" recollection above, outlined but also said he had no direct of Dr. McMullan in on him. Dr. McMullan was checking certain" that she checked on Dr. Freeman "fairly the procedure.
Plaintiff, however, that no saying voiced no doubts the room while her wisdom teeth were one else came into that an assistant extracted. While Dr. Freeman testified he added must have been present during procedure, the procedure that he had no recollection of independent observed, Thus, of an assistant. as the Court of Appeals or the assistant left before the testimony extraction and did not return until afterward uncontroverted."18 Her is suffi "essentially the clinic cient to raise a factual issue whether regarding its Dr. Freeman. supervise breached 476, 481, 17Petersen, 437; Douglas Bussabarger, at v. 73 Wn.2d 173; Physicians Surgeons, 15 Gonz. 51 Wash. L. Rev. at L. Rev. Freeman, granted, 115 18Douglas 787 P.2d Wn.2d 1007 question of whether a defendant breached separate the standard of care is from whether the breach proximate patient's damages.19 cause of *9 Expert testimony usually required proxi to establish malpractice mate always cause in medical cases.20It is not necessary, prove every however, to element of causation testimony. medical If, from the facts and circumstances testimony given, person the medical a reasonable can infer that the causal exists, connection the evidence is sufficient.21 argues
The clinic
that there was insufficient evidence of
jury's
causation, and also claims that
exoneration of
Dr. Freeman means that
it should be exonerated as a
disagree.
matter of law.22We
It is well settled that under
corporate negligence,
hospital
the doctrine of
a
can be
negligence
any
held liable for its
own
the absence of
negligence
part
treating physician.23
on the
As
corporate negligence theory
notеd earlier, the
is based on
proposition
hospital
independent duty
that a
owes an
patients.24
Schoening
Grays
of care to its
In
Harbor
Comm'ty Hosp.,
App. 331,
40
P.2d
Wn.
698
(1985),
denied,
461, 464,
24Schoening, Wn. at 334. any hospital breach liable for could still be because plaintiff.25 separate duties owed its brought analogous case, suit was where In a somewhat system, public the New against school a teacher and explained Supreme that verdicts Court Mexico system against inconsis not were the school teacher parties against were the two claims tent because liability.26 claimed Plaintiff theories based on different negligence did not teacher, who as to the different acts system, liability, did. The ver which and the school incur depend system against not on did the school dict liability theory respondeat suрerior, where the master's negligence. Since the issues the servant's arises out of against different, were the verdicts the defendants were not inconsistent.27
Similarly, claim is vicari here that the clinic there is no theory ously under liable for Dr. Freeman's *10 respondeat superior. of cor Rather, the claim is one imposes porate negligence on the clinic a non which regardless directly plaintiff, delegable of the owed charged relationship.28 Plaintiff details of the doctor-clinic extracting negligence her teeth and in Dr. Freeman with negligence supervising him. These are the clinic with liability different standards based on different theories jury's finding presentеd, that the care. Under the facts the clinic of not does not absolve Dr. Freeman was liable assisting supervising Thus, him. the or jury's exonerate the Freeman does not exoneration of Dr. a matter of law. clinic as agree plaintiff himself Dr. Freeman with
We
necessary
provided
Dr. Free-
of causation.
evidence
tooth extractions
times that wisdom
man stated several
Schoening,
at 334-35.
25See
Schs.,
383, 385,
26Maxwell v. Santa (Sutin, J., concurring). 27Maxwell, at 388 87 N.M. Bryant,
28SeePedroza require repeatedly an assistant, and he referred to the explained procedure. assistant's role as he the extraction suctioning He described the assistant as blood and hold- ing the tissue аside after the incision had been made so that he could see and reach the tooth. "It would be virtu- extraction) ally impossible (perform trying to do so an get hold instruments at different times to to a tooth. It is keep essential that someone is there to do that. You can't way you all tissue out of the to do what have to do without assistance." expert lingual
Two witnesses testified that nerve damaged stages could be at where Freeman stated he required expert an assistant. One testified that the lin- gual injection damaged during nerve could be anesthetic, tissues, incision removal of the soft bone during around tooth, tooth, or over the removal of the stitсhing of the incision. conclude that it We reasonable to infer this that an assistant's from suctioning holding neces- actions in tissue would be sary dining expert steps. some of these Another testified probably damage lingual nerve was by surgical of her caused instrument the removal surgical that I am tooth, wisdom "and the instruments talking scalpel, in retract- are either a an elevator about (This ing probably, likely drill." tissue, or most expert that the drill is used to remove had testified earlier tooth.) again, surrounding tissue would the bone Here during drill- suctioned before and have been cut and blood necessitating according ing, Freeman, thus, to Dr. presence an assistant. Dr. Freeman never stated necessary prevent directly assistant was that a dental *11 damage, jury reasonably lingual infer but a could nerve him that the assistant's absence caused from the evidence injured plain- perform in a manner that to the extractions tiff. judgment reviewing
In a motion for notwithstand keep ing in mind that a verdict, it is essential to the conjecture speculation or when rest on verdict does not
255 upon inferences from circum drawn reasonable founded ample perceive evi circumstantial stantial facts.29 We other of Freeman and Dr. dence drawn from supervision proper of that the absence witnesses Viewing injury. plaintiff's assistance contributеd to plaintiff, must, light to as we record in the most favorable reasonably infer a could there is evidence from which proximate a cause that the clinic's damage. this evidence conclude that nerve We jury's support verdict causation is sufficient against corporate negligence issue. the clinic on Two. Issue its The trial did not abuse discretion court Conclusion. denying in limine since the nonlicen- the clinic's motion unfairly prejudicial. not sure evidence relevant and granting pretrial or denial motion trial disc exclude evidence is matter within the court's grant retion.30 The court a motion in limine trial should sought if is it describes the evidence which be excluded specificity the trial with sufficient to enable court clearly under issues determine that it inadmissible may develop during if trial, or drawn which prejudicial in its that the mov the evidence is so nature spared necessity calling ing party atten should be by objecting it is offered the trial.31 tion to it when brought a in limine to bar all tes- The clinic motion prac- timony regarding lack of a license to Freeman's dentistry. argued tice The clinic evidence highly prejudicial force it to nonlicensure was and would exceptions explain statutory to the there are Sanstol, 94, 98-99, (1953); Thompson v. v. Wn.2d 260 327 29Arnold 43 P.2d (1983). 300, 304, Grays Comm’ty Hosp., App. 36 P.2d Harbor Wn. 675 239 85, Co., 89-90, M. Drake 87 P.2d 483 30Fenimore Donald Constr. Wn.2d 549 Co., Equip. 38 1102 Gammon v. Clark Wn. 686 P.2d 613, (1984), aff’d, 104 Wn.2d 31Fenimore, 91; Bell, at 89 P.2d Wn.2d Amend v. Wn.2d A.L.R.3d *12 Plaintiff that the evi- licensing requirement. responded dence of nonlicensure was relevant to her informed con- and Protection Act thus sent Consumer claims and (At trial, admissible. that the lack of plaintiff argued Freeman's license was a material fact that should have been disclosed to her before the extractions under the consent, informed and that the doctrine of she claimed clinic the same fee for work licensed and charged by unlicensed dentists violation the Consumer Protec- Act.) tion
The trial court denied the clinic's motion to exclude the evidence, that the clinic's finding ability nonlicensure that to the explain exceptions licensing requirement existed lessened that result from the any prejudice might not licensed. The revelation that Dr. Freeman was court also found the evidence of nonlicensure relevant and par- to consider under the jury for ticularly appropriate informed consent claim. to issues was relevant
The evidence of nonlicensure therefrom resulting and any prejudice plaintiff presented licensing discussion of the the clinic's dissipated did not its dis- The trial court abuse statute. exemption in limine. the clinic's motion denying cretion in Issue Three. instructed, The properly
Conclusion.
the-
their
given
parties
argue
instructions
allowed both
case, were not
and
stated
misleading
correctly
ories of the
law.
of the instruc
language
The number
specific
are matters
left to the trial court's discretion.32
tions
of instructions
involves
three
sufficiency
test
(1) that
permit
party
determinations:
instructions
(2)
case;
argue
party's
theory
instruction(s)
(3)
read as
is/are not
when
misleading;
State,
421, 440,
(1983); Levea v. G.A.
32Petersen
denied,
Gray Corp.,
need a license to registered supervision a and licensed the direction and of acting dentist as an instructor. proposed instruction 31. Defendant's dentistry college practices in a dental if A dental resident facility outlying an he is in an University Washington that has affiliation with Dentistry of Schoolof or Medicine. proposed Defendant's instruction 32. legal authority proposed
The clinic cited as for both licensing instructions the relevant subsections of the 18.32.030(3) (10). exemption statute, former RCW and giving proposed Instead of these instructions, two gave actually court instruction which set forth former 18.32.030(3) (10). RCW and That instruction enabled the argue presented proposed clinic to the theories it misleading correctly instructions 31 and was not and stated the The court did not abuse law. its discretion in refusing give proposed the two instructions. supplemental in a
The clinic raises a related issue 13.7(d). pursuant brief, brief to RAP In this filed it asks University this court to hold that the rotation sites for the residency Washington's program of dental fall within the scope exemption of RCW of the licensure 18.32.030. This urged accepting is what the clinic the trial court to do"in proposed hold, court would instruction 32. The trial not so request presented nor this court. This was not as will separate Appeals issue before the Court or in the Indus., Co., Inc. David A. Mowat 33Seattle Western P.2d Ctr., Hosp. App. 266, 275, Richards v. Overlake Med. P.2d 737 an for or answer. We decline consider petition filed issue raised for first time in brief supplemental after review has accepted. been that court erred
The clinic next contends
trial
read as
Instruction
which
follows:
giving
violation,
you
any, of a
as
negligence
The
if
find
statute
any
negligence
a
other act of
has the same
matter
law. Such
effect
negligence.
se, as it
per
The
concept
negligence
applies
case,34
a court
to substitute
legislatively
this
permits
of conduct
lesser cоmmon law
standards
required
If a
an
defendant violates
standards
reasonableness.35
the court
instruct
statutory duty,
may properly
applicable
negligent.36
in fact
the defendant was
jury
two
before the
were
statutory provisions
only
former RCW
requirement,
licensing
exemptions
18.32.030(3)
to the
trial,
excepted
At
clinic
there
on the
ground
se instruction
per
RCW
former
comply
of a failure to
with
was no evidence
18.32.030(3)
(10). To
had
contrary,
ques-
plaintiff
not
had
that she did
clinic's director and
found
tioned the
examiners had
know
the state board
dental
whether
*14
clinic
a
school or college
ever
dental
approved
from
exempt
licensing
require-
students were
whose
18.32.030(3)
(10).
former RCW
and
More-
ments under
over,
Freeman received supervision,
Dr.
which
whether
clinic's under
RCW
statutory
duty
former
was a
18.32.030(3)
a
(10), was
factual
issue concern-
clearly
and
introduced
which
evidence.
ing
plaintiff
1, 1986,
August
filed before
the effective date of the
this action was
34Since
act,
proper.
approved
It is
set
this
based on
form
tort reform
instruction
(3d
305,
1989);
1986,
See
Prac.
Laws of
in
433
ed.
ch.
out
60.01.
6 Wash.
WPI
§910.
Swartz,
Bayne v. Todd
35Herberg
Wn.2d
Instruction 17 allowed the clinic to case, i.e., any way. the statute not in violated stated Instruction 17 was not and it misleading, properly discretion in the law. The trial court did not abuse its giving instruction 17. reversed,
The Court of and the trial court's Appeals verdict, based on the judgment, jury's is reinstated. Dore, C.J., and Brachtenbach, and John- Guy, Durham, JJ., concur. son, — J. Under the doctrine of cor- (dissenting)
Utter, a porate negligence, owes a nondele- hospital separate, Thus, to a it gable duty patient. may be held liable for a of a lack of patient's injury spite negligence on the part In attending case, Provi- physician. present dence owed a supervise Freeman. In order to in an action for prevail corporate negligence against a plaintiff must hospital, by
prove preponderance of the evidence that the defendant skill, degree care, learning . . . failed to exercise that persons at that time other possessed profes- the same sion, proximate and that as a result of such plain- failure the damages tiff suffered .... Gonser, 4.24.290. See also Alexander v.
RCW
Wn.
denied,
(1985),
240-41,
*15
238,
Mueller,
234,
(1975); Sulkosky
37Nelson v.
Wn.2d 1236, denied, 104 1021 503, 704 P.2d Wn.2d case, In the a of the evidence does present preponderance a Providence which proxi- not show breach duty by I Therefore, dissent. mately plaintiff’s injury. caused Freeman, The exonerated Dr. but found that Provi- jury and that this supervision, dence breached its caused The trial court proximately Douglas' injury. breach reversed, The Court of Appeals sustained the verdict. circumstances, evidence, no no chain of finding there was infer Providence's reasonably from which a could jury (lack caused the negligence supervision) injury. prevented have expert Not one testified how Prоvidence could the absence injury. The evidence does not establish that assistant, dentist, a or a licensed supervising dental is that all the Douglas' injury undisputed dentist caused It Dr. who actu- expert agreed witnesses that it was Freeman ally Thus, caused there is no evidence that Provi- injury the cause of negligent dence's conduct even contributed to Douglas' injury Freeman, 57 Wn.
Douglas evidence any The court therefore concluded that conjec- speculation on purely relied I agree. ture. claim for separate corporate negli-
In order support must show plaintiff independently gence, selection, super- hospital, e.g., through part on Pedroza v. vision, Bryant, or retention doctor. (1984). The P.2d only testimony Wn.2d have Providence been might negligent indicates which that he testimony is Dr. Freeman's own supervision its an extraction without an assistant perform not would assistant not testimony present an plaintiffs this is suffi- majority the extraction. believes I disagree. evidence. cient not sufficient evidence of Freeman's as to his only he testified standard of care because In medical community. not that of the usual practice,
own *16 cases, the standard of care is on malpractice based proof of the customary usual within the profes- practices sion. John's Teig St. 387 P.2d Hosp., As the points out, RCW 18.32.030 sets forth majority the applicable standard of and requires care Providence to supervise Dr. Freeman. at 249. Majority opinion, How- ever, the does statute not indicate whether the duty to supervise includes the an duty provide to assistant. The majority states it need not this It accepts decide issue. Dr. Freeman's an testimony that assistant presence is essential to performing a wisdom tooth extraction. at Majority opinion, above, 250. As stated Dr. Freeman's testimony is not sufficient the stan- evidence regarding dard of Furthermore, care. he that he while testified would not wisdom teeth without an perform extractions assistant, he never stated of an that assis- рresence tant would record prevent lingual nerve The does damage. not contain sufficient expert testimony to establish that the standard care requires an assistant. providing
Furthermore, RCW 7.70.040 provides: The following shall be necessary proof injury elements of that resulted from the failure of the health care to provider follow the accepted standard of care: (1) provider The health care failed degree to exercise that care, skill, learning expected reasonably prudent of a health provider care at that profession time ... in the Washington, state stances; acting same or similar circum- (2) proximatе Such failure was a injury cause of the com- plained of. (Italics mine.) Providence is a "health care fall- provider" ing within the of the purposes statute. See RCW 7.70- .020(3).
Two testified the clinic met experts the standard Dr. care. Freeman himself testified that Dr. McMullan Thus, provided supervision. there was adequate no evidence at trial presented Providence failed to with comply standard of care. There applicable testimony hospital's that a standard of care insufficient regard requires providing supervision an assis- with presence There was of an tant. no lingual preventing nerve assistant was essential damage. conflicting testimony There as to whether an present. Finally, experts agreed all assistant was of the Douglas' negligence was cause of that Dr. Freeman's injury. jury negli- not Since the found Dr. Freeman was gent, present, have an or that it must found assistant was negligence. did the absence assistant not constitute support record There is not substantial evidence in the supervise finding that Providence breached its Freeman. majority it would be reasonable states *17 required to infer that an is wisdom assistant extractions, the of an assistant teeth and that absence perform in man- the a caused Dr. Freeman to extractions injured plaintiff. Majority opinion, 253- ner at which the jury However, the the Dr. Frеeman 54. fact exonerated any, assistant, the of an if was not indicates that absence plaintiff's injury. presence an of The of assis- the cause duty requirement of not been to be a the tant has shown alleged supervise. provide The failure an assistant part the established as a breach of on has not been prove plaintiff Providence, and has failed to the proximate negligence cause her Providence's injury. against supra, Gonser, an action v. involves
Alexander corporate negligence. hospital There, hospital's negligence only an affidavit evidence hospital physician who testified failed to supеrvise plaintiff's attending physician. adequately the affidavit did not show However, the court concluded supervise proximate the failure to and cause between plaintiff's injury. experts hospi- other testified Two accepted complied of care. The with the standard tal in favor of the granted summary judgment trial court claim and the Court on the hospital corporate Likewise, 241-42. affirmed. Wn. at Appeals case, two testified Providence com- present experts The testimony with the standard of care. plied accepted relies, which now her own and that of Dr. plaintiff upon and Freeman, conjecture. is based mere upon sрeculation exists support No reasonable basis verdict In a case where medical against testimony Providence. to establish the causal the evidence required relationship, that, will be considered insufficient if it can be said con- trial, the medical at all sidering presented must resort or in determin- speculation conjecture ing Cooke, the causal relationship. McLaughlin Wn.2d jury verdict this case to be based on appears speculation conjecture and is therefore not sustainable.
I would affirm the Court of Appeals. Smith, JJ., J. Utter,
Dolliver concur with Reconsideration denied October 1991. August 15,
[No. 1991.] 57609-2. En Banc. *18 Washington, Respondent, The State of v. Arthur Smith, Appellant.
D.