E. ROSA YOUNG, as Guardian, Appellant, v. KEY PHARMACEUTICALS, INC., ET AL, Respondents.
No. 54592-8
En Banc.
March 30, 1989.
Reconsideration denied May 31, 1989.
DORE and PEARSON, JJ., concur with UTTER, J.
Carol Lee Moody and Philip A. Talmadge (of Karr, Tuttle, Koch, Campbell, Mawer, Morrow & Sax, P.S.), for respondent Key Pharmaceuticals.
Lee, Smart, Cook, Martin & Patterson, P.S., by Jeffrey P. Downer, for respondents Bierman.
Williams, Kastner & Gibbs, by John A. Rosendahl and Elizabeth A. Christianson, for respondents Case.
Brian P. Harnetiaux, Robert H. Whaley, and Daniel E. Huntington on behalf of Washington Trial Lawyers Association, amici curiae for appellant.
Russell C. Love on behalf of Washington Defense Trial Lawyers, amici curiae for respondents.
UTTER, J.—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
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,
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, 20 cc 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 200 mg 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 300 mg 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.
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
I
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,
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 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
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.
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 Wn.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 Wn.2d at 699-700. 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. Thus, the guardian‘s appointment did not affect the right of the minor to toll the statute of limitations.
The language of
Respondents argue that Huntington controls the present case. When viewed in light of the above discussion, however, this argument has no merit.
The rule that we follow is the majority rule in this country. See Annot., Tolling of State Statute of Limitations in
Respondents also argue that even if the statute of limitations remained tolled upon Ms. Young‘s appointment as Devan‘s guardian, it nonetheless began to run upon the filing of the 1982 action in federal district court. This argument has no merit.
In case of the appointment of a guardian ad litem for an infant, it is held that such guardian can sue within the prescribed period of limitation, but is not obligated to do so, and that if he fails to sue, or having instituted an action within the statutory period, discontinues it, the
rights of the infant are not prejudiced thereby, and he may still take advantage of his disability . . .
Annot., 86 A.L.R.2d at 976; see also Snare & Triest Co. v. Friedman, 169 F. 1 (3d Cir.), cert. denied, 214 U.S. 518, 53 L. Ed. 1065, 29 S. Ct. 700 (1909); McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62 (1913).
Respondents argue that such a construction of
II
In addition to its interpretation of
In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. See LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). If the moving party is a defendant and meets this initial showing,1 then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff “fails to make a showing sufficient to establish the existence of an element essential to that party‘s case, and on which that party will bear the burden of proof at trial“, then the trial court should grant the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); see also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass‘n, 809 F.2d 626, 630-32 (9th Cir. 1987). In Celotex, the United States Supreme Court explained this result: “In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party‘s case necessarily renders all other facts immaterial.” 477 U.S. at 322-23.
In making this responsive showing, the nonmoving party cannot rely on the allegations made in its pleadings.
While Celotex is not binding upon us, Washington courts treat as persuasive authority federal decisions interpreting the federal counterparts of our own court rules. See, e.g., American Discount Corp. v. Saratoga West, Inc., 81 Wn.2d 34, 499 P.2d 869 (1972); Rinke v. Johns-Manville Corp., 47 Wn. App. 222, 225, 734 P.2d 533 (1987). Indeed, our own Court of Appeals has noted the Celotex rule. See Controlled Atmosphere, Inc. v. Branom Instrument Co., 50 Wn. App. 343, 350, 748 P.2d 686 (1988).
The Celotex standard comports with the purpose behind the summary judgment motion: “to examine the sufficiency of the evidence behind the plaintiff‘s formal allegations in the hope of avoiding unnecessary trials where no genuine issue as to a material fact exists.” Zobrist v. Culp, 18 Wn. App. 622, 637, 570 P.2d 147 (1977). Thus, a defendant may move for summary judgment on the ground the plaintiff lacks competent medical evidence to make out a prima facie case of medical malpractice.
In this case, although not required to, the medical defendants supported their motions with affidavits. These affidavits are unanimous that Devan received proper treatment while in the medical defendants’ care. Defendants’
III
Is a pharmacist competent to testify to whether Devan‘s physicians breached their standard of care when that pharmacist‘s sole connection to this case is that she reviewed Devan‘s medical records? Even granting the benefit of every leniency to the plaintiff as the nonmoving party, the answer must be no. As one court put it:
“More than twenty-three hundred years ago Aristotle, in his work on Politics, wrote: ‘As a physician ought to be judged by the physician, so ought men to be judged by their peers.’ And for centuries the courts of this and other countries have, almost without exception, held that expert medical evidence is required to establish negligence respecting the service a physician or a surgeon renders his patient.”
Rodriguez v. Jackson, 118 Ariz. 13, 17, 574 P.2d 481 (1977), quoting Shea v. Phillips, 213 Ga. 269, 98 S.E.2d 552 (1957). In Rodriguez, the court held that affidavits by a pharmacologist, a professor of biology, and a registered nurse were insufficient to establish a standard of care for a physician, and granted the defendant physician‘s motion for summary judgment in a medical malpractice action.
It is true that this court has rejected the rule that nonphysicians are per se disqualified from testifying as experts in medical malpractice actions. Harris v. Groth, 99 Wn.2d 438, 450, 663 P.2d 113 (1983). This court has never accepted, however, a rule that would allow a nonphysician to testify as an expert regarding the proper standard of care for a physician practicing a medical specialty. Such a rule would severely degrade administration of justice in medical malpractice actions.
In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson. . . . Medical facts in particular must be proven by expert testimony unless they are “observable by [a layperson‘s] senses and describable without medical training” . . . . Thus, expert testimony will generally be necessary to establish the standard of care . . . and most aspects of causation . . .”
Harris, at 449. This rule comports with the common law, as set forth in 2 J. Wigmore, Evidence § 568 (1979).
Nonexpert testimony is sometimes admissible for matters such as observations of health, disease, or injury. Where the determination of negligence does not require technical medical expertise, such as the negligence of amputating the wrong limb or poking a patient in the eye while stitching a wound on the face, the cases also do not require testimony by a physician. See, e.g., Killingsworth v. Poon, 167 Ga. App. 653, 656, 307 S.E.2d 123 (1983); Pharmaseal Labs., Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589, 594 (1977). However, we have found no cases in which a nonphysician is found competent to testify on a physician‘s technical medical standard of care in a medical malpractice case. Rather, the cases uniformly hold that a physician‘s testimony is necessary in such cases to defeat a defendant‘s motion for summary judgment. See, e.g., Hoopiiaina v. Intermountain Health Care, 740 P.2d 270 (Utah App. 1987); Majeed v. McBryar, 184 Ga. App. 807, 363 S.E.2d 59 (1987); Solon v. Godbole, 163 Ill. App. 3d 845, 516 N.E.2d 1045 (1987); Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649, cert. denied, 469 U.S. 854 (1984); Peterson v. Kilzer, 420 N.W.2d 754 (N.D. 1988). As the Missouri Supreme Court stated:
What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.
“The only exception to such rule is that where the want of skill or lack of care is so apparent as to be within
the comprehension of laymen and requires only common knowledge and experience to understand and judge it, expert evidence is not essential.”
Hart v. Steele, 416 S.W.2d 927, 932, 37 A.L.R.3d 456, 462 (Mo. 1967), quoting Modrzynski v. Lust, 88 N.E.2d 76 (Ohio Ct. App. 1949). In fact, not even a medical degree bestows the right to testify on the technical standard of care; a physician must demonstrate that he or she has sufficient expertise in the relevant specialty. E.g., Purtill v. Hess, 111 Ill. 2d 229, 489 N.E.2d 867, 872-73 (1986).
The case of Bell v. Hart, 516 So. 2d 562 (Ala. 1987) is directly on point. In Bell, plaintiff‘s physician prescribed the antidepressant drug Elavil for plaintiff‘s complaints of headaches, weakness, insomnia, agitation, depression, and painful leg cramps. 516 So. 2d at 563. After taking the first prescribed dosage, plaintiff became incoherent and confused, and was treated in an emergency room. 516 So. 2d at 564. Plaintiff sued her physician for medical malpractice and he moved for summary judgment, alleging she had failed to present expert medical testimony that he was negligent. The defendant sought to exclude the testimony of plaintiff‘s witnesses, a pharmacist and a psychologist, on the ground that they were not competent to testify as experts.
The credentials of the pharmacist in Bell were even more impressive than those of the pharmacist in the instant case. He had earned a Doctor of Pharmacy degree and had taken courses in pharmacotherapeutics. He was an assistant professor of family medicine and a consultant in drug therapy for medical students and medicine residents. He was responsible for a drug and toxicology laboratory at a hospital and screened blood for quantities of various drugs, and was familiar with literature on various prescriptive drugs. Despite these credentials, the court in Bell held the trial court properly excluded his testimony on the ground that a pharmacist is not competent to testify as an expert on the standard of care of a physician in prescribing a drug. 516 So. 2d at 566. The Bell court distinguished cases in which
In the instant case, lay testimony may be admitted to show Devan‘s obvious impairments. However, the physician‘s standard of care regarding proper dosages of medication is not within the scope of matters on which nonphysicians are competent to testify. Although a pharmacist may be more familiar with the names of medication, the literature, and perhaps the usual practice of physicians prescribing certain medications than other nonphysicians, a pharmacist is not competent to testify on the physician‘s standard of care for treatment using medication.
The affidavits introduced at trial in this case illustrate the discrepancy between a physician‘s and a pharmacist‘s expertise and why the pharmacist‘s affidavit should not be considered. To allow a pharmacist‘s testimony on a physician‘s standard of care runs counter to public policy in the administration of justice in medical malpractice trials. With all due respect to the pharmaceutical profession, pharmacists are not doctors and are not licensed to prescribe medication because they lack the physician‘s rigorous training in diagnosis and treatment. As Dr. Case‘s second affidavit in response to Ms. Dotson‘s affidavit illustrates, this lack of training might lead to error in a pharmacist‘s assessment of proper treatment. Clerk‘s Papers, at 143-45.
This case presents troubling questions about how a young child came to be injured in the course of being treated for an acute asthma condition. Perhaps we will never know the answers to these questions. Nevertheless, the only competent evidence presented shows that Devan‘s injuries were not caused by medical malpractice. It is unjust to subject defendants to a trial in the absence of a showing that the plaintiff can make out a prima facie case. To rule
IV
Because the plaintiff here has not presented competent evidence regarding the physicians’ standard of care, we affirm the summary judgment in favor of the medical defendants. We reverse, however, the trial court‘s ruling as it relates to Key Pharmaceuticals, Inc., as it is based on an incorrect interpretation of
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, PEARSON, ANDERSEN, and DURHAM, JJ., concur.
DORE, J. (concurring in part, dissenting in part)—I dissent.
While I agree with the majority that the appointment of a guardian ad litem for Devan Young did not remove his disability for the purposes of the tolling statute (
FACTS
Plaintiff Devan Young was treated by doctors Ronald L. Case and C. Warren Bierman at Children‘s Orthopedic Hospital and Medical Center for an acute asthma condition. As treatment for Devan‘s asthma, Dr. Case prescribed the drug theophylline. The optimal therapeutic range of theophylline is 10 to 20. Blood levels under 10 are not sufficient to treat asthma, while blood levels over 20 are toxic or potentially toxic and can lead to brain damage or death. Because proper levels of the medication are critical to safe, effective treatment with the drug, blood samples must be
In September 1978, Dr. Case prescribed the theophylline preparation Theo-Dur, 200 mg twice daily. The record indicates that Devan‘s Theo-Dur dosage was increased to 300 mg twice daily. On January 26, 1979, Devan‘s theophylline blood level was tested at 11.8, approximately 10 hours after he had been given Theo-Dur. Early in the morning on February 1, 1979, Devan, then 3 years old, was admitted to the Hospital with a theophylline blood level of 68 which resulted in permanent brain damage and rendered him mentally incompetent. He will need custodial care for the rest of his life.
On April 26, 1982, E. Rosa Young was appointed her son‘s guardian ad litem. In June 1986, she filed this medical malpractice and products liability action in King County Superior Court, naming the Hospital, the treating physicians and the pharmaceutical company as defendants. The guardian alleged that the Hospital and the treating physicians were negligent in their treatment of her son and that the pharmaceutical company was negligent in the labeling and warning with respect to the use of Theo-Dur.
The defendants moved for summary judgment. In an affidavit accompanying the motion for summary judgment, Dr. Case, the treating physician, states that in September 1978, he prescribed Theo-Dur 200 mg twice daily, and that he saw Devan again on November 1, 1978. Dr. Case did not see Devan again until January 31, 1979, the day before Devan suffered a seizure. Dr. Case‘s affidavit presumes that Theo-Dur 400 mg a day was continued throughout Devan‘s care period. Based on a Theo-Dur dosage of 400 mg a day, Dr. Case states that Devan‘s care “was at all times consistent with that of a reasonably prudent allergy and immunology practitioner under similar circumstances.” Clerk‘s Papers, at 58.
In response to the defendants’ motion, the plaintiff submitted the affidavit of Stephanie Dotson, a registered pharmacist. Dotson‘s affidavit points out that, according to the
In connection with their reply brief on the summary judgment motion, the defendants submitted a second affidavit by Dr. Case and an affidavit by Dr. John Neff, the Hospital‘s Chief of Staff. In his response to Dotson‘s affidavit, Dr. Case conceded that she was correct in her statement as to the recommended dosage.
Dr. Neff‘s affidavit is predicated on the Hospital records of Devan‘s treatment. As Dotson pointed out, these records show that the allergy clinic increased Devan‘s Theo-Dur dosage to 600 mg a day shortly before he suffered a seizure. On the basis of these facts, Dr. Neff opines that “[t]he physicians and other staff at Children‘s Orthopedic Hospital, in their care of Devan Young, exercised that degree of skill, care and learning which was available in the pertinent geographic area at the time of Devan Young‘s care.” Clerk‘s Papers, at 81.
Although both doctors conclude that the appropriate standard of care was met, it is important to note that they disagree about a key factual predicate of their common conclusion. Doctor Case bases his conclusion on the assumption that Devan received a dosage of 400 mg per day. Doctor Neff, relying on the Hospital records, assumes that Devan received a dosage of 600 mg per day.
The trial court granted summary judgment, holding that the plaintiff‘s medical malpractice and products liability claims were barred by the applicable statute of limitations. The trial court also ruled that a pharmacist‘s affidavit submitted in opposition to the health care defendants’ summary judgment motions failed to raise a genuine issue of material fact regarding whether the treating physicians or the Hospital breached the standard of care.
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Even aside from its errors regarding the facts and the competence of the pharmacist‘s affidavit, the majority misapplies the standards of summary judgment by weighing the respective affidavits of the defendants and the plaintiff.
On review of a summary judgment, an appellate court must consider the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment can be granted only when the pleadings and the evidence:
show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The respective burdens imposed on the moving and nonmoving party by CR 56 are sometimes confusing. Two related points must be kept in mind. First, while the defendant moving for summary judgment is not required to submit affidavits in support of his motion,
Second, it is important to note that the affidavit performs a radically different function in the defendant‘s case as opposed to the plaintiff‘s. A plaintiff, if he is the nonmoving party, must create an issue of fact in order to avoid summary judgment and an affidavit asserting any supportable, relevant fact inconsistent with the defendant‘s position will be sufficient to do so. The defendant‘s task, to show that there are no disputed facts, is necessarily much more difficult. In contrast to the plaintiff‘s situation, the mere fact that the defendant does assert some relevant facts will not necessarily meet his burden. The defendant‘s task of showing that there are no disputed facts means that the facts asserted in his affidavit, together with the plaintiff‘s allegations taken as true, must support only inferences in the defendant‘s favor.
Consequently, there is a risk inherent in the defendant‘s submitting affidavits. When more facts are added to the equation, the range of possible inferences multiplies. Some of the possible inferences may be inconsistent, resulting in the presentation of a jury question. There is no reason to assume, as the majority seems to, that merely because the affidavits are the defendant‘s that they resolve all factual disputes in his favor. See majority, at 226-27. Clearly, the
In treating the defendants’ affidavits as dispositive, the majority treats the burdens of the parties on summary judgment as burdens of proof, weighing the defendants’ affidavits against the plaintiff‘s. However,
The case of Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), cited by the majority, is not to the contrary. In Celotex, the plaintiff argued that the defendant must submit affidavits in support of his motion for summary judgment. The Court of Appeals agreed, but the Supreme Court reversed. The Court noted that the rule specifically states that the defendant may move for summary judgment “with or without supporting affidavits“. Celotex, at 323. The issue is whether there is no genuine issue of material fact, and a defendant may demonstrate this solely by reference to the pleadings. It is only the plaintiff who has a duty to submit affidavits, once the defendant has successfully supported his motion as provided in subsection (b) of the rule.
Contrary to the majority‘s suggestion, however, Celotex does not hold that just any affidavit submitted by the defendant will be sufficient to meet his burden. If the defendant chooses to argue from the pleadings, he must be able to show that all possible inferences from those pleadings are to his favor. If the defendant does submit affidavits, they too must lead only to inferences in his favor. If,
These points are well illustrated in Zamora. In that case the plaintiff argued that the defendant had failed to odorize its propane gas and that a gas explosion was proximately caused by this failure. The defendant submitted affidavits in which it asserted that the gas had been odorized in compliance with industry practice and applicable regulations. This court held that the defendant was not entitled to summary judgment because its affidavits did not lead solely to inferences in its favor. In the court‘s words, the defendant‘s affidavits did not conclusively establish the absence of proximate cause.
The respondent proved only that the gas was odorized in compliance with industry standards and an administrative safety regulation; such compliance, however, does not conclusively establish that the gas was adequately odorized. Rather, that evidence is merely relevant on the issue of proximate cause. Respondent, in moving for summary judgment, had the burden of proof that no genuine issue of material fact existed on the question of proximate cause. Because respondent‘s evidence of compliance with the safety standards does not conclusively establish absence of proximate cause, appellants are entitled to a trial on that issue as an element of their product liability claim.
(Citations omitted.) Zamora, at 208-09. In this case summary judgment is likewise not proper because the defendants’ affidavits did not conclusively establish that their care met the required standard and that their failures were not the cause of Devan‘s injuries. On the contrary, the defendants’ own affidavits undercut their motion.
In a medical malpractice action, a plaintiff must establish that (1) a health care provider failed to exercise the degree of care of a reasonably prudent health care provider acting in the same or similar circumstances, and (2) such failure was the proximate cause of injury.
The defendants themselves created an issue of fact over whether Devan was given the proper dosage of Theo-Dur. Dr. Case stated that a dosage of 400 mg falls within the standard of due care. Dr. Neff stated that the treating physicians met the standard of due care, but based his conclusion on the assumption that Devan was receiving 600 mg of Theo-Dur. The majority contends that the two doctors’ conclusions are consistent, despite the fact that each opinion was premised on a different dosage, since there may be a range of dosages consistent with due care. However, that contention in itself constitutes an issue of fact sufficient to preclude summary judgment. Is it true that dosages of 400 and 600 mg both fall within the range of dosages consistent with due care? We do not know, and on the defendants’ motion for summary judgment, we are required to construe conflicting evidence in the plaintiff‘s favor. The doctors’ affidavits raise a question of material fact as to whether Devan received a dosage which was within the standard of due care.
There is also a question of fact whether the dosage received by Devan was the proximate cause of his injuries. The defendants concede that Theo-Dur, 400 mg a day is the recommended dosage for a child of Devan‘s age and weight. A dosage of 600 mg a day is 50 percent more than the recommended maximum daily dosage and 83 percent more than the recommended maintenance daily dosage for a child of Devan‘s age and weight. Devan‘s theophylline blood level increased to toxic levels shortly after his Theo-
In short, the defendants’ own affidavits undercut their motion for summary judgment because they do not conclusively establish that the defendants met the required standard of care or the absence of proximate cause. From the affidavits the defendants offered, together with the plaintiff‘s allegations taken as true, it is possible to conclude that Devan received a dosage outside the standard of due care, and that this caused his injuries. The majority‘s clever manipulation of events leaves a false impression as to the facts, which is unfair to Devan and his mother. The defendants clearly were not entitled to summary judgment, because they did not succeed in establishing that there was no issue of material fact left for the jury to resolve.
THE PHARMACIST‘S AFFIDAVIT RAISES ISSUES OF MATERIAL FACT REGARDING DUE CARE
An issue of fact also exists over the proper monitoring of Devan‘s blood level. The pharmacist‘s affidavit states that Theo-Dur requires frequent monitoring due to its high potential for toxicity, and that blood levels should be drawn 4 to 6 hours after a dosage is administered. As noted above, on the day before his seizure, Devan‘s blood was tested some 10 hours after the administration of the drug. If the pharmacist is correct, that test would have been ineffective to determine the proper level of Theo-Dur in the bloodstream. Furthermore, Dotson‘s affidavit pointed out that the Hospital records showed Devan had received 600 mg of Theo-Dur and that the recommended dosage for a child of his age is 400 mg. If the pharmacist is correct, the failure to monitor would have been a cause of Devan‘s injury.
“Practice of pharmacy” includes the practice of and responsibility for: Interpreting prescription orders; the compounding, dispensing, labeling, administering, and distributing of drugs and devices; the monitoring of drug therapy and use; the initiating or modifying of drug therapy in accordance with written guidelines . . . the providing of information on legend drugs3 which may include, but is not limited to, the advising of therapeutic values, hazards, and the uses of drugs and devices.
(Italics mine.) Dotson had examined the records, the authenticity of which the defendants never questioned, and she was competent by training and experience to offer an expert opinion on the contents of the professional pharmaceutical literature. In addition, in his response to Dotson‘s affidavit, Dr. Case conceded that she was correct in her statement as to the recommended dosage.
In response to Dotson‘s affidavit, Dr. Case submitted an affidavit in which he contended that the levels of medication need not be monitored in the 4- to 6-hour period, because: “A clinician can accurately determine a patient‘s theophylline medication (Theo-Dur) does [sic] by evaluating his peak, through or in between levels.”
Here again, Dr. Case created issues of fact with his own affidavit. Is the proper monitoring period 4 to 6 hours, as Dotson states, or is the monitoring period longer, as Dr. Case contends. If that question is resolved in the plaintiff‘s favor, there is a question of fact whether defendants were negligent in performing blood toxicity tests outside the recommended time period. Therefore, even assuming that
The majority clearly errs in holding Dotson‘s affidavit insufficient on the sole ground that she is a pharmacist. In addition to her statements regarding the Hospital records and the professional pharmaceutical literature, Dotson avers that through her education, background, training, and experience she is familiar with the standard of care in treating patients such as Devan. Based on her review of Devan‘s medical records, she states:
The moving defendants failed to exercise that degree of skill, care and learning required of health care providers such as themselves in both prescribing theophylline and in monitoring its blood levels. This failure resulted in Devan experiencing theophylline toxicity.
Clerk‘s Papers, at 118.
In Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983), we refused to adopt a per se rule that nonphysicians are disqualified from offering expert testimony in a medical malpractice action. We stated:
The witness need not possess the academic credentials of an expert; practical experience may suffice. Training in a related field or academic background alone may also be sufficient. [ER] 702 states very broadly that the witness may qualify as an expert by virtue of knowledge, skill, experience, training, or education.
Harris, at 449 (quoting 5A K. Tegland, Wash. Prac., Evidence § 289, at 26 (2d ed. 1982)). We further stated:
We agree with the late Dean Wigmore that “the line between chemistry, biology, and medicine is too indefinite to admit of a practicable separation of topics and witnesses“.
Harris, at 450 (quoting 2 J. Wigmore, Evidence § 569, at 790 (rev. 1979)). Whether an expert is licensed to practice medicine is an important, but not a dispositive factor to be considered by the trial court. Harris, at 450-51.
In light of the trend in Washington to permit nonphysicians to testify in malpractice actions, a trial court in the exercise of its discretion must be lenient toward a nonphysician‘s affidavit presented by the nonmoving party at a summary judgment proceeding. See PUD 1 v. WPPSS, 104 Wn.2d 353, 361, 705 P.2d 1195, 713 P.2d 1109 (1985). Accordingly, on a motion for summary judgment, the test is whether any trial judge would admit the expert testimony. Contrary to the majority‘s conclusion, we cannot say, as a matter of law, that no trial court would consider the pharmacist‘s affidavit.
Our function at this stage is not to decide whether Dr. Case is more persuasive than Dotson, but only to decide whether there is a disputed question of material fact. Clearly, the conflicting affidavits of Dotson and Case on this point do raise a question as to whether the health care defendants’ monitoring of Devan‘s theophylline levels breached the standard of care. The trial court abused its discretion in ruling, as a matter of law, that the affidavit was insufficient to create an issue of material fact.
CONCLUSION
The evidence introduced by Doctors Case and Neff failed to show that no genuine issue of material fact exists for trial. Material questions of fact exist as to whether prescribing Theo-Dur 400 mg a day or Theo-Dur 600 mg a day is consistent with the standard of care and whether prescribing Theo-Dur 600 mg a day proximately caused toxic levels of theophylline to accumulate in Devan‘s blood. The affidavits raise material questions of fact as to whether the
I would reverse the judgment and remand for trial.
Reconsideration denied May 31, 1989.