Young v. Key Pharmaceuticals, Inc.

770 P.2d 182, 112 Wash. 2d 216
CourtWashington Supreme Court
DecidedMarch 30, 1989
Docket54592-8
StatusPublished
Cited by857 cases

This text of 770 P.2d 182 (Young v. Key Pharmaceuticals, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Young v. Key Pharmaceuticals, Inc., 770 P.2d 182, 112 Wash. 2d 216 (Wash. 1989).

Opinions

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 RCW 2.06.030(d).

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

Devan Young sought treatment for acute asthma at Children's Orthopedic Hospital and Medical Center. As part of his treatment, Devan took the drug theophylline. The therapeutic qualities of theophylline vary with the level of the drug in the patient's bloodstream. The optimum blood level [219]*219lies between 10 and 20 micrograms per milliliter. Levels over 20 are potentially toxic and can result in brain damage or death. To achieve the proper blood level, the correct dosage may vary with the size and weight of the child, as well as the rate at which the child metabolizes the drug. Health care providers must monitor the initial doses to insure that the proper blood level is reached.

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 [220]*220products liability action in King County Superior Court, naming the Hospital, the treating physicians and the pharmaceutical company as defendants.

At trial, each of the defendants moved separately for summary judgment. All defendants argued that Devan's claim was barred by the applicable statutes of limitation. See Laws of 1975, 2d Ex. Sess., ch. 56, § 1, p. 214 (former RCW 4.16.350) (medical malpractice); RCW 4.16.080(2) (products liability). The trial court dismissed plaintiffs case on this ground. The medical defendants also presented two affidavits — from Dr. John Neff (Chief of Staff at Children's Orthopedic) and Dr. Case — in response to plaintiff's allegations of medical malpractice. The plaintiff responded with an affidavit by Ms. Jan Dotson, a licensed pharmacist. Ms. Dotson alleged that Devan's physicians did not meet the accepted standard of care in prescribing the dosage of Theo-Dur and monitoring blood levels. The trial court ruled that this latter affidavit failed to raise genuine issues of material fact over whether the treating physicians or the Hospital breached the standard of care. The plaintiff appealed these summary judgment rulings.

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, RCW 4.16.190 tolls the statute of limitations. RCW 4.16.190 provides:

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

[221]*221The trial court held that the appointment of Rosa Young as Devan's guardian ad litem effectively ended the disability envisioned by the tolling statute, causing the statute of limitations to begin running upon the appointment. Respondents argue in addition that the filing of the federal action in 1982 also had the same effect. These interpretations are incorrect and we reverse this portion of the trial court's ruling.

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

An "incompetent" is any person who is either:
(a) Under the age of majority, as defined in RCW 11.92.010, or

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Bluebook (online)
770 P.2d 182, 112 Wash. 2d 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-key-pharmaceuticals-inc-wash-1989.