Burnet v. Spokane Ambulance

Alexander, J.

The issue before us is whether the *487 Court of Appeals erred in affirming a trial court’s decision disallowing evidence and limiting discovery by the plaintiffs on the issue of whether a hospital negligently granted privileges to two doctors who, according to the plaintiffs, were unqualified to recognize or treat their daughter’s serious neurological condition. We reverse the Court of Appeals and remand the case for trial on that issue.

Tristen Burnet was born on July 3, 1982. At about the time Tristen turned five months old, she began to suffer from seizures. On December 9, 1983, Tristen had a prolonged seizure that required her to be hospitalized, and which resulted in damage to her brain. Her parents, William and Elene Burnet (hereinafter referred to as the Bur-nets), individually and as guardians for Tristen, filed a medical malpractice suit in Spokane County Superior Court against Spokane Valley General Hospital, Spokane Ambulance, and Tristen’s attending physician, Dr. Robert Rosenthal. The Burnets alleged that these defendants failed to provide an adequate supply of oxygen to Tristen at the time she was under their care, and that this failure caused the damage to Tristen’s brain.

Following the 1983 injury, Tristen became a patient of Dr. Jeffrey Graham. She was under Dr. Graham’s care, when, on September 28, 1985, she experienced another prolonged seizure. As a result, she was hospitalized in the pediatric intensive care unit at Sacred Heart Medical Center (Sacred Heart). On October 2, 1985, while still hospitalized at Sacred Heart, Tristen developed cerebral edema, an accumulation of fluid in the skull that causes an increase of pressure on the brain. Consequently, Tris-ten sustained additional, extensive neurological damage.

On July 29, 1986, the Burnets amended their complaint to include claims relating to the 1985 injury and to add Dr. Graham and Sacred Heart as additional defendants. Thereafter, Dr. Rosenthal, Spokane Valley General Hospital, and Spokane Ambulance were voluntarily *488 dismissed from the lawsuit. The complaint against the remaining defendants, Dr. Graham and Sacred Heart, alleged negligence, breach of contract, failure to disclose the risks of health care services (informed consent), and a violation of the Consumer Protection Act.

On March 7, 1987, Sacred Heart propounded interrogatories to the Burnets, asking for "the particular acts or omissions” including "each JCAH [Joint Commission on Accreditation of Hospitals] standard which [the Burnets] allege that Sacred Heart Medical Center did not follow which forms the basis of [the] complaint” against it. Clerk’s Papers (CP) at 203, 205. The Burnets answered, indicating that, among other things, Sacred Heart "was on notice that Dr. Jeffrey Graham was not capable of handling the neurological difficulties” that Tristen was experiencing, and, as a consequence, failed to provide her with appropriate medical care. CP at 204. The Burnets also indicated that, because depositions of Sacred Heart officials had yet to be conducted, they were unable to identify which of the JCAH standards relating to special units, such as Sacred Heart’s pediatric intensive care unit, had been violated.

In November 1987, Sacred Heart and Dr. Graham each moved for summary judgment, seeking dismissal of all of the Burnets’ claims. In a memorandum supporting its motion, Sacred Heart’s then-counsel acknowledged that "a hospital owes an independent duty of care to its patients [and]. . . must exercise reasonable care to insure that the physicians selected as members of a hospital medical staff are competent,” but argued that the Burnets "ha[d] failed to establish a prima facie case of medical negligence, thereby foreclosing a showing of corporate negligence.” CP at 213. The Burnets countered that Sacred Heart had yet to provide them with complete discovery on what it knew about Dr. Graham’s qualifications, explaining that Sacred Heart should have known that Dr. Graham was not certified in pediatric neurology and should have monitored him more closely.

*489 The trial court denied the summary judgment motions "with respect to the negligence issue,” including the claim against Sacred Heart "with respect to [its] potential corporate liability.” CP at 166. It did, however, enter a judgment dismissing the Burnets’ other claims. The Bur-nets appealed the order to the Court of Appeals, Division Three, contending only that its consumer protection and informed consent claims should not have been dismissed. The Court of Appeals affirmed the trial court. Burnet v. Spokane Ambulance, 54 Wn. App. 162, 772 P.2d 1027, review denied, 113 Wn.2d 1005 (1989). While that appeal was pending, the Burnets again amended their complaint, this time joining Dr. Michael Donlan, the director of Sacred Heart’s pediatric intensive care unit, as a defendant.

Following the appeal, new counsel was substituted as attorney for Sacred Heart. In a set of interrogatories and requests for production filed on July 26, 1990, Sacred Heart’s counsel asked the Burnets to name the expert witnesses they expected to call at trial and the "substance of facts and opinions to which [each expert] is expected to testify.” CP at 595-96. On October 2, 1990, Sacred Heart received from the Burnets a list of 18 experts they intended to call as witnesses, together with a description of their expected testimony. Although none of the experts was identified as having an opinion on the issue of whether Sacred Heart had been negligent in "credentialing” Drs. Graham and Donlan under the JCAH standards, the Bur-nets’ response included the names of at least three persons who were expected to testify on "the standard of care for physicians providing care to patients such as Tristen Bur-net.” CP at 594-615. On October 12, 1990, Sacred Heart sought a scheduling order requiring the Burnets to "identify all [of its] experts by December 1, 1990 [and] make available any such experts for deposition by defendants within sixty (60) days thereafter!.]” CP at 2439. The trial court granted Sacred Heart’s request.

The discovery process, which was essentially conducted *490 in December 1990, was replete with verbal exchanges between counsel for the defendants and the Burnets’ trial attorney which indicated a degree of enmity between them. For example, the Burnets’ counsel frequently noted for the record what she contended was "obstreperous conduct” by counsel for Sacred Heart and the other defendants, and obstruction of the Burnets’ efforts to obtain discovery. See, e.g., CP at 789, 936-38; see also CP at 2398-2412. On the other hand, attorneys for each of the defendants complained during these depositions that opposing counsel was inquiring into matters outside the scope of the deposition, and was engaging in what they characterized as "reprehensible abuse of discovery rules and procedures.” CP at 931.

During a deposition on December 13, 1990, the Burnets’ attorney stated that the position of the plaintiffs was that they believed that Sacred Heart "had some problems with what they were letting Dr. Graham and Dr. Donlan do.” CP at 764-65. However, it was not until April 18, 1991, when the Burnets filed a supplemental answer to the interrogatories that Sacred Heart had earlier propounded to them, that the Burnets clearly stated that they were contending that Sacred Heart was negligent in failing to properly review the physicians’ credentials.

In response to the Burnets’ supplemental answer to interrogatories, Sacred Heart requested of the trial court a discovery conference and a protective order prohibiting discovery on "the credentialing claim,” arguing that the Burnets had not pleaded that cause of action. CP at 2380-82.1 At a hearing on its request for a protective order, Sacred Heart’s counsel contended, essentially, that the Burnets’ October 2 response to interrogatories and *491 requests for production led Sacred Heart to believe that the Burnets’ experts would testify only with respect to the physicians’ treatment decisions, and not with respect to the actions of Sacred Heart in granting hospital privileges to Dr. Graham and Dr. Donlan. The trial court agreed with Sacred Heart, indicating that "claims based on the doctrine of corporate negligence regarding credentialing have not been sufficiently pleaded nor have responses to discovery given sufficient notice of any such claim.” CP at 194. It then issued an order stating that "no claim of corporate negligence regarding credentialing is at issue in this litigation and there shall be no further discovery from [Sacred Heart] on that issue.” CP at 195.

Before trial, the Burnets settled their claims against Drs. Graham and Donlan for $550,000. Sacred Heart then moved for summary judgment on all claims against it based on vicarious liability for the physicians’ alleged negligence. The trial court granted its motion.

The case went to trial in January 1993 with Sacred Heart as the only defendant. The Burnets’ sole surviving claim was an allegation of negligence on the part of Sacred Heart’s nurses. The jury returned a verdict in favor of Sacred Heart.

After the trial court denied the Burnets’ motion for a judgment notwithstanding the verdict, the Burnets appealed directly to this court. We transferred their appeal to the Court of Appeals, Division Three. Although it rejected the trial court’s holding that the Burnets’ claim of corporate negligence was not properly pleaded, the Court of Appeals nonetheless affirmed the trial court, re-characterizing the primary issue as a "compliance problem with a scheduling order.” Burnet v. Spokane Ambulance, No. 14052-1-III, slip op. at 10 (Wash. Ct. App. Aug. 10, 1995). In making that determination, it concluded that the trial court’s decision to limit discovery and to subsequently preclude testimony on that issue was appropriate. *492 The Burnets petitioned this court for review, which was granted.2

The Burnets contend that the Court of Appeals erred in affirming the trial court’s order limiting discovery, in effect removing their claim that Sacred Heart was negligent in granting hospital privileges to the doctors who treated Tristen at that hospital. In the Burnet’s view, the Court of Appeals’s decision constituted a sanction for discovery abuse, a sanction which they argue was not warranted because "the trial court never found that there was a violation of a court order, or a willful non-disclosure,” and was, in any case, excessive. Pet. for Review at 1. Sacred Heart responds that, even in light of the Court of Appeals’s recharacterization of the issue as a "compliance problem with a scheduling order,” that court did not err in determining that the trial court did not abuse its discretion in entering an order limiting claims and discovery. Answer to Pet. for Review at 8.

Although the Court of Appeals affirmed the trial court, it rejected the trial court’s ruling that the claim of corporate negligence had not been properly pleaded. The Court of Appeals was correct in that regard because, as it noted, the issue of corporate negligence was placed into contention by the complaint "together with interrogatory answers and with pretrial proceedings.” Burnet, slip op. at 9 (citing Schoening v. Grays Harbor Community Hosp., 40 Wn. App. 331, 336-37, 698 P.2d 593 (indicating that even where a "complaint is not a vision of precise pleading[,] ... [a] claim is adequately pleaded if it contains a short, plain statement showing that the pleader is entitled to relief, and a demand for judgment based thereon.”), review denied, 104 Wn.2d 1008 (1985).

*493 Despite rejecting the theory upon which the trial court ruled, the Court of Appeals was not foreclosed from upholding the trial court’s ruling on the well-recognized basis that "on appeal, an order may be sustained on any basis supported by the record.” Hadley v. Cowan, 60 Wn. App. 433, 444, 804 P.2d 1271 (1991) (citing LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989)). The issue we must decide, therefore, is whether the record and law support the Court of Appeals’s conclusion that the trial court’s order was a justifiable response to "compliance problem with a scheduling order.” Burnet, slip op. at 10.

The trial court’s order excluding from the case the issue of negligent credentialing by Sacred Heart, and limiting discovery on that issue, was precipitated by a motion Sacred Heart made pursuant to Civil Rule 26. That rule authorizes a trial court to direct that the parties confer on the subject of discovery.3 It also provides that following a discovery conference, the trial court may enter an order identifying the issues for discovery purposes, setting limits on discovery, and determining "such other matters, . . . as are necessary for the proper management of discovery in the action.” CR 26(f).

When "a party fails to obey an order entered under rule *494 26(f), the court in which the action is pending may make such orders in regard to the failure as are just[.]” CR 37(b)(2). Among the sanctions available for violations of this rule is "[a]n order refusing to allow the disobedient party to support. . . designated claims ... or prohibiting him from introducing designated matters in evidence!)] ” CR 37(b)(2)(B).

This rule is consistent with the general proposition that a trial court has broad discretion as to the choice of sanctions for violation of a discovery order. Phillips v. Richmond, 59 Wn.2d 571, 369 P.2d 299 (1962). Such a "discretionary determination should not be disturbed on appeal except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558, review denied, 87 Wn.2d 1006 (1976). Those reasons should, typically, be clearly stated on the record so that meaningful review can be had on appeal. When the trial court "chooses one of the harsher remedies allowable under CR 37(b), ... it must be apparent from the record that the trial court explicitly considered whether a lesser sanction would probably have sufficed,” and whether it found that the disobedient party’s refusal to obey a discovery order was willful or deliberate and substantially prejudiced the opponent’s ability to prepare for trial. Snedigar v. Hodderson, 53 Wn. App. 476, 487, 768 P.2d 1 (1989) (citing to due process considerations outlined in Associated Mortgage), rev’d in part, 114 Wn.2d 153, 786 P.2d 781 (1990). We have also said that " 'it is an abuse of discretion to exclude testimony as a sanction [for noncompliance with a discovery order] absent any showing of intentional nondisclosure, willful violation of a court order, or other unconscionable conduct.’ ” Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 706, 732 P.2d 974 (1987) (quoting Smith v. Sturm, Ruger & Co., 39 Wn. App, 740, 750, 695 P.2d 600, 59 A.L.R.4th 89, review denied, 103 Wn.2d 1041 (1985)).

*495 The Burnets assert that they did not willfully violate the court’s discovery order. Thus, they rely on Hutchinson to support their argument that the trial court erred in entering an order prohibiting discovery on their corporate negligence claim and excluding that issue from the case.

Sacred Heart responds that the Burnets willfully violated the discovery order because they were "without reasonable excuse.” Allied Fin. Servs., Inc. v. Mangum, 72 Wn. App. 164, 168, 864 P.2d 1, 871 P.2d 1075 (1993). The Court of Appeals apparently agreed with Sacred Heart, concluding the Burnets’ explanation that their "experts could shed no light on whether a viable credentialing claim existed without access to the file which [Sacred Heart] steadfastly refused to provide, first as a matter of confidentiality and later as a matter of immunity,” was not a reasonable excuse for the Burnets’ failure to specifically describe the contents of their experts’ opinions as required by discovery scheduling order. Burnet, slip op. at 11. Sacred Heart also attacks the Burnets’ reliance upon Hutchinson, asserting that the Burnets

ignore[ ] the more recent decision in Physicians Insurance Exchange v. Fisons Corp. In the context of a violation of discovery rules, the court held that

. . . intent need not he shown before sanctions are mandated.

Rather, the court held:

The wrongdoer’s lack of intent to violate the rules . . . may be considered by the trial court in fashioning sanctions.

Answer to Pet. for Review at 16 (citations omitted).

In emphasizing the above-quoted portions of the Fisons’ opinion, Sacred Heart overlooks or de-emphasizes the underlying principles enunciated therein. See Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993). Some of those guiding principles are as follows: the court should impose the least severe sanction *496 that will be adequate to serve the purpose of the particular sanction, but not be so minimal that it undermines the purpose of discovery; the purpose of sanctions generally are to deter, to punish, to compensate, to educate, and to ensure that the wrongdoer does not profit from the wrong. Fisons, 122 Wn.2d at 355-56.

Sacred Heart also cites two post-Fisons decisions in which the Courts of Appeals upheld the respective trial courts’ imposition of sanctions for what were considered to be "willful” violations of discovery rules. In one of the cases, Allied Fin. Servs. v. Mangum, 72 Wn. App. 164, 168, 864 P.2d 1, 871 P.2d 1075 (1993), the trial court excluded witnesses for the defendants because they could not provide an explanation for failing, up to the time of trial, to name any of their witnesses. In the other case, Dempere v. Nelson, 76 Wn. App. 403, 405, 886 P.2d 219 (1994), review denied, 126 Wn.2d 1015 (1995), the trial court excluded a witness that the party identified only 13 days before trial.

We note, initially, that the sanction that was imposed in this case is significantly more severe than the sanctions imposed in either Allied or Dempere. Here, the trial court not only limited the Burnets’ discovery on the credentialing issue, but it also removed that issue from the case. Furthermore, the circumstances of this case are far different than those which the Court of Appeals faced in the two above-cited cases. One major difference is that although several years had transpired from the initiation of the Burnets’ claim until their expert witnesses were named, deposed, and their opinions was clearly identified, a significant amount of time yet remained before trial. That being the case, Sacred Heart could not be said to have been as greatly prejudiced as the non-wrongdoing parties in Allied and Dempere, who engaged in the sanctionable conduct on the eve of trial.4 In addition, unlike the situation in Allied and Dempere, the rec *497 ord here reveals that some of the delay in completing discovery was due to what can only be described as bickering between counsel for the opposing parties. While some of the responsibility for this unfriendly atmosphere can be attributed to the Burnets’ counsel, we are satisfied, after reviewing the voluminous record, that Sacred Heart’s counsel bears a portion of the responsibility for the acrimonious spirit that developed, and which had the effect of delaying the identification and refinement of the issues before the court.

More importantly, though, we agree with the Burnets that its negligent credentialing claim against Sacred Heart, and discovery relating to it, should not have been excluded absent a trial court’s finding that the Burnets willfully violated a discovery order. In that regard, we rely upon Hutchinson and note that there was no finding by the trial court of willful violation on the part of the Burnets. Indeed, the record would not support such a finding.

In any case, we are satisfied that it was an abuse of discretion for the trial court to impose the severe sanction of limiting discovery and excluding expert witness testimony on the credentialing issue without first having at least considered, on the record, a less severe sanction that could have advanced the purposes of discovery and yet compensated Sacred Heart for the effects of the Bur-nets’ discovery failings.5 See Fisons, 122 Wn.2d 355-56. Furthermore, even if the trial court had considered other options before imposing the sanction that it did, we would be forced to conclude that the sanction imposed in this *498 case was too severe in light of the length of time to trial, the undisputedly severe injury to Tristen, and the absence of a finding that the Burnets willfully disregarded an order of the trial court. See Lane v. Brown & Haley, 81 Wn. App. 102, 106, 912 P.2d 1040 ("[T]he law favors resolution of cases on their merits.”), review denied, 128 Wn.2d 1028 (1996).

The dissent concludes that the sanction imposed by the trial court was appropriate, preferring to interpret the civil rules for superior court in a way that facilitates what it describes as the "case management powers of the trial courts.” Dissenting op. at 510. While we are not unmindful of the need for efficiency in the administration of justice, our overriding responsibility is to interpret the rules in a way that advances the underlying purpose of the rules, which is to reach a just determination in every action. See CR 1. Because we believe it would be an injustice to deny Tristen Burnet’s parents and her representatives an opportunity to present a potentially valid negligent credentialing claim against Sacred Heart, the case should be remanded for a trial on that issue.

Finally, it should be noted that the dissent faults the Burnets for not moving to modify the trial court’s order prior to trial, characterizing this as a "fail[ure] to mitigate any harm arising from the alleged error.” Dissenting op. at 506. The dissent further suggests that by such a "failure,” the Burnets "did not effectively preserve the error for appellate review.” Dissenting op. at 506. We observe, first, that this issue was not raised by Sacred Heart at the trial court or at the Court of Appeals. Consequently, there was no briefing by either party on the issue. Furthermore, the dissent fails to acknowledge relevant rules concerning preservation of error. Where, as here, the issue was clearly before the trial court, and its prior rulings demonstrated that a motion to modify the order would not have been granted, a party cannot be reasonably held to have waived the right to assert the error on appeal merely by declining to engage in the useless act *499 of repeating their arguments in a motion to amend the trial court’s order. East Gig Harbor Improvement Ass’n v. Pierce County, 106 Wn.2d 707, 709 n.1, 724 P.2d 1009 (1986) ("As long as the trial court had sufficient notice of the issue to know what legal precedent was pertinent this court will not refuse to consider the issue.”) (citing Osborn v. Public Hosp. Dist. 1, 80 Wn.2d 201, 492 P.2d 1025 (1972)). See also Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn. App. 741, 753-54, 875 P.2d 1228 (1994) (where a trial court has ruled before trial that the jury would consider only certain matters, the plaintiff "was not required to propose an instruction that he knew would not be given”).

In conclusion, we reverse the Court of Appeals affir-mance of the trial court’s protective order. While the judgment with respect to Sacred Heart’s liability for the alleged negligence of its nurses is not disturbed, the case is-remanded for further proceedings on the Burnets’ claim that Sacred Heart was negligent in granting hospital privileges to Dr. Graham and Dr. Donlan.

Smith, Johnson, Madsen, and Sanders, JJ., concur.

’Although the motion for a discovery conference was nominally initiated pursuant to CR 26, General Provisions Governing Discovery Conference and CR 16, Pretrial Procedure and Formulating Issues, Sacred Heart’s memorandum in support of the motion and its oral argument to the trial court focused almost exclusively on its contention that "the negligent credentialing claim is not properly pleaded and could not properly be pleaded at this time.” CP at 2394.

Although the Burnets identified seven separate issues in their petition for review, their brief addresses only the question of whether the Court of Appeals erred in affirming the trial court’s order limiting discovery on the issue of corporate negligence. This court will not address these other "issues” because they have not been properly briefed. State v. Brett, 126 Wn.2d 136, 205, 892 P.2d 29 (1995) (Supreme Court may, pursuant to RAP 10.3(a)(5), decline to address issues presented upon argument incorporated from the petitioner’s brief on appeal to the Court of Appeals), cert. denied, 116 S. Ct. 931 (1996).

At oral argument before this court, Sacred Heart represented that the basis of the motion was CR 16, a rule providing for a pretrial conference to consider

"... simplification of the issues;

"... desirability of amendments to the pleadings;

"... [and] other matters as may aid in the disposition of the action.”

CR 16(a)(1), (2), (5). This rule also grants discretion to the trial court to "make an order which recites the action taken at the conference,” including an order "which limits the issues for trial to those not disposed of by admissions or agreements of counsel!.]” CR 16(b). Significantly, there is no evidence in the extensive record before us that counsel for the Burnets agreed to limit the issues for trial. We also note that Sacred Heart’s shift in emphasis during oral argument essentially eschewed the reliance it placed on CR 26 in its memorandum in support of its motion, at oral argument to the trial court on that motion, in its brief to the Court of Appeals, as well as in its briefing to this court. This emphasis on CR 26, rather than CR 16 was also acknowledged by the Court of Appeals. See Burnet, slip op. at 9-10 (Sacred Heart "had sufficient notice to bring its CR 26(f) motion to limit discovery.”).

We note that although prejudice to the non-wrongdoing party "is not a prerequisite to the court’s exclusion of witnesses as a sanction for a party’s willful *497 failure to submit a witness list,” it may be a consideration in other circumstances. Allied, 72 Wn. App. at 169 (citing Miller v. Peterson, 42 Wn. App. 822, 825, 714 P.2d 695, review denied, 106 Wn.2d 1006 (1986)) (emphasis added).

In granting the order that we are reviewing, the trial court was guided by its conclusion that the claim was outside the scope of the Burnets’ pleading. No doubt it did not consider alternative sanctions because it did not view the order as falling under the rubric of a sanction. Nevertheless, in reviewing the decision of the Court of Appeals that the order was justified as a sanction for the Bur-nets’ lack of "compliance . . . with a scheduling order” we are called upon to determine whether the record and law support its conclusion.