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Shupe v. Ketting3/27/2003
Pamela Shupe sued her obstetrician, Dr. Effie Jean Ketting, for negligence based on the ineffective tubal ligation procedure Dr. Ketting performed in 1988. After the procedure, Ms. Shupe twice became pregnant. Ms. Shupe's medical malpractice case was dismissed on summary judgment because the superior court concluded that the lawsuit had been brought after the expiration of the statute of limitations. On appeal, this court reversed, finding material issues of fact existed related to the statute of limitations. Dr. Ketting assisted Ms. Shupe's obstetrician at the cesarean delivery of her child in 1990. We concluded that there were material issues of fact as to whether Dr. Ketting's assistance in 1990 was part of a continuing course of treatment that began in 1988 and whether Dr. Ketting was negligent in her role as an assistant surgeon.
The case was remanded for trial and this appeal arises out of that trial. The trial was bifurcated after the trial court ordered that the first trial would address only the two issues of material fact identified by this court. After a trial, the jury found that Dr. Ketting's assistance in 1990 was not part of a continuing course of treatment and that she was not negligent in her role as assistant surgeon. Ms. Shupe appeals, contending that the trial court erred by: (1) bifurcating the trial; (2) granting Dr. Ketting's motion in limine excluding evidence relating to whether Dr. Ketting breached the standard of care in the 1988 tubal ligation; (3) denying her motion for a mistrial based upon violations of the in limine order; (4) denying her CR 50(a) motion as a matter of law that the statute of limitations was tolled by the foreign body exception; (5) giving the special verdict form that misstated the law; and (6) allowing Dr. Edward Temple to testify.
We hold the trial court did not abuse its discretion in bifurcating the trial. The trial court's decision to try the statute of limitations issues before trying the 1988 medical negligence issues was based upon a tenable reason--judicial economy. Also, we hold the trial court did not abuse its discretion by granting Dr. Ketting's motion in limine. The dispute over the standard of care for the placement of Hulka clips was not relevant to the statute of limitations issues and its preclusion caused no actual prejudice to Ms. Shupe. We hold the trial court did not err by denying Ms. Shupe's motion for mistrial because Ms. Shupe failed to show that as a result of the violation of the in limine order, she was so prejudiced that nothing short of a new trial could ensure a fair trial. We hold the trial court did not err by denying Ms. Shupe's CR 50(a) motion. The foreign body exception to the statute of limitations does not apply to Hulka clips that were intentionally placed in Ms. Shupe's body for therapeutic purposes, even though the procedure later failed. Because Ms. Shupe failed to comply with RAP 10.4(c), we decline to review her assignment of error that the special verdict form misstates the law. Finally, we hold that the trial court's decision to allow Dr. Temple to testify was within the court's discretion.
FACTS
This is the third time these parties have appeared in this court on these facts. The following facts were stated in our first unpublished opinion Shupe v. Ketting, noted at 95 Wn. App. 1054, 1999 WL 408898 (1999), review denied, 140 Wn.2d 1008 (2000)
(Shupe I):
In 1988, Pamela Shupe was pregnant with her third child. She requested her obstetrician, Dr. Effie Jean Ketting, to sterilize her at the time of the scheduled cesarean section delivery. Dr. Ketting delivered the child on October 11, 1988. She also performed a tubal ligation on Ms. Shupe
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