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Butler v. Joy3/20/2003
Mary Butler filed suit pro se against Dr. Lori Frank Joy for damages due to negligent medical care. The summons was never properly served. Dr. Joy filed a notice of appearance and moved for summary judgment dismissal within a month of the filing of the complaint.
This motion did not mention the defect in service of process. Several months later, after the first motion for summary judgment was voluntarily dismissed, Dr. Joy again moved for summary judgment, this time based on insufficient service of process and expiration of the statute of limitations. Ms. Butler retained new counsel one day before the hearing on the motion. The trial court denied Ms. Butler's request for a continuance and granted Dr. Joy's motion, dismissing the complaint.
On appeal, Ms. Butler contends Dr. Joy waived the defense of insufficient service of process because she did not include that defense in the first motion for summary judgment. She also contends the trial court erred in refusing to grant a continuance. Because we find that Dr. Joy waived the issue of insufficient service of process, we reverse.
Facts
According to Ms. Butler's complaint, she reported to Valley Hospital and Medical Center on June 19, 1998 for an induced labor. During delivery, Ms. Butler's obstetrician, Dr. Joy, decided to install a catheter to drain Ms. Butler's bladder. The catheter fell on the floor. Dr. Joy picked it up and inserted it into Ms. Butler's urethra. Within eight hours, Ms. Butler was running a high fever. Dr. Joy and the nurses assumed Ms. Butler was suffering postpartum syndrome and released her from the hospital.
While at home, Ms. Butler continued to suffer from fevers and chills and consulted a nurse friend. When the friend noted that Ms. Butler's temperature was 104 degrees, she called Dr. Joy, who readmitted Ms. Butler only two hours after she had been released from the hospital.
After three days of treatment, Ms. Butler was informed that she had contracted E. coli bacteria. As a result of this infection, Ms. Butler could not breast feed her baby, had to drop out of school, and developed intolerance to dairy products and most fruits. She continues to suffer digestive problems.
On the basis of the above facts, Ms. Butler filed suit pro se for medical malpractice and negligence against Dr. Joy and Valley Hospital on June 18, 2001. The process server served the summons and complaint on Dr. Joy's office receptionist that same day and filed the return of service two days later. On June 21, Dr. Joy's attorney filed a notice of appearance.
About three weeks later, Dr. Joy filed a motion for summary judgment dismissal, contending that Ms. Butler's complaint presented no issue of fact as to negligence, liability, or causation. The hearing on the summary judgment motion was continued twice: first, in August, on Ms. Butler's pro se motion; and second, in September, when Ms. Butler's recently retained counsel requested a continuance so he could prepare a response. Ultimately, the hearing was set for October 26. The 90-day period for perfecting service had expired on September 16. RCW 4.16.170.
On October 16, 2001, Dr. Joy and Valley Hospital agreed to strike the summary judgment motion in order to allow the parties to take depositions. (This document is not in the record.) In a stipulated order filed in November, Valley Hospital was dismissed from the action. (This document is not in the record either.) Depositions were taken and Dr. Joy filed an answer and affirmative defenses on December 6. One of the affirmative defenses alleged insufficiency of process and/or insufficiency of service of process.
Ms. Butler's
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