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Winbun v. Moore8/30/1999
un and consulted Dr. Marcia Gonzales, the surgeon on-call. Dr. Gonzales arrived at the hospital at approximately 3 a.m. and examined Winbun. Dr. Gonzales determined that Winbun needed immediate surgery and called Dr. Epstein. Approximately 30 minutes later, Dr. Epstein arrived at the hospital and commenced surgery, with Dr. Gonzales assisting. When it was determined that Winbun's problem was not gynecological, Dr. Gonzalez took over. The post-operative diagnosis was a perforated ulcer. Following her surgery, Winbun developed a severe esophageal stricture and Adult Respiratory Distress Syndrome (ARDS).
Winbun subsequently testified that, from the very beginning she felt that something had been done wrong, that is, that one of her doctors may have made a mistake. But she was reluctant to pursue the matter because she knew, liked, and respected Dr. Moore. In early 1994, Winbun obtained some of her medical records from Highline Community Hospital, including records for April 17, 19, and 20, 1993. Winbun did not obtain all of the records because she and her husband had filed for Chapter 13 bankruptcy protection and could not afford them. In the records she did obtain, Dr. Epstein's name appears as both the "admit physician" and "surgeon assistant." Ex. 20. These records also indicate that Dr. Epstein was involved in Winbun's pre-operative care.
In May 1995, Winbun contacted attorney Robert Gould, and on June 12, 1995, she met with Gould to discuss the medical treatment she received. Winbun gave Gould the medical records she had obtained, but asked him to hold off on investigating her claim, because she was not sure if she wanted to sue her family practitioner and former co-worker, Dr. Moore. Winbun authorized attorney Gould to proceed with the investigation on September 29, 1995. Mr. Gould commenced the investigation on October 2, 1995.
In January 1996, attorney Gould asked Dr. Robert Nielsen for his opinion regarding Winbun's medical care. Based on his review of the incomplete records that Winbun had obtained from the hospital, Dr. Neilsen opined "that Dr. Jane Moore and Dr. Carter Hill deviated from the minimum standard of care of reasonable physicians in the same or similar circumstances in their failure to correctly diagnose and treat their mutual patient, the Plaintiff Gail Sandra Winbun." Clerk's Papers at 57. On February 26, 1996, Winbun formally retained Mr. Gould, and on April 12, 1996, Winbun filed suit against Dr. Moore, Dr. Hill, and Highline Community Hospital. On April 20, 1996, the three-year statute of limitations expired. On October 14, 1996, a hospital attorney asked Mr. Gould why Dr. Epstein was not named as a defendant. Winbun promptly instructed Dr. Nielsen to review all of her medical records to determine whether Dr. Epstein had acted negligently. From his review of the records, Dr. Nielsen opined that Dr. Epstein's conduct was a marked departure from the standard of care, was negligent, and had led to increased difficulties for Winbun. On November 6, 1996, Winbun amended her complaint to add Dr. Epstein and his wife as defendants.
Before trial, Dr. Epstein moved for summary Judgement of dismissal from Winbun's complaint, contending that she did not timely file her cause of action against him as matter of law. In opposition to Dr. Epstein's motion for summary Judgement, Winbun presented an affidavit from Dr. Gary B. Harris. In his affidavit, Dr. Harris stated that although Dr. Epstein's negligence would not be evident to a lay person reviewing Winbun's hospital records, Dr. Epstein's negligence would be "obvious" to a physician experienced in both the drafting and reading of hospital records. Clerk's Papers at 743. The court denied Dr. Epstein's motion fo
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