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Nielson v. Eisenhower & Carlson3/3/2000
the parents to recognize the brain injury before the doctors, which would be an unreasonable burden to impose. There is no evidence that the parents recognized and knew of the brain injury before the doctors. Therefore, because this court, in light of the entire record, is not left with a definite or firm conviction that the district court committed a mistake, we hold that the Ninth Circuit would not conclude that the district court's finding were clearly erroneous.
Accordingly, we hold that on appeal the Ninth Circuit would have found that the Nielsons' underlying claim was clearly within the two-year statute of limitations. Because the Nielsons would have won on appeal with or without Roberts' negligence, we hold that Roberts' negligence was not a 'but for' cause of the Nielsons' loss. Consequently, as a matter of law, there is no proximate cause and the trial court properly dismissed the Nielsons' malpractice claim on summary judgment. Because the trial court's order of summary judgment was proper, it is unnecessary to reach the alternative argument of collateral estoppel, and our holding is dispositive as to both of the Nielsons' claims for damages.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, C.J.
We concur:
Morgan, J. Armstrong, J.
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