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Perkins v. Children's Orthopedic Hospital12/27/1993
This appeal presents two issues. First, is the rule set forth in Glover, that the release of a solvent agent releases a principal from claims based on vicarious liability for the negligence of the released agent, still a viable theory in this state? Second, if so, in a case where dual agency exists, does the release of one principal and its "agents", without specifically naming them, release the agents and extinguish any vicarious liability of the second
principal for their acts? We answer both questions affirmatively.
Facts
This case involves allegations of medical malpractice. Andrew Ray Beutler was born at University Hospital, now known as University of Washington Medical Center. He was born with congenital heart defects and other physical problems. He was transferred to Children's Orthopedic Hospital, now known as Children's Hospital & Medical Center (Children's Hospital), for specialized care. While there, Andrew underwent surgery to repair some of the congenital defects. He was severely injured during surgery when Dr. Misbach negligently placed a ligature around the descending aorta of Andrew's heart, cutting off all blood supply to the lower extremities. The injury resulted in permanent renal failure.
Four physicians assisted Dr. Misbach with the surgery or followup care. They are Drs. McCroskey and Cohen, members of the University of Washington School of Medicine's residency program; and Drs. Furman and Morray, physicians on the faculty of the University of Washington School of Medicine who were supervising the work of Drs. McCroskey and Cohen at Children's Hospital.
Andrew's mother, Lynne Perkins; grandmother, Carol Thielke; and father, Buzz Beutler, filed a claim for damages with the State for the injuries. Perkins also filed a complaint against Children's Hospital, University Hospital, the Association of University Physicians, and Dr. Misbach and his wife for damages as a result of the negligence. Perkins filed an amended complaint adding Buzz Beutler as an additional claimant. An additional amended complaint added the allegation that Children's Hospital was negligent in nursing and other care it provided.
Later, Carol Thielke, Andrew's grandmother and guardian, filed a complaint for damages on her own behalf and on behalf of Andrew. This complaint named the same defendants as those named in the Perkins complaint with the addition of the
Childrens/University Medical Group. The four "assisting" physicians have never been named as defendants in any of the pleadings. The cases were consolidated, and all three of the plaintiffs are hereinafter referred to as plaintiffs.
Extensive settlement negotiations began. A special assistant attorney general was appointed to handle the negotiations for the University of Washington, its agents, and employees. Eventually a structured settlement was reached. Plaintiffs and the University, University Hospital, the Association of University Physicians, Childrens/University Medical Group, Dr. Gregory Misbach and his wife, the law firm of the special assistant attorney general, and the agents of any of them came to an agreement in settlement of the claims.
The special assistant attorney general testified that the settlement included the four "unnamed" physicians as agents of the University. The professional liability claims manager for the University also indicated her belief this was true. There is also evidence that at no time did the plaintiffs believe they were settling with Children's Hospital, or its ostensible agents. Although given the opportunity to be a part of the settlement negotiations, Children's Hospital declined to do so. Child
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