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Lewis v. Bours9/10/1992
At issue is whether Washington has jurisdiction over the defendant, an Oregon resident, by virtue of the long-arm statute, RCW 4.28.185. We hold defendant's alleged negligence did not constitute a tort committed in Washington and therefore the long-arm statute does not confer jurisdiction over him. The trial court's grant of summary judgment in favor of the defendant is affirmed.
In 1982, plaintiff Jeanne Lewis, a Washington resident, traveled to defendant Dr. Peter Bours' clinic in Forest Grove, Oregon, for prenatal care. Defendant is a physician licensed to practice medicine in Oregon and is an Oregon resident.
On January 19, 1983, plaintiff's daughter, Tazzalyn, was born at defendant's clinic. Plaintiff alleges in part as follows:
Due to her condition at birth, Tazzalyn Lewis required the attention of a trained pediatrician or a neonatologist, hospital admission, and monitoring for signs or symptoms of neonatal disease for at least 24 hours.
Defendant Bours discharged Plaintiff from his care at approximately three (3) hours of age, without arranging for or instructing Plaintiff's parents to seek immediate admission at a nearby hospital, without providing for immediate attention of a trained pediatrician, and without instructing Plaintiff's parents that Plaintiff was at high risk for neonatal distress.
Clerk's Papers, at 4.
However, defendant deemed Tazzalyn a medium risk. He released Tazzalyn and instructed plaintiff to take Tazzalyn to a doctor when they returned home.
On the way home, Tazzalyn stopped breathing near Woodland, Washington, on Interstate 5. Plaintiff did not seek immediate medical care but took Tazzalyn to a hospital in Longview, Washington, later that day. Clerk's Papers, at 90. When she arrived, Tazzalyn was apneic and suffered severe perinatal asphyxia. She was transferred to the Oregon Health Sciences University where it was discovered that Tazzalyn suffered from cardiomegaly, status epilepticus and possible cerebral necrosis. Plaintiff claims Tazzalyn suffers from irreversible brain damage, cortical blindness, and physical and mental developmental delays. Tazzalyn is currently institutionalized in Oregon.
On April 18, 1990, plaintiff filed suit claiming defendant's actions constituted a tort committed in Washington under RCW 4.28.185(1)(b). Defendant answered and raised the affirmative defense that the Washington trial court did not have jurisdiction over him. Defendant's motion for summary judgment was granted. This court accepted direct review.
[1, 2] When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court by determining if any genuine issue of material fact exists, and, if not, is the moving party entitled to judgment as a matter of law. Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990). In so doing, " he court must consider the facts in the light most favorable to the nonmoving party, and the motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion." Marincovich, at 274. Further, where the "underlying facts are undisputed, the trial court's assertion of personal jurisdiction is a question of law reviewable de novo." MBM Fisheries, Inc. v. Bollinger Mach. Shop & Shipyard, Inc., 60 Wash. App. 414, 418, 804 P.2d 627 (1991).
In order for Washington courts to properly exercise jurisdiction under the long-arm statute, the defendant's conduct must be brought within the provisions of RCW
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