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Leven v. Kretzler12/18/1989
Christine (Rollman) Vant Leven appeals from a summary judgment in favor of respondent Harry Kretzler, M.D., in a medical malpractice action. Vant Leven contends that the trial court abused its discretion in denying a motion for a continuance and that, in any event, material factual issues remain for trial.
Vant Leven was injured in an automobile accident on November 20, 1984. In March 1985, she sought treatment from respondent Dr. Kretzler, an orthopedic surgeon, for chronic neck and back pain, headaches, and leg pain. In April 1985, Dr. Kretzler performed a laminectomy and removed a "huge amount" of disc material. Dr. Kretzler performed a second operation on Vant Leven in August 1985, during which he removed several disc fragments and scar tissue. Another physician performed a third operation on Vant Leven in February 1986, during which a fragment of disc material and scar tissue were removed. On July 31, 1986, Vant Leven filed the instant action, alleging that Dr. Kretzler had negligently failed to remove a disc fragment that "was open and obvious after a myelogram prior to the first operation," necessitating the second operation.
On April 1, 1988, counsel for Vant Leven served interrogatories on counsel for Dr. Kretzler. On April 21, 1988, Dr. Kretzler moved for summary judgment. In support of the motion, Dr. Kretzler, by declaration, set forth a factual
statement describing his treatment of Vant Leven, including a detailed recitation of the procedures performed during the two operations. Dr. Kretzler averred that he was familiar with the applicable standard of care and that the described course of treatment adhered to that standard. Attached to Dr. Kretzler's memorandum in support of the summary judgment motion were 16 pages of Vant Leven's pre- and postoperative medical records.
On May 6, 1988, Vant Leven filed a memorandum in opposition to summary judgment. Relying on CR 56(f), Vant Leven maintained that summary judgment was inappropriate because "discovery is still pending." Counsel for Vant Leven declared that the answers to plaintiff's interrogatories had not yet been received and that in order to obtain an opinion from an expert witness, Dr. L.C. Hoover, it was necessary to obtain the interrogatory answers and to depose Dr. Kretzler. In an attached affidavit, Dr. Hoover, a doctor of osteopathy who had been Vant Leven's treating physician for several years, declared that he was willing to render an opinion as to whether Dr. Kretzler's treatment of Vant Leven had violated the standard of care, but that he "would need to examine additional records and review deposition testimony of Dr. Kretzler." Dr. Hoover stated that he "should be able" to render an opinion within 30 days of Dr. Kretzler's deposition.
Following a hearing on May 10, 1988, the trial court entered summary judgment in favor of Dr. Kretzler, noting that "no contravening expert testimony has been presented." On May 17, 1988, Vant Leven moved for reconsideration, arguing that she should be afforded the opportunity to complete discovery and obtain an expert opinion. Attached to the motion for reconsideration was a supplemental declaration from Dr. Hoover, who stated in pertinent part:
From reviewing the incomplete files and records that have been supplied to me, it appears more probable than not that the care and treatment provided by Dr. Kretzler fell below the standard of care in this medical community for the treatment
given Christine Vant Leven. Before I render my final opinion, it is necessary that I examine the balance of the medical records relating to Christine Vant Leven's treatment by Dr. Kretzler and, particularly,
Page 1 2 3 4 Washington Personal Injury Attorneys
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