Superior Court County: Snohomish. Superior Court Cause No: 93-2-07111-4. Date filed in Superior Court: March 30, 1995. Superior Court Judge Signing: Judge Ronald L. Castleberry.
Petition for Review Denied February 6, 1997,
Written by: Faye C. Kennedy, Concurred by: Hon. Susan R. Agid; Hon. Anne L. Ellington
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Svetlana Zenkina appeals the summary judgment dismissing her negligence claim against Sisters of Providence and others for injuries sustained when she fainted in the emergency room while observing her nephew receiving stitches. We conclude that under the facts here presented, the medical care providers had no duty to prevent Zenkina from fainting or to warn her that she might faint while watching the medical procedure. Accordingly, we affirm.
On September 9, 1992, 10-year-old Roman Kolesnik fell while riding his bicycle and cut his chin. His father Vladimir Kolesnik brought him to the home of Svetlana Zenkina, Roman's aunt. Zenkina drove them to the emergency room at Providence Hospital for treatment. Zenkina, who is a Ukrainian immigrant, speaks better English than Vladimir and Roman, both of whom speak very little English. In the past, Zenkina had transported friends and family members to the emergency room and provided translation assistance.
When they entered the emergency room, Svetlana explained to Vladimir that someone from the hospital would come and ask for information. She then sat down to wait. When a person from the hospital began to ask Vladimir questions, he waived to Zenkina and requested that she assist him. Svetlana answered the person's questions, and then again sat down with Vladimir and her nephew. A few minutes later, a woman who worked for the hospital requested that Vladimir provide her with information to be put into the computer, and he again requested that Zenkina translate for him. Zenkina answered all of the questions. The woman then took Zenkina, Vladimir, and Roman to another area where there was a television and instructed them to wait.
After a few more minutes the name Kolesnik was called and Roman and Vladimir went into another room. Zenkina stayed behind in the television room. The woman returned shortly, asked Svetlana to "please come," and explained that it would be better if she were with the boy so that they could "communicate better." Zenkina accompanied the woman into a room where Vladimir and Roman were waiting. The three were then shown into the suturing room.
In the suturing room, Vladimir and a hospital employee helped Roman onto the table. Dr. Randall Bensen, a physician employed by Emergency Room Physicians, Inc., which had an agreement to provide emergency room services at the hospital, entered and apologized for the delay. Dr. Bensen asked Vladimir to stand at the foot of the table and to hold his son's legs. Dr. Bensen assumed that Zenkina was Roman's mother and understood that she was acting as a translator. He asked Zenkina to stand near Roman's head in order to help interpret. In her deposition, Zenkina testified that Dr. Bensen asked her to hold Roman's hands to restrain him in case the child attempted to move suddenly. Zenkina did not protest, and put her hand on top of Roman's hands to comfort him. When Dr. Bensen opened Roman's wound to clean it, Zenkina fainted, striking her head on the floor. She suffered a concussion, convulsions, nausea, headaches, and other injuries, and was hospitalized for 5 days as a result.
Zenkina brought a negligence action against Sisters of Providence in Washington, Inc., Dr. Bensen, and Emergency Room Physicians, Inc., alleging that they owed her a duty to warn her of the risks associated with observing the medical procedure, including the risk of fainting. *fn1
Respondents moved for summary judgment, arguing that there was no duty on their part to prevent Zenkina from fainting because she was not a patient and because no hospital employee directed her to aid in Roman's treatment. Respondents also argued that Zenkina voluntarily assumed the risk of remaining in the suturing room with her nephew. Judge Castleberry granted the Respondents' motion for summary judgment, dismissed Zenkina's claim, and ordered her to pay statutory costs and attorney fees. Zenkina's motion for reconsideration was denied. This timely appeal followed.
In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court and considers the facts in the light most favorable to the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 226, 770 P.2d 182 (1989). Summary judgment will be granted if the record demonstrates that there is no genuine issue as to any material fact, Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash. 2d 1, 13, 721 P.2d 1 (1986), and that the moving ...