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Morinaga v. Vue

April 24, 1997

GAIL MORINAGA, AN ALLEGED INCOMPETENT PERSON BY AND THROUGH HER GUARDIAN AD LITEM DAVID DEWOLF, APPELLANT,
v.
SEE VUE AND JANE DOE VUE, INDIVIDUALLY AND AS A MARITAL COMMUNITY; JEAN SOLIZ AND JOHN DOE SOLIZ, INDIVIDUALLY AND AS A MARITAL COMMUNITY; MARY SANDERSON AND RICK DOE SANDERSON, INDIVIDUALLY AND AS A MARITALCOMMUNITY; GEORGE RICE AND JANET DOE RICE, INDIVIDUALLY AND AS A MARITAL COMMUNITY, RICE, SANDERSON AND ASSOCIATES, A PROFESSIONAL PARTNERSHIP; LINDA LOPES AND ROB ROE LOPES, INDIVIDUALLY AND AS A MARITAL COMMUNITY; AND THE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, A DEPARTMENT OF THE STATE OF WASHINGTON, RESPONDENTS, MICHAEL FETTEROLF AND JULIE ROE FETTEROLF, INDIVIDUALLY AND AS A MARITAL COMMUNITY; LYNN JORDAN AND WILLIAM ROE JORDAN, INDIVIDUALLY AND AS A MARITAL COMMUNITY, DEFENDANTS.



Appeal from Superior Court of Spokane County. Docket No: 94-2-01062-4. Date filed: 09/14/95. Judge signing: Hon. Michael E. Donohue.

Petition for Review Denied October 7, 1997,

Authored by Philip J. Thompson. Concurring: John A. Schultheis, Frank L. Kurtz.

The opinion of the court was delivered by: Thompson

THOMPSON, J. Gail Morinaga sued Dr. George Rice and Dr. Mary Sanderson for failure to provide informed consent, and breach of professional duty regarding a sterilization procedure. She sued See Vue, Jean Soliz, the Secretary of the Department of Social and Health Services (DSHS), and DSHS for civil rights violations under 42 U.S.C. sec. 1983 and battery. These claims were dismissed pursuant to summary judgment motions by each set of defendants. She now appeals claiming genuine issues of material fact exist precluding summary judgment. We affirm in part and reverse in part.

Ms. Morinaga is a 25-year-old developmentally disabled woman with a full-scale IQ of 62. Although several physicians have examined Ms. Morinaga and determined she is in the mentally retarded range of intellectual functioning, she has never been declared legally incompetent.

When Ms. Morinaga began a physician-patient relationship with Dr. Rice in 1987, his records indicated that she appeared mentally impaired, slow to answer and confused. At that time she was 16 and eight weeks pregnant. She sought to terminate that pregnancy. Between 1987 and 1990, Ms. Morinaga became pregnant three other times. She carried only one of the pregnancies to term.

On July 18, 1988, shortly after she gave birth to her daughter, Stephanie, DSHS became concerned about Ms. Morinaga's ability to parent. On August 18, DSHS filed a dependency petition. Since then Stephanie has lived with her paternal grandmother, Lavon Partridge, who is currently Stephanie's legal guardian.

Ms. Morinaga became pregnant a fifth time. She chose to carry this baby to term, and also wanted to retain custody. Ms. Morinaga was working with Shirley Pellow, a public health nurse, in preparing for the birth of her child. She was given a list of things she needed to do in order to retain custody. She complied with all the requirements.

In November 1991, she spoke with See Vue, a DSHS social worker who oversaw Stephanie's case. She told him she wanted to keep her child and asked what she needed to do. She alleges that he then told her she could keep the child if she had a tubal ligation. He denies ever making this statement. He said he told her to keep working with Ms. Pellow.

Mike Partridge, Ms. Morinaga's then boyfriend and father of the child, stated that Ms. Pellow suggested sterilization to Ms. Morinaga. He thought this was a good idea. He also told Ms. Morinaga that it would "last a lifetime." Sarah Moore, a legal intern, stated Ms. Morinaga told her that someone at the hospital told her to get a tubal ligation if she wanted to keep the child. The intern later learned from Molly Crumet, a DSHS social worker, that Mr. Vue had told Ms. Morinaga to get a tubal ligation. Lavon Partridge also discussed the tubal ligation with Ms. Morinaga. She stated Ms. Morinaga only wanted the procedure so that she could keep her child.

On February 11, 1992, prior to delivering her child, Ms. Morinaga told Dr. Rice she wished to have a tubal ligation. Dr. Rice stated he explained the permanent and irreversible nature of the procedure. He also explained to her how a tubal ligation was performed. Ms. Morinaga signed a consent to sterilization form, which was witnessed by Ms. Lopes, Dr. Rice's nurse. The consent form was backdated to January because according to Medicare regulation, the form must be signed 30 days prior to the procedure in order to receive payment. Dr. Rice stated he was not aware Ms. Morinaga was seeking a tubal ligation in order to gain custody of her unborn child. He further stated that his five-year relationship with her in which she always kept appointments, dressed and acted appropriately, sought medical attention when necessary, and made independent decisions about her medical care indicated to him she had the capacity to consent to the sterilization. Ms. Morinaga claims she received no information about the procedure.

Ms. Morinaga gave birth to Stefano *fn1 on February 29, 1992. Dr. Sanderson delivered the baby as Dr. Rice was unavailable. After the delivery, Ms. Morinaga reaffirmed her wish to be sterilized. Dr. Sanderson asked if anyone with Ms. Morinaga objected to the procedure. Dr. Sanderson went over the procedure with Ms. Morinaga and explained its permanent nature. Ms. Morinaga signed a sterilization permit form and Dr. Sanderson performed the tubal ligation.

Molly Crumet of Child Protective Services obtained a court order placing Stefano in shelter care. *fn2 Ms. Morinaga did not contest the order. Eventually, Mike Partridge, Stefano's father, was granted custody. Ms. Morinaga has executed a parenting plan which limits her visitation with her son to 15 supervised hours per week.

On July 15, 1995, Ms. Morinaga filed a complaint alleging professional negligence against Dr. Rice and Dr. Sanderson. She asserted they violated the informed consent laws, and breached their professional duties. She also filed suit against Mr. Vue, Ms. Soliz, the Secretary of DSHS, and DSHS alleging violations of 42 U.S.C. sec. 1983 and battery. The court granted the aforementioned defendants' motions for summary judgment. Ms. Morinaga's motion to reconsider was also denied, and she now appeals. The Northwest Women's Law Center has filed an amicus curiae brief in support of Ms. Morinaga's claim which was also considered on appeal.

Appellate courts review summary judgment orders de novo. Fell v. Spokane Transit Auth., 128 Wash. 2d 618, 625, 911 P.2d 1319 (1996). Summary judgment is proper when there is no genuine issue of material fact, thus entitling the moving party to judgment as a matter of law. CR 56(c); Clements v. Travelers Indem. Co., 121 Wash. 2d 243, 249, 850 P.2d 1298 (1993). A court must consider all the evidence submitted in the light most favorable to the nonmoving party. Id. Summary judgment is proper when reasonable persons looking at all the evidence could reach only one Conclusion. Id. Summary judgment is ...


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