FILED
isD`UiSi OF APPEALS
2011i SEP 23 AM 9: 33
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL FOSS, an individual, No. 44856 -4 -II
Appellant,
v.
STATE OF WASHINGTON, UNPUBLISHED OPINION
Respondent.
WORSWICK, P. J. — Michael Foss filed a negligence complaint against the State of
Washington for medical care that he had received while in the custody of the Department of
Corrections. The State moved for summary judgment, and the trial court granted the State' s
motion, because Foss had presented no expert medical testimony establishing standard of care or
causation. Foss appeals, asserting that the trial court erred by granting summary judgment in
favor of the State. We affirm.
FACTS
In August 2008, Michael Foss had an eye exam while being processed for incarceration
with the Department of Corrections ( DOC). The eye exam included a check of fluid pressure
inside Foss' s eye, which showed he had normal intraocular pressure. In September 2008, Foss
No. 44856 -4 -II
was transferred to Olympic Corrections Center ( OCC), a minimum security work camp near
Forks, Washington. Upon his transfer to OCC, Foss was examined by Dr. Clifford Johnson, a
DOC physician who saw OCC patients twice a week. Johnson did not conduct an eye exam at
that time due to Foss' s recent eye examination the previous month, but he noted Foss' s medical
history of retinal detachment in the right eye.
On December 14, 2008, Foss submitted a " Health Services Kite," in which he stated:
I have been experiencing pain [ and] discomfort in my right eye. I am getting
headaches on the right side a couple times a day. I also seem to be losing some
vision clarity [ and] peripheral vision.... My surgeon told me to watch my eye
pressure and for gla[ u] coma. My symptoms may be the onset of gla[ u] coma. Could
I please be allowed to get the pressure checked in my eye( s) so if it is gla[ u]coma I
can start the drops to control it?
Clerk' s Papers ( CP) at 105. In response to his request, Johnson examined Foss on December 18.
Johnson noted that Foss had a cataract in his right eye, which was likely a side effect of
Foss' s earlier retinal surgery in 2005. Because of the cataract, Johnson could not examine Foss' s
optic nerve. Johnson advised Foss to have his intraocular pressure checked by a specialist.
Johnson told Foss that an intraocular pressure check could not be performed at OCC because
OCC lacked the proper equipment and, thus, Foss would need to be transported to another DOC
facility for further testing. Foss declined to be transported to another DOC facility for further
medical testing, and Johnson cautioned " that if the pain returns, he needs to have it checked out
immediately[ and i]f the pain became very severe, he is to talk to his custody officer and go to
the emergency room." CP at 29.
On December 22, Foss submitted another Health Services Kite that stated, " I saw the
doctor on 12/ 19/ 08 about my eye. Could I please see him again ASAP[ ?] Thank you[.] My eye
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still hurts badly. Gla[ u] coma." CP at 106. Johnson conducted an examination of Foss on
December 24, at which time Foss agreed to be transported to Clallam Bay Corrections Center
CBCC) for additional medical testing. Foss was transported to CBCC on December 29, the first
available date for transfer following the Christmas holiday. A CBCC medical specialist
examined Foss that same day .and performed an intraocular pressure test. The test showed that
Foss had abnormally high pressure in his right eye, which is a risk factor for developing
glaucoma. The specialist prescribed and immediately treated Foss with a topical medication to
lower the pressure in his right eye. Foss' s prison medical records show that his intraocular
pressure responded to the topical medication and returned to a normal pressure range. Foss had
additional intraocular pressure checks in January and February 2009, which showed a normal
pressure range.
On February 22, 2012, Foss filed a complaint that alleged he had received negligent
health care while housed at the OCC, which negligent health care caused " essentially total loss of
useful vision in his right eye." CP at 6. The State filed a summary judgment motion asserting
that Foss could not support the necessary elements of his medical negligence claim because he
lacked expert medical testimony to determine the standard of care and to prove causation. The
State' s summary judgment motion also asserted that Foss had failed to comply with the claim
filing statute and the statute of limitations. The superior court granted the State' s motion and
dismissed Foss' s suit with prejudice. Foss timely appeals.
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No. 44856 -4 -II
ANALYSIS 1
Foss contends that the trial court erred by granting the State' s motion for summary
judgment. Because Foss has failed to establish a prima facie case for medical negligence
supported by expert testimony, we affirm the trial court summary judgment ruling.
We review a trial court' s summary judgment ruling de novo. Dean v. Fishing Co. of
Alaska, Inc., 177 Wn.2d 399, 405, 300 P. 3d 815 ( 2013). When reviewing a trial court' s
summary judgment ruling, we consider the facts and all reasonable inferences from those facts in
the light most favorable to the nonmoving party, here Foss. Fabre v. Town ofRuston, 180 Wn.
App. 150, 158, 321 P. 3d 1208 ( 2014). " Summary judgment in favor of the defendant is proper if
the plaintiff fails to make a prima facie case concerning an essential element of his or her claim."
Seybold v. Neu, 105 Wn. App. 666, 676, 19 P. 3d 1068 ( 2001) ( citing Young v. Key Pharm., 112
Wn.2d 216, 225, 770 P. 2d 182 ( 1989)).
To establish a prima facie case for negligence, a plaintiff must show "( 1) the existence of
a duty owed to the complaining party; ( 2) a breach thereof; (3) a resulting injury; and (4) a
proximate cause between the claimed breach and resulting injury." Pedroza v. Bryant, 101
Wn.2d 226, 228, 677 P. 2d 166 ( 1984). Specifically, in the context of medical negligence claims,
RCW 4. 24. 290 provides:
1 As an initial matter, our Supreme Court' s recent decision in McDevitt v. Harbor Medical Ctr.,
179 Wn.2d 59, 316 P. 3d 469 ( 2013), holding that the 90 -day presuit notice requirement of
former RCW 7. 70. 100( 1) ( 2006) was constitutional as applied to a State defendant, does not
control the outcome of Foss' s appeal. Although Foss did not adhere to former RCW 7. 70. 100' s
90 -day presuit notice requirements in reliance on our Supreme Court' s earlier opinion in Waples
v.Yi, 169 Wn. 2d 152, 234 P. 3d 187 ( 2010), the McDevitt court announced that its holding would
have " prospective -only application." 179 Wn.2d at 75. And Foss filed his suit before our
Supreme Court issued its opinion in McDevitt.
No. 44856 -4 -II
In any civil action for damages based on professional negligence against ... a
member of healing arts including ...
the a physician ... the plaintiff in order to
prevail shall be required to prove by a preponderance of the evidence that the
defendant or defendants failed to exercise that degree of skill, care, and learning
possessed at that time by other persons in the same profession, and that as a
proximate result of such failure the plaintiff suffered damages.
0402
RCW 7. 70. similarly provides:
The following shall be necessary elements of proof that injury resulted from the
failure of the health care provider to follow the accepted standard of care:
1) The health care provider failed to exercise that degree of care, skill, and
learning expected of a reasonably prudent health care provider at that time in the
profession or class to which he or she belongs, in the state of Washington, acting in
the same or similar circumstances;
2) Such failure was a proximate cause of the injury complained of.
It has been well established that, in general, expert testimony is required to determine the
standard of care and to prove causation in medical negligence cases. See, e. g., McLaughlin v.
Cooke, 112 Wn.2d 829, 836, 774 P. 2d 1171 ( 1989) ( citation omitted) ( " Expert testimony is
necessary to prove whether a particular practice is reasonably prudent under the applicable
standard of care. Usually, the standard of care must be established by expert testimony.");
Harris v. Groth, 99 Wn.2d 438, 449, 663 P. 2d 113 ( 1983) ( " In general, expert testimony is
required when an essential element in the case is best established by an opinion which is beyond
the expertise of a layperson. "); Seybold, 105 Wn. App. at 676 ( "[ E] xpert testimony is required to
establish the standard of care and most aspects of causation in a medical negligence action. ");
Morinaga v. Vue, 85 Wn. App. 822, 831, 935 P. 2d 637 ( 1997) ( " Absent exceptional
circumstances, a patient must produce expert testimony to establish if the practice questioned is
2
Laws of 2011, ch. 336, § 251 amended former RCW 7. 70. 040 ( 1983), adding language to
eliminate the gender -specific reference contained in the former version of the statute.
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No. 44856 -4 -II
reasonably prudent. "). Thus, a defendant to a medical negligence suit is entitled to summary
judgment where the plaintiff lacks competent expert testimony. Guile v. Ballard Comm. Hosp.,
70 Wn. App. 18, 25, 851 P. 2d 689 ( 1993).
Foss admits that he lacks competent expert testimony to support his medical negligence
claim but argues that expert testimony is not required to support his claim under the rule
announced in Helling v. Carey, 83 Wn.2d 514, 519 P. 2d 981 ( 1974). We disagree.
In Helling, our Supreme Court held that the defendant ophthalmologists were negligent
as a matter of law for failing to timely perform eye pressure tests on the plaintiff despite the
undisputed medical expert testimony that the standard of the profession did not require routine
pressure tests for persons under 40 years of age. 83 Wn.2d at 517 -19. In so holding, the Helling
court established " that reasonable prudence may require a standard of care higher than that
exercised by the relevant professional group." Gates v. Jensen, 92 Wn.2d 246, 247, 595 P. 2d
919 ( 1979) ( citing Helling, 83 Wn.2d 514).
Foss is correct that neither RCW 4.24. 290 nor former RCW 7. 70. 040, both of which were
enacted after the Helling decision, abrogated the reasonable prudence standard announced in
Helling. See Gates, 92 Wn.2d at 253; Harris, 99 Wn.2d at 447. Foss is incorrect, however, that
the reasonable prudence standard relieves him of the obligation to produce expert medical
testimony to support the elements of his medical negligence claim.
Our Supreme Court explained in Harris that "[ m] edical facts in particular must be proven
by expert testimony unless they are ` observable by [ a layperson' s] senses and describable
without medical training.'" 99 Wn.2d at 449 ( alteration in original) ( quoting Bennett v.
Department of Labor & Indus., 95 Wn.2d 531, 533, 627 P. 2d 104 ( 1981)). The Harris court
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No. 44856 -4 -II
reasoned that the requirement that a plaintiff produce medical testimony to establish the standard
of care and to prove causation " remain[ ed] true even under the reasonable prudence standard of
care, since the factual question of whether a particular medical practice is reasonably prudent is
generally neither observable by or describable by a layperson." 99 Wn.2d at 449 n. 6.
Harris acknowledged, " In some exceptional circumstances, laypersons may be capable of
balancing the costs and benefits of a particular procedure and deciding whether it was reasonably
prudent." 99 Wn.2d at 449 n. 6. But Harris further explained that "[ t]his will be true, however,
only when the underlying costs and probabilities can be expressed in relatively exact quantitative
terms and there are no significant judgment factors involved. Moreover, these underlyingfacts
must be proven by expert testimony." 99 Wn.2d at 449 n. 6 ( emphasis added) ( citation omitted).
Thus, even in the " exceptional" case where laypersons could determine whether a physician' s
decision to conduct or not to conduct a medical procedure was reasonably prudent under the
circumstances, a plaintiff must still produce expert medical testimony to establish the costs and
benefits of performing the medical procedure at issue, which Foss has failed to do. Harris, 99
Wn.2d at 449 n. 6.
Here, absent expert medical testimony establishing the standard of care and causation, a
jury would have to speculate as to whether Dr. Johnson' s conduct in recommending Foss transfer
to a different DOC facility for an intraocular pressure test, which Foss had refused, rather than
recommending he be sent to an emergency room at a nearby hospital, was reasonably prudent
under the circumstances. A jury would also have to speculate as to whether Dr. Johnson' s
conduct caused Foss' s alleged vision loss. Thus, this is not the " exceptional" case, as in Helling,
where laypersons could determine whether a physician' s medical decision was reasonably
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prudent under the circumstances. And, even were this such an exceptional case, Foss failed to
produce expert medical testimony to establish the costs and benefits underlying Dr. Johnson' s
medical decision.
Accordingly, we affirm the trial court' s ruling granting summary judgment in favor of the
State. Because we affirm the summary judgment on the grounds that Foss failed to establish a
prima facie case for medical negligence supported by expert testimony, we need not reach the
State' s arguments regarding Foss' s failure to comply with the claim filing statute and the statute
of limitations.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Maxa,
e
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