This opinidh was filed for record
IN eLiMn omcB
•UPNBE COURT,SnROPIIMHMOTQN
DATE JUN 2 i i
{aAAAa "■'SUSAN L. CARLSON
jusnce
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JUDITH MARGARITA REYES, on her own
behalf and on behalf of the Estate of Jose
Luis Reyes, Deceased, and on behalf of her No. 94679-5
minor children, Erik (n/m/n) Reyes
(dob: 3/12/98) and Leslie Maria Reyes En Banc
(dob: 6/23/99),
Filed JUN 2 1 2018
Petitioners,
YAKIMA HEALTH DISTRICT, a public
entity in the State of Washington; Christopher
Spitters, M.D., John Does Nos. 1-20,
Respondents.
OWENS, J. — This is a case about the sufficiency of expert witness testimony
in a medical malpractice suit. Jose Reyes died after a course of treatment for
tuberculosis. Judith Reyes alleges that her husband did not have tuberculosis and that
the treatment prescribed to him for that disease caused him fatal liver damage due to
an undiagnosed underlying liver disease.
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5
Judith Reyes alleges that the Yakima Health District(YHD)and Christopher
Spitters, MD,were negligent in treating Jose Reyes. A year after filing suit, her
expert witness submitted an affidavit alleging as much. Because allegations of
misdiagnosis without deviation from the proper standard of care are not the basis for
liability, we hold that the expert witness' affidavit was insufficient to create a genuine
issue of material fact and affirm the Court of Appeals. In so holding, we do not
require talismanic words, but the right words. For to paraphrase Mark Twain, the
want ofthe right word makes lightning from lightning bugs.
FACTS
In April 2010, Mr. Reyes arrived at the Yakima Chest Clinic complaining of
intermittent chest pain. He was initially diagnosed with pneumonia, but chest samples
were ordered when the symptoms did not abate. A sputum sample tested positive for
tuberculosis, and the positive results were reported to YHD. Additional sputum
samples also cultured positive for tuberculosis. On May 25, 2010, Mr. Reyes began
tuberculosis treatment with the YHD,consisting in part of a four-drug cocktail of
isoniazid, rifampin, ethambutol, and pyrazinamide, as well as directly observed
therapy. Because isoniazid can lead to severe and sometimes fatal liver toxicity,
baseline liver function testing was performed at that time. The results were within the
high range of normal. Mr. Reyes missed a series of directly observed therapy days in
late June and early July, and was tardy in submitting blood for a liver function test.
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No. 94679-5
When a liver specimen was obtained on July 8, 2010, the testing demonstrated
abnormal liver values.
Due to these abnormal liver readings, YHD withheld Mr. Reyes' tuberculosis
medications and directed him to report to an emergency room for inpatient treatment.
YHD also contacted Dr. Spitters at that time, and Dr. Spitters spoke to Mr. Reyes by
phone on July 15, 2010. Dr. Spitters directed Mr. Reyes to go to an emergency room,
but Mr. Reyes failed to do so. Dr. Spitters preliminarily diagnosed Mr. Reyes with a
drug-induced liver injury and instructed YHD staff to continue to hold Mr. Reyes'
tuberculosis medication and refer him to an emergency room. Mr. Reyes visited YHD
for additional testing on July 16, 2010, and Dr. Spitters saw him on July 22, 2010.
Mr. Reyes was admitted to the University of Washington Medical Center's
hepatology department, but he passed away from liver failure on August 6, 2010.
Ms. Reyes sued YHD and Dr. Spitters, asserting medical malpractice, wrongful death,
negligent hiring and supervision, and outrage. The negligent hiring and supervision
claim is not part ofthis appeal.
The trial court granted summary judgment with regard to the medical
malpractice claim because Ms. Reyes' medical expert, Rosa Martinez, MD,failed to
identify either the standard of care or that she was familiar with that standard, and
failed to articulate with sufficient particularity the facts supporting her opinion that
YHD and Dr. Spitters were negligent. Ms. Reyes filed an untimely motion for
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No. 94679-5
reconsideration regarding the medical malpractice claim and included a second
declaration by Dr. Martinez. The trial court denied the motion for reconsideration,
stating it would not consider the second declaration and it would not have been
sufficient to create a material issue of fact sufficient to survive summary judgment
even if it were considered.
The defendants moved for summary judgment on the outrage claim, alleging
that RCW 7.70.010 to .160 had legislatively preempted a claim for outrage derivative
of medical malpractice and that the conduct complained of was not outrageous as a
matter oflaw. The specific conduct that Ms. Reyes cited as outrageous was an
alleged threat of incarceration made by YHD employees if Mr. Reyes did not comply
with his tuberculosis treatment regimen. The trial court granted the motion.
Regarding the wrongful death claim, the trial court granted summary judgment due to
a violation ofthe statute of limitations, relying on Fast v. Kennewick Public Hospital
District, 188 Wn. App. 43, 354 P.3d 858 (2015), which held that the applicable statute
of limitations for a wrongful death claim stemming from alleged medical malpractice
is the general three-year period in RCW 4.16.080.
Ms. Reyes timely appealed the grant ofsummary judgment. During the
pendency ofthe appeal, this court reversed Fast and held that the one-year tolling
provision in RCW 7.70.110 applies to such a claim. Fast v. Kennewick Pub. Hasp.
Dist, 187 Wn.2d 27, 384 P.3d 232(2016). However,the Court of Appeals affirmed
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5
the trial court's grant ofsummary judgment on the wrongful death claim on other
grounds, holding that as with the medical malpractice claim. Dr. Martinez failed to
create an issue of fact with regard to any allegedly wrongful conduct performed by the
defendants. The Court of Appeals also affirmed the trial court's grant ofsummary
judgment on the claim of outrage, agreeing that the defendants' conduct was not
outrageous enough to sustain a claim.
ISSUES
1. Did the medical expert's testimony create a genuine, material dispute
regarding negligent or wrongful conduct by the defendants?
2. Was the alleged threat of quarantine sufficiently "outrageous" to support a
claim of outrage?
ANALYSIS
1. Allegations of Misdiagnosis Alone Are Generally Insufficient To Create a
Material Dispute regarding Medical Negligence
In a medical malpractice case, plaintiffs must show that "[t]he 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." RCW 7.70.040(1). The applicable standard of care in medical
malpractice actions must generally be established through expert testimony. Miller v.
Jacoby, 145 Wn.2d 65, 71-72, 33 P.3d 68(2001). If a plaintiff lacks competent expert
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No. 94679-5
testimony to create a genuine issue of material fact with regard to one ofthe elements
ofthe claim and is unable to rely on an exception to the expert witness testimony
requirement, a defendant is entitled to summary judgment. Morinaga v. Vue, 85 Wn.
App. 822,935 P.2d 637(1997). Although a close call, Ms. Reyes has not created a
genuine issue of material fact through expert testimony, nor can she rely on the
doctrine ofres ipsa loquitur to satisfy that pleading requirement.
An issue of material fact is genuine if the evidence is sufficient for a reasonable
jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., All
U.S. 242,248, 106 S. Ct. 2505,91 L. Ed. 2d 202(1986); Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080(2015). Our analysis thus asks whether Dr. Martinez's
testimony could sustain a verdict in Ms. Reyes' favor. As this court held in Keck, in
the context of medical malpractice, this requires "an expert to say what a reasonable
doctor would or would not have done, that the [defendants] failed to act in that
manner, and that this failure caused [the] injuries." 184 Wn.2d at 371. The expert
may not merely allege that the defendants were negligent and must instead establish
the applicable standard and how the defendant acted negligently by breaching that
standard. Id. at 373. Furthermore, the expert must link her conclusions to a factual
basis. Id.
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A useful contrast can be drawn between two similar cases to demonstrate what
is required for a medical expert's testimony to create a genuine issue. In Keck, a suit
against oral surgeons, the plaintiffs expert testified as follows:
"The surgeons performed multiple operations without really addressing
the problem of non-union and infection within the standard of care... .
". . . With regards to referring Ms. Keck for follow up care, the
records establish that the surgeons were sending Ms. Keck to a general
dentist as opposed to an oral surgeon or even a plastic surgeon or an Ear,
Nose and Throat doctor. Again, this did not meet the standard of care as
the general dentist would not have had sufficient training or knowledge
to deal with Ms. Keek's non-union and the developing
infection/osteomyelitis."
Id. at 371. This court held that from this testimony "a jury could conclude that
a reasonable doctor would have referred Keck to another qualified doctor for
treatment—standard of care—and that the Doctors did not treat her issues or
make an appropriate referral—^breach." Id. at 372.
In Guile v. Ballard Community Hospital, a suit alleging negligent
gynecological surgery, the plaintiffs expert testified as follows:
"Mrs. Guile suffered an unusual amount of post-operative pain,
developed a painful perineal abscess, and was then unable to engage in
coitus because her vagina was closed too tight. All ofthis was caused by
faulty technique on the part ofthe first surgeon. Dr. Crealock. In my
opinion he failed to exercise that degree of care, skill, and learning
expected of a reasonably prudent surgeon at that time in the State of
Washington, acting in the same or similar circumstances."
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No. 94679-5
70 Wn. App. 18, 26, 851 P.2d 689(1993). The Court of Appeals held that
statement insufficient, characterizing it as "merely a summarization of Guile's
postsurgical complications, coupled with the unsupported conclusion that the
complications were caused by Crealock's 'faulty technique.'" Id.
In the present case. Dr. Martinez's first affidavit stated:
(a)Jose Reyes did not have tuberculosis when he presented at Yakima
Health District and Dr. Spitters, stated with reasonable medical
certainty;
(b)Jose Reyes did suffer from chronic liver disease, and was at risk for
catastrophic liver failure if he were treated with medicines
contraindicated for liver disease, stated with reasonable medical
certainty;
(c)Jose Reyes presented to Yakima Health District and Dr. Spitters with
clinical symptoms of liver failure that should have been easily
diagnosed by observation ofthe patient, stated with reasonable
medical certainty;
(d)The failure of Yakima Health District and Dr. Spitters to accurately
diagnose Jose Reyes' liver disease and liver deterioration due to
prescribed medications to treat tuberculosis that were contraindicated
for Jose Reyes were direct and proximate causes of Mr. Reyes' liver
failure and death, stated with reasonable medical certainty.
Clerk's Papers at 109-10. Dr. Martinez's second affidavit relevantly states that "[a]n
alternate drug should have been introduced for Mr. Reyes if the defendants chose to
treat Mr. Reyes empirically for tuberculosis." Id. at 231. The theory of Ms. Reyes'
case appears to be that YHD negligently misdiagnosed Mr. Reyes twice: a false
positive for tuberculosis and a false negative for liver disease. Yet allegations of
misdiagnosis alone are not enough. As this court held in Fergen v. Sestero,
"Misdiagnosis and the inexactness of medicine is not the basis for liability without a
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No. 94679-5
deviation from the proper standard of care." 182 Wn,2d 794, 809, 346 P.3d 708
(2015). Instead, a misdiagnosis may subject a physician to a negligence action
"where such misdiagnosis breaches the standard of care." Backlund v. Univ. of Wash,
137 Wn.2d 651, 661, 975 P.2d 950(1999). There is no indication of what a
reasonable physician should have done other than diagnose liver failure by
observation ofthe patient. This circular conclusion is akin to the deficient expert
witness testimony in Guile, where an allegation that a reasonable doctor would not
have acted negligently was found insufficient to create a genuine issue of material
fact. 70 Wn. App. at 26.
Nor can negligence be inferred from the factual allegations relating to
Mr. Reyes' tragic death. See Watson v. Hockett, 107 Wn.2d 158, 161, 727 P.2d 669
(1986)("[A] doctor will not normally be held liable under a fault based system simply
because the patient suffered a bad result."). Allegations amounting to an assertion
that the standard of care was to correctly diagnose or treat the patient are insufficient.
Instead, the affiant must state specific facts showing what the applicable standard of
care was and how the defendant violated it. Dr. Martinez failed to do so. In affirming
the Court of Appeals, we do not require affiants to aver talismanic magic words, but
allegations must amount to more than conclusions of misdiagnosis, with a basis in
admissible evidence that can support a claim. See Keck, 184 Wn.2d at 370.
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No. 94679-5
In the alternative, Ms. Reyes invokes the doctrine ofres ipsa loquitur to make
out a prima facie claim for medical malpractice without expert testimony. That
doctrine is inapplicable in this case because Ms. Reyes has failed to show that the act
of prescribing isoniazid does not ordinarily happen in the absence of negligence.
The standard elements of a negligence claim are duty, breach, causation, and
damage. A plaintiff can, in limited circumstances, rely on the doctrine of res ipsa
loquitur to satisfy the breach element of his or her pleading requirements, provided
that the evidence shows that'"(1)the accident or occurrence producing the injury is of
a kind which ordinarily does not happen in the absence of someone's negligence,(2)
the injuries are caused by an agency or instrumentality within the exclusive control of
the defendant, and(3)the injury-causing accident or occurrence is not due to any
voluntary action or contribution on the part ofthe plaintiff.'" Pacheco v. Ames, 149
Wn.2d 431,436,69 P.3d 324(2003)(quoting Zukowsky v. Brown,79 Wn.2d 586,
593,488 P.2d 269(1971)). Here, the first element is absent.
The first element may be satisfied in one ofthree ways:"'(1)[wjhen the act
causing the injury is so palpably negligent that it may be inferred as a matter oflaw,
i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a
wrong member;(2) when the general experience and observation of mankind teaches
that the result would not be expected without negligence; and(3)when proof by
experts in an esoteric field creates an inference that negligence caused the injuries.'"
10
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No. 94679-5
Id. at 438-39(quoting Zukowsky,79 Wn.2d at 595).
The act of prescribing isoniazid is not so "palpably negligent" as leaving
foreign objects in a body or amputating the wrong limb. Nor can a layperson's
"general experience and observation" show that it is negligent. That is why expert
testimony is required. Such testimony was absent in this case. Thus, res ipsa loquitur
is not applicable and cannot be used as a stand-in for expert testimony.
Ms. Reyes has thus failed to create a genuine issue of material fact with regard
to any conduct of any defendant that breaches a specified standard of care. This is not
a case where the plaintiff did not have ample time to procure an adequate expert
witness affidavit. Civil Rule 56(f) provides safeguards for such instances.
Dr. Martinez had been working with the plaintiffs for over a year, which formed part
ofthe trial Judge's decision to decline to review her second affidavit. Accordingly,
this court affirms the Court of Appeals' grant ofsummary judgment for both ofthose
claims.
2. Properlv Invoking a Quarantine Power Is Not Outrageous
In addition, we affirm the grant ofsummary judgment on the outrage claim.
Ms. Reyes' outrage claim is based on the disputed allegation that YHD employees
threatened Mr. Reyes with incarceration if he did not comply with the prescribed
tuberculosis treatment regimen. The elements of a claim for the tort of outrage or the
intentional infliction of emotional distress are "(1) extreme and outrageous conduct.
11
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No. 94679-5
(2)intentional or reckless infliction of emotional distress, and(3)actual result to
plaintiff of severe emotional distress." Kloepfel v. Bokor, 149 Wn.2d 192, 195,66
P.3d 630(2003). The conduct must be '"so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.'" Grimsby v. Samson, 85
Wn.2d 52, 59, 530 P.2d 291 (1975)(italics omitted)(quoting RESTATEMENT
(Second)of Torts § 46 cmt. d(Am.Law Inst. 1965)). Liability generally will not
extend to threats alone. Id.
That same section ofthe Restatement speaks to conduct that would be extreme
and outrageous but for a legal privilege to do it. RESTATEMENT § 46 cmt. g("The
conduct, although it would otherwise be extreme and outrageous, may be privileged
under the circumstances. The actor is never liable, for example, where he has done no
more than to insist upon his legal rights in a permissible way, even though he is well
aware that such insistence is certain to cause emotional distress."). The invocation of
a legal privilege does not per se immunize one's conduct from a claim for intentional
infliction of emotional distress. Were an official to use the threat of quarantine
improperly, either to induce action other than compliance with a treatment regimen or
where there is no reasonable basis to believe that a quarantine is warranted, a claim
may be warranted. See RESTATEMENT § 46 cmt. e.
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In this case, the defendants had the power to execute the complained of
conduct. Washington State has a statutory scheme for diagnosing and treating
tuberculosis because the illness is highly contagious and has a relatively high
virulence. See RCW 70.28.005(2)("While it is important to respect the rights of
individuals, the legitimate public interest in protecting the public health and welfare
from the spread of a deadly infectious disease outweighs incidental curtailment of
individual rights that may occur in implementing effective testing, treatment, and
infection control strategies."). Noncompliance with a tuberculosis treatment regimen
is a misdemeanor, and RCW 70.28.031 provides local health officers with the power
to issue a quarantine order for persons who have been previously diagnosed as having
tuberculosis and who are under medical orders for treatment or periodic follow-up
examinations.
The allegedly outrageous conduct was a threat of invoking the quarantine
power granted to health officials to combat the public enemy oftuberculosis. A suit
may arise when the manner of invoking a legal power intentionally inflicts emotional
distress, but here, no such allegations were made. The alleged conduct ofthe YHD
employees was not wrongful, let alone outrageous. Because the alleged conduct was
not outrageous as a matter of law, we affirm the Court of Appeals' grant ofsummary
judgment with regard to the outrage claim.
13
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No. 94679-5
CONCLUSION
Dr. Martinez's affidavits amount to allegations of misdiagnoses but do not
explain the acts that the defendants should have taken to avoid these allegedly
erroneous conclusions. Because a misdiagnosis and resulting bad outcome alone is
not generally enough to support a claim for medical negligence, we affirm the trial
court's grant ofsummary judgment on the medical malpractice and wrongful death
claims. As well, we affirm the grant of dismissal on the outrage claim and find the
defendants' alleged conduct was not outrageous.
14
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No. 94679-5
7
WE CONCUR: