Christine Conner v. Jeremy Meadows, D.c. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTINE CONNER, an individual,
No. 78494-3-I
Appellant,
DIVISION ONE
V.
UNPUBLISHED OPINION
JEREMY MEADOWS, D.C.,
Respondent. FILED: August 5, 2019
LEACH, J. — Christine Conner appeals the summary judgment dismissal of
her negligence claim against her chiropractor, Dr. Jeremy Meadows. Because
Conner did not produce expert testimony establishing that Dr. Meadows
breached the standard of care, the trial court properly granted summary
judgment. We affirm.
FACTS
Conner regularly visited Dr. Meadows’s chiropractic clinic for treatment of
shoulder pain. At each visit, Dr. Meadows performed a procedure called a
‘supine thoracic adjustment,” in which he adjusted Conner’s shoulder while she
was lying on her back. According to Conner, she typically did not feel any
discomfort during this procedure. But when Dr. Meadows performed the
adjustment on January 3, 2013, Conner heard a popping sound and immediately
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felt pain. She attributed this to the fact that her body was not in the correct
position when Dr. Meadows performed the adjustment. Conner continued to
experience restricted range of motion and pain when lifting heavy objects.
Conner sued Dr. Meadows, alleging that Dr. Meadows negligently injured
her shoulder during the adjustment.1 The parties stipulated to arbitration and
submitted prehearing statements of proof. Conner did not identify an expert to
testify about the appropriate standard of care for a chiropractor. Instead, Conner
stated that “[p]resumably, Dr. Meadows himself will establish [what] the
applicable standard of care is to perform the maneuver he performed without
iniury to the plaintiffs shoulder.”
At Dr. Meadows’s request, the arbitrator continued the arbitration hearing,
and Dr. Meadows moved for summary judgment. He argued that Conner did not
have any expert testimony that he breached the standard of care or that his
failure to comply with the standard of care caused her injuries. The trial court
granted Dr. Meadows’s motion. Conner appeals.
ANALYSIS
We review an order granting summary judgment de novo, considering all
facts and reasonable inferences in the light most favorable to the nonmoving
party.2 Although the evidence is viewed in the light most favorable to the
Conner also alleged that Dr. Meadows failed to obtain her informed
1
consent for the procedure. Conner does not challenge the summary judgment
dismissal of this claim.
2 Lybbert v. Grant County, 141 Wash. 2d 29, 34, 1 P.3d 1124 (2000).
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nonmoving party, if that party is the plaintiff and she fails to make a factual
showing sufficient to establish an essential element of her claim, summary
judgment is warranted.3 Once the moving party shows there are no genuine
issues of material fact, the nonmoving party must present evidence to rebut the
moving party’s contentions.4 Mere allegations or conclusory statements of fact
unsupported by evidence are not sufficient to establish a genuine issue of fact.5
Chapter 7.70 ROW governs actions for medical malpractice. The plaintiff
has the burden to prove by a preponderance of the evidence the following
elements: (I) that the health care provider failed to exercise the standard of care
expected of a reasonably prudent health care provider and (2) that such failure
was a proximate cause of the plaintiff’s injury.6
Generally, the plaintiff must establish negligence through the testimony of
experts who practice or have expertise in the relevant specialty.7 These experts
must establish that the alleged injury-producing event “probably” or “more likely
than not” caused the harm based on a reasonable degree of medical certainty.8
An exception exists when the negligence is self-evident and describable without
3Younqv. Key Pharm., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989).
~ Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash. 2d 157, 169, 273 P.3d 965
(2012).
~ CR 56(e); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash. 2d
127, 132, 769 P.2d 298 (1989).
6 RCW 7.70.030; ROW 7.70.040.
~ Harris v. Groth, 99 Wash. 2d 438, 449, 663 P.2d 113 (1983); McKee v. Am.
Home Prods. Corp., 113 Wash. 2d 701, 706-07, 782 P.2d 1045 (1989).
8 Rounds v. Nellcor Puritan Bennett, Inc., 147 Wash. App. 155, 163, 194
P.3d 274 (2008) (quoting Merriman v. Toothaker, 9 Wash. App. 810, 814, 515 P.2d
509 (1973)).
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medical training. “Where the determination of negligence does not require
technical medical expertise, such as the negligence of amputating the wrong limb
or poking a patient in the eye while stitching a wound on the face, the cases also
do not require testimony by a physician.’9
Conner argues that the trial court erred in granting summary judgment
because Dr. Meadows’s own deposition testimony provided expert testimony
about the standard of care and the proximate cause of her injury. The record
does not support Conner’s claim.
In response to the summary judgment motion, Conner submitted Dr.
Meadows’s deposition testimony. Dr. Meadows explained that a supine thoracic
adjustment is a “standard chiropractic maneuver” that he had performed many
times on Conner. Dr. Meadows testified that on January 3, Conner said, Ow,
that hurt my shoulder.” He examined her shoulder and noted, “[Tjhere was some
tightness, muscle spasm in the shoulder, which simply seemed like an
exacerbation of an injury that she came to me with in the right shoulder. So sort
of like a mild pulled muscle from a muscle that had been injured before.”
According to Dr. Meadows, Conner had occasionally complained of similar pain
when he had performed the same adjustment. In response to Conner’s complaint
of pain, Dr. Meadows used a percussor—a vibrating device that reduces muscle
spasm—on Conner’s shoulder. Dr. Meadows asked Conner if she felt better,
and she said that she did.
9Younci, 112 Wash. 2d at 228.
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Dr. Meadows testified that the supine thoracic adjustment does not “carry
with it any recognized risk of shoulder injury.” He also denied that the adjustment
could have caused Conner’s injury.
Q: If in fact she did suffer some sort of shoulder injury
during the supine thoracic maneuver, would that in your opinion be
a breach of the standard of care for reasonably prudent chiropractic
care?
Q: My question is whether if a supine thoracic maneuver
of the type that you were performing in fact occasioned some injury
to the shoulder, would you consider that to be a failure of technique
or reasonable prudence?
A: I don’t think it would be a failure of technique.
Q: Explain that answer for me, please.
A: I’ve been doing this for 17 years. I adjust thousands
of people a year. I’ve never had somebody with an injured
shoulder, even people who have had rotator cuff surgery and who
are up for rotator cuff surgery be injured by that type of an
adjustment.
Q: Fully understanding you do not believe that your
maneuver occasioned any injury to her shoulder, if we were to
assume that a chiropractor did in fact somehow injure the shoulder
during the supine thoracic maneuver, would that be a failure of
reasonably prudent chiropractic care?
A: No.
Q: Help me understand that, please.
A: If there is weakened tissue, then I think that’s a failure
of the biomechanics.
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No. 78494-3-1/6
Dr. Meadows also provided the declaration of Dr. Murray Smith, a
chiropractor licensed in Washington. Dr. Smith reviewed Conner’s medical
records and stated, “to a reasonable degree of medical certainty,” that Dr.
Meadows complied with the appropriate standard of care. Dr. Smith also stated
that because “[njearly every patient seeks chiropractic treatment to treat pain,”
adjustments can result in acute pain but that this pain “does not indicate that the
practitioner was negligent.”
Here, Conner identifies no genuine issue of material fact about the
standard of care. Dr. Smith stated that Dr. Meadows met the appropriate
standard of care for a supine thoracic adjustment.1° And Dr. Meadows denied
that the adjustment could have caused Conner’s injuries. Though Conner
believed she was in the wrong position, expert medical testimony is required to
establish the appropriate body position for a chiropractic adjustment. Conner’s
unsupported speculation is insufficient to establish a genuine issue of material
fact. Accordingly, the trial court did not err in granting summary judgment to Dr.
Meadows.
Relying on Dr. Meadows’s testimony that there is no risk of injury from a
supine thoracic adjustment, Conner argues that the injury must necessarily have
resulted from Dr. Meadows’s negligence. She contends that expert testimony
10 Conner also offered the deposition testimony of Dr. Thomas Degan, an
orthopedic surgeon who subsequently treated her for unrelated injuries. But Dr.
Degan testified he had no chiropractic training and no experience in performing
chiropractic adjustments. He acknowledged he was unable to testify as to the
proper amount of force used in a thoracic adjustment and could not offer any
opinion as to the standard of care.
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was not necessary because the doctrine of res ipsa loquitur established a prima
facie claim for negligence. This argument also fails.
A plaintiff may establish negligence by res ipsa loquitur if the evidence
shows that (1) the injury is of a kind which ordinarily does not happen in the
absence of someone’s negligence, (2) the injury was caused by something within
the exclusive control of the defendant, and (3) the injury is not due to any
voluntary action or contribution on the part of the plaintiff.11 The first element
may be satisfied in one of three ways:
When the act causing the injury is so palpably negligent that it may
be inferred as a matter of law, 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.112]
If any of these three elements is missing, a presumption of negligence is not
warranted. Res ipsa loquitur is ordinarily sparingly applied, ‘“in peculiar and
exceptional cases, and only where the facts and the demands of justice make its
application essentiaL”13 Whether the doctrine of res ipsa loquitur applies to a
particular case is a question of law that we review de novo.14
~ Reyes v. Yakima Health Dist., 191 Wash. 2d 79, 89-90, 419 P.3d 819
(2018) (quoting Pacheco v. Ames, 149 Wash. 2d 431, 436, 69 P.3d 324 (2003)).
12 Homer v. N. Pac. Beneficial Ass’n Hosps., Inc., 62 Wash. 2d 351, 360, 382
P.2d 518 (1963).
13 Ripley v. Lanzer, 152 Wash. App. 296, 308, 215 P.3d 1020 (2009)
(internal quotation marks omitted) (quoting Tinder v. Nordstrom, Inc., 84 Wn.
App. 787, 792, 929 P.2d 1209 (1997).
14Pacheco 149 Wash. 2d at 436.
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Here, Conner fails to establish that her shoulder pain could only have
resulted from Dr. Meadows’s negligence. A chiropractic procedure followed by
shoulder pain is not so palpably negligent that it may be inferred as a matter of
law. Nor could a layperson’s general experience and observation show that it is
negligent. Only expert testimony could have established that Dr. Meadows
performed the adjustment in the wrong position or in an otherwise negligent
manner. Conner presented no such testimony. The doctrine of res ipsa loquitur
did not relieve Conner of her burden to present expert testimony.
Affirmed.
WE CONCUR:
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