Fred Pritchard, V. Peacehealth/st. Joseph Hospital ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRED PRITCHARD,
No. 86036-4-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
PEACEHEALTH ST. JOSEPH
HOSPITAL,
Respondent.
HAZELRIGG, A.C.J. — Fred Pritchard appeals the summary judgment
dismissal of his medical negligence claim against PeaceHealth St. Joseph Hospital
based on injuries he asserts were caused by administration of an improper dose
of his prescribed medication. Pritchard fails to provide competent expert testimony
necessary to establish the applicable standard of care or any violation thereof and,
as such, fails to establish a prima facie case under RCW 7.70.040. Because the
evidence before the trial court was insufficient to create a genuine issue of material
fact on his claim of medical negligence, the trial court did not err when it granted
the hospital’s motion for summary judgment.
FACTS
On June 27, 2022, Fred Pritchard filed a complaint against PeaceHealth St.
Joseph Hospital (St. Joseph) and alleged that, shortly after undergoing surgery for
a coronary artery bypass graft (CABG) at the hospital on July 8, 2020, he “received
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a subcutaneous injection containing ten times the prescribed dose of Victoza.”[1]
Pritchard further asserted that as “a direct result of the negligence,” he had to
undergo emergency surgery the day after the CABG to “have fluid and air removed
from around his lungs . . . caused by the overdose of Victoza” and that, “as a result
of the negligent overdose, [he] has suffered additional general and specific
damages as will be proven at trial.” No additional factual circumstances were
provided in the complaint. Roughly 14 months later, St. Joseph moved to dismiss
Pritchard’s suit for want of prosecution under CR 41 or, in the alternative, on
summary judgment. St. Joseph asserted that it had served discovery requests on
Pritchard, but that he had failed to respond or otherwise offer any support for his
claims.
St. Joseph attached as exhibits to the motion, among other documents, a
copy of its interrogatories, requests for production, and proof of service on
Pritchard’s counsel, all dated August 30, 2022, as well as a letter and a number of
e-mails between the attorneys regarding Pritchard’s delinquent discovery
responses. Counsel for St. Joseph sent a letter to Pritchard’s attorney on
December 29, 2022 noting the date of service of its discovery demands and the
lack of response, and providing a deadline for his answer. The hospital’s attorney
also indicated that failure to produce “full and complete responses” by that deadline
would result in an attempt to confer by phone under CR 26(i). The e-mails St.
Joseph attached as exhibits in support of its motion suggest that the telephonic
discovery conference occurred on January 5, 2023 and that the parties agreed that
1
Victoza is a brand of liraglutide, a medicine used to treat type 2 diabetes.
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Pritchard would provide discovery responses by January 19, 2023. Other e-mails
indicate that Pritchard sent his first set of interrogatories and requests for
production to St. Joseph electronically on July 17, 2023 and that counsel for the
hospital responded roughly an hour later to advise that the defense had still not
received any response from Pritchard to its September 2022 discovery request.
Pritchard’s counsel replied a few moments later and stated “we’ll do our very best
to get them to you by July 24th.” St. Joseph asserted that, as of the date of filing
its motion to dismiss in August 2023, it had still not received any discovery
responses from Pritchard.
On September 11, 2023, Pritchard filed a brief in opposition to St. Joseph’s
motion to dismiss that summarized the assertions set out in his complaint, but did
not address the lack of response to the hospital’s discovery requests. Pritchard
and his wife provided declarations that were attached to the brief opposing
dismissal. Pritchard and his wife both described purported admissions of various
St. Joseph providers linking a second surgery Pritchard underwent days after the
CABG procedure to the overdose of Victoza. Pritchard specifically said that he
had been diagnosed with a “non-union” in his chest “where they entered to work
on [his] heart,” but does not indicate if this “work on [his] heart” occurred during the
CABG procedure or a subsequent surgery to remove air or fluid. Pritchard did not
submit deposition testimony or declarations from any St. Joseph providers or
medical records related to the care underlying the complaint.
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Pritchard did, however provide a declaration from pharmacist Matthew
Wanat. Wanat’s declaration references his curriculum vitae (CV) as attached 2 and
asserts “expertise in pharmacotherapy prescribing and monitoring, including
adverse drug reactions and toxicities from overdose, including medications such
as liraglutide (Victoza).” Wanat stated that he “reviewed records documenting that
Fred Pritchard was given a significant overdose of Victoza (10x prescribed dose)
while a patient at . . . PeaceHealth in July of 2020” and that the “records [he]
reviewed document that Mr. Pritchard’s doctors acknowledged him receiving the
toxic dose of Victoza at the time, and openly discussed it with him,” however he
never indicates what those records were. The declaration is silent on Wanat’s
familiarity with the standard of care for prescribing or administering medications in
Washington, for cardiac surgeons or nurses, or for hospitals generally, and does
not assert that St. Joseph violated any standard of care or that such a violation
caused the damages underlying Pritchard’s complaint.
A week later, St. Joseph filed its reply in support of its motion to dismiss and
argued that Pritchard failed to meet his burden on summary judgment as Wanat
was not qualified to provide an expert opinion on the relevant standard of care or
causation. The trial court entered an order on September 28, 2023 that granted
St. Joseph’s motion to dismiss on summary judgment and included a handwritten
explanation of the basis for its ruling that expressly noted that Pritchard “cannot
rely on mere allegations in complaint nor lay opinion regarding standard of care
and causation. Additionally, neither admissions nor pharmacist testimony are
2 There is no CV attached to the declaration that was transmitted to this court, nor does it
appear elsewhere in the record designated on appeal.
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sufficient evidence of standard of care.” Pritchard filed a motion for reconsideration
on October 6, challenging the trial court’s determination as to the standard of proof
in a medical negligence case. St. Joseph filed a written response opposing the
motion for reconsideration that asserted Pritchard had failed to meet the standard
for reconsideration under the civil rules. The trial court denied Pritchard’s motion
for reconsideration. 3
Pritchard timely appealed.
ANALYSIS
Pritchard assigns error to the trial court’s grant of summary judgment in
favor of St. Joseph. 4 We review orders on motions for summary judgment de novo
and will consider all the evidence “in the light most favor to the nonmoving party.”
Davies v MultiCare Health Sys., 199 Wn.2d 608, 616, 510 P.3d 346 (2022); see
also Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Any reasonable
inferences will also be viewed “in the light most favorable to the nonmoving party.”
Kim v Lakeside Adult Fam. Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016).
“‘Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.’”
Berger v Sonneland 144 Wn.2d 91, 102, 26 P.3d 257 (2001) (quoting Folsom v.
3 The order denying reconsideration notes that the trial court considered Pritchard’s motion,
the response from St. Joseph, and Pritchard’s reply in support of his motion in reaching its ruling.
However, the reply in support of reconsideration was not transmitted to this court as part of the
record designated on appeal.
4 While Pritchard also transmitted for appeal the order denying reconsideration, he
presents no assignment of error or analysis on that order. Accordingly, we need not consider the
propriety of that ruling by the trial court.
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Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)); see also CR 56(c). Any
fact upon which the outcome of the litigation hinges is a material fact. TracFone,
Inc. v. City of Renton, __ Wn. App. 2d __, 547 P.3d 902, 906 (2024). In reviewing
a summary judgment, we “may affirm on any basis supported by the record.”
Redding v. Virginia Mason Medical Center, 75 Wn. App. 424, 426, 878 P. 2d 483(1994).
“A defendant moving for summary judgment on the issue of negligence has
the initial burden to show the absence of an issue of material fact, or that the
plaintiff lacks competent evidence to support an essential element of [their] case.”
Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). When a defendant
seeks summary judgment on a claim of medical malpractice they can meet their
“initial burden” with a showing that “the plaintiff lacks competent expert testimony
to sustain a prima facie case of medical malpractice.” Chervilova v. Overlake
Obstetricians & Gynecologists, PC, 30 Wn. App. 2d 120, 125, 543 P.3d 904 (2024).
After this showing, the burden shifts to the plaintiff, who must then provide “‘an
affidavit from a qualified expert witness that alleges specific facts establishing a
cause of action.’” Behr v. Anderson, 18 Wn. App. 2d 341, 363, 491 P.3d 189(2021) (quoting Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689(1993), review denied, 198 Wn.2d 1040 (2022). When a plaintiff does not make a
sufficient showing to demonstrate “‘the existence of an element essential’” to their
case and they have the burden of proof to do so at trial, it is appropriate to grant
summary judgment. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d
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182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)).
On appeal, Pritchard asserts his evidence of both negligence and causation
was “sufficient to survive summary judgment,” and emphasizes that the testimony
he put forward was uncontradicted. However, he fails to substantively
acknowledge the deficiencies identified by the trial court as to the requirements for
expert testimony regarding standard of care and causation. In his reply, he
contends the trial court “made no determination that [Pritchard]’s expert Wanat
was ‘unqualified’ to express the opinions in his [d]eclaration,” but then proceeds to
note that the trial court “simply and specifically held that ‘[n]either admissions nor
pharmacist testimony are sufficient evidence of standard of care.’” This language
Pritchard quotes from the order on summary judgment is in fact the court’s
determination that Wanat’s declaration did not provide sufficient evidence
establishing the standard of care for cardiothoracic surgery or post-surgical
hospital care. Wanat did not describe any applicable standard of care.
Our state has statutory requirements for plaintiffs bringing a claim that a
medical professional or facility engaged in medical negligence. See RCW
7.70.040. When pursuing such a claim, a plaintiff is required to show that their
injury was the result of “the failure of the healthcare provider to follow the accepted
standard of care.” RCW 7.70.040(1). This preliminary showing necessarily
includes both evidence that demonstrates that the failure of the health care
provider “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
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which [they] belong[], in the state of Washington, acting in the same or similar
circumstances,” and that this failure was the proximate cause of the plaintiff’s injury
that forms the basis for the complaint. Id.An expansive body of case law establishes the particular evidentiary
requirements for summary judgment in the context of a medical negligence case.
By its own description, our state’s highest court has “repeatedly held that ‘expert
testimony will generally be necessary to establish the standard of care.’” Frausto
v. Yakima HMA, LLC, 188 Wn.2d 227, 231-32, 393 P.3d 776 (2017) (internal
quotation marks omitted) (quoting Young, 112 Wn.2d at 228). Further, this division
has explained that, because “expert testimony is generally required to establish
the standard of care and to prove causation,” “a defendant moving for summary
judgment can meet its initial burden by showing that the plaintiff lacks competent
expert testimony.” Guile, 70 Wn. App. at 25.
St. Joseph moved for summary judgment based on the lack of evidence
supporting Pritchard’s claim for medical negligence and highlighted the absence
of expert testimony on the proper standard of care and proximate cause of his
asserted injuries. Under well-established case law, the burden shifted to Pritchard
at that point and required him to “produce an affidavit from a qualified expert
witness that allege[d] specific facts establishing a cause of action.” Id. Pritchard
failed to do so.
Pritchard asserts in his opening brief that “[n]o case holds that ‘proof’ of
medical negligence must come in the form of ‘magic words’ or some ‘script’” and
cites to Douglas v. Bussabarger, 73 Wn.2d 476, 478, 438 P.2d 829 (1968), for the
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proposition that “[e]xpert testimony is not required to prove negligence where the
breach is ‘so obvious that a layman can recognize it.’” But, the complete statement
in Bussabarger presents explicit acknowledgement by our Supreme Court that this
is an exception to the general rule: “In the absence of negligence so obvious that
a layman can recognize it, some medical testimony is necessary to support a
finding that the doctor departed from the standard of reasonable care.” 73 Wn.2d
at 478. While Pritchard emphasizes that the evidence he did produce was
“uncontradicted,” he fails to offer any argument as to how this exception to the
evidentiary standard is satisfied here; how the breach was “so obvious that a
layman could recognize it.” Id. Nor does he engage with the requirement
regarding the type of evidence a plaintiff must produce in order to meet his burden
on summary judgment in a claim for medical negligence. Having failed to carry his
burden on appeal to establish that this exception applies to the facts of his case,
we proceed under the standard established by controlling case law.
This court had recent occasion to reiterate that the expert witness in a suit
for medical negligence “must be qualified to express an opinion on the applicable
standard of care” and their “opinion must be based on more than conjecture or
speculation.” Chervilova, 30 Wn. App. 2d at 125. However, this was by no means
a new pronouncement; this well-established standard has been recognized or
explained in many opinions of our Supreme Court and divisions of this court. See,
e.g., Bennett v. Dep’t of Lab. & Indus., 95 Wn.2d 531, 533, 627 P.2d 104 (1981)
(explaining medical facts must be proven by expert testimony unless “observable
by a layperson’s senses and describable without medical training”); Harris v.
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Robert C. Groth, MD, Inc., 99 Wn.2d 438, 451, 663 P.2d 113 (1983) (“Absent
exceptional circumstances . . . expert testimony will be necessary” to show both
the standard of care and causation.); Alexander v. Gonser, 42 Wn. App. 234, 241,
711 P.2d 347 (1985) (discussing necessity of medical causation testimony in
medical malpractice cases); Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851
P.2d 689 (1993) (explaining declarations “containing conclusory statements
without adequate factual support are insufficient to defeat a motion for summary
judgment”); Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995) (“Medical
malpractice cases are a prime example of cases where [expert] testimony is
needed. Indeed, the general rule in Washington is that expert medical testimony
on the issue of proximate cause is required in medical malpractice cases.” (citation
omitted) (emphasis added)); Morinaga v. Vue, 85 Wn. App. 822, 832, 831 P.2d
637 (1997) (“In an action for medical negligence, a [health care provider] is entitled
to summary judgment once [the provider] establishes the plaintiff lacks competent
expert testimony.”); Housel v. James, 141 Wn. App. 748, 759, 172 P.3d 712 (2007)
(“The policy behind this rule is to ‘prevent laymen from speculating as to what is
the standard of reasonable care in a highly technical profession.’” (quoting
Bussabarger, 73 Wn.2d at 479)); Grove v. PeaceHealth St. Joseph Hosp., 182
Wn.2d 136, 144, 341 P.3d 261 (2014) (“The applicable standard of care and
proximate causation generally must be established by expert testimony.”); Reyes
v. Yakima Health Dist., 191 Wn.2d 79, 89, 419 P.3d 819 (2018) (“[T]his 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 cause [the] injuries.’”
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(some alterations in original) (quoting Keck, 184 Wn.2d at 371)); Behr v. Anderson,
18 Wn. App. 2d 341, 363, 491 P.3d 189 (2021) (explaining medical malpractice
defendant can meet burden on summary judgment by showing lack of expert
medical testimony). The declaration Pritchard submitted from the pharmacist here
does not meet either requirement under settled case law.
When a plaintiff seeks to defeat a motion for summary judgment, courts
must engage in a preliminary inquiry in order to determine if the expert whose
opinion is offered toward that end qualifies for purposes of the particular
evidentiary requirements for claims of medical negligence. Chervilova, 30 Wn.
App. 2d 125; see also Reese, 128 Wn.2d at 308. The court must “determine the
relevant specialty and whether the expert and the defendant practice in the same
field.” Id. at 126; see also Winkler v. Giddings, 146 Wn. App. 387, 392, 190 P.3d
117 (2008) (explaining trial court must make finding of fact under ER 104(a) as to
whether expert qualifies to express opinion on standard of care in Washington).
However, if the expert does not practice in Washington, the court must separately
determine whether they are “familiar with the Washington standard of care.”
Chervilova, 30 Wn. App. 2d at 126. Wanat’s declaration does not contain any
reference to the standard of care for the medical professionals whose care was
challenged, much less how he would be familiar with that standard. Even if his CV
was attached to the declaration that was filed and it established that he was trained
or practiced as a pharmacist, he would still need to speak to the standard of care
for prescribers and those medical professionals tasked with administering
prescribed medications in a hospital setting. See Chervilova, 30 Wn. App. 2d at
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129-30; Boyer v. Morimoto, 10 Wn. App. 2d 506, 521-24, 449 P.3d 285 (2019).
The trial court properly determined that Wanat’s declaration was insufficient to
meet either of these requirements.
Wanat’s declaration is similarly silent on the question of causation. While
Pritchard’s complaint asserts that the additional surgery he underwent after the
CBAG procedure was the “direct result of the negligence” of the purported Victoza
overdose, Wanat’s declaration makes no such connection. He simply describes
the common side effects of Victoza, notes his opinion that an overdose of the drug
could result in “very violent nausea and vomiting,” and then, as to the sternal non-
union, merely explains that “this is the site where [Pritchard’s] sternum was
separated to access his heart.” He does not suggest, much less opine on a more
probably than not basis, that the non-union was a result of nausea or vomiting from
a Victoza overdose. In medical negligence cases, our Supreme Court has
explained that qualified experts must also state “specific facts showing . . . how the
defendant violated” the applicable standard of care. Reyes, 191 Wn.2d at 89.
Specifically, “the expert must link [their] conclusions to a factual basis.” Id. at 87.
Wanat’s declaration makes no statements regarding breach at all, nor does it
explain how any breach by the hospital caused the injuries underlying Pritchard’s
claim. Further, he does not describe the factual basis for the statements he does
offer, but simply asserts that he reviewed “records,” without explaining their nature
or source. Even recognizing that on summary judgment we view evidence in the
light most favorable to the non-moving party, Pritchard, the evidence here is plainly
insufficient and fails to establish any question of material fact as to a breach of the
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applicable standard of care under RCW 7.70.040(1) or causation. The trial court
did not err when it granted summary judgment dismissal.
Affirmed.
WE CONCUR:
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