Gabrielle Nguyen-aluskar, App. v. The Lasik Vision Institute, Llc, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GABRIELLE NGUYEN-ALUSKAR, an
individual, No. 73018-5-1
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
THE LASIK VISION INSTITUTE, LLC;
GORDON JENSEN, M.D., a physician;
and JOHN/JANE DOE PHYSICIANS 1-10,
Respondents. FILED: November 30, 2015
Appelwick, J. — Nguyen-Aluskar sued LVI and Dr. Jensen alleging a lack of
informed consent and medical negligence. Failure to produce expert testimony to support
her claims brought motions for summary judgment. Nguyen-Aluskar requested a CR 56(f)
continuance in order to afford her more time to obtain an expert witness declaration. The
trial court denied Nguyen-Aluskar's request for a continuance, granted summary
judgment in favor of LVI and Dr. Jensen, and denied reconsideration. We affirm.
FACTS
The LASIK Vision Institute LLC (LVI) provides management services to
independent physician contractors who perform laser-assisted in situ keratomileusis
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(LASIK) eye surgeries and other vision enhancement procedures. LVI had a contract
with Dr. Gordon Jensen to provide management services for his practice.
On February 5, 2005, Dr. Mark Nelson, an independent contractor affiliated with
LVI, performed a photorefractive keratectomy (PRK) on Gabrielle Nguyen-Aluskar. A
PRK is a laser refractive surgery performed to correct nearsightedness, farsightedness,
and astigmatism. Prior to the procedure, Nguyen-Aluskar signed a six page consent form
outlining the risks and possible side effects of the surgery. By signing the consent form,
Nguyen-Aluskar acknowledged that, among other risks, was an increased risk of eye
irritation and permanent over-corrective or under-corrective vision requiring the use of
glasses or lenses for reading or distance vision. She also acknowledged that any vision
improvements resulting from the procedure might revert back to the level of vision
immediately prior to having the procedure. The consent form also noted that many
patients have a condition causing a reduced ability to see or read up close.
The procedure was performed without complication. Nguyen-Aluskar was
examined five days after the surgery and had 20/20 vision in both eyes.
In 2012, Nguyen-Aluskar underwent an enhancement procedure at LVI. Dr.
Jensen performed the procedure. Once again, Nguyen-Aluskar signed a consent form.
This time, the consent form—an enhancement consent form—was only one page, but
stated, "General LASIK/PRK complications discussed in your original LASIK/PRK patient
consent form apply to the enhancement procedure." It also listed several specific risks.
Nguyen-Aluskar signed the consent form indicating that she read the form, agreed to its
terms, re-read the original consent form, and that she wanted Dr. Jensen to perform a
LASIK/PRK enhancement procedure on her. Dr. Jensen also signed the consent form
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indicating that he discussed the consent form with Nguyen-Aluskar and gave her the
opportunity to ask questions.
Dr. Jensen performed the enhancement procedure on January 27, 2012. The
medical records indicate that the procedure was performed successfully and without
complication. Roughly six weeks after the procedure, Nguyen-Aluskar's vision was 20/50
in her right eye and 20/40 in her left eye. Her vision had improved since her last visit after
the procedure.
On January 17, 2013, Nguyen-Aluskar and Gokhan Aluskar, her husband at the
time, sued LVI and Dr. Jensen claiming damages for injuries Nguyen-Aluskar suffered as
a result of their negligence. The complaint alleged that the medical care provided by LVI
and Dr. Jensen fell below the expected standard of medical care. And, it alleged that Dr.
Jensen failed to properly diagnose, refer, and monitor Nguyen-Aluskar's eye condition,
inform her of the risks associated with the treatment plan, and obtain her informed
consent. The complaint also alleged that both LVI's and Dr. Jensen's acts and omissions
constituted violations of the Consumer Protection Act (CPA), chapter 19.86 RCW. In their
prayer for relief, Nguyen-Aluskar and her husband sought, among other things, economic
and noneconomic damages, and damages for loss of consortium.
While the initial complaint did not specify what injuries Nguyen-Aluskar allegedly
incurred as a result of the procedure, her responses to LVI's interrogatories clarified that
Nguyen-Aluskar was experiencing decreased, impaired, and blurry vision, dry eyes, eye
pain and discomfort, headaches, depression, and anxiety. Specifically, Nguyen-Aluskar
stated that as a result of the enhancement procedure, her cornea was too thin, so she
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could not undergo any other corrective procedures. She also stated that she requires the
permanent use of reading glasses and that her vision has generally worsened.
On December 11, 2013, Nguyen-Aluskar and Gokhan Aluskar filed a motion for
voluntary nonsuit requesting that the court dismiss their claims without prejudice pursuant
to CR 41(a)(1)(B). The trial court granted the motion on December 23, 2013. Then, on
February 21, 2014, Nguyen-Aluskar, individually, refiled her lawsuit against LVI and Dr.
Jensen.
On May 30, 2014, LVI filed a motion for costs and statutory attorney fees for
$4,075.42—the amount of costs and fees incurred defending against Nguyen-Aluskar's
first lawsuit. On June 10, 2014, the trial court entered an order granting LVI's motion. It
awarded LVI costs and statutory attorney fees pursuant to CR 41(d). LVI made several
fruitless requests to Nguyen-Aluskar's counsel for $4,075.42.
On October 22, 2014, LVI filed a notice of hearing for December 12, 2014 on its
anticipated motion for summary judgment. Nguyen-Aluskar's attorneys were listed on
LVI's notice as a party requiring service of the notice. On November 14, 2014, LVI and
Dr. Jensen separately filed and served motions for summary judgment dismissal of
Nguyen-Aluskar's claims. LVI sought dismissal either through a CR 56 summary
judgment dismissal or through a CR 41 involuntary dismissal for failure to comply with the
court's June 10 order granting LVI costs and fees. Dr. Jensen sought only CR 56
summary judgment dismissal. Both defendants argued that summary judgment was
proper, because Nguyen-Aluskar had no qualified expert opinions in support of her
breach of standard of care and informed consent claims. And, they argued that she could
not make the required evidentiary showing to support her CPA claims.
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Nguyen-Aluskar filed a consolidated response to the summary judgment motions
on December 1, 2014. The response was also a request for a CR 56(f) continuance and
a motion for a trial continuance. In her response, she stated that she had consulted with
and retained Dr. Richard Bensinger, a board certified ophthalmologist, to provide an
opinion regarding the care she received. She stated that Dr. Bensinger examined her
and reviewed her medical records in 2012, leading to the filing of the lawsuit. But,
Nguyen-Aluskar claimed that while she was preparing her response to the motions for
summary judgment, Dr. Bensinger informed her that he could no longer serve as a
witness. Nguyen-Aluskar claimed that she was completely reliant upon Dr. Bensinger's
opinion and had to seek a new expert witness to address the standard of care and
informed consent issues. Consequently, she requested a continuance pursuant to CR
56(f) in order to find a new expert witness. Nguyen-Aluskar also responded to the motions
for summary judgment by arguing that she presented sufficient evidence to support a
CPA violation claim. And, she argued that LVI's request for dismissal pursuant to CR 41
should be denied, because she construed the trial court's June 10 order as a denial of
LVI's request for costs.
On December 8, 2014, Dr. Jensen argued in reply that Nguyen-Aluskar failed to
submit an affidavit in support of her CR 56(f) request for a continuance, and a declaration
stating what discovery was contemplated, how it would raise an issue of material fact to
preclude summary judgment, and why the discovery could not have been obtained prior
to the summary judgment hearing. Consequently, on December 10, 2014, two days
before the hearing on the motions for summary judgment, Nguyen-Aluskar filed a
declaration and an affidavit. The declaration was an unsigned and unsworn declaration
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of Nguyen-Aluskar. The affidavit was from Nguyen-Aluskar's counsel. On December 11,
2014, LVI and Dr. Jensen filed a joint motion to strike Nguyen-Aluskar's declarations as
untimely and improper. And, Nguyen-Aluskar filed her declaration again, signed, but still
unsworn.
The summary judgment hearing took place on December 12, 2014. After the
hearing, the trial court made several rulings. First, it declined to rule on LVI's and Dr.
Jensen's motion to strike the declarations. It instead treated the motions to strike as
objections and sustained the objections. It then granted summary judgment on all of
Nguyen-Aluskar's claims as to both LVI and Dr. Jensen. It denied Nguyen-Aluskar's CR
56(f) motion to continue, reasoning that dilatory conduct is not a basis for a continuance.
And, while the trial court declined to enter findings as to LVI's CR 41 motion to dismiss-
instead dismissing pursuant to CR 56—it reaffirmed its June 10 order awarding LVI fees
and costs incurred defending against Nguyen-Aluskar's first lawsuit.
On December 22, 2014, Nguyen-Aluskar filed a motion for reconsideration of the
trial court's summary judgment orders. The motion for reconsideration explained that
since filing her response to the motions for summary judgment, Nguyen-Aluskar clarified
an "unfortunate miscommunication" with Dr. Bensinger. She explained that because they
resolved the miscommunication, Dr. Bensinger was willing to provide a declaration
providing his expert medical opinions. Nguyen-Aluskar attached several exhibits to her
motion for reconsideration. She attached Dr. Bensinger's declaration. In addition to
attaching Dr. Bensinger's declaration, Nguyen-Aluskar also provided a list of additional
medical experts that she contacted after Dr. Bensinger declined to serve as an expert
witness. And, she also included a personal declaration dated December 20, 2014.
No. 73018-5-1/7
On January 5, 2015, the trial court denied Nguyen-Aluskar's motion for
reconsideration. Nguyen-Aluskar appeals.
DISCUSSION
Nguyen-Aluskar argues that the trial court abused its discretion when it awarded
LVI costs and statutory attorney fees under CR 41(d) that it incurred defending against
her original lawsuit. She also contends that the trial court abused its discretion when it
denied her request for a CR 56(f) continuance after Dr. Bensinger withdrew. She claims
the trial court erred in granting summary judgment in favor of LVI and Dr. Jensen. Finally,
she alleges that the trial court abused its discretion when it denied her motion for
reconsideration of the trial court's order granting summary judgment.
I. CR 41(d) Costs and Fees
Nguyen-Aluskar first argues that the trial court abused its discretion when it
awarded LVI costs and fees in its June 10, 2014 order.
Nguyen-Aluskar moved for and was granted a voluntary nonsuit of her first lawsuit
against LVI and Dr. Jensen pursuant to CR 41 (a)(1 )(B). Nguyen-Aluskar filed the current
action, individually, against LVI on February 21, 2014. Like in her first action, she alleged
that Dr. Jensen and LVI negligently performed the enhancement procedure, failed to
obtain her informed consent, and violated the CPA by representing that she would have
"falcon-like vision" after the procedure. She alleged the same damages as in the first
complaint, but because her husband was no longer a party to the lawsuit, she did not
allege damages for loss of consortium. She also removed loss of consortium from
damages sought under her prayer for relief.
No. 73018-5-1/8
On May 30, 2014, LVI filed a motion for costs and fees pursuant to CR 41(d).1 LVI
argued that because the lawsuit Nguyen-Aluskar originally commenced was based upon
almost the exact same allegations as those in her February 21, 2014 complaint, that it
was entitled to costs incurred defending against the initial action. The trial court granted
LVI's motion on June 10, 2014.
On appeal, Nguyen-Aluskar argues that the trial court abused its discretion when
it awarded LVI fees under CR 41(d), because her claims in the second lawsuit were
different than those in the first. She contends this is so, because Nguyen-Aluskar's
husband at the time was removed from the action, the loss of consortium claim was
removed, and the issues were narrowed.2
1 CR 41(d) states, "If a plaintiff who has once dismissed an action in any court
commences an action based upon or including the same claim against the same
defendant, the court may make such order for the payment of taxable costs of the action
previously dismissed as it may deem proper and may stay the proceedings in the action
until the plaintiff has complied with the order."
2 LVI argues that Nguyen-Aluskar cannot challenge the trial court's June 10, 2014
order on appeal, because she failed to designate the issue in her notice of appeal.
Nguyen-Aluskar's notice of appeal did not seek review of the June 10 order. But, an
appellate court may exercise its discretion in considering a case on its merits despite a
technical flaw in compliance with the rules of appellate procedure. See RAP 1.2(a); Hiner
v. Bridaestone/Firestone, Inc., 138 Wash. 2d 248, 263, 978 P.2d 505 (1999). Cases and
issues should not be determined on the basis of compliance or noncompliance with the
rules of appellate procedure except in compelling circumstances where justice demands
it. RAP 1.2(a). The purpose of a notice of appeal is to notify the adverse party that an
appeal is intended. In re Truancy of Perkins, 93 Wash. App. 590, 594, 969 P.2d 1101(1999),
abrogated on other grounds bv Bellevue School Dist. v. E.S., 148 Wn. App. 205,199 P.3d
1010 (2009), reversed bv 171 Wash. 2d 695, 257 P.2d 570 (2011). If the appellant's brief
sets forth assignments of error, arguments on the issues raised, and references to the
legal authority, the opposing party is not unduly prejudiced by the court's decision to
review an issue not raised in the notice of appeal. Id Here, Nguyen-Aluskar assigned
error to the trial court's June 10 order in her opening brief and she dedicated several
pages of her opening brief to related arguments and legal authority. Therefore, our
consideration of the issue does not unduly prejudice LVI.
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No. 73018-5-1/9
The award of costs against a plaintiffwho has once dismissed an action and then
commences an action based upon the same claim is a matter within the trial court's
discretion. CR 41 (d) ("[T]he court may make such order for the payment of taxable costs
of the action previously dismissed as it may deem proper."). Where the decision or order
of the trial court is a matter of discretion, it will not be disturbed on review except on a
clear showing of abuse of discretion. In re Marriage of Freeman, 169 Wash. 2d 664, 671,
239 P.3d 557 (2010).
Nguyen-Aluskar first argues that the case the trial court relied on to award LVI
costs and fees—Johnson v. Horizon Fisheries. LLC. 148 Wash. App. 628, 201 P.3d 246
(2009)—is distinguishable. In Johnson, the trial court granted Horizon Fisheries a cost
and statutory fee award under CR 41(d). id\ at 632. It did so, because Johnson moved
to voluntarily dismiss his lawsuit when his attorney withdrew and then refiled the same
action. Id at 631-32. The Johnson court reasoned that because Johnson chose to
prevent a trial when he took the voluntary dismissal, he should be responsible for the
costs Horizon Fisheries reasonably incurred in anticipation of trial. ]d. at 636.
Nguyen-Aluskar designated in the record Horizon Fisheries' motion for costs. She
relies on it for the assertion that the Johnson court's reasoning for affirming the award
was based on the fact that Johnson's nonsuit was related to his failure to prosecute due
to methamphetamine use. Nguyen-Aluskar argues that the facts in Johnson are
distinguishable from her case, because she diligently prosecuted her initial lawsuit. But,
there is no indication that the Johnson court considered the reason behind Johnson's
voluntary dismissal when deciding whether to award costs under CR 41(d). Id. at 633-
36. Notably, the Johnson court did not include in its decision any of the facts Nguyen-
No. 73018-5-1/10
Aluskar discusses from Horizon Fisheries' motion. See id. The court awarded the costs
based on the fact that Johnson filed the same lawsuit after the voluntary nonsuit. See id,
at 632, 636.
Nguyen-Aluskar also argues that the award of costs and fees was an abuse of
discretion, because her first action was different than her second action. The trial court
found that Nguyen-Aluskar's complaint was not substantially different from her earlier
complaint, as the second complaint alleged substantially similar claims. The only
differences between Nguyen-Aluskar's first complaint and her second complaint is that
she removed her then-husband as a party and removed the loss of consortium claim.
Otherwise, her second action includes the same claims. The language of CR 41(d) is
clear if the second action includes the same claim against the same defendant, the court
may order costs for the action previously dismissed.
Nguyen-Aluskar further contends that because LVI did not insinuate that it would
incur costs as a result of the voluntary nonsuit and did not object to the nonsuit that it is
now—after the dismissal of her first lawsuit—estopped from seeking costs. Because
Nguyen-Aluskar provides no authority for the assertion that LVI had to object or inform
her that it intended to seek costs under CR 41(d) in the wake of her voluntary nonsuit, we
do not address this argument. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev,
118 Wash. 2d 801, 809, 828 P.2d 547 (1992) (stating that arguments not supported by
authority will not be considered).
Finally, Nguyen-Aluskar argues that an award of costs to LVI results in a windfall,
because LVI is using the same resources obtained in the previous action for the current
action. In other words, she argues that LVI should be compensated for only those costs
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No. 73018-5-1/11
incurred in the first lawsuit that were specific to the first lawsuit. But, once again, she
provides no authority for this assertion. And, her assertion that LVI will not need to
duplicate costs incurred defending against the first lawsuit in order to defend against the
present lawsuit is purely speculative.
We conclude that the trial court did not abuse its discretion when it awarded LVI
costs and statutory attorney fees3 under CR 41(d).
II. Motion for Continuance
Nguyen-Aluskar argues that the trial court abused its discretion when it denied her
request for a CR 56(f) continuance, because she demonstrated good cause for the
continuance.
CR 56(f) states:
Should it appear from the affidavits of a party opposing the motion that he
cannot, for reasons stated, present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order as is just.
The court may deny a continuance under the rule if
(1)the requesting party does not offer a good reason for the delay in
obtaining the desired evidence; (2) the requesting party does not state what
evidence would be established through the additional discovery; or (3) the
desired evidence will not raise a genuine issue of material fact.
Turner v. Kohler. 54 Wash. App. 688, 693, 775 P.2d 474 (1989). Only one of the qualifying
grounds is needed for a denial. Pelton v. Tri-State Mem'l Hosp.. 66 Wash. App. 350, 356,
3 While an award of attorney fees is improper under CR 41(d), it is within the trial
court's discretion to award statutory attorney fees. See Hall v. Stolte, 24 Wash. App. 423,
426, 601 P.2d 967 (1979); Johnson, 148 Wash. App. at 635.
11
No. 73018-5-1/12
831 P.2d 1147 (1992). This court reviews denials of CR 56(f) motions for abuse of
discretion. MRC Receivables Corp. v. Zion, 152 Wn. App. 625,629, 218 P.3d 621 (2009).
Nguyen-Aluskar's consolidated response to LVI's and Dr. Jensen's motions for
summary judgment stated that she had a good reason for the delay, because her expert
witness withdrew on the eve of the due date of her opposition leaving her without an
expert and without an opinion to present. She stated that her "subsequent expert
witness's opinion" would address the standard of care and informed consent issues
present in the lawsuit.
The trial court denied Nguyen-Aluskar's CR 56(f) motion to continue the summary
judgment hearing, reasoning that dilatory conduct is not a basis for a continuance. The
trial court noted that in the three and a half weeks since Nguyen-Aluskar's summary
judgment response was due, she submitted nothing supporting the fact that she made
any efforts to find another expert after Dr. Bensinger withdrew. And, the trial court also
noted that Nguyen-Aluskar had failed to respond to interrogatories five months earlier,
when those interrogatories specifically asked her to identify her experts.4 The trial court
ultimately concluded that to grant the continuance would support Nguyen-Aluskar's
dilatory conduct.
4 Nguyen-Aluskar responded to LVI's interrogatories and requests for production
in June 2013—for the first lawsuit. In response to LVI's interrogatory asking for the name
of each expert witness Nguyen-Aluskar expected to call at trial, Nguyen-Aluskar stated
that expert witnesses had not yet been determined. She stated that Dr. Bensinger "may
serve" as Nguyen-Aluskar's medical expert. But, the first lawsuit was dismissed. LVI
again served interrogatories and requests for production on Nguyen-Aluskar on August
29, 2014—for the second lawsuit. Nguyen-Aluskar did not respond to LVI's August 29
discovery request. Not until November 24, 2014 in her possible primary witness
disclosure did Nguyen-Aluskar identify Dr. Bensinger as a medical expert witness in the
second lawsuit.
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No. 73018-5-1/13
Nguyen-Aluskar relies on Coggle v. Snow. 56 Wash. App. 499, 507, 784 P.2d 554
(1990), for the assertion that when a party knows of the existence of a material witness
and shows good reason why the witness's affidavit cannot be obtained in time for the
summary judgment proceeding, the court has a duty to give the party a reasonable
opportunity to complete the record before ruling on the case. In Coggle, the court
concluded that the trial court abused its discretion by denying Coggle's motion for a
continuance when he was unable to produce an expert declaration in time for a summary
judgment hearing, because he had just hired a new attorney. |d at 508.
In Coggle, the new attorney appeared for the plaintiff and filed a motion for
continuance along with a declaration, ]d at 502. The new attorney's declaration stated
that his client had already been seen by a physician, described what evidence the affidavit
of the physician would rebut, and explained that it was too late to obtain the physician's
affidavit within the time required by LR 56 because of his late substitution into the case,
jd
Unlike in Coggle, Nguyen-Aluskar did not initially attach supporting declarations to
her CR 56(f) motion to continue containing reasons why she could not yet present facts
essential to justify her opposition. And, after she filed untimely declarations, two days
before the summary judgment hearing, LVI and Dr. Jensen moved to strike the
declarations.5 The trial court sustained their objections to the declarations. Even
considering the untimely declarations, the substance of the attorney's declaration in
Coggle makes that case distinguishable. The attorney in Coggle was diligent and made
5 CR 56(c) requires an adverse party to file and serve opposing affidavits no later
than 11 calendar days before the summary judgment hearing.
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No. 73018-5-1/14
it clear that the plaintiff was nearly ready to submit the physician's affidavit and would
have been able to, but for the shortened timeline resulting from the substitution of counsel.
Id at 502. This is distinguishable from the case here, in which Nguyen-Aluskar was
effectively asking the court for time to conduct an entirely new expert search.
Here, Nguyen-Aluskar consulted with Dr. Bensinger in November 2012. Nothing
in the record affirms further contact for nearly two years, until after the summary judgment
motion had been filed. Had Nguyen-Aluskar not been dilatory in responding to discovery,
she would have much earlier had reason to follow up with Dr. Bensinger to confirm his
availability and his opinion.6 Nguyen-Aluskar had notice on October 22, 2014 that LVI
noted the motion seeking dismissal on summary judgment. And, Nguyen-Aluskar had
additional notice when LVI and Dr. Jensen filed their motions for summary judgment on
November 14, 2014. But, Nguyen-Aluskar waited until November 21, 2014 to contact Dr.
Bensinger. Nguyen-Aluskar set up a meeting with Dr. Bensinger on November 26, 2014
to "finalize [his] declaration." And, Nguyen-Aluskar learned of Dr. Bensinger's withdrawal
on November 26, 2014. Nguyen-Aluskar does not provide a good reason for her delay-
about a month—once she received notice that LVI was seeking dismissal.
We conclude that the trial court did not abuse its discretion when it denied Nguyen-
Aluskar's CR 56(f) motion for a continuance.7
6 LVI points out that there were other events in the litigation that should have
prompted communication between Nguyen-Aluskar and Dr. Bensinger prior to her
response to the motions for summary judgment. Specifically, that Nguyen-Aluskar should
have confirmed the existence of supportive expert testimony when LVI served her with its
first interrogatories and requests for production several months prior to the summary
judgment hearing—on August 29, 2014. Failure to identifyan expert invited the summary
judgment motions.
7 Because only one qualifying ground is needed for the trial court to properly deny
a motion for continuance, we need not address whether Nguyen-Aluskar sufficiently
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No. 73018-5-1/15
III. Motion for Reconsideration
Nguyen-Aluskar argues that the trial court abused its discretion when it denied her
motion for reconsideration of the trial court's order granting summary judgment.8
A. Standard of Review
CR 59 governs motions for reconsideration. We review a trial court's denial of a
motion for reconsideration and its decision to consider new or additional evidence
presented with the motion to determine if the trial court's decision is manifestly
unreasonable or based on untenable grounds. Martini v. Post, 178 Wash. App. 153, 161,
313 P.3d 473 (2013).
Reversal of the trial court's order denying a motion for reconsideration of an order
granting summary judgment is appropriate when new or additional evidence creates a
genuine issue of material fact. ]d at 157. The trial court's denial of a motion for
reconsideration may be manifestly unreasonable ifthe evidence, when viewed in the light
stated what evidence would be established through the additional discovery or whether
the desired evidence would raise a genuine issue of material fact. See Pelton, 66 Wn.
App. at 356. But, we note that unlike in Coggle, Nguyen-Aluskar did not maintain that
she had already found a specific expert who would provide a declaration. Rather, she
stated only that she generally planned to find another expert ifallotted more time.
8 Although Nguyen-Aluskar designates the trial court's orders granting summary
judgment in her notice of appeal, she appears to concede that summary judgment was
properly granted on the record before the trial court at the time it made its original
summary judgment rulings. All of her arguments focus on the propriety of summary
judgment based on Dr. Bensinger's declaration and her December 20, 2014 personal
declaration. She did not submit either declaration until after the court granted LVI's and
Dr. Jensen's summary judgment motions. While declarations were attached to Nguyen-
Aluskar's response to the motions for summary judgment (her declaration and her
attorney's declaration), the trial court sustained LVI's and Dr. Jensen's objections to those
declarations and properly excluded them. Therefore, we focus on the trial court's ruling
on Nguyen-Aluskar's motion for reconsideration—and the evidence available at that point
in time—instead of what was available when the trial court made its original rulings on the
motions for summary judgment.
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No. 73018-5-1/16
most favorable to the nonmoving party, creates a genuine issue of material fact as to the
nonmoving party's claims, jd at 164. A material fact is one upon which the outcome of
the ligation depends, in whole or in part. Coggle, 56 Wash. App. at 509.
B. Only Informed Consent Claim Considered on Appeal
Nguyen-Aluskar argues that Dr. Bensinger's declaration creates a genuine issue
of material fact that precludes summary judgment as to her informed consent claim. She
also argues that her personal declaration provides the necessary support for her
additional claims (CPA; extreme and outrageous conduct; fraud and misrepresentation;
negligent training, management and supervision; and failure to warn).
LVI challenges the adequacy of Dr. Bensinger's declaration as to all of Nguyen-
Aluskar's claims. Dr. Jensen argues only that Dr. Bensinger's declaration is insufficient
to maintain Nguyen-Aluskar's informed consent claim. He does so, because he argues
that Nguyen-Aluskar waived her right to appeal the dismissal of her claims for CPA
violations and medical negligence. Specifically, Dr. Jensen notes that Nguyen-Aluskar's
opening brief did not address or assign error to the trial court's dismissal of her CPA claim
or the dismissal of her medical negligence claim. He also notes that Dr. Bensinger's
declaration focuses only on the informed consent claim.
This court does not consider arguments raised for the first time in a reply brief.
Nakatani v. State. 109 Wash. App. 622, 625 n.1, 36 P.3d 1116 (2001). Nguyen-Aluskar's
opening brief quite clearly addresses whether Dr. Bensinger's declaration creates a
genuine issue of material fact as to her informed consent claim. It also quite clearly does
not provide any argument as to Nguyen-Aluskar's CPA claim. Nor does Nguyen-
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No. 73018-5-1/17
Aluskar's opening brief address her general medical negligence claim. Therefore, we
consider only Nguyen-Aluskar's informed consent claim.
C. Evidence Before the Trial Court
As a preliminary matter, the parties dispute what evidence the trial court actually
considered when it ruled on Nguyen-Aluskar's motion for reconsideration.
Nguyen-Aluskar argues that the trial court abused its discretion when it denied her
motion for reconsideration, because Dr. Bensinger's declaration constituted newly
discovered evidence pursuant to CR 59(a)(4)9 establishing a ground for reconsideration.
But, the trial court's order denying Nguyen-Aluskar's motion for reconsideration stated
that in making its decision, it reviewed Nguyen-Aluskar's motion for reconsideration, her
attorney's declaration and the exhibits attached thereto. The exhibits included, among
other things, Dr. Bensinger's declaration and Nguyen-Aluskar's personal declaration
signed on December 20, 2014. The court's order gives no indication that it rejected any
of the proffered evidence on reconsideration as untimely or inadmissible.
LVI and Dr. Jensen argue that the declarations submitted for the first time with
Nguyen-Aluskar's motion for reconsideration were submitted too late to be considered by
the trial court and that we should not consider them. The decision to consider new or
9 Nguyen-Alusukar first argues that the trial court abused its discretion when it
denied her motion for reconsideration, because Dr. Bensinger's withdrawal constituted
surprise under CR 59(a)(3). Under CR 59(a)(3), a motion for reconsideration may be
granted if a party's rights were materially affected by surprise which ordinary prudence
could not have guarded against. Nguyen-Aluskar argued that she was entitled to a
continuance, because Dr. Bensinger withdrew at the last minute. In other words, she
argued that Dr. Bensinger's withdrawal was a complete surprise. But, the trial court
concluded that learning of Dr. Bensinger's withdrawal so late was as a result of Nguyen-
Aluskar's dilatory conduct. The same facts and reasons that supported denial of the
continuance affirm that it was not an abuse of discretion to deny reconsideration on this
basis.
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additional evidence presented with a motion for reconsideration is squarely within the trial
court's discretion. ]d at 162. In the context of summary judgment, unlike in a trial, there
is no prejudice if the court considers additional facts on reconsideration, id Generally,
nothing in CR 59 prohibits the submission of new or additional materials on
reconsideration. Id. Therefore, the trial court's decision to consider the two new
declarations submitted on reconsideration was not manifestly unreasonable.
We will review the trial court's decision assuming it considered the declarations.
D. No Issue of Material Fact as to Informed Consent
RCW 7.70.050 sets out the standard for informed consent. A plaintiff alleging
negligence on the basis of failure to obtain informed consent has the burden of
establishing (a) that the health care provider failed to inform the patient of a material fact
or facts relating to the treatment, (b) that the patient consented to the treatment without
being aware of or fully informed of such material fact or facts, (c) that a reasonably prudent
patient under similar circumstances would not have consented to the treatment ifinformed
of such material fact or facts, and (d) that the treatment in question proximately caused
injury to the patient. RCW 7.70.050.
A signed consent form that sets out specific criteria is prima facie evidence that
the patient gave his or her informed consent to the treatment administered.10 RCW
10 The consent form must set forth (1) the nature and character of the proposed
treatment, (2) the anticipated results of the proposed treatment, (3) the recognized
possible alternative forms of treatment, and (4) the recognized serious possible risks,
complications, and anticipated benefits involved in the treatment and in the recognized
possible alternative forms of treatment, including nontreatment. RCW 7.70.060(1 )(a).
Nguyen-Aluskar does not allege that the substance of the forms was statutorily deficient.
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7.70.060. A plaintiff has the burden of rebutting this prima facie evidence of informed
consent by a preponderance of the evidence. RCW 7.70.060.
Here, Nguyen-Aluskar does not dispute that she signed both the one page
enhancement consent form and the original consent form. And, by signing the one page
consent form, Nguyen-Aluskar agreed that she had been provided a copy of the original
six page form and re-read the form. The one page consent form warned that there could
be "complications" and specifically listed loss of vision, vision which cannot be completely
corrected with glasses or contact lenses, infection, and inflammation. The original six
page form specifically indicated that requiring reading glasses is a risk of the procedure.
And both forms emphasized that there are nonsurgical alternatives to the procedure.
To rebut her signature on the informed consent forms, Nguyen-Aluskar relied on a
general denial in her declaration that she was not sufficiently informed about all of the
risks of the procedure. A general denial is not sufficient to create a material issue of fact.
See CR 56(e); Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co.. 122 Wash. App. 736,
744, 87 P.3d 774 (2004). Thus, Nguyen-Aluskar must rely on only Dr. Bensinger's
declaration—based in part on her hearsay statements—to create a material question of
fact about informed consent.
Evidence submitted in opposition to summary judgment must be admissible.
SentinelC3. Inc. v. Hunt, 181 Wash. 2d 127, 141, 331 P.3d 40 (2014). A declaration in
support of or in opposition to summary judgment must satisfy the standard of CR 56(e).
Doe v. Puget Sound Blood Ctr, 117 Wash. 2d 772, 787, 819 P.2d 370 (1991). The
declaration, like an affidavit, must be made on personal knowledge, set forth admissible
evidentiary facts, and affirmatively show that the declarant is competent to testify to the
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matters stated. McKee v. Am. Home Prods.. Corp.. 113 Wash. 2d 701, 706, 782 P.2d 1045
(1989).
An expert witness may base his or her opinion upon hearsay. Deep Water
Brewing, LLC v. Fairway Resources Ltd.. 152 Wash. App. 229, 275, 215 P.3d 990 (2009).
And, the trial court may allow the admission of otherwise hearsay evidence and
inadmissible facts for the purpose of showing the basis of the expert's opinion, but the
admission of these facts is not substantive proof of them. Allen v. Asbestos Corp., 138
Wash. App. 564, 579-80, 157 P.3d 406 (2007).
In Allen, the plaintiff sued a company alleging that his lung cancer was caused by
asbestos dust from a product the company manufactured that his father brought home
from work on his clothes. Id at 569. The Allen court concluded that the trial court properly
struck portions of a doctor's declaration that included statements concluding that the
plaintiff was exposed to asbestos, ]d at 580-81. The court opined that the doctor was
qualified to testify about only the medical effect that asbestos had on the plaintiff,
assuming the plaintiff was actually exposed to asbestos. ]d It reasoned that the expert's
opinion about factual matters outside his industrial hygiene and epidemiology expertise—
whether the company's products were present or used at the father's workplace—were
properly excluded as substantive evidence. ]d at 581.
Here, the relevant statements in Dr. Bensinger's declaration amount to the
following: (1) Nguyen-Aluskar met briefly with Dr. Jensen, but did not discuss any
substantive issues, the risks, or go over informed consent, (2) The enhancement consent
form was only one page whereas the original consent form was six pages, and (3)
Nguyen-Aluskar was unable to read the form because of the administration of eye drops
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so the technician showed her where to sign. Based on that information, Dr. Bensinger
concluded that it would not have been prudent or reasonable for a doctor to rely on the
one page consent form, because too much time had passed and because a full disclosure
should have been used. And, he concluded that Nguyen-Aluskar "should have been
informed that she should require reading glasses" after the procedure. He also stated
that a "reasonably prudent physician" would have discouraged Nguyen-Aluskar from
undergoing a second procedure based upon the potential risks and side effects. He
opined that a reasonably prudent physician would have performed the surgery only ifthe
patient had consented after having been well informed of the risks and then only if the
patient had insisted. Dr. Bensinger's declaration states that he drew his opinions based
on his personal knowledge, training, and experience as a physician, his review of Nguyen-
Aluskar's medical records, and his interview and examination of Nguyen-Aluskar.
As illustrated in Allen, whether an LVI technician put drops in her eyes prior to her
signing the consent form so she could not read, whether she discussed any substantive
issues or informed consent with Dr. Jensen, and whether LVI recommended that she
undergo the procedure are factual matters for which Dr. Bensinger has no personal
knowledge. And, they are not matters of ophthalmological expertise. In the context of
Dr. Bensinger's declaration they are simply hearsay statements. Those statements
cannot be considered as substantive evidence and do not create a genuine issue of
material fact merely by virtue of being included in his declaration. See Allen, 138 Wn.
App. at 579-80.
Significantly, Nguyen-Aluskar did not include those key foundational facts relied
upon by Dr. Bensinger in her declaration. The facts simply were not in evidence. Without
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them, Dr. Bensinger's declaration lacks the factual foundation necessary to support its
ultimate conclusions. And, Dr. Bensinger's declaration effectively concedes that had the
original six page form been used on the day of the enhancement procedure instead of the
truncated one page form, that Nguyen-Aluskar would have received adequate informed
consent. Nguyen-Aluskar's signature on both forms constitutes prima facie evidence of
informed consent. Nguyen-Aluskar has not raised a material issue of fact to rebut that
presumption.
Because Nguyen-Aluskar fails to demonstrate the existence of any genuine issues
of material fact pertaining to her informed consent claim, the trial court did not abuse its
discretion when it denied Nguyen-Aluskar's motion for reconsideration.
We affirm.
WE CONCUR:
i/\ok»Y 1^5
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