Charlie Y. Cheng v. Spokane Eye Clinic

FILED
JUNE 9,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CHARLIE Y. CHENG, )
) No. 32198-3-III
Appellant, )
)
v. )
)
SPOKANE EYE CLINIC, ) UNPUBLISHED OPINION
JASON H. JONES, MD, and )
ROBERT S. WIRTHLIN, MD, )
)
Respondents. )
KORSMO, J. - Appellant Charlie Cheng appeals the summary judgment dismissal
of his medical malpractice action. We agree with the trial court that the lack of an expert
witness to support the claims doomed this action. The judgment is affirmed.
FACTS
Mr. Cheng, an inmate at the Airway Heights Correctional Center, experienced
vision loss in his left eye. He was taken to the Spokane Eye Clinic (SEC) for treatment
on August 5, 2010. There two doctors diagnosed an infection. He was treated with
antibiotics and underwent a vitrectomy.l Due to pain following the vitrectomy, a third
1 Vitrectomy involves the removal ofthe vitreous gel from the middle of the eye.
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Cheng v. Spokane Eye Clinic, et al.
doctor at SEC eventually perfonned an enucleation (removal) of the left eye on
September 3, 2010.
In June 2013, Mr. Cheng, acting pro se, mailed a copy of a summons and
complaint by certified mail to SEC and the two doctors involved in the August treatment.
Attorney James B. King responded for the three defendants June 19, 2013 by letter
demanding that the action be filed in superior court. Mr. Cheng filed the action June 28,
2013. The complaint alleged tortious actions by governmental entities, contributory fault,
negligence, res ipsa loquitur, vicarious liability, and lack of infonned consent.
On July 6, 2013, Mr. Cheng asked the superior court for permission to serve the
defendants by certified mail. The record does not reflect that permission was granted. A
sheriffs deputy thereafter served a complaint on the first doctor by leaving it with an
employee of SEC. A deputy sheriffIeft SEC's copy of the complaint with an attorney.
SEC and the first doctor jointly answered the complaint on July 30, 2013,
asserting various defenses including lack of service and expiration of the statute of
limitations. The second doctor did not answer the complaint until September 9. He did
not challenge the timeliness of the action or the service of process.
SEC and the first doctor moved for summary judgment on October 8 on various
theories, including lack of service and statute of limitations grounds. The second doctor
filed his motion for summary judgment the following day. The trial court ultimately
granted the motions for summary judgment on several grounds, including insufficient
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Cheng v. Spokane Eye Clinic, et al.
service on SEC and the first doctor, a determination that negligence did not state a cause
of action for Eighth Amendment purposes, and a conclusion that all claims failed due to
lack of support by a medical expert.
Mr. Cheng, still pro se, filed an appeal to this court.
ANALYSIS
Although the appeal asserts several theories challenging the summary judgment
ruling, we need only address the one issue common to all defendants since it is
dispositive of the appeal. That issue involves the absence of any medical expert support
for the action.
Initially, however, we note the well settled standards governing review of this
summary judgment appeal. The appellate court reviews those matters de novo,
considering the same evidence presented to the trial court. Lybbert v. Grant County, 141
Wash. 2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn
from them, are viewed in the light most favorable to the nonmoving party. ld. If there is
no genuine issue of material fact, summary judgment will be granted if the moving party
is entitled to judgment as a matter of law. ld.
Mr. Cheng's claims against the doctors and clinic involve both negligence and
informed consent theories. Chapter 7.70 RCW. Although he eschews the label, a
negligence action brought against medical professionals is considered to be a malpractice
!
claim. See BLACK'S LAW DICTIONARY, 1044-45 (9th ed. 2004) (defining "malpractice"
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t
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Cheng v. Spokane Eye Clinic, et al.
as "An instance of negligence or incompetence on the part of a professional." BLACK'S
at 1044; and defining "medical malpractice" as "A doctor's failure to exercise the degree
of care and skill that a physician or surgeon of the same medical specialty would use
under similar circumstances." BLACK'S at 1044-45).
A cause of action for medical negligence requires the plaintiff to show that (1) the
healthcare provider failed to exercise the requisite standard of care~ and (2) such failure
was a proximate cause of the plaintiffs injuries. RCW 7.70.040.
To defeat summary judgment in almost all medical negligence cases, the plaintiff
must produce a medical expert witness establishing the elements. Seybold v. Neu, 105
Wash. App. 666, 676, 19 P.3d 1068 (2001); Young v. Key Pharm., Inc., 112 Wash. 2d 216,
227-28,770 P.2d 182 (1989). There are a few exceptions to the general rule necessitating
an expert in medical malpractice cases. For example, no expert is needed when the facts
are within the understanding of lay persons, such as "the negligence of amputating the
wrong limb or poking a patient in the eye while stitching a wound on the face." Young,
112 Wash. 2d at 228.
Although Mr. Cheng argues to the contrary, this is not one of those obvious
exceptions. SEC did not remove or treat the wrong eye or poke his healthy eye while
treating his unhealthy eye. Instead, the claim raises questions of complex medical
conditions and treatment, such as the proper use and procedure for a vitrectomy and the
proper course of antibiotic treatment for Mr. Cheng's ailment. An expert was necessary
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Cheng v. Spokane Eye Clinic, et al.
here to establish the standard of care. The trial court correctly realized that Mr. Cheng's
failure to list or elicit testimony from an expert was fatal to his medical negligence claim.
The same result applies to the informed consent theory. A cause of action for
informed consent requires the plaintiff to prove:
(a) That the health care provider failed to inform the patient of 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 if informed of such material fact
or facts; and
(d) That the treatment in question proximately caused injury to the
patient.
RCW 7.70.050.
RCW 7.70.050(2) defines a "material fact" as one to which significance would be
attached in deciding whether or not to submit to the proposed treatment and has been
defined by case law to mean a possible risk of a serious nature. See Bays v. St. Luke's
Hosp.,63 Wn. App. 876, 825 P.2d 319 (1992). Our courts have held that "expert
testimony is required ... to prove the existence of a risk, its likelihood of occurrence, and
the type of harm in question ...." ld. at 881.
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Cheng v. Spokane Eye Clinic, et at.
Mr. Cheng failed to list an expert witness to establish the necessary facts for his
informed consent claim. Summary judgment in favor of defendants was proper on this
basis.
Few medical treatment related causes of action can be litigated without expert
testimony establishing the nature of the medical issue, the standard of care, and the
defendant's alleged deviation from that standard. This case is not one of the rare
exceptions. Accordingly, the trial court properly dismissed the action due to the absence
of expert support for the claims.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
-t4fi5i} \5,
Lawrence-Berre ,J.
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