Linda J. Acosta v. Dept Of Corrections

Filed
Washington State
Court of Appeals
Division Two
July 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LINDA J. ACOSTA, No. 52953-0-II
Appellant,
v.
WASHINGTON STATE DEPARTMENT OF
CORRECTIONS, UNPUBLISHED OPINION
Respondent.
WORSWICK, J. — Linda Acosta appeals an order granting summary judgment dismissal of
her medical negligence lawsuit against the Department of Corrections (DOC) arising out of the
DOC’s delay in allowing Acosta to obtain a medical diagnostic test and subsequent back surgery.
She argues that res ipsa loquitur applies, thus, expert testimony was not necessary to a
determination that the DOC departed from the standard of reasonable, prudent, and appropriate
medical care. We disagree and affirm the summary judgment order.
FACTS
I. BACKGROUND
Linda Acosta is currently a 71-year old inmate at the Washington Corrections Center for
Women. During her time in incarceration, she has been diagnosed and treated for a multitude of
illnesses. Acosta’s medical history includes osteoporosis, degenerative disk disease, and
degenerative arthritis in the joints of the spine.
In October 2014, Acosta tripped on a floor mat, fell backward, and suffered an injury to
her back. Acosta experienced extreme pain in her right lower back which radiated down to her
No. 52953-0-II
knee. On November 7, Acosta visited the DOC’s health clinic where she reported to the DOC
advanced registered nurse practitioner Pamelyn Saari that she was unable to get out of bed.
Acosta was in a wheelchair and could not walk more than 10 feet because of her injury. Saari
explained to Acosta that she should get out of the wheelchair, but reluctantly allowed Acosta to
continue its use.
On November 13, Acosta underwent an X-ray which revealed a compressed fracture of
her L1 vertebra with over 50 percent loss of the vertebral body. Soon after the X-ray, Acosta
requested to see an orthopedic surgeon. Saari explained that she was treating Acosta
conservatively. Saari said that she had prescribed medications to treat Acosta’s osteoporosis,
and that Saari did not believe that an orthopedist would do anything differently. On December
30, Acosta returned to the DOC medical clinic complaining of severe pain in her lower back.
DOC medical personnel instructed Acosta to apply ice, walk, and take anti-inflammatories. The
next day, Acosta again appeared at the DOC clinic where she declared that she was in a
“[m]edical emergency” for pain and inability to stand. Clerk’s Papers at 171. She was given
Tylenol and an ice pack and referred to physical therapy.
Acosta began requesting an MRI (magnetic resonance imaging) in January 2015, which
she intended to pay for herself. The DOC has a process for self-paid medical care that involves a
series of specific steps that must be taken by an inmate, including filing paperwork, gathering
medical information, paying a processing fee, and depositing the funds necessary to cover the
cost of the procedure or appointment. Offenders cannot independently decide or elect to have
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No. 52953-0-II
medical services performed at their will during incarceration. The DOC permits a self-pay
medical procedure or appointment only if it is “medically appropriate.”1 CP at 445.
Between January 2015 and April 2015, Acosta sent multiple health services kites2 to
DOC staff, each containing some reference to or inquiry about her MRI appointment. In
February, Acosta sent kites to Saari requesting an accommodation for meals and for a
wheelchair, but Saari denied her requests, explaining that Acosta needed to continue movement.
Acosta sent multiple kites to Saari in March. Saari replied to all of Acosta’s kites on
March 25. Acosta’s March 16 kite inquired whether TRA3 had supplied information on the cost
of her MRI, and Saari responded that she “[did not] know.” CP at 284. Acosta’s March 19 kite
again inquired if the DOC had received information on her requested MRI. Saari replied, “I
don’t know. We told the TRA people about your spine (L spine) and hip areas that need
attention. I have not heard a thing.” CP at 285. Acosta’s March 24 kite again requested the
status of her MRI. Saari replied that she had “reported the body parts that are requested to be
screened,” but she had not heard back. CP at 286.
In May, DOC staff sent Acosta an initial cost estimate obtained from an outside medical
provider. Between June and September, Acosta sent four additional kites to DOC staff
1
Policy number DOC 600.020, titled “Offender-Paid Health Care,” lists criteria for determining
what is “medically appropriate,” which requires that the requested service not be provided under
the offender health plan, and the likely benefits outweigh the risks of the requested service.
2
A “kite” is a form used in prison for communication from inmates to prison staff. State v.
Puapuaga, 164 Wash. 2d 515, 518 n.2, 192 P.3d 360 (2008).
3
“TRA” refers to TRA Medical Imaging, the independent medical imaging company that
provided services to the DOC.
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No. 52953-0-II
requesting the status of her MRI request. In July, Saari told Acosta that an MRI could be as low
as $1,650, that she had sent estimates for the other sites, and that Acosta should begin depositing
funds into a medical account.
On September 11, Acosta submitted an offender complaint, alleging that the DOC was
nonresponsive to her requests for an MRI. On September 16, DOC staff responded to the
complaint stating, “Ms. Acosta, as soon as DOC publishes the new policy, we will get you sent
out.” CP at 409. The DOC offender-paid health care policy was revised on September 21 and
outlined the necessary process for approval of self-paid medical services. On September 21,
Acosta completed and submitted a worksheet in accordance with that policy. The DOC finally
scheduled Acosta’s MRI in October.
On November 24, Acosta’s MRI was performed, and DOC physician Mary Colter then
requested Acosta receive an outside surgical consult with recommended treatment. A DOC Care
Review Committee Report dated November 11 stated, in part:
“. . . L-spine MRI indicating she may need urgent decompression, per Radiologist.
. . . [January] X-ray findings reviewed by DOC Ortho and discussed. Per DOC
Ortho, she needs surgical consultation regardless of physical symptoms. . . .
Intervention Proposed: surgical consultation with treatment as indicated.
CP at 294.
In December, Acosta saw a neurosurgeon, Dr. Marc Goldman, for a surgery consultation
related to her L1 compression fracture. In his report, Dr. Goldman stated, “[G]iven the
chronicity of this there is no urgency in treatment.” CP at 253. In January 2016, Acosta had a
CT (computed tomography) scan of her spine. In February, Acosta saw Dr. Goldman for a
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No. 52953-0-II
follow up. Dr. Goldman was unsure that surgery would be beneficial and sought a second
opinion.
In March, Acosta received an assessment and a second surgical opinion from Dr.
Michael Martin and physician assistant Nicholas Harrison. Dr. Martin recommended surgery.
Saari then called Dr. Martin’s office and sent an e-mail to schedule Acosta’s surgery. On April
3, Acosta sent a kite to the DOC asking if her surgery had been scheduled, complaining that her
pain was increasing and that she could not sleep. On April 5, Saari replied, “You are
scheduled.”4 CP at 393. On April 7 and April 9, Acosta again inquired about her scheduled
surgery, and DOC Health Services Manager Jeff Perry replied that Acosta was going to receive
additional imaging.
On April 12, Acosta saw Dr. Colter, complaining of chronic low back pain. Dr. Colter
prescribed Acosta narcotic pain medication. Acosta sent five additional kites between April 13
and May 3 requesting notice that her surgery had been scheduled, and DOC staff replied that
they were calling the surgeon’s scheduler every day, and that her surgery was a priority. Acosta
filed a grievance on April 20, complaining of the delay in scheduling her surgery. A DOC
grievance coordinator responded on May 6, stating, “I think we have made some progress with
your case. Both Dr. Colter and Dr. Anderson5 are now involved and have been able to make
contact with Dr. Martin’s surgery scheduler.” CP at 414.
On May 4, Acosta underwent a preoperation assessment and evaluation. Before surgery,
Acosta’s pain prevented her from performing daily activities such as walking, bathing, dressing
4
It appears from the record that the surgery was not scheduled at this time.
5
Dr. Mary Lee Colter and Dr. Lisa Longano Anderson are DOC physicians.
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No. 52953-0-II
or using the restroom. She needed assistance from others to carry out these tasks. On June 7,
Acosta underwent spinal surgery for her Ll compression fracture. After surgery, Acosta’s back
pain substantially diminished, to where she was able to walk with a walker, and take care of her
personal needs.
II. PROCEDURAL HISTORY
Acosta filed a medical negligence lawsuit against the DOC related to the treatment she
received from the DOC. The DOC filed a motion for summary judgment, arguing that Acosta
could not establish that the medical staff violated the standard of care nor could she establish
causation. The DOC submitted declarations from Dr. Colter and Dr. Bede in support of its
motion. The declarations from Dr. Colter and Dr. Bede described all of Acosta’s medical
conditions the DOC was treating, explained the offender-paid health care policy, and opined that
DOC medical staff did not violate the standard of care. Dr. Bede declared that an MRI was an
appropriate action only after Acosta did not respond to initial conservative treatment. Finally,
Dr. Bede opined that no permanent injury was caused to Acosta due to the action or any action of
DOC medical personnel.
Acosta did not submit expert testimony, but instead argued that the doctrine of res ipsa
loquitur applied to her case. As a reply to the res ipsa loquitur argument, the DOC submitted
additional testimony of Dr. Colter relating the offender-paid healthcare procedures and process.
The trial court granted the DOC’s motion, ruling that the doctrine of res ipsa loquitur did not
apply.
Acosta appeals the trial court’s order granting summary judgment dismissal.
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No. 52953-0-II
ANALYSIS
I. STANDARDS OF REVIEW
We review a grant of summary judgment de novo, viewing the facts and reasonable
inferences in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wash. 2d 358,
368, 357 P.3d 1080 (2015). Summary judgment is properly granted when there is no genuine
issue of material fact and the moving party is entitled to summary judgment as a matter of law.
CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wash. 2d 136, 140, 960 P.2d 919 (1998). The
defendant may meet this burden by challenging the sufficiency of the plaintiff’s evidence.
Young v. Key Pharmaceuticals, Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989). Whether res
ipsa loquitur applies in a given circumstance is a question of law reviewed de novo. Curtis v.
Lein, 169 Wash. 2d 884, 889, 239 P.3d 1078 (2010).
II. LEGAL PRINCIPLES
1. Statutory Requirements for Medical Malpractice
In Washington, actions for injuries resulting from health care are governed under chapter
7.70 RCW. To prevail on their claims, plaintiffs must prove
(1) [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;
(2) Such failure was a proximate cause of the injury complained of.
RCW 7.70.040.
2. Expert Testimony Required To Establish Standard of Care and Causation
In a medical negligence action, expert testimony is generally necessary to establish that
the health care provider failed to exercise the standard of care of a reasonably prudent health care
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No. 52953-0-II
provider. Frausto v. Yakima HMA, LLC, 188 Wash. 2d 227, 232, 393 P.3d 776 (2017). However,
the plaintiff can meet this burden by showing that the doctrine of res ipsa loquitur applies. See
Miller v. Jacoby, 145 Wash. 2d 65, 33 P.3d 68 (2001) (holding that expert medical testimony was
not required to establish that nurse and physician were negligent in failing to completely remove
Penrose drain from patient during postoperative procedure). That is, when medical facts are
“‘observable by [a layperson’s] senses and describable without medical training,’” a plaintiff can
establish the standard of care for a health care provider without expert testimony. Miller, 145
Wash. 2d 65 at 72 (quoting Bennett v. Dep’t of Labor & Indus., 95 Wash. 2d 531, 533, 627 P.2d 104
(1981)).
Expert testimony is also required to establish causation in a medical negligence case.
Frausto, 188 Wash. 2d at 232. “Like the standard of care, expert testimony is always required
except in those few situations where understanding causation ‘does not require technical medical
expertise.’” Frausto, 188 Wash. 2d at 232 (quoting Young, 112 Wash. 2d at 228). Here, it is
undisputed that Acosta failed to submit expert testimony to establish either negligence or
causation. Instead, she relies on the doctrine of res ipsa loquitur to establish the first element,
and her personal testimony to establish the second.
III. RES IPSA LOQUITUR DOES NOT APPLY
Acosta argues that res ipsa loquitur applies because the DOC’s delay in scheduling her
MRI and surgery would not have occurred in the absence of negligence. In making this
argument, she is defining the “occurrence producing the injury” as the DOC’s delay in obtaining
her MRI. Br. of Appellant at 9 (quoting Miller, 145. Wn.2d at 65). Conversely, the DOC argues
that its medical treatment was not of a kind that ordinarily does not happen absent negligence. In
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No. 52953-0-II
making this argument, the DOC is defining the “occurrence” as the DOC’s medical treatment of
Acosta’s injured back. We agree with the DOC.
To prevail on a complaint for medical negligence, a plaintiff must satisfy traditional tort
elements of proof: duty, breach, injury, and proximate cause. Dunnington v. Virginia Mason
Med. Ctr., 187 Wash. 2d 629, 636, 389 P.3d 498 (2017). The doctrine of res ipsa loquitur provides
a fact finder with an inference of the defendant’s breach of duty, thus allowing a plaintiff to
establish a prima facie case of negligence when he cannot prove a specific act of negligence.
Brugh v. Fun-Tastic Rides Co., 8 Wash. App. 2d 176, 180, 437 P.3d 751 (2019).
Under some circumstances, the doctrine of res ipsa loquitur can apply to physicians and
hospitals. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wash. 2d 12, 18, 499 P.2d 1 (1972). 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.’” Curtis, 169 Wash. 2d at 889
(internal quotation marks omitted) (quoting Tinder v. Nordstrom, Inc., 84 Wash. App. 787, 792,
929 P.2d 1209 (1997)).
The doctrine applies only when the evidence shows:
(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 of the plaintiff.
Pacheco v. Ames, 149 Wash. 2d 431, 436, 69 P.3d 324 (2003).
The first element is satisfied if one of three conditions is present:
(1) 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
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No. 52953-0-II
expected without negligence; and (3) when proof by experts in an esoteric
field creates an inference that negligence caused the injuries.
Zukowsky v. Brown, 79 Wash. 2d 586, 595, 488 P.2d 269 (1971)).
The second element, exclusive control, includes situations when the defendant has the
right of control, as in a nondelegable duty, as when the defendant has actual physical control of
the agency. Hogland v. Klein, 49 Wash. 2d 216, 219, 298 P.2d 1099 (1956).
The third element requires the court to consider whether the plaintiff’s injury was due to
her voluntary action or inaction. Zukowsky, 79 Wash. 2d at 595. This element can include
plaintiff’s negligence or assumption of the risk. Zukowsky, 79 Wash. 2d at 595.
1. Accident or Occurrence Producing the Injury of a Kind Which Ordinarily Does Not
Happen in the Absence of Someone’s Negligence
To apply res ipsa loquitur, the evidence has to show that that the occurrence producing
Acosta’s injury is of the type which does not ordinarily occur in the absence of negligence.
Pacheco, 149 Wash. 2d at 436. Acosta can meet this element by meeting one of three conditions.
Acosta appears to argue only the first two conditions: whether the act causing the injury is so
palpably negligent that it may be inferred as a matter of law, and whether the general experience
and observation of mankind teaches that the result would not be expected without negligence.
Acosta meets neither condition.
Regarding the first condition, the evidence does not show that the occurrence producing
her injury is of the type which does not ordinarily occur in the absence of negligence. As
mentioned above, Acosta narrowly defines the “occurrence” as the DOC’s delay in obtaining her
MRI. This is too narrow a view. But even if we accept this argument at face value, the evidence
does not show that a delay in obtaining a medical test is the type of occurrence that does not
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No. 52953-0-II
ordinarily occur in the absence of negligence. To the contrary, there can be a multitude of
reasons for the DOC’s delay in obtaining a self-paid MRI.
For example, the evidence here shows that the MRI request required a DOC medical care
staff member to deem it “medically appropriate” before it could be approved. Acosta argues that
the delay here was caused by ineptitude and lies, but the particular facts regarding this delay are
not determinative. Our focus in analyzing this element of res ipsa loquitur is whether a delay in
obtaining a medical test is the type of occurrence that does not normally occur in the absence of
negligence. It is not, and Acosta’s argument fails on this point.
Viewing the issue as more properly framed by the DOC, that we consider all of the
DOC’s medical treatment for Acosta’s injury, her failure of proof is even more evident. Acosta
filed a medical malpractice action, which generally requires expert testimony that the medical
care provider violated the applicable standard of care. Frausto, 188 Wash. 2d at 232. Acosta
makes no effort to argue that the DOC’s medical treatment of her back injury is the type of
occurrence that normally occurs in the absence of negligence. And a review of the evidence
shows that the DOC’s conservative treatment of her lumbar spine fracture is not the type of
occurrence which ordinarily does not happen in the absence of negligence. In fact, the DOC
submitted Dr. Bede’s declaration showing that the DOC’s actions in this regard were not
negligent, but instead were within the standard of care in this case.
During the entire time in question, Acosta was receiving medical care for the fall she
suffered in October 2014, and the record contains declarations from experts that describe that
care as meeting the requisite standard of care for medical professionals. Her medical providers,
the same people to review and possibly approve her MRI request, were unsure of the cause of her
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No. 52953-0-II
pain or the benefit of surgery. These facts take this case out of the realm of “palpable
negligence” where this doctrine would normally apply, i.e., drilling in the wrong side of a
patient’s jaw, leaving foreign objects in the body, or amputation of a wrong member. Pacheco,
149 Wash. 2d at 438; Zukowsky, 79 Wash. 2d at 595.
Nor does the evidence establish the second condition: whether the general experience and
observation of mankind teaches that the result would not be expected without negligence. It is
simply not within the general experience of mankind that the result claimed here—pain and
suffering experienced prior to back surgery—would not be expected without negligence.
Although Acosta appears to blame this result on the delay, our consideration of this condition
looks to the injury, not the cause. Brugh, 8 Wash. App. 2d at 184.
We hold that the evidence does not show that the accident or occurrence producing the
injury is of a kind which ordinarily does not happen in the absence of someone’s negligence.
Because Acosta fails on proving one of the necessary elements of the doctrine of res ipsa
loquitur, the doctrine is not applicable in this case and we need not consider the sufficiency of
the other required elements.
IV. SUMMARY JUDGMENT WAS PROPER
The DOC argues that the summary judgment dismissal was proper because Acosta did
not provide expert testimony on the standard of care or causation. We agree.
1. Standard of Care
To establish the standard of care, Acosta must prove 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
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No. 52953-0-II
Washington, acting in the same or similar circumstances.” RCW 7.70.040(1). Because res ipsa
loquitur does not apply here, Acosta must prove this element with expert testimony. Frausto,
188 Wash. 2d at 232. Acosta has offered no competent evidence about the standard of care in her
case, thus, she has not raised an issue of material fact as to the standard of care.
2. Causation
Acosta argues, without citation to authority, that expert testimony is not required to prove
causation in her case, and that she is qualified to testify to her pain and suffering. Acosta seems
to argue that causation in her case falls within one of the narrow exceptional cases our Supreme
Court discusses in Young v. Key Pharmaceuticals, Inc., where “the determination of negligence
does not require technical medical expertise.” 112 Wash. 2d at 228. We disagree.
To establish causation, the plaintiff must show that the alleged breach of the standard of
care “was a proximate cause of the injury complained of.” RCW 7.70.040(2). The exceptional
cases mentioned by the Supreme Court in Young that “[do] not require technical medical
expertise” include “amputating the wrong limb or poking a patient in the eye while stitching a
wound on the face.” 112 Wash. 2d at 228. In Young, our Supreme Court held that lay testimony
could be admitted “to show obvious impairments,” and is “sometimes admissible for matters
such as observations of health, disease, or injury,” but that even a pharmacist was not competent
to testify as to causation between a physician defendant’s conduct and those observed
impairments. 112 Wash. 2d at 228.
Here, although Acosta’s pain and suffering may be obvious to her, it is the causation of
that pain and suffering that is at issue. Because Acosta has offered no competent evidence about
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the proximate cause of the injury complained of, she has not raised an issue of material fact as to
proximate cause.
V. CONCLUSION
We hold that the doctrine of res ipsa loquitur does not apply, thus the evidence is not
sufficient to raise genuine issues of material fact for each element of Acosta’s claim. Moreover,
Acosta failed to raise an issue of material fact as to proximate cause. Thus, trial court’s
summary judgment dismissal is affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
______________________________
Worswick, J.
______________________________
Melnick, J.
______________________________
Sutton. A.C.J.
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