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Brooks v. Nank

February 3, 1997


Appeal from Superior Court of Snohomish County. Docket No: 94-2-03744-5. Date filed: 07/24/95. Judge signing: Hon. Ronald L. Castleberry.

Authored by Ann L. Ellington. Concurring: Faye C. Kennedy, H. Joseph Coleman.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Mary Brooks had severe pain in her knee, which continued despite knee replacement surgery. An x-ray taken three months after the surgery revealed a loose piece of cement like that used to glue the implant to her bone. But her surgeon, Dr. Nank, did not attribute her pain to the cement and did not remove it. Brooks sued Nank for malpractice after another doctor removed the cement and her pain disappeared. We affirm the trial court's grant of summary judgment in Nank's favor because Nank's expert destroyed all reasonable inferences of negligence. The burden, therefore, shifted to Brooks to present evidence sufficient to support a reasonable inference that Nank was negligent. Because Brooks failed to present expert testimony, the trial court did not err when it granted summary judgment of dismissal to Nank.


Mary Brooks was experiencing severe pain in her knee that was gradually worsening, so in August 1991 she had knee replacement surgery. Dr. David Nank performed the surgery. The knee implant was cemented to the bone, excess cement was removed, then Brooks' knee was held fully extended until the cement hardened. After the cement hardened, the knee was flexed and additional excess cement was removed. Nank then inserted a Hemovac drain and closed the wound.

Despite the surgery, Brooks' knee pain remained. In September 1991, she described her pain as "awful awful." In October, she told Nank her pain was "unchanged or maybe worse." On November 7, 1991, she said it hurt 24 hours a day. An x-ray taken that day showed what looked to Nank like a piece of surgical cement. He concluded the cement might account for some of the snapping in Brooks' knee, but it probably did not explain her pain. Because he did not know why she hurt, Nank arranged for Brooks to see another orthopedist, Dr. Krengel. Krengel was "also at a loss to explain her pain."

Despite following the courses of treatment recommended by Krengel and Nank, Brooks continued to have pain. When Nank last saw Brooks on May 12, 1992, he noted that her pain continued "24 hours a day," but that "objectively, her knee looks excellent."

On June 4, 1993, Brooks, still in pain, sought treatment at Harborview Medical Center. Dr. Milton Routt saw the cement on the x-ray and discussed options for treatment, including "further conservative management," referral to the Pain Clinic, and surgery to remove the cement if it was in fact in the joint cavity. Brooks insisted on surgery, so Routt operated and removed the cement, which he described as approximately 5 millimeters in all dimensions. *fn1 After the surgery, Brooks' pain disappeared.

Brooks sued Nank for medical malpractice. She claimed he was negligent for leaving "cement in the knee at the time of his surgery and/or failing to remove the piece of cement upon identifying its presence after the surgery."

Nank moved for summary judgment of dismissal. In support of his motion, Nank attached the declaration of Dr. James Crutcher, an orthopedic surgeon who specialized in joint replacement surgery. Crutcher, who claimed to be familiar with the standard of care for orthopedic surgeons in Washington, expressed his opinion that Nank's care of Brooks, including the surgery and follow-up care, were "appropriate and complied with the standards of reasonable prudence for orthopedic surgeons in the State of Washington[.]" Crutcher explained that "ectopic cement" or cement that was out of its proper place was considered a complication that occurs in a small percentage of that type of surgical procedure, but that it generally did not cause the kind of pain Brooks experienced:

In my experience, such ectopic cement is usually asymptomatic and causes no problem for the patient. The occurrence of this ectopic cement does not, in my opinion, indicate that there was any deviation from the appropriate standards of reasonable prudence for orthopedic surgeons in Dr. Nank's performance of his August 20, 1991 surgery on Ms. Brooks. Crutcher also expressed the opinion that Dr. Nank appropriately investigated [Brooks'] ongoing complaint [of pain] with repeated physical examinations, x-rays, and referrals to other health care providers, including two other orthopedic surgeons. In my opinion, Dr. Nank's conduct in his follow-up care of Ms. Brooks was appropriate and consistent with the standards of reasonable prudence for health care providers in the State of Washington acting in these circumstances. Based upon Crutcher's declaration, Nank argued that the burden shifted to Brooks to produce competent expert testimony that Nank negligently caused Brooks' damages.

In response to the motion for summary judgment, Brooks submitted a letter from her family physician, Dr. L. C. Hoover, indicating only that it was "reasonable to conclude that the extreme pain [Brooks] was having in her knee was due to the presence of [the cement] especially since the pain is gone now that it is removed." Hoover apparently was not available to submit a declaration before argument on the motion, but even if he had been available, Brooks argued she was not required to submit an expert opinion because her case fell into the "foreign object exception." She cited a consistent line of authority holding that "inadvertently leaving a foreign object in the body of a patient is sufficient to support an inference of negligence." Nevertheless, she asked to have an additional period of time to provide the court with an expert opinion if the court concluded her confidence in that line of authority was misplaced.

The trial court gave Brooks 60 days to produce a competent expert to "support her allegation that defendant's care and treatment fell below the standard of care[.]" When Brooks did not do so, the court granted ...

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