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Rash v. Providence Health & Servs.

Court of Appeals of Washington, Division 3

September 16, 2014

Robin Rash, as Personal Representative and on Behalf of All Statutory Claimants and Beneficiaries, et al., Appellants ,
Providence Health & Services et al., Respondents

Oral Argument March 18, 2014

Reconsideration denied November 6, 2014.

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[Copyrighted Material Omitted]

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Appeal from Spokane Superior Court. Docket No: 10-2-00084-9. Judge signing: Honorable Linda G Tompkins. Judgment or order under review. Date filed: 10/19/2012.

Michael J. Riccelli, for appellants.

Ryan M. Beaudoin, Steven J. Dixson, and Matthew W. Daley (of Witherspoon Kelley Davenport & Toole PS ), for respondents.

Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Stephen M. Brown.


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[183 Wn.App. 617] Fearing, J.

¶ 1 Plaintiff Robin Rash invites us to enter a path untraveled. She brings a medical malpractice claim, on behalf of her mother's estate, in the form of a lost chance, when she has no expert testimony as to a percentage of a lost chance and only expert testimony that the medical negligence may have shortened her mother's life. She has no testimony as to the length of the mother's decreased life expectancy. We decline the request to follow an unchartered course, and we affirm the trial court's grant of summary judgment on

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behalf of Sacred Heart Medical Center. A higher authority will need to map any new trail.


¶ 2 On March 5, 2008, Betty Zachow, age 82, underwent a right knee replacement surgery at Sacred Heart Medical Center (SHMC). Prior to surgery, she provided SHMC a list of her medications, including metoprolol, a beta blocker used to treat high blood pressure. Before surgery, Zachow also suffered from hypertrophic cardiomyopathy, or enlargement of the heart, a genetic condition, left ventricle [183 Wn.App. 618] outflow obstruction, and mild to moderate mitral valve stenosis. Beta blockers reduced the heart rate. The beta blockers also reduced the chance of emboli and strokes.

¶ 3 After surgery, SHMC failed to give Betty Zachow two doses of metoprolol, one during the evening of March 5 and one the following morning. On March 6, Zachow suffered a series of complications, including tachycardia and acute pulmonary edema, and was transferred to the SHMC's Intensive Care Unit. Tachycardia is a rapid heartbeat and pulmonary edema is the filling of lungs with fluid. Zachow recovered and, 10 days after she entered the hospital, SHMC released her.

¶ 4 According to Robin Rash's medical expert, Dr. Wayne Rogers, Betty Zachow suffered acute pulmonary edema and aspiration pneumonia as a result of SHMC's failure to provide the two doses of metoprolol. The edema and pneumonia aggravated Zachow's weakened heart. Acute pulmonary edema also reduced oxygen saturation to the brain. According to Dr. Rogers, Zachow should have been discharged one day after the surgery, but instead a " profound illness" resulted in a 10-day stay. According to Rogers, Zachow left SHMC in a weakened state from which she never fully recovered. Rogers concedes, however, that Zachow's heart condition would have continued to deteriorate even without SHMC's omission of medication.

¶ 5 On April 18, 2008, the SHMC's director of risk management acknowledged the medication error and offered to waive the charges for Betty Zachow's care. Zachow never responded. Over the next two years Zachow suffered two strokes.


¶ 6 This appeal has a complicated procedural background, which includes two lawsuits, later consolidated in the trial court. The background complicates a resolution of the appeal but does not impact its substantive outcome.

[183 Wn.App. 619] ¶ 7 On January 7, 2010, Betty Zachow filed a complaint, under Spokane County Superior Court cause no. 10-2-00084-9, alleging that as a result of SHMC's negligence, she developed cardiomyopathy and suffered physical injury, emotional distress, and " reduced life expectancy," among other injuries. Clerk's Papers (CP) at 6. She did not specifically allege a loss in her chances to survive. On March 21, 2010, Zachow suffered her third stroke and died. The stroke was the result of a cardiac embolism to the head.

¶ 8 On April 15, 2010, Betty Zachow's counsel sent a letter to SHMC informing it that he intended to substitute a personal representative for Zachow and " file an amended complaint to include the Estate's claims, and include the claims of the Zachow adult children as statutory beneficiaries." CP at 99. The beneficiaries are Robin Rash and her two brothers, sons of Betty Zachow. Robin Rash, Zachow's daughter, was appointed Zachow's personal representative but Rash never moved for leave to amend nor filed an amended complaint. The parties, nonetheless, beginning in at least March 2011, if not earlier, filed pleadings in Spokane County Superior Court cause no. 10-2-00084-9, whose captions removed Betty Zachow as plaintiff and named, as plaintiff, " Robin Rash, [individually and] as Personal Representative of the Estate of Betty L. Zachow, deceased, and on behalf of all statutory claimants and beneficiaries." CP at 191.

¶ 9 On March 26, 2012, the parties filed a trial management joint report, in which Robin Rash wrote, " Betty's adult children suffered from the untimely loss of [Zachow], due to [SHMC's] negligence." CP at 13. In

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response, SHMC sent a letter claiming the report was the first time it heard Rash sought survival damages for Zachow's statutory beneficiaries separate and apart from the claims made by her estate.

¶ 10 In a motion in limine, filed on March 30, 2012, SHMC moved to preclude, at trial, any reference to Betty Zachow's loss of chance of survival theory because the theory was not pled. SHMC also argued in its trial brief that [183 Wn.App. 620] Rash must establish SHMC's negligence was the " but for" cause of Zachow's injuries. CP at 235.

¶ 11 Robin Rash's trial brief, filed on April 3, 2012, argued that her original complaint gave SHMC notice that she intended to bring a lost chance of survival claim. Rash cited the original complaint's language that Zachow suffered from " reduced life expectancy." In the brief, Rash also contended that one " can bring a claim for loss of chance of survival and/or for wrongful death, based upon the substantial factor doctrine." CP at 241. To support her claim, Rash cited to deposition testimony of Wayne R. Rogers, who opined that SHMC " promoted" or " accelerated" the disease process. CP at 242. Dr. Rogers could not provide a " mathematical figure" as to the degree SHMC accelerated the disease but noted it was significant. CP at 73, 242.

¶ 12 During questioning by defense counsel at Dr. Rogers' deposition, Rogers testified:

Q. Doctor, just a couple follow-ups. Your bottom-line opinion is that because of the events in Sacred Heart in March of 2008, Ms. Zachow's deterioration was accelerated? Is that what you're basically saying?
A. Or promoted. She eventually would have died anyway, as we all do, but she had a promotion of her disease process.
Q. And you can't state, as we sit here today, how much her disease was promoted or accelerated; is that correct?
A. I can't give you a mathematical figure, but I would say it was significant and led to her death.
Q. Other than being significant and ultimately, in your opinion, resulting to her death, you can't go any farther than that?
A. No, I don't think I can.

CP at 242 (emphasis omitted).

¶ 13 On April 4, 2012, SHMC moved to strike Robin Rash's loss of chance " cause of action or, in the alternative, to continue the trial date." CP at 35. In its motion, SHMC claimed Rash never pled, disclosed in any answers, or [183 Wn.App. 621] developed any expert testimony to support a reduced loss of chance claim. Dr. Rogers' testimony, SHMC contended, was insufficient to establish SHMC as the " but for" cause of Zachow's loss of chance. CP at 36. In response to SHMC's motion to strike any lost chance theory, Rash moved to amend her complaint to include two new claims: (1) loss of chance and (2) wrongful death damages on behalf of all statutory claimants. Rash did not complain that SHMC's motion to strike was a disguised summary judgment motion. Nor did she contend she needed additional time to respond to the motion to strike. Instead, Rash joined with SHMC's request to shorten the time for the hearing on the motion to strike and her motion to amend the complaint.

¶ 14 On April 12, 2012, the trial court concluded that Robin Rash lacked the requisite evidence to support a lost chance of survival claim or a lost chance of a better outcome claim. The trial court ruled that there was no justification to deviate from the traditional " but for" causation standard applied to medical malpractice cases. CP at 141. The trial court also decided that Rash failed to plead the wrongful death claims. The court denied Rash's motion to amend her complaint and granted SHMC's motion to strike Rash's claims for loss of chance and wrongful death. Though SHMC cast its motion as a motion to strike, both parties and the trial court treated the motion as a motion for partial summary judgment. The parties submitted declarations and documentary evidence in support and in opposition to the motion. The motion focused on whether Rash made a prima facie case of a lost chance.

¶ 15 On April 16, 2012, Robin Rash, under Spokane County Superior Court Cause No. 12-2-01478-1, filed a separate action as personal representative of her mother's estate on behalf of the estate, her two brothers, and

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herself. She alleged SHMC's negligence in health care caused Betty Zachow a rapid and irregular heartbeat and permanent physical injury, exacerbated her genetic heart condition, increased the likelihood of an adverse heart attack or [183 Wn.App. 622] stroke, accelerated her decline, and was a proximate cause or substantial factor in her death. The second complaint also omits the term " lost chance of survival." The complaint seeks to recover damages on behalf of Betty Zachow's children under Washington's wrongful death laws.

¶ 16 In July 2012, Robin Rash moved to consolidate the two actions, Spokane County Superior Court cause no. 10-2-00084-9 and Spokane County Superior Court cause no. 12-2-01478-1, and the court granted her ...

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