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Reyes v. Yakima Health District

Supreme Court of Washington, En Banc

June 21, 2018

JUDITH MARGARITA REYES, on her own behalf and on behalf of the Estate of Jose Luis Reyes, Deceased, and on behalf of her minor children, Erik (n/m/n) Reyes (dob: 3/12/98) and Leslie Maria Reyes (dob: 6/23/99), Petitioners,
YAKIMA HEALTH DISTRICT, a public entity in the State of Washington; Christopher Spitters, M.D., John Does Nos. 1-20, Respondents.

          OWENS, J.

         This is a case about the sufficiency of expert witness testimony in a medical malpractice suit. Jose Reyes died after a course of treatment for tuberculosis. Judith Reyes alleges that her husband did not have tuberculosis and that the treatment prescribed to him for that disease caused him fatal liver damage due to an undiagnosed underlying liver disease.

          Judith Reyes alleges that the Yakima Health District (YHD) and Christopher Spitters, MD, were negligent in treating Jose Reyes. A year after filing suit, her expert witness submitted an affidavit alleging as much. Because allegations of misdiagnosis without deviation from the proper standard of care are not the basis for liability, we hold that the expert witness' affidavit was insufficient to create a genuine issue of material fact and affirm the Court of Appeals. In so holding, we do not require talismanic words, but the right words. For to paraphrase Mark Twain, the want of the right word makes lightning from lightning bugs.


         In April 2010, Mr. Reyes arrived at the Yakima Chest Clinic complaining of intermittent chest pain. He was initially diagnosed with pneumonia, but chest samples were ordered when the symptoms did not abate. A sputum sample tested positive for tuberculosis, and the positive results were reported to YHD. Additional sputum samples also cultured positive for tuberculosis. On May 25, 2010, Mr. Reyes began tuberculosis treatment with the YHD, consisting in part of a four-drug cocktail of isoniazid, rifampin, ethambutol, and pyrazinamide, as well as directly observed therapy. Because isoniazid can lead to severe and sometimes fatal liver toxicity, baseline liver function testing was performed at that time. The results were within the high range of normal. Mr. Reyes missed a series of directly observed therapy days in late June and early July, and was tardy in submitting blood for a liver function test. When a liver specimen was obtained on July 8, 2010, the testing demonstrated abnormal liver values.

         Due to these abnormal liver readings, YHD withheld Mr. Reyes' tuberculosis medications and directed him to report to an emergency room for inpatient treatment. YHD also contacted Dr. Spitters at that time, and Dr. Spitters spoke to Mr. Reyes by phone on July 15, 2010. Dr. Spitters directed Mr. Reyes to go to an emergency room, but Mr. Reyes failed to do so. Dr. Spitters preliminarily diagnosed Mr. Reyes with a drug-induced liver injury and instructed YHD staff to continue to hold Mr. Reyes' tuberculosis medication and refer him to an emergency room. Mr. Reyes visited YHD for additional testing on July 16, 2010, and Dr. Spitters saw him on July 22, 2010. Mr. Reyes was admitted to the University of Washington Medical Center's hepatology department, but he passed away from liver failure on August 6, 2010. Ms. Reyes sued YHD and Dr. Spitters, asserting medical malpractice, wrongful death, negligent hiring and supervision, and outrage. The negligent hiring and supervision claim is not part of this appeal.

         The trial court granted summary judgment with regard to the medical malpractice claim because Ms. Reyes' medical expert, Rosa Martinez, MD, failed to identify either the standard of care or that she was familiar with that standard, and failed to articulate with sufficient particularity the facts supporting her opinion that YHD and Dr. Spitters were negligent. Ms. Reyes filed an untimely motion for reconsideration regarding the medical malpractice claim and included a second declaration by Dr. Martinez. The trial court denied the motion for reconsideration, stating it would not consider the second declaration and it would not have been sufficient to create a material issue of fact sufficient to survive summary judgment even if it were considered.

         The defendants moved for summary judgment on the outrage claim, alleging that RCW 7.70.010 to .160 had legislatively preempted a claim for outrage derivative of medical malpractice and that the conduct complained of was not outrageous as a matter of law. The specific conduct that Ms. Reyes cited as outrageous was an alleged threat of incarceration made by YHD employees if Mr. Reyes did not comply with his tuberculosis treatment regimen. The trial court granted the motion. Regarding the wrongful death claim, the trial court granted summary judgment due to a violation of the statute of limitations, relying on Fast v. Kennewick Public Hospital District, 188 Wn.App. 43, 354 P.3d 858 (2015), which held that the applicable statute of limitations for a wrongful death claim stemming from alleged medical malpractice is the general three-year period in RCW 4.16.080.

         Ms. Reyes timely appealed the grant of summary judgment. During the pendency of the appeal, this court reversed Fast and held that the one-year tolling provision in RCW 7.70.110 applies to such a claim. Fast v. Kennewick Pub. Hosp. Dist, 187 Wn.2d 27, 384 P.3d 232 (2016). However, the Court of Appeals affirmed the trial court's grant of summary judgment on the wrongful death claim on other grounds, holding that as with the medical malpractice claim, Dr. Martinez failed to create an issue of fact with regard to any allegedly wrongful conduct performed by the defendants. The Court of Appeals also affirmed the trial court's grant of summary judgment on the claim of outrage, agreeing that the defendants' conduct was not outrageous enough to sustain a claim.


         1. Did the medical expert's testimony create a genuine, material dispute regarding negligent or wrongful conduct by the defendants?

         2. Was the alleged threat of quarantine sufficiently "outrageous" to support a claim of outrage?


         1. Allegations of Misdiagnosis Alone Are Generally Insufficient To Create a Material ...

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