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.
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.
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.
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
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.
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.
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
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.
the medical expert's testimony create a genuine, material
dispute regarding negligent or wrongful conduct by the
the alleged threat of quarantine sufficiently
"outrageous" to support a claim of outrage?
Allegations of Misdiagnosis Alone Are Generally
Insufficient To Create a Material ...