KATHIE AND JOE BOYER, individual and the marital community composed thereof, Appellants,
KAI MORIMOTO, M.D. individually and PLASTIC SURGERY NORTHWEST, a Washington Corporation, Respondents.
the superior court consider a supplemental declaration filed
after its memorandum decision granting a party summary
judgment, but filed before the court enters its formal order
on summary judgment? In this appeal, we answer this question
in the negative because the declaration's protagonist did
not file a motion for reconsideration or a motion for late
filing and thus failed to present the superior court an
opportunity to exercise discretion in determining the
propriety of the late filing. Therefore, we affirm the
superior court's summary judgment dismissal of appellant
Kathie Boyer's suit for medical malpractice.
the superior court granted summary judgment to defendants Dr.
Kai Morimoto and Plastic Surgery Northwest (PSNW), we retell
the facts in a light favorable to plaintiff Kathie Boyer.
Kathie Boyer's husband Joe is also a plaintiff, but we
generally refer to Kathie as the sole plaintiff.
and Joe Boyer reside in Anaconda, Montana, three hundred
miles east of Spokane. On September 25, 2015, Kathie Boyer,
after losing seventy pounds, consulted with Kai Morimoto,
M.D., a plastic surgeon with Spokane's PSNW. Joe attended
the consultation. Kathie expressed unhappiness with the
appearance of her abdomen and expressed interest in cosmetic
abdominoplasty, a surgical procedure to remove excess skin
Boyer received saline breast implants on two earlier
occasions, most recently in 2006. She noted in the months
prior to her appointment with Dr. Kai Morimoto that her right
breast implant had reduced in size and had developed
rippling. Therefore, she also requested that Dr. Morimoto
replace her breast implants and lift her breasts.
the September 25 consultation, Dr. Kai Morimoto recommended
exchanging Kathie Boyer's saline breast implants for
silicone implants, a procedure known as a bilateral
mastopexy. Dr. Morimoto also recommended abdominoplasty and
liposuction on Boyer's back, hips, and breasts. The two
confirmed October 26, 2015, as the date for the procedure.
to driving to Spokane for Kathie's surgery, Joe Boyer
telephoned PSNW to ask whether Kathie's surgery should be
rescheduled because Kathie was due to begin menstruating.
PSNW's receptionist informed Joe that the surgery could
proceed. When preparing for surgery on the morning of October
26, Kathie and Joe Boyer informed the surgical nurse that
Kathie was menstruating. The nurse confirmed that Kathie
could wear a tampon before surgery.
surgical procedure by Dr. Kai Morimoto proceeded on October
26, 2015 at PSNW's same day surgical suite in Spokane.
Kathie Boyer received general anesthesia at 10:05 a.m. and
remained anesthetized until 7:00 p.m. The surgical team noted
no operative complications.
surgery, Joe Boyer assisted Kathie to the restroom. Kathie
urinated and inserted a tampon. She removed no tampon before
urinating because Joe and she believed the surgical team
removed the last one inserted before surgery. The couple saw
no tampon string before Kathie urinated.
discharged Kathie Boyer from its surgical facility at 9:55
p.m. on October 26, the day of the surgery. PSNW staff then
instructed Kathie Boyer to return to Spokane for an
appointment with Dr. Kai Morimoto on November 13, 2015.
Nevertheless, the Boyers lived many hours afar, so they
wished to speak with Dr. Morimoto before departing for
Montana. The Boyers remained in Spokane and returned to PSNW
on October 28. Dr. Morimoto examined Kathie Boyer and found
the operative sites acceptable. Still Boyer suffered
persistent pain and fatigue. Boyer requested a stronger form
of pain medication, and Dr. Morimoto accommodated that
request by prescribing oxycodone 5 mg tablets. Morimoto
instructed Boyer to return in two weeks for suture removal.
November 4, 2015, while recovering at home in Anaconda,
Kathie Boyer alternatively felt extreme hot and cold in her
toes. Joe removed Kathie's socks and the two saw blue
toes. In the early afternoon, Joe drove Kathie to the
Anaconda Community Hospital emergency room. Emergency room
physicians diagnosed Boyer's feet as hypoxic with
peripheral cyanosis and mottling of the toes. Hypoxia is a
lack of oxygen; whereas, cyanosis is blue coloring. The
doctors also diagnosed Boyer with acute renal failure and
significant injury to the liver. Anaconda emergency room
physicians transferred Boyer to St. Patrick Hospital in
Missoula, Montana. Late that evening, Missoula's Dr.
Stephen Hardy performed exploratory surgery in an attempt to
ascertain the cause of Boyer's illness. Dr. Hardy
explored and debrided the abdominoplasty flap. He found no
November 5, 2015, an infectious disease physician, Dr. David
Christensen, performed a pelvic examination on Kathie Boyer
at the Missoula hospital and found a tampon in her vaginal
vault that had been present for ten days. Dr. Christensen
suspected toxic shock syndrome. Christensen removed the
tampon and administered antibiotics, after which Boyer
Patrick's Hospital retained Kathie Boyer for observation
in its intensive care unit until November 19. Boyer's
discharge summary reads: "[n]o clear microbiologic
diagnosis, but etiology most likely staphylococcal toxic
shock syndrome, either related to surgical wounds or retained
tampons." Clerk's Papers (CP) at 91. Montana
physicians predicted future need of amputation of the distal
part of Boyer's right foot toes. Boyer returned to
Missoula one month later, when a surgeon removed most of the
toes on her right foot. Boyer underwent additional surgeries
for lingering injury.
Boyer filed suit against Dr. Kai Morimoto and PSNW. Boyer
alleges that Dr. Morimoto failed to comply with the
applicable standard of care for a plastic surgeon. Boyer also
contends that nursing staff committed acts of negligence, for
which PSNW is vicariously liable. Boyer claims that Morimoto
and the PSNW nursing staff agreed to attend to her menstrual
cycle during surgery. According to Boyer, PSNW and Dr.
Morimoto affirmatively and falsely asserted that providers
had removed any tampon utilized by her before the
commencement of surgery and that the providers inserted no
tampon or sanitary pad during or after surgery.
discovery, Kathie Boyer disclosed two expert witnesses, Dr.
Martin Siegel and Dr. John Shamoun. Dr. Kai Morimoto and PSNW
thereafter filed a motion for summary judgment, asserting
that Boyer could not present admissible testimony from a
qualified expert to establish the standard of care and to
testify to a violation of the standard of care that caused
response to the defense's summary judgment motion, Kathie
Boyer submitted a two-page declaration from Dr. Martin Siegel
addressing causation. Boyer also submitted a five-page
declaration from Dr. John Shamoun, a plastic surgeon, in
order to support a violation of a standard of care.
declaration, Dr. John Shamoun testified concerning his
background and his knowledge of a standard of care:
3. Throughout my career, I have studied, trained and
practiced in a variety of locations throughout the country. I
have been licensed to practice medicine in six states, with
active licensure in two (Texas and California). I also
maintain an active surgical license in the United Arab
4. In addition to my professional experience, I have been
qualified as a medical expert regarding the standard of care
applicable to plastic surgeries like the one at issue in this
litigation, in several jurisdictions.
5. One facet of my role in this case was to offer opinions
regarding the standard of care applicable to the October 26,
2015 surgery at the heart of this litigation, as well as
whether defendants' conduct fell below the standard of
care. The specific medical procedure in question consisted of
the following: (1) bilateral breast implant exchange, with
mastopexy; (2) liposuction; and (3) abdominoplasty. As a
result of my education, training and experience, I am
well-versed in the standard of care applicable to healthcare
providers performing surgical procedures such as these.
6. The standard of care in this case required defendants to
exercise the same degree of skill, care and learning expected
of other reasonably prudent healthcare providers attempting
the surgical procedure described in the preceding paragraph.
This standard is not unique to the State of Washington and
applies on a nationwide basis.
CP at 106-07.
declaration, Dr. John Shamoun averred that Dr. Kai Morimoto
repeatedly violated the standard of care. Dr. Shamoun opined
that Kai Morimoto should not have performed the extensive
surgery of breast augmentation with mastopexy, liposuction,
and abdominoplasty on an out-patient basis knowing that the
patient lived three hundred miles away in Montana and would
be traveling home after the procedure. Shamoun criticized the
health care providers for discharging Kathie Boyer from the
surgical facility at 10 p.m., after her undergoing extensive
general anesthesia and a nine-hour surgery, without follow-up
care scheduled until eighteen days later. Given the extent of
the surgeries and in light of Boyer remaining under the
effects of general anesthesia and narcotic pain medication,
Boyer should have remained at the surgical center under the
care of Morimoto and PSNW throughout the night of October
26-27. Alternatively, Morimoto should not have attempted each
of these procedures during a single, out-patient surgery. In
short, PSNW and Dr. Morimoto did not provide adequate
John Shamoun faulted Dr. Kai Morimoto and PSNW for its
informed consent form signed by Kathie Boyer. PSNW provided
Boyer a boilerplate explanation of the risks and benefits of
the surgery. PSNW and Dr. Morimoto never warned Boyer of the
specific risks and benefits of the surgeries. Because Boyer
faced extensive, elective surgeries, the standard of care
required more than a standard, boilerplate informed consent
form. In particular, the consent form should have identified
the option of and explain the benefits of electing to have
the three surgeries on separate dates, rather than on the
declaration, Dr. John Shamoun noted that Kathie and Joe Boyer
repeatedly informed Dr. Kai Morimoto and PSNW that Kathie was
menstruating. The couple asked if she could wear tampons
during the surgery. In turn, Morimoto and the surgical staff
informed her she could wear the tampon and that the staff
would attend to her menstruation needs. Nevertheless, the
surgical records fail to mention Kathie Boyer's
menstruation, any removal of a tampon before or after
surgery, or any warning to the Boyers that a tampon remained
in the vaginal canal. Dr. Shamoun opined that a tampon should
not remain in the vagina during a nine-hour surgery. After
surgery, the health care providers should have warned Kathie
that a tampon remained inside the vaginal canal assuming the
providers did not remove the tampon before or during surgery.
John Shamoun criticized Dr. Kai Morimoto for her performance
during the October 28 follow-up appointment. Kathie
Boyer's persistent pain and fatigue should have alerted
Dr. Morimoto to potential surgical complications. Morimoto
should have explored the cause of the pain, rather than
increasing the dosage of the pain medications. Morimoto
should have also scheduled an earlier follow-up appointment.
Finally, Dr. Shamoun opined that, but for Kai Morimoto's
and PSNW's breaches of the standard of care, Boyer would
not have suffered the devastating illness and injuries that
later developed in Montana.
superior court entertained oral argument in support of and in
opposition to the summary judgment motion on April 27, 2018.
During the summary judgment motion hearing, the superior
court requested that Kathie Boyer promptly file a curriculum
vitae for John Shamoun. On April 30, Boyer filed Dr. John
Shamoun's curriculum vitae.
9, 2018, the superior court issued a memorandum decision
granting Kai Morimoto's and PSNW's summary judgment
motions. The superior court noted that Dr. John Shamoun's
"late arriving [curriculum vitae]" revealed active
licensure in Texas and California and inactive licensure in
Georgia, Florida, Mississippi and Alabama. CP at 323. The
court concluded that Dr. Shamoun's declaration failed to
present an adequate foundation that the applicable standard
of care is national in scope and that Shamoun knew the
standard of care in Washington State. Thus, the court held
Dr. Shamoun's opinion to be inadmissible. The superior
court also concluded that Boyer failed to provide any
testimony that any of the nursing staff of PSNW violated a
standard of care.
May 9 memorandum decision, the superior court directed the
parties to prepare a summary judgment order. The closing
sentences in the May 9 memorandum decision read:
Presentment [of the order] is set for June 1, 2018 at 9:00
without oral argument. If plaintiffs contemplate a motion
for reconsideration, please wait until after the order
on summary judgment is entered.
CP at 326 (emphasis added) (boldface omitted).
15, 2018, but before entry of a formal order on summary
judgment, Kathie Boyer filed a supplemental declaration of
Dr. John Shamoun. Boyer did not accompany the declaration
with a motion for reconsideration or a motion for late filing
of the declaration. In the declaration, Dr. Shamoun clarified
the foundation for his opinions. The declaration states, in
In addition, throughout my career I have consulted with
numerous plastic surgeons practicing within the State of
Washington, including consultations involving the specific
procedures at issue in this litigation: abdominoplasty,
liposuction and mastopexy. As a consequence, I can confirm
that Washington plastic surgeons adhere to the same standards
of practice followed by plastic surgeons practicing
throughout the rest of the nation.
. . . [T]hroughout my career I have personally been asked to
consult on specific cases in the State of Washington,
including cases involving liposuction, abdominoplasty and
breast implant/mastopexy surgery. Again, as a result of my
personal involvement in these kinds of cases, I can confirm
that the standard of care for surgical procedure such as
those at issue in this case, is the same in Washington as the
rest of the United States.
CP at 328.
17, 2018, defendants filed a proposed summary judgment order.
Kai Morimoto's and PSNW's proposed order omitted
reference to Dr. John Shamoun's supplemental declaration.
On May 24, 2018, Kathie Boyer submitted objections to the
defense's proposed summary judgment order. Boyer
objected, in part, to her opposition's summary judgment
order because the order failed to list Shamoun's
supplemental declaration. Boyer argued that, because the
superior court had yet to enter a final order, she was
permitted to file the supplemental declaration. Boyer
submitted her own proposed summary judgment order, which
order listed the supplemental declaration of Dr. John Shamoun
as a pleading reviewed by the trial court.
15, 2018, the superior court penned "Denied" on
Kathie Boyer's proposed summary judgment order. CP at
350. On the same day, the court entered an order granting
defendants' motion for summary judgment, which order did
not mention whether it considered the supplemental
declaration of Dr. John Shamoun. In the order, the trial
court handwrote additional instructions:
It is further ordered that any motion for
reconsideration shall be served, filed and noted for
hearing without oral argument, as directed in the Court's
Memorandum Decision . . . The Court may request oral
argument, depending on the content of any written
CP at 354 (emphasis added). Kathie Boyer did not move for
appeal poses the following questions. First, did John
Shamoun's first declaration provide a sufficient
background to conclude that he was qualified to testify to a
Washington standard of care? Second, should the superior
court have considered John Shamoun's second declaration
before entering a summary judgment order? Third, did Kathie
Boyer need to move for reconsideration in order for the trial
court to consider Dr. John Shamoun's second declaration?
Fourth, did John Shamoun's second declaration provide a
sufficient background to conclude that he was qualified to
testify to a Washington standard of care? Fifth, did Kathie
Boyer's experts provide sufficient testimony to raise a
question of fact as to whether any violation of the standard
of care caused Boyer's postsurgery illness and injury?
Sixth, did John Shamoun's testimony present a question of
fact as to a violation of the standard of care of PSNW? The
second and third issues are closely related and will be
addressed together. We only answer the first, second, and
third questions, which answers render unimportant the other
concluded that Dr. John Shamoun's first declaration
sufficed to defeat Dr. Kai Morimoto's and PSNW's
summary judgment motion, we could avoid asking if the
superior court should have reviewed John Shamoun's second
declaration. The defendants assert the superior court
correctly rejected the first declaration because Shamoun
offered only a conclusory statement concerning his
familiarity with the standard of care in Washington State. We
first declaration, Dr. John Shamoun testified that,
throughout his career, he studied, trained and practiced in a
variety of locations throughout the United States. He had
active medical licensure in Texas, California, and the United
Arab Emirates. Shamoun added that he had qualified as an
expert witness regarding the standard of care applicable to
plastic surgeons in several jurisdictions, but he did not
mention Washington State. He knew much about the standard of
care for a mastopexy, liposuction, and abdominoplasty.
Shamoun concluded that the standard of care for such
procedures is not unique to the state of Washington and
applies on a nationwide basis. He did not disclose how he
knew the state of Washington followed the national standard
of care. We must determine if the background disclosed and
the testimony in this first declaration provides a sufficient
basis for Dr. Shamoun to testify to the standard of care of
plastic surgeons in the Evergreen State.
judgment in medical malpractice cases may be brought in one
of two ways. Guile v. Ballard Community Hospital, 70
Wn.App. 18, 851 P.2d 689 (1993). The defendant can attempt to
establish through affidavits that no material factual issue
exists or, alternatively, the defendant can inform the trial
court that the plaintiff lacks competent evidence to support
an essential element of her case. Young v. Key
Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n.l, 770 P.2d
182 (1989); Guile v. Ballard Community Hospital, 70
Wn.App. at 23. In this latter situation, the moving party
need not support its summary judgment motion with affidavits.
Young v. Key Pharmaceuticals, Inc., 112 Wn.2d at
226. Defendants PSNW and Kai Morimoto employed the second
strategy for their summary judgment motions.
medical malpractice claim, a plaintiff must show that the
health care provider violated the relevant standard of care.
A plaintiff must prove the relevant standard of care through
the presentation of expert testimony, unless a limited
exception applies. Volk v. Demeerleer, 184 Wn.App.
389, 430-31, 337 P.3d 372 (2014), affdinpart, rev'd
in part, 187 Wn.2d 241, 386 P.3d 254 (2016). Kathie
Boyer does not contend that a jury may, without expert
testimony, find a physician negligent for releasing a patient
to travel three hundred miles to home immediately after a
nine-hour surgery with general anesthesia or leaving a tampon
in a patient without informing the patient of its presence.
defendant moving for summary judgment in a health care
professional malpractice suit can meet its initial burden by
showing the plaintiff lacks competent expert testimony to
sustain a prima facie case of medical malpractice. Young
v. Key Pharmaceuticals, Inc., 112 Wn.2d at 226. The
burden then shifts to the plaintiff to provide an affidavit
from a qualified medical expert witness that alleges specific
facts establishing a cause of action. Guile v. Ballard
Community Hospital, 70 Wn.App. at 25. Affidavits
containing conclusory statements without adequate factual
support are insufficient to defeat a motion for summary
judgment. Guile v. Ballard Community Hospital, 70
Wn.App. at 25; CR 56(e).
Washington statute, the standard of care is the 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/she belongs, in the state of
Washington, acting in the same or similar
circumstances." RCW 7.70.040 (emphasis added). One might
question if the standard of care in Washington ever differs
from the standard of care throughout the nation. Law changes
from state to state, but medical care holds constant
throughout America, at least outside rural areas.
Increasingly, medical experts testify that Washington follows
a national standard of care. We only know of one recent
decision wherein an expert testified that varying
geographical locations maintained different standards. We
remain bound, however, by our legislature's declaration
that the trier of fact must find and apply a state standard
discern two discrete questions with regard to Dr. John
Shamoun's first declaration. First, whether Dr.
Shamoun's declaration testimony referenced a standard of
care in Washington? Second, whether John Shamoun's
declaration testimony showed that he was qualified to testify
to the standard of care in the state of Washington? Shamoun
testified that the standard of care is not unique to the
state of Washington and applies on a nationwide basis. This
statement necessarily implies that Shamoun opines to a
Washington standard consistent with a national standard. Did
he disclose sufficient qualifications and background to do
superior court must make a preliminary finding of fact under
ER 104(a) as to whether an expert qualifies to express an
opinion on the standard of care in Washington. Winkler v.
Giddings,146 Wn.App. 387, 392, 190 P.3d 117 (2008).
Usually, the trial court possesses discretion when
determining the qualifications of an expert to express
opinions pertinent to a lawsuit. Elber v. Larson,142 Wn.App. 243, 247, 173 P.3d 990 (2007). Nevertheless, this
court addresses the trial court's ruling concerning