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Boyer v. Morimoto

Court of Appeals of Washington, Division 3

September 10, 2019

KATHIE AND JOE BOYER, individual and the marital community composed thereof, Appellants,
v.
KAI MORIMOTO, M.D. individually and PLASTIC SURGERY NORTHWEST, a Washington Corporation, Respondents.

          FEARING, J.

         Should 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.

         FACTS

         Because 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.

         Kathie 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 and fat.

         Kathie 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.

         During 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.

         Prior 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.

         The 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.

         After 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.

         PSNW 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.

         On 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 necrotizing infection.

         On 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 improved dramatically.

         St. 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.

         PROCEDURE

         Kathie 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.

         During 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 injury.

         In 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.

         In his 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 Emirates.
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.

         In his 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 surgical aftercare.

         Dr. 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 same day.

         In his 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.

         Dr. 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.

         The 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.

         On May 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.

         In its 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).

         On May 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 pertinent part:

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.

         On May 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.

         On June 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 submissions.

CP at 354 (emphasis added). Kathie Boyer did not move for reconsideration.

         LAW AND ANALYSIS

         This 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 questions.

         Shamoun's First Declaration

         If we 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 agree.

         In his 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.

         Summary 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.

         In a 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.

         A 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).

         By 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 of care.

         We 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 so?

         The 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 ...


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