Opinion
No. 58865-6-I.
June 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-39458-7, Suzanne M. Barnett, J., entered August 24, 2006.
Eric Johnson appeals from the trial court's summary judgment dismissal of his medical malpractice action against Harborview Medical Center (Harborview). Johnson's claims arise from the allegedly negligent treatment he received while hospitalized at Harborview following an automobile collision that left him paralyzed. Johnson alleges that his treatment resulted in the development of pressure sores. Harborview moved for summary judgment, asserting that Johnson lacked the expert testimony necessary to substantiate the claim. In response, Johnson submitted the declaration of Heather Oesting, a registered nurse. The trial court granted Harborview's motion for summary judgment, dismissing Johnson's lawsuit. In light of deficiencies in the expert testimony Johnson proffered to substantiate his claims, we affirm.
Johnson's lawsuit also named UW Medicine, the State of Washington, and "unknown Does I-V" as defendants. The defendants are herein referred to collectively as "Harborview."
Johnson's complaint also included claims for negligent infliction of emotional distress, outrage, and failure to obtain informed consent. Johnson stipulated to dismissal of the negligent infliction of emotional distress and outrage claims. The informed consent claim was dismissed on summary judgment at the same time as the medical negligence claim; however, Johnson does not present argument concerning the dismissal of the informed consent claim. We will not consider an issue absent argument and citation to legal authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Thus, this opinion only addresses the merits of Johnson's medical negligence claim.
FACTS
Johnson was severely injured in an automobile collision and was hospitalized at Harborview. Injuries Johnson sustained in the collision left him a quadriplegic. In addition, he had scalp de-gloving and a severe laceration to one knee. Johnson remained at Harborview from October 4, 2002 until January 21, 2003. During this time, Johnson was dependant on a ventilator, and confined to a "Minerva brace" to stabilize his head, neck and spine. Johnson eventually developed a pressure sore where his chin rested on the brace. Johnson also suffered ulcers on his backside, near the sacrum, and on the back of his head.
Johnson subsequently initiated this lawsuit, claiming that the development of the pressure sores was the result of negligent medical care provided by Harborview medical staff. Harborview moved for summary judgment dismissal of the medical negligence claim, asserting that Johnson lacked the expert testimony necessary to substantiate the claim. Johnson responded, submitting Nurse Oesting's declaration as evidence.
The trial court granted Harborview's motion and dismissed Johnson's lawsuit.
DISCUSSION
Johnson asserts that the contents of Nurse Oesting's declaration satisfy his burden of producing competent expert testimony establishing the applicable standard of care and its breach by Harborview nurses. We disagree.
In reviewing an order granting summary judgment, we engage in the same inquiry as the trial court and consider the evidence and the reasonable inferences therefrom in the light most favorable to the non-moving party. Young v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989). Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960 P.2d 919 (1998).
RCW 7.70.040 sets forth the elements that must be proved when medical negligence is alleged:
The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which [the health care provider] belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such failure was the proximate cause of the injury complained of.
To prove these elements, a plaintiff generally must submit competent expert testimony to establish the standard of care and breach thereof, and to prove causation. Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 448-49, 663 P.2d 113 (1983); Guile v. Ballard Comty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993).
Nurse Oesting's declaration, in its entirety, consists of the following statements:
I, Heather Oesting, RN, CRRN, MBA, hereby declare the following to be true and accurate to the best of my knowledge, and based upon a review of medical records, as well as my skill, training, ability, and experience, subject to the penalty of perjury in the state of Washington.
1. I am a Registered Nurse, licensed to practice nursing in the state of Washington. I also have Advanced Professional Certifications including, but not limited to, the following: (a) Rehabilitation Nursing Certification; (b) Nursing Administration Certification; (c) Critical Care Registered Nurse Certification; (d) Advanced Cardiac Life Support Provider Certification, and (e) Nurse Life Care Planner Certification. I have also obtained a Master of Business Administration in Management and Finance. Attached as Exhibit A is a true and accurate copy of my curriculum vitae, which more fully sets forth my education, training, experience, and qualifications. I am over the age of 21 years and am competent to be a witness herein.
2. I make this declaration based upon my skill, training, ability, and professional experience, as well as a review of the relevant medical records relating to Eric Leigh Johnson and the treatment provided to him while a patient at Harborview Medical Center beginning October 4, 2002. It is my opinion that the review I have conducted is more than reasonable in nature and scope to allow me to form the opinions that I have expressed herein. Further, the opinions I express in a limited form in this declaration are formed to a level beyond a reasonable degree of medical/nursing certainty.
3. It is my opinion, based upon a reasonable degree of medical/nursing certainty, that the nursing care provided by Harborview Medical Center and/or UW Medicine to Eric Leigh Johnson beginning on or about October 4, 2002 and relating to the development, as well as the care and treatment, or lack thereof, of his multiple pressure sores to the posterior occiput, multiple sacral decubiti, and chin decubitus ulcer, fell below standards of reasonably prudent nursing care and proximately caused injury to Mr. Johnson. Mr. Johnson suffered scarring and a deep indent where the flesh was lost due to the Minerva brace, as well as scarring on his buttocks due to the pressure sores that developed during his admission to Harborview Medical Center.
4. It is my opinion that beyond a reasonable degree of medical/nursing certainty that Mr. Johnson's negligently caused injuries and damages were preventable, and would have been substantially and significantly lessened had Mr. Johnson received reasonable and prudent nursing care and treatment while a patient at Harborview Medical Center.
5. It is my further opinion that Mr. Johnson is not responsible for these injuries, including multiple pressure sores to the posterior occiput, multiple sacral decubiti, and chin decubitus ulcer, as these injuries were not the result of any trauma that occurred prior to his admission at Harborview Medical Center on or about October 4, 2002. And Mr. Johnson did nothing to cause or contribute to these injuries. In addition, the injuries occurred and developed while he was under the exclusive control of the defendants, including nursing personnel, nursing staff, assistant nursing staff, certified nursing assistants, and any other person assigned responsibility to monitor, treat and prevent such injuries to Eric Leigh Johnson.
6. It is my further opinion that defendants did not properly monitor the medical care and treatment provided to Eric Leigh Johnson, by relieving pressure and taking steps to prevent the injuries from occurring. It is my opinion that Mr. Johnson's pressure sore injuries could have been prevented had proper care been provided to him, including properly bracing the pressure sores and properly positioning the Minerva brace and other medical devices, and properly and timely repositioning Mr. Johnson.
7. It is my further opinion that defendants' negligence and lack of proper treatment as described previously was the proximate cause of Mr. Johnson's pressure sore injuries, including multiple pressure sores to the posterior occiput, multiple sacral decubiti, and chin decubitus ulcer. These injuries would not have occurred absent negligent treatment.
Standard of Care
Johnson first asserts that the contents of Nurse Oesting's declaration satisfy his burden of establishing the applicable standard of care. We disagree.
In medical negligence cases, expert testimony is generally necessary to establish the standard of care applicable to the medical professionals upon whose actions the allegation of negligence is premised. Harris, 99 Wn.2d at 449. To defeat a motion for summary judgment, the expert testimony must be based on facts in the case, not speculation or conjecture.Seybold v. Neu, 105 Wn. App. 666, 19 P.3d 1068 (2001).
Nurse Oesting's declaration does not adequately establish the applicable standard of care. The declaration provides no useful means to determine the applicable "degree of care, skill, and learning expected of a reasonably prudent health care provider" that applied to the nurses treating Johnson during his stay at Harborview. Although the declaration states that there were inadequacies in Johnson's treatment in terms of monitoring, relieving pressure, bracing, and positioning medical devices, the declaration does not set forth what acts were required of a "reasonably prudent health care provider" concerning each of these alleged deficiencies. No standard of care is identified, much less set forth in a manner that would allow for a reasoned evaluation of whether the treatment Johnson received comported with such a standard. Thus, Johnson does not provide evidence to establish the treatment that he should have received, a Page 7 subject beyond the expertise of a layperson. Harris, 99 Wn.2d at 449.
A fact finder would face numerous practical difficulties in attempting to apply Nurse Oesting's declaration to an evaluation of the Harborview nurses' actions. Among other deficiencies, the declaration sets forth no specific facts concerning what actions the applicable standard of care required of the nurses with respect to (1) the proper positioning of the patient; (2) the frequency with which the patient should be repositioned; (3) the proper placement of the Minerva brace; (4) whether, how, and how often the brace should have been removed; and (5) how the standard of care applied specifically to Johnson's treatment, given the multiplicity and severity of his injuries. In sum, there is no evidence set forth to establish what actions the nurses were supposed to have taken, under the particular circumstances of this case, against which a trier of fact could measure the evidence of the actual steps taken or required steps not taken by the nurses at Harborview.
Johnson's evidentiary submission does not adequately set forth the standard of care that obtained in his circumstances. RCW 7.70.040; Harris, 99 Wn.2d at 449; Douglas v. Bussabarger, 73 Wn.2d 476, 478-79, 438 P.2d 829 (1968). Thus, Johnson lacks evidence to substantiate a material element of his claim. This inadequacy in Johnson's evidence is dispositive, and compels us to affirm the trial court's summary dismissal of his claims.
Breach
Johnson next asserts that the contents of Nurse Oesting's declaration satisfy his burden of establishing that the applicable standard of care was breached by Harborview nurses providing his care. Again, we disagree. Because Johnson does not provide expert testimony to set forth the applicable standard of care, he also necessarily lacks evidence to substantiate his allegation that the standard of care was violated by Harborview nurses in providing his care.
Johnson argues that his burden of production concerning the acts and omissions that caused his injury does not require a description of a specific act or procedure that was performed negligently, because his injuries developed over a long period of time over several places on his body. Johnson is correct in noting that different elements of proof obtain in a claim asserting continuing medical negligence rather than a traditional claim of medical malpractice. As stated by our Supreme Court in Caughell v. Group Health Coop. of Puget Sound, 124 Wn.2d 217, 876 P.2d 898 (1994), to prove a breach of duty in a claim of continuing negligent treatment,
a plaintiff must show that a series of interrelated negligent acts occurred during the course of treatment for a medical condition. . . . If a health care provider performs two procedures negligently as part of a course of treatment, the patient may allege a claim for negligent treatment even though the two procedures have no intrinsic connection to each other.
Caughell, 124 Wn.2d at 233. Furthermore, to prove causation in such a claim, a plaintiff is not required to prove that a single specific negligent act caused the injuries. Caughell, 124 Wn.2d at 233-34. However, "[w]ith this relatively minor difference in proof, a plaintiff's evidentiary burden remains the same." Caughell, 124 Wn.2d at 234. Thus, the plaintiff in such a case bears the burden of proving that the continuing course of care actually provided "was negligent in its own right." Caughell, 124 Wn.2d at 234. Because Johnson did not provide expert testimony to set forth the applicable standard of care, he can not demonstrate that the care he received fell below this standard.
Nurse Oesting's declaration does not set forth specific facts concerning how Johnson's treatment fell below the standard of care. There is no specific factual evidence presented concerning what actions the nurses allegedly took that did not comport with the applicable standard of care. There is also no specific factual evidence presented concerning what actions the applicable standard of care required the nurses to take that they failed to take. Accordingly, Johnson's submittal provides no basis in fact from which to ascertain a breach of the standard of care applicable to the nurses who treated him. This inadequacy in Johnson's proffered evidence also compels us to affirm the trial court's summary dismissal of his claims.
Because we affirm the trial court's order on the bases stated, we need not discuss the other issues raised in the briefing.
Affirmed.