FILED AUGUST 7, 2025 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DEBBIE BUCHANAN, ) ) No. 40283-5-III Appellant, ) ) v. ) ) PASSAGES FAMILY SUPPORT, ) UNPUBLISHED OPINION ) Respondent. )
STAAB, J. — Debbie Buchanan appeals the trial court’s grant of summary
judgment dismissing her medical malpractice and fraud claims against Passages Family
Support, as well as the denial of her motion for reconsideration. She argues that the trial
court erred by: (1) requiring expert medical testimony to establish the standard of care,
breach, and causation in her malpractice claim and rejecting her expert’s letter as
unsworn, (2) denying reconsideration based on the letter’s untimeliness and failure to
establish a violation of the standard of care and show causation, and (3) dismissing her
fraud claims based on the determination that they arose from “health care” and required
expert testimony under chapter 7.70 RCW. No. 40283-5-III Buchanan v. Passages Family Support
We hold that the trial court properly granted summary judgment on Buchanan’s
malpractice claim and did not abuse its discretion in denying reconsideration. However,
the trial court erred in dismissing Buchanan’s fraud claims. The only basis for Passages’
motion to dismiss Buchanan’s fraud claims was her failure to identify a medical expert.
Because those claims did not arise from “health care” under chapter 7.70 RCW,
Buchanan was not required to submit medical expert testimony. Accordingly, we affirm
in part and reverse in part.
BACKGROUND
Because the trial court granted summary judgment in favor of Passages Family
Support, the facts are set forth in the light most favorable to Buchanan.
In 2018, Buchanan sought counseling to improve her marriage and discovered
Passages Family Support, a peer-operated outpatient behavioral health clinic that
exclusively served Medicaid recipients. Unaware of the clinic’s Medicaid-only policy,
Buchanan provided her private insurance information during intake. In September 2018,
Buchanan completed her intake and was officially accepted into Passages’ program.
Buchanan began receiving services at Passages, including “Eye Movement
Desensitization and Reprocessing” (EMDR) therapy. She attended 26 EMDR therapy
sessions at Passages conducted by a therapist. During these sessions, Buchanan
experienced headaches, stomachaches, and worsening preexisting conditions, initially
2 No. 40283-5-III Buchanan v. Passages Family Support
attributing them to temporary side effects of EMDR. However, she later suspected these
symptoms might be linked to improper EMDR techniques used by her therapist.
In February 2020, Passages’ clinical supervisor informed Buchanan that the clinic
could not accept her insurance because it exclusively accepted Medicaid. During a
meeting with the clinical supervisor, office manager, and Buchanan’s husband, Buchanan
was officially informed that Passages had never billed her private insurance. Passages
provided her with three additional therapy sessions to assist with transition to another
therapist, and ultimately discharged her due to her ineligibility for Medicaid. Following
her discharge, Buchanan researched EMDR and concluded that the therapist had deviated
from standard protocols, failing to complete necessary phases of treatment.
Procedure
In February 2023, Buchanan filed a complaint against Passages alleging medical
malpractice, fraud, fraudulent concealment, negligent misrepresentation, and falsified
documents, seeking $1.96 million in damages.1 Passages answered the complaint,
denying all allegations.
On June 22, 2023, Passages moved for summary judgment dismissal of “all
claims,” arguing that Buchanan did not have expert testimony to establish a breach of the
1 We collectively refer to Buchanan’s fraud, fraudulent concealment, negligent misrepresentation, and falsified documents claims as “fraud claims.”
3 No. 40283-5-III Buchanan v. Passages Family Support
standard of care, and that the breach proximately caused her damages as required by
chapter 7.70 RCW. The hearing was set for one month later, on July 21. At Buchanan’s
request, Passages agreed to continue the hearing to September 15, a 56-day continuance.
Prior to the continued hearing, Buchanan asked Passages for another continuance,
which Passages declined. As a result, Buchanan filed a motion requesting the court
continue the hearing so that she could continue her attempts to retain an expert.
Buchanan also filed a memorandum opposing summary judgment. With regard to
the medical malpractice claim, she argued that there were genuine issues of material fact
because Passages’ therapist did not have credentials and failed to meet the degree of care
required in the prescribed practice of EDMR. However, Buchanan failed to file an expert
declaration to support her medical malpractice claims. With regard to her fraud claims,
she argued that Passages discharged her because it did not take or bill her insurance and
provided her with services “free of charge” without offering other means of payment.
Passages replied, again arguing that Buchanan did not have an expert to support
her medical malpractice claim against it. Other than the introductory paragraph,
however, the reply made no mention of the fraud claims.
At the September 15 hearing, over defense counsel’s objection, the court granted
Buchanan a 30-day continuance, to October 20, to secure an expert declaration containing
opinions on the standard of care, how it was breached, and how the breach caused
Buchanan’s injuries.
4 No. 40283-5-III Buchanan v. Passages Family Support
On October 19, one day before the continued hearing, Buchanan submitted an
unsigned, unsworn, and uncertified letter from an expert psychologist. In the letter, the
expert opines that Passages’ therapist “departed from the applicable standard of care by
negligently performing EMDR.” Clerk’s Papers (CP) at 160. The letter additionally
provides:
Did not follow the Standard EMDR Therapy prescribed protocol in the following manner: • Did not complete a Trauma History • Did not follow a Trauma Target Treatment Plan • Did not seem to include a “Target Assessment (Old Memory)” EMDR procedure. • Kept Them-tappers going throughout the sessions when they were used. • Implemented his cognitions rather than the client’s. • Did not follow through coming to an agreement about Negative or Positive Cognitions with client. • Consistently failed to return to Target and/or evaluate SUD levels with client. .... Passages Family Support and their counselor . . . breached their duty by either failing to have appropriate procedures or protocols, and/or by failing to ensure that their employee followed them. Failure to comply with the applicable standard of care, therefore, a direct and proximate result of the failure to follow proper EMDR therapy procedures is known and can cause harm to a client. Having reviewed this case, it is in my expert opinion that the symptoms Debbie Buchanan is experiencing correlate with the improper facilitation of EMDR therapy treatments.
CP at 161.
5 No. 40283-5-III Buchanan v. Passages Family Support
After hearing argument from both parties, the court pointed out that the letter was
not a declaration and not sworn under penalty of perjury, and that it constituted
inadmissible hearsay. Buchanan then requested another continuance to correct her letter
to comply with the civil and court rules. Defense counsel objected. Ultimately, the court
denied Buchanan’s request for another continuance and granted Passages’ motion for
summary judgment dismissal of all claims.
Buchanan subsequently filed a motion for reconsideration under CR 59, only with
regard to the medical malpractice claims, on the basis of newly discovered evidence,
irregularity in the proceedings, surprise, and because substantial justice had not been
done. Attached to her motion was the expert’s letter, now signed and sworn, dated
October 25. In addition, Buchanan submitted two additional exhibits in support of her
motion: (1) “Exhibit 3,” an “Explanation of Findings in this case” that was unsigned,
undated, and unsworn but purported to be authored by her expert, and (2) “Exhibit 4,”
screenshots of negative online reviews of Passages.
The trial court denied Buchanan’s motion for reconsideration. The court ruled that
the expert’s declaration was: (1) untimely, and (2) insufficient to defeat summary
judgment because it contained conclusory statements without factual support that failed
to establish a violation of the standard of care and failed to show causation. The court
further ruled that the expert declaration was not admissible under ER 702 as expert
testimony because the expert did not clearly describe the standard of care, and instead
6 No. 40283-5-III Buchanan v. Passages Family Support
only explained that he would have taken a different course of action if he treated
Buchanan. In addition, the court refused to consider Exhibit 3 because it was not
admissible as a declaration because it was unsworn, and Exhibit 4 because it consisted of
inadmissible hearsay and lacked foundation.
Buchanan appeals the dismissal order and order denying reconsideration.
ANALYSIS
MEDICAL MALPRACTICE CLAIM
Buchanan argues that the trial court erred in granting summary judgment based on
her failure to file a sufficient expert declaration on the standard of care, breach, and
causation. She further argues that the trial court erred in denying her motion for
reconsideration. Passages argues that summary judgment should be affirmed because
Buchanan’s expert letter was untimely, unsigned, unsworn in violation of CR 56(e), and
cites to Young Soo Kim v. Choong-Hyun Lee2 in support of its argument. Passages
further argues that the trial court did not abuse its discretion when it denied
reconsideration. We conclude that the trial court did not error in dismissing the medical
malpractice claims on summary judgment.
2 174 Wn. App. 319, 300 P.3d 431 (2013).
7 No. 40283-5-III Buchanan v. Passages Family Support
“This court reviews summary judgment orders de novo.” Hisle v. Todd Pac.
Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). “When reviewing an order
granting summary judgment, this court engages in the same inquiry as the trial court,”
considering “[a]ll facts and reasonable inferences . . . in the light most favorable to the
nonmoving party.” Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998).
Summary judgment is proper if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. CR 56(c). “[A] defendant may move for
summary judgment on the ground [that] the plaintiff lacks competent . . . evidence” to
support its claim. Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).
After the moving party submits a sufficient declaration, the nonmoving party must set
forth specific facts rebutting the moving party’s contentions and disclosing that a genuine
issue of material fact exists. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1,
13, 721 P.2d 1 (1986). We may affirm a trial court’s disposition of a summary judgment
motion on any basis supported by the record. Redding v. Virginia Mason Med. Ctr., 75
Wn. App. 424, 426, 878 P.2d 483 (1994).
Chapter 7.70 RCW governs “Actions for Injuries Resulting from Health Care,”
which are often referred to as medical malpractice cases. See, e.g., Reyes v. Yakima
Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018). In such a case, a plaintiff must
show that “[t]he 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
8 No. 40283-5-III Buchanan v. Passages Family Support
profession or class to which he or she belongs, in the state of Washington, acting in the
same or similar circumstances” and that “[s]uch failure was a proximate cause of the
injury complained of.” RCW 7.70.040(1)(a), (b).
In medical malpractice cases, “[e]xpert testimony will generally be necessary to
establish the standard of care,” and is required on the element of proximate cause.
Berger v. Sonneland, 144 Wn.2d 91, 110, 26 P.3d 257 (2001). “If a plaintiff lacks
competent expert testimony to create a genuine issue of material fact with regard to one
of the elements of the claim and is unable to rely on an exception to the expert witness
testimony requirement, a defendant is entitled to summary judgment.” Reyes, 191 Wn.2d
at 86.
If a defendant moves for summary judgment based on the absence of competent
medical evidence to establish a prima facie case, the burden shifts to the plaintiff to
produce testimony from a qualified expert witness alleging specific facts establishing a
cause of action. Young, 112 Wn.2d at 225-26.
“We review a trial court’s denial of a motion for reconsideration for abuse of
discretion.” Kleyer v. Harborview Med. Ctr., 76 Wn. App. 542, 545, 887 P.2d 468
(1995). A trial court abuses its discretion when it exercises it in a manifestly
unreasonable manner or bases it upon untenable grounds or reasons. State v. Stenson,
132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
9 No. 40283-5-III Buchanan v. Passages Family Support
We consider in turn the trial court’s grant of summary judgment and denial of
reconsideration with regard to Buchanan’s medical malpractice claims.
1. The trial court properly granted summary judgment on the medical malpractice claim
Under CR 56(c), the party opposing summary judgment is required to file and
serve opposing affidavits “not later than 11 calendar days before the hearing.” In
addition, “CR 56(e) requires that evidence offered in support of or in opposition to a
motion for summary judgment be in the form of sworn affidavits or declarations made
under penalty of perjury.” Young Soo Kim, 174 Wn. App. at 326. While courts do not
always demand strict compliance with CR 56(e), this court has declined to excuse an
expert letter purporting to establish a necessary element of the claim for noncompliance
with CR 56(e). Young Soo Kim, 174 Wn. App. at 327 (“[W]e are aware of no case, nor
has any been cited to us, that excuses in whole the requirement that statements purporting
to establish a necessary element of a claim or defense be in the form of sworn affidavits
or declarations made under penalty of perjury.”).
In lieu of an affidavit complying with CR 56, GR 13(a) requires an unsworn
statement “must state: (1) that it is certified or declared by the person to be true under
penalty of perjury (2) the date and place of its execution, and (3) that it is so certified or
declared under the laws of the state of Washington.”
10 No. 40283-5-III Buchanan v. Passages Family Support
In this case, Buchanan filed her expert letter purporting to establish the standard of
care, breach, and causation elements of her medical malpractice claim on October 19, one
day before the summary judgment hearing, in violation of CR 56(c). And, as the trial
court pointed out at the hearing, Buchanan’s experts letter was not a declaration and was
not sworn under penalty of perjury as required by CR 56(e) and GR 13. Accordingly, the
trial court properly granted summary judgment because Buchanan’s letter evidence failed
to comply with CR 56(c), (e), and GR 13.
In reply, Buchanan argues that the trial court granted her a 30-day continuance,
but because of the timeline required by CR 56(c), she in effect only had 19 days to obtain
an expert declaration. This argument is unpersuasive for several reasons.
First, the trial court’s grant of a 30-day continuance did not excuse Buchanan’s
failure to comply with CR 56(c). As was repeated numerous times during the summary
judgment hearings, pro se litigants are held to the same standards and “bound by the same
rules of procedure and substantive law as attorneys.” Westberg v. All-Purpose
Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997). Licensed attorneys must
comply with CR 56(c), and so too must Buchanan. If Buchanan needed more time before
the continued hearing she could have moved the trial court for another continuance or
requested clarification of what the court asked of her.
Second, we disagree with Buchanan that she was only given 19 days to find an
expert. Passages originally filed its motion for summary judgment on June 22, 2023, but
11 No. 40283-5-III Buchanan v. Passages Family Support
after several continuances, the motion was not actually heard until October 20, 2023.
Thus, Buchanan actually had 120 days to find and submit evidence from an expert
witness.
2. Buchanan’s Other Summary Judgment Related Arguments
Buchanan argues that there are exceptions to the expert testimony requirement,
and that accordingly, the trial court erred when it granted summary judgment based on its
ruling that expert testimony was an absolute necessity required to defeat Passages’
summary judgment motion. Each argument is discussed in turn.
First, citing to Young,3 Buchanan contends that lay testimony is admissible to
show “obvious impairments,” and sometimes for observations of injury as an exception
to the expert testimony requirement. Buchanan cites to lay person affidavits in the record
to establish her “conditions, ailment, and impairments.” Appellant’s Br. at 41.
Buchanan is correct that the Young court acknowledged that lay testimony is
sometimes admissible in medical malpractice actions to show “obvious impairments” and
“observations of health, disease, or injury.” 112 Wn.2d at 228-30. Likewise, she is
correct that the record contains lay person affidavits describing her impairments.
However, nothing in Young stands for the proposition that such lay person affidavits are
alone sufficient to establish the relevant standard of care, breach, and causation elements
3 112 Wn.2d 216.
12 No. 40283-5-III Buchanan v. Passages Family Support
of a medical malpractice case. See Id. at 227-31. Rather, the Young court reaffirmed the
general rule that the relevant standard of care can only be testified to by a physician who
has demonstrated that they have the sufficient expertise in the relevant specialty. Id.
Next, Buchanan argues that an exception to the expert testimony requirement
exists where “inferences are self-evident in the evidence that negligence would be
understood by a lay person.” She contends that the evidence in this case is self-evident
and that the therapist “had no credentials nor certifications in EMDR self-evident
inference.” Appellant’s Br. at 41, 42.
She is correct that the Young court, citing the Missouri Supreme Court, explained:
“What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.
The only exception to such rule is that where the want of skill or lack of care is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it, expert evidence is not essential.”
Young, 112 Wn.2d at 228-29 (quoting Hart v. Steele, 416 S.W.2d 927, 932, 37 A.L.R.3d
456 (Mo. 1967).
However, here, the lack or want of skill was not so apparent to be within the
comprehension of laymen and requires only common knowledge. EMDR and the
relevant credential and certification requirements require more than common knowledge
13 No. 40283-5-III Buchanan v. Passages Family Support
within the comprehension of laymen. Moreover, Buchanan fails to actually cite to and
explain any of the “evidence” she believes satisfies this exception.
Third, Buchanan argues that if the doctrine of res ipsa loquitur4 applies, then
expert testimony is not required. She spends a large portion of her opening brief
explaining the doctrine and arguing that it applies in this case. Passages responds,
arguing that we should decline to review this issue because Buchanan failed to call this
theory to the attention of the trial court as required by RAP 9.12. In reply, Buchanan
contends that she did call this issue to the trial court. We agree with Passages.
Under RAP 9.12, “[o]n review of an order granting or denying a motion for
summary judgment the appellate court will consider only evidence and issues called to
the attention of the trial court.” Here, Buchanan failed to argue res ipsa loquitur in her
4 “A plaintiff can, in limited circumstances, rely on the doctrine of res ipsa loquitur to satisfy the breach element of his or her pleading requirements, provided that the evidence shows that ‘(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.’” Reyes, 191 Wn.2d at 89-90 (internal quotation marks omitted) (quoting Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003)). Even if we were to accept Buchanan’s argument that res ipsa loquitur applies in this case, the doctrine only applies to the element of breach. See id. Buchanan would still be required to submit expert testimony of the standard of care and causation issues.
14 No. 40283-5-III Buchanan v. Passages Family Support
memorandum opposing summary judgment.5 Because she failed to call the trial court’s
attention to the issue, we decline to consider the issue.
In Buchanan’s reply brief, she argues that she raised the issue of res ipsa loquitur
in her motion for reconsideration. She is correct. However, she fails to explain how
raising the issue for the first time in her motion for reconsideration warranted review
under any of the grounds she sought reconsideration under. For example, she fails to
explain how the newly raised theory constituted irregularity in the proceedings (CR
59(a)(1)), accident or surprise (CR 59(a)(2)), newly discovered evidence (CR 59(a)(4), or
that substantial justice had not been done (CR 59(a)(9)). Accordingly, the trial court did
not abuse its discretion when it declined to entertain the theory on reconsideration.
Fourth, Buchanan, citing to the Restatement (Second) of Torts § 288A (Am. L.
Inst. 1965), appears to argue that negligence per se is an exception to the requirement of
expert medical testimony in a malpractice case. However, she fails to cite any
Washington authority related to this proposition and argument. Nevertheless, in
Washington, “[a] breach of a duty imposed by statute, ordinance, or administrative rule
shall not be considered negligence per se, but may be considered by the trier of fact as
5 In Buchanan’s reply brief, she argues that she referenced the doctrine by using the term “self-evident” at CP at 118. This argument is unconvincing. Nothing at CP at 118 references res ipsa loquitur, and the term “self-evident” is not sufficient to call the doctrine to the trial court’s attention.
15 No. 40283-5-III Buchanan v. Passages Family Support
evidence of negligence,” barring certain exceptions. RCW 5.40.050. Nothing in this
statute provides that evidence of a statute, ordinance, or administrative rule violation
precludes the requirement of expert medical testimony in a malpractice case.
Fifth, Buchanan points out that the Supreme Court overturned the certificate of
merit requirement in former RCW 7.70.150 (2006) as unconstitutional in Putman v.
Wenatchee Valley Medical Center, P.S., 166 Wn.2d 974, 984-85, 216 P.3d 374 (2009).
She extrapolates from this holding that the entire chapter 7.70 RCW is similarly
unconstitutional as restricting access to the courts, and violating her First and Fourteenth
Amendment rights. Passages argues that we should decline to consider this argument
under RAP 9.12 because it was not called to the attention of the trial court on summary
judgment. In Buchanan’s reply brief, she asserts that she raised this argument below.
Buchanan’s argument fails.
Buchanan did argue in her opposition to summary judgment that former RCW
7.70.150 (2006) violated her constitutional right to court access. But that statute was
already deemed unconstitutional at that point in time. Buchanan did not argue that
chapter 7.70 RCW as a whole was unconstitutional. Thus, the argument that she raises
on appeal, that chapter 7.70 RCW as a whole is unconstitutional, was not called to the
attention of the trial court and, therefore, we decline to consider it for the first time on
appeal. RAP 9.12; see also RAP 2.5(a).
16 No. 40283-5-III Buchanan v. Passages Family Support
Finally, in Buchanan’s reply brief, she argues, for the first time, that the trial court
violated the Judicial Code of Conduct by acting unfairly and impartially. However,
arguments raised in a reply brief are too late to warrant our consideration. In re Marriage
of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990). Thus, we decline to review these
arguments.
3. The trial court did not abuse its discretion when it denied reconsideration
Buchanan argues that any deficiencies in her expert letter were corrected by her
motion for reconsideration. Although Buchanan moved for reconsideration on the
grounds of CR 59(a)(1), (3), (4), and (9), her primary argument on reconsideration was
that the newly filed expert letter constituted newly discovered material evidence under
CR 59(a)(4).6 This rule provides:
Grounds for New Trial or Reconsideration. On the motion of the party aggrieved, a verdict may be vacated and a new trial granted to all or any of the parties, and on all issues, or on some of the issues when such issues are clearly and fairly separable and distinct, or any other decision or order may be vacated and reconsideration granted. Such motion may be granted for any one of the following causes materially affecting the substantial rights of such parties: ....
6 Buchanan failed to assign error to the trial court’s denial of her motion for reconsideration. Further, Buchanan fails to provide argument as to why the trial court’s decision to deny reconsideration was an abuse of discretion under the rules she cited in her motion (CR 59 (a)(1), (3), (4), and (9)). Accordingly, this memorandum’s analysis pertains to the ground that the trial court appeared to base its decision on CR 59(a)(4).
17 No. 40283-5-III Buchanan v. Passages Family Support
Newly discovered evidence, material for the party making the application, which the party could not with reasonable diligence have discovered and produced at the trial.
On reconsideration, the trial court ruled that the newly filed expert letter, now
sworn and signed, was untimely, and that even if it was timely, it contained conclusory
statements without adequate factual support to defeat Passages’ summary judgment
motion. The court refused to consider Exhibit 3 since it was unsworn, and refused to
consider Exhibit 4 because it consisted of inadmissible hearsay and lacked foundation.
As a threshold issue, we note that Buchanan failed to assign error to the trial
court’s denial of her motion for reconsideration. In addition, she fails to provide
argument as to why the trial court’s denial of her motion was an abuse of discretion under
CR 59.
Nevertheless, we conclude that the trial court did not abuse its discretion in
declining to consider the evidence submitted in support of the motion for reconsideration.
The updated expert letter did not constitute newly discovered evidence under CR
59(a)(4). “If the evidence was available but not offered until after that opportunity
passes, the parties are not entitled to another opportunity to submit that evidence.”
Wagner Dev., Inc. v. Fid. & Deposit Co., 95 Wn. App. 896, 907, 977 P.2d 639 (1999);
Adams v. Western Host, Inc., 55 Wn. App. 601, 608, 779 P.2d 281 (1989) (“The
realization that [the] first declaration was insufficient does not qualify the second
declaration as newly discovered evidence.”) (alteration in original). Here, the expert’s
18 No. 40283-5-III Buchanan v. Passages Family Support
letter was available at the time of Passages’ summary judgment motion, Buchanan simply
failed to comply with court rules applicable to her expert’s letter.
Similarly, we conclude that the trial court did not abuse its discretion when it
declined to consider the two exhibits Buchanan submitted with her reconsideration
motion.7 Exhibit 3, the “Explanation of Findings in this case” was unsigned, undated,
and unsworn in violation of Cr 56(e) and GR 13. Moreover, despite characterizing the
exhibit as newly discovered evidence, Buchanan failed to explain how the exhibit
actually constituted newly discovered evidence under CR 59(a)(4) or provided support
for any of the other cited grounds of reconsideration.8
Relatedly, Exhibit 4, the screenshots of online reviews of Passages, constituted
inadmissible hearsay under ER 8029 and lacked foundation. Buchanan offered the out-
of-court statements, the reviews, to prove the truth of the matter they asserted, and she
provided no foundation for them.
7 Buchanan fails to actually address these specific exhibits in her opening brief. 8 In Buchanan’s reply brief, she contends that the trial court erred when it found Exhibit 3 to be hearsay. This argument fails. The trial court found that Exhibit 4 constituted hearsay, not Exhibit 3. 9 “Hearsay is not admissible except as provided by these rules, by other court rules, or by statute.” ER 802. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c).
19 No. 40283-5-III Buchanan v. Passages Family Support
In addition to the evidentiary objections, the trial court also denied reconsideration
on the grounds that the expert declaration was insufficient because it relied on conclusory
statements without factual support in violation of CR 56(e) and because the expert did not
establish a violation of the standard of care or causation. This decision was well within
the trial court’s discretion.
Generally, an expert declaration that consists of conclusory statements without
factual support cannot defeat a motion for summary judgment. Davies v. Holy Family
Hosp., 144 Wn. App. 483, 492, 183 P.3d 283 (2008); Guile v. Ballard Cmty. Hosp., 70
Wn. App. 18, 25, 851 P.2d 689 (1993); see also CR 56(e) (“When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of a pleading, but a response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.”). To withstand summary judgment, an expert must do more than
claim that proper treatment required a correct diagnosis or different medical decisions;
they must present specific facts defining the applicable standard of care and
demonstrating how the defendant deviated from it. Reyes, 191 Wn.2d at 89.
Here, Buchanan’s expert identified seven examples of when the therapist “[d]id
not follow the Standard EMDR Therapy prescribed protocol” and generally asserted that
they “correlated” to Buchanan’s “symptoms,” but he did not provide sufficient factual
support to substantiate these claims. For instance, as Passages argues, the expert claimed
20 No. 40283-5-III Buchanan v. Passages Family Support
that Passages “did not complete a Trauma History” but did not explain why this omission
violated the standard of care or how it caused Buchanan’s injuries. To establish
causation, Buchanan needed to present evidence showing that the absence of a complete
medical history had anything to do about causing her injuries. Andrews v. Burke, 55 Wn.
App. 622, 629, 779 P.2d 740 (1989). Proximate cause cannot be established if the
medical testimony requires the fact-finder to “resort to speculation or conjecture in
determining the causal relationship.” McLaughlin v. Cooke, 112 Wn.2d 829, 837, 774
P.2d 1171 (1989).
Similarly, the expert alleged multiple failures of protocol without providing
sufficient explanation of the relevant standard of care or causation. He claimed that
Passages “did not follow a Trauma Target Treatment Plan” but failed to clarify what such
a plan entails or how its absence caused Buchanan’s injuries. CP at 161. Likewise, the
expert asserted that Passages omitted a “Target Assessment (Old Memory)” EMDR
procedure without explaining what the procedure involves or why its omission caused
harm. CP at 161. Other opinions are equally conclusory and vague, including claims that
Passages “Kept Thera-tappers going throughout the sessions” and that the therapist
“implemented his cognitions rather than the client’s.” CP at 161. The fact-finder would
have to speculate about the meaning of terms like “Thera-tapper” and “cognitions,” as
well as how the therapist allegedly imposed his own cognitions and how this caused to
Buchanan’s injuries. The same issue arises with the expert’s references to “Negative or
21 No. 40283-5-III Buchanan v. Passages Family Support
Positive Cognitions” and the claim that Passages “Consistently failed to return to Target
and/or evaluate SUD[10] levels with client.” CP at 161. The expert does not define “SUD
levels” or explain how failing to assess them caused Buchanan’s injuries.
Further, the expert’s general statement that “[f]ailure to comply with the
applicable standard of care, therefore, a direct and proximate result of the failure to
follow proper EMDR therapy procedures is known and can cause harm to a client” does
not state that the therapist in this case violated the applicable standard of care and caused
Buchanan’s injuries. CP at 161
All considered, the trial court did not abuse its discretion when it denied
reconsideration.
FRAUD CLAIMS
Buchanan argues that the trial court erred in granting summary judgment on her
fraud claims, asserting that she filed a certificate of merit and that her claims are not
subject to the statutes governing health care negligence actions. In response, Passages
contends that the certificate of merit was signed by an attorney not licensed in
Washington and was unnecessary under the medical malpractice statutes. Additionally,
Passages argues that Buchanan failed to submit admissible evidence supporting her fraud
10 Subjective units of distress.
22 No. 40283-5-III Buchanan v. Passages Family Support
claims. We agree with Buchanan that the trial court erred in granting summary judgment
on her fraud claims.
Passages moved for summary judgment on “all claims.” CP at 55. However,
beyond briefly mentioning them by name, Passages did not substantively address
Buchanan’s fraud claims in its motion. Instead, it broadly asserted that all actions for
damages arising from health care fall under chapter 7.70 RCW and that Buchanan’s
claims, including her fraud claims, could not survive summary judgment without an
expert declaration establishing the standard of care, breach, and causation. The trial court
seemingly adopted this argument when it dismissed all of Buchanan’s claims, including
the fraud claims.
Under RCW 7.70.030,
No award shall be made in any action or arbitration for damages for injury occurring as the result of health care which is provided after June 25, 1976, unless the plaintiff establishes one or more of the following propositions: (1) That injury resulted from the failure of a health care provider to follow the accepted standard of care; (2) That a health care provider promised the patient or his or her representative that the injury suffered would not occur; (3) That injury resulted from health care to which the patient or his or her representative did not consent.
(emphasis added).
The term “‘health care’ is not defined in chapter 7.70 RCW, [but] Washington
courts have defined it as ‘the process in which [a physician is] utilizing the skills which
23 No. 40283-5-III Buchanan v. Passages Family Support
[they] had been taught in examining, diagnosing, treating or caring for the plaintiff as
[their] patient.’” Wright v. Jeckle, 104 Wn. App. 478, 481, 16 P.3d 1268 (2001) (some
alterations in original) (internal citation omitted) (internal quotation marks omitted). In
medical malpractice cases, expert testimony is generally required to establish the standard
of care and is mandatory to prove proximate cause. Berger, 144 Wn.2d at 110.
Buchanan contends that her fraud claims do not fall under chapter 7.70 RCW
because they do not arise from “health care” as defined by Washington courts. Passages
did not meaningfully address this argument. We agree with Buchanan. Her fraud claims
do not involve the therapist’s professional skills in examining, diagnosing, treating, or
caring for her as a patient; rather, they arise from Passages’ insurance billing practices.
Accordingly, to the extent that the trial court ruled that Buchanan needed medical expert
testimony to survive summary judgment on her fraud claims, that ruling was error.
Because Buchanan’s fraud claims fall outside the scope of chapter 7.70 RCW,
Passages was required to independently establish the absence of a genuine issue of
material fact as to those claims. Instead, Passages relied on the expert testimony
requirement under the medical malpractice statutes, which was improper. Buchanan
should be given the opportunity to pursue her fraud claims. Therefore, we reverse the
trial court’s summary judgment dismissal of Buchanan’s fraud claims and remand for
further proceedings.
24 No. 40283-5-III Buchanan v. Passages Family Support
We affirm summary judgment dismissal of Buchanan’s medical malpractice
claims, but reverse summary judgment dismissal of her fraud claims and remand for
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Lawrence-Berrey, C.J.
_________________________________ Cooney, J.