FILED MARCH 2, 2021 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
DIANE CHRISTIAN and CASEY ) CHRISTIAN, ) No. 37027-5-III ) Respondents, ) ) v. ) ) ANTOINE TOHMEH, M.D., and “JANE ) DOE” TOHMEH, husband and wife, and ) the marital community composed thereof; ) PROVIDENCE HEALTH CARE, a ) UNPUBLISHED OPINION Washington business entity and health ) care provider; HOLY FAMILY ) HOSPITAL, a Washington business entity ) and health care provider; ) ORTHOPAEDIC SPECIALITY CLINIC ) OF SPOKANE PLLC, a Washington ) business entity and health care provider; ) DOES 1-5, ) ) Petitioners. )
FEARING, J. — This appeal raises the unique question of whether the claimant,
after this court reverses dismissal of her lost chance theory in a medical malpractice
action and remands to the trial court, may expand her action to a traditional causation
theory because she finds a new expert that opines that the purported negligence of the No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
physician caused injury on a more probable than not basis. We answer in the affirmative
and thereby affirm the superior court.
FACTS
This court previously reviewed this suit in Christian v. Tohmeh, 191 Wn. App.
709, 366 P.3d 16 (2015) (hereafter Christian I). We abbreviate those facts.
Diane and Casey Christian, wife and husband, brought suit against defendants Dr.
Antoine Tohmeh and the Orthopedic Specialty Clinic of Spokane, PLLC (Clinic). Diane
Christian was Dr. Tohmeh’s patient. We refer to the plaintiffs solely as Diane Christian.
Tohmeh was a physician employed by the Clinic. We refer to the defendants collectively
as Dr. Tohmeh.
On December 5, 2005, Diane Christian underwent an open and invasive spinal
procedure performed by Dr. Antoine Tohmeh, which procedure aimed at relieving
chronic low back pain and weakness in her legs. After the surgery, Christian reported
symptoms not experienced before. These symptoms included tingling and numbness in
her feet, pain in her buttocks, an inability to urinate and defecate, and a loss of sensation
in her vagina and perineum. Christian also reported muscle spasms that impeded her
ability to perform physical therapy. On December 9, the hospital discharged Christian,
and she was scheduled to see Dr. Antoine Tohmeh in four weeks. In the discharge note,
Dr. Tohmeh recommended in-home nursing care to monitor Christian’s urinary function.
2 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
On January 3, 2006, during a postoperative examination, Dr. Antoine Tohmeh
concluded that Diane Christian’s presurgery symptoms of thigh weakness and pain had
resolved. Christian, however, reported to Dr. Antoine Tohmeh that she continued to
suffer from an inability to void her bladder and from numbness in her left buttock,
rectum, vagina, left leg, and right foot. Dr. Tohmeh prescribed her Cymbalta to assist
with symptoms experienced in her left buttock and left leg.
On January 4, 2006, Diane Christian visited Dr. Michael Oefelein, an urologist
recommended by Dr. Antoine Tohmeh. Oefelein concluded that Christian still
experienced perineal numbness. Christian told Oefelein that she experienced frequent
urination. Oefelein conducted an ultrasound which showed that Christian retained only
36 cc of urine after voiding, he concluded that her urinary retention was resolved. Dr.
Oefelein instructed Christian to decrease her fluids and to return if she again had
problems voiding her bladder.
During a February 7, 2006 appointment with Dr. Antoine Tohmeh, Diane
Christian reported continued numbness of her left buttock, rectum, and vagina in addition
to severe constipation. Tohmeh made referrals for a bowel workup and nerve conduction
study on Christian’s left leg. He also noted that that her symptoms could relate to
inactivity, pain medications, and anesthesia.
A February 27, 2006 nerve study by Larry Lamb, M.D. detected no abnormality
that would cause Diane Christian’s complained of symptoms. The study did not
3 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
encompass the area of the cauda equina located at the bottom of the spine.
On March 16, 2006, Diane Christian returned to Dr. Antoine Tohmeh. Christian
expressed her regret in having undergone the invasive surgery as her current symptoms
resulted in more pain than her presurgery symptoms. At the appointment, Christian told
Tohmeh that she believed she had cauda equina syndrome. The cauda equina, Latin for
“horse’s tail,” is a bundle of spinal nerves and nerve roots in the lower back. The nerves
of the cauda equina stimulate the pelvic organs, perineum, bladder, sphincter muscles,
hips, and legs. Cauda equina syndrome constitutes a serious neurologic condition in
which damage to the cauda equine causes loss of function of nerve roots in the lower
spinal canal. Cauda equina syndrome results in severe back pain, numbness in the
perineum, vagina, and anus, bladder and bowel dysfunction, sexual dysfunction, pain
radiating into the legs, and gait disturbance. Dr. Tohmeh disagreed with the self-
diagnosis.
In April 2006, Diane Christian saw physiatrist Vivian Moise for a second opinion.
Dr. Moise agreed that Christian’s symptoms were consistent with cauda equina
syndrome. Further testing, according to Dr. Moise, confirmed the diagnosis.
PROCEDURE
On December 4, 2009, Diane Christian filed suit against Dr. Antoine Tohmeh for
medical malpractice. Christian alleged in her complaint that Tohmeh knew or should
have known of the significance of her postsurgical neurological symptoms and that he
4 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
violated the applicable standard of care by failing to provide immediate and emergency
medical intervention to address her postsurgical symptoms. Christian also alleged that
Dr. Tohmeh negligently or intentionally failed to order medical testing that would have
more definitively diagnosed or ruled out cauda equina syndrome. The complaint did not
identify whether Christian sought recovery under a traditional causation theory or a loss
of a better outcome theory.
On February 16, 2011, Diane Christian filed a witness list disclosing that she had
retained orthopedic surgeon Stanley Bigos as an expert witness. Dr. Bigos provided
deposition testimony on June 24, 2013. In Bigos’s deposition, he opined that Dr. Antoine
Tohmeh’s actions did not meet the appropriate standard of care. He further opined that
Dr. Tohmeh lessened Christian’s chances of a better outcome by 40 percent. Dr. Bigos
could not give a higher reduction in the chance of a better outcome. He indicated that,
because of the dearth of data on the subject of cauda equine, he could not provide a
definitive opinion or an opinion on a more probable than not basis.
In February 2014, Dr. Antoine Tohmeh moved for summary judgment. In his
memorandum, he argued that “any and all claims” should be dismissed as Diane
Christian lacked evidence that surgical intervention for the alleged cauda equina
syndrome would have “prevented” or “resulted in any improvement” of the alleged
neurologic deficits. Clerk’s Papers (CP) at 431. In a memorandum of authorities in
support of his motion, Dr. Tohmeh argued that Diane Christian failed to present sufficient
5 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
expert testimony to establish a causal link between Dr. Tohmeh’s conduct and her
injuries. He suggested that a causal link must be established on a more probable than not
basis. In a reply memorandum, Dr. Tohmeh asserted that Christian lacked evidence on a
more probable than not basis of a causal link between the alleged deviation from the
standard of care and her injuries. He then separately addressed a loss of chance claim
and argued that Dr. Stanley Bigos admitted the claim was based on speculation.
Diane Christian asked the trial court to deny the motion for summary judgment.
She presented argument specific to a lost chance claim and emphasized that expert
testimony established that Dr. Antoine Tohmeh breached the appropriate standard of care
and caused a loss of chance or loss of a better outcome. In May 2014, the trial court
granted summary judgment “in total” for Christian’s failure to meet her burden as to the
standard of care or proximate cause. CP at 684.
Diane Christian appealed to this court. On appeal, Christian categorized her
theory of recovery as a loss of chance claim. She framed the issue as:
Whether competent medical testimony that states Dr. Tohmeh breached the standard of care in treatment of Ms Christian, which caused her at least a 40% loss of chance of a better outcome, is sufficient (if not necessary) to create issues of fact for a loss of chance claim to survive summary judgment.
Am. Br. of Appellant at 3, Christian v. Tohmeh, No. 32578-4-III (Wash. Ct. App. 2015).
She did not argue recovery based on traditional causation.
6 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
In its 2015 ruling, this appeals court characterized the claim before it as a “lost
chance of a better outcome” claim resulting from an alleged breach of the standard of
care by Dr. Antoine Tohmeh. Christian v. Tohmeh, 191 Wn. App. at 711, 720, 729. This
court determined that genuine issues of material fact existed which precluded summary
judgment dismissal. This court reversed dismissal of “the Christians’ cause of action for
medical malpractice.” Christian v. Tohmeh, 191 Wn. App. at 742.
Following remand and in December 2016, Diane Christian gave notice that she
intended to to call neurosurgeon W. Bradford DeLong to testify as an expert. CP 809-10.
During a deposition in August 2017, Dr. DeLong opined that, if Dr. Antoine Tohmeh had
intervened by surgery when Christian complained of numbness in her vaginal area,
Christian would not be suffering permanent residual symptoms. DeLong placed
Christian’s loss of chance at 90 percent. In other words, DeLong testified that Dr.
Tohmeh’s breach of the standard of care likely prevented Christian’s full recovery.
In July 2019, Dr. Antoine Tohmeh brought a motion to dismiss and/or motion in
limine arguing that this appeals court’s decision foreclosed any argument under a
traditional theory of proximate causation. Stated differently, Dr. Tohmeh contended that
Diane Christian could not present testimony or recover damages based on an opinion that
the violation of the standard of care likely prevented her recovery. Tohmeh emphasized
that, in response to his 2014 summary judgment motion, Christian did not present
7 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
evidence to support a traditional causation theory and Christian appealed only the lost
chance claim.
Diane Christian responded that only one medical practice cause of action existed
and neither the superior court, nor this court, had barred reliance on a traditional
causation theory. She suggested that Dr. Antoine Tohmeh caused lengthy litigation
delays by its motion practices and that she should be able to benefit from an expanded
opinion of causation based in part on new data on causa equina.
The superior court denied Dr. Antoine Tohmeh’s motion to exclude evidence that
any breach likely caused Diane Christian injury. Tohmeh petitioned for discretionary
review, and this court granted discretionary review.
LAW AND ANALYSIS
On review, Dr. Antoine Tohmeh contends the trial court erred in failing to limit
Diane Christian to a causation theory of reduced chance of a better outcome. In other
words, Tohmeh argues that Christian should be precluded at trial from presenting
evidence that any violation of the standard of care by him caused Christian injury on a
more probable than not basis. Dr. Tohmeh asserts that, because of this court’s decision in
2015, Christian is limited, by the law of the case doctrine, to a reduced chance causation
theory and judicial estoppel precludes Christian’s change in theory to a traditional
causation theory. According to Tohmeh, Christian abandoned a claim based on
traditional causation theory when she did not rely on traditional causation in response to
8 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
Tohmeh’s 2014 summary judgment motion and when this court reviewed the case in
2015. We discuss the difference between a reduced chance of a better outcome theory
and a traditional causation theory before we separately address the law of the case
doctrine and judicial estoppel.
Lost Chance of a Better Outcome
The law distinguishes between a medical malpractice action wherein the claimant
relies on the traditional causation theory and one wherein the plaintiff depends on a lost
chance. Traditional tort principles require a plaintiff to prove that negligence likely led to
a worse than expected outcome. Rash v. Providence Health & Services, 183 Wn. App.
612, 631, 334 P.3d 1154 (2014). Under traditional tort principles, the plaintiff must
prove a loss of chance greater than 50 percent. In re Estate of Dormaier ex rel. Dormaier
v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 846, 313 P.3d 431 (2013).
Consistent with traditional tort principles, the lost chance doctrine requires the
plaintiff to prove the defendant breached a duty owed to the patient, but the claimant need
not prove that he or she likely sustained injury by reason of the breach. Contrary to
traditional principles, the claimant prevails by showing the negligence proximately
caused the patient to lose a chance of survival or a better outcome. In re Estate of
Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. at 845.
In a claim for loss chance of a better outcome, the patient would have likely suffered a
bad result even without a medical provider’s negligence, however, the provider’s
9 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
negligence likely worsened the outcome. Rash v. Providence Health & Services, 183
Wn. App. at 631. In such a case, the plaintiff shows that the chance of a better outcome
was reduced by 50 percent or less. Rash v. Providence Health & Services, 183 Wn. App.
at 631; In re Estate of Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC,
177 Wn. App. at 846.
A lost chance claim is not a distinct cause of action but an analysis within, a
theory contained by, or a form of a medical malpractice cause of action. Christian v.
Tohmeh, 191 Wn. App. 709, 729 (2015). Thus, in In re Estate of Dormaier ex rel.
Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 856 (2013), this
court held that, at least in a wrongful death claim, the plaintiff need not expressly plead
reliance on a lost chance theory of causation. We also held that the claimant may rely on
both a traditional causation theory and a lost chance theory in the same suit. The lack of
a need to plead the theory and the ability to assert both causation theories in the same
lawsuit bolsters our conclusion that the law of the case doctrine and judicial estoppel do
not preclude Diane Christian from changing her theory in midstream and on remand.
Law of the Case
When asserting the law of the case doctrine, Dr. Antoine Tohmeh forwards two
principal arguments. First, he contends that Diane Christian needed to present any
evidence she had, in response to Tohmeh’s 2014 summary judgment motion, that
Tohmeh caused her injuries on a more probable that not basis. The trial court must have
10 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
ruled, in response to Tohmeh’s 2014 motion, that Christian lacked evidence to support a
traditional causation theory since it dismissed Christian’s action in total. In turn, the trial
court was bound by its 2014 summary judgment ruling that dismissed any traditional
causation theory because of lack of evidence. According to Tohmeh, Christian did not
appeal the trial court’s 2014 ruling with regard to traditional causation, and thus, under
the law of the case, Christian may not ask the issue to be revisited now.
Second, Dr. Antoine Tohmeh argues that this reviewing court, in its 2015 opinion,
reversed the trial court only as to the trial court’s dismissal of Diane Christian’s loss of
chance theory. According to Tohmeh, the lack of a reversal of any traditional causation
theory must be followed by the trial court under the law of the case doctrine.
Diane Christian agrees that she did not provide argument under traditional
causation principles in response to the 2014 summary judgment motion. Christian agrees
that this reviewing court only relied on a lost chance of a better outcome theory when
ruling that her medical malpractice action survived a summary judgment motion.
Nevertheless, she contends that she may still now prosecute her medical malpractice
claim against Tohmeh under any theory of causation for which she submits competent
evidence at trial. We agree with Christian.
Three main principles arise from the law of the case doctrine: (1) a trial court
ruling maintains binding force during later stages of the trial (version 1), (2) an appeals
court ruling carries conclusive effects at trial on remand (version 2), and (3) an appellate
11 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
court will ordinarily not reconsider its own rulings of law on a subsequent appeal (version
3). Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 56, 366 P.3d 1246 (2015). The law
of the case doctrine, depending on the situation, can be mandatory or discretionary.
Lodis v. Corbis Holdings, Inc., 192 Wn. App. at 56. On the one hand, the remand rule
forbids a lower court from relitigating issues that were decided by a higher court, whether
explicitly or by reasonable implication, at an earlier stage of the same case. Lodis v.
Corbis Holdings, Inc., 192 Wn. App. at 56. On the other hand, the Court of Appeals may
or may not, at its discretion, revisit an earlier decision that it issued in the same case.
RAP 2.5(c); Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).
Dr. Antoine Tohmeh seeks to apply all three versions of the law of the case doctrine.
We question the validity of version one, which promotes the binding force of trial
court rulings during later stages of the trial. The last sentence of CR 54(b) declares:
In the absence of such findings [for the entry of a final judgment on less than all claims in the case], . . . the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Thus, even if Antoine Tohmeh’s trial court earlier dismissed any theory of Diane
Christian based on traditional causation, the trial court could revise the ruling.
Regardless, the trial court, in 2014, dismissed Christian’s cause of action for medical
malpractice, not any discrete theory of causation. Thus, the first version of the law of the
case does not control.
12 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
We reject application of the second version of the law of the case principle for the
same reason. This court, in 2015, did not rule that Diane Christian could not proceed
under a traditional causation theory. We simply held that Christian possessed sufficient
facts to litigate under a reduced chance of a better outcome theory and reversed the
dismissal of the medical malpractice claim. As already discussed, there is only one cause
of action for medical malpractice regardless of the causation theory or theories on which
the claimant relies.
Dr. Antoine Tohmeh emphasizes the principle that the law of the case doctrine can
apply to questions that could have earlier been decided on appeal. Under this rule,
questions determined on appeal, or which might have been determined had they been
presented, will not again be considered on a subsequent appeal without a substantial
change in the evidence. Folsom v. County of Spokane, 111 Wn.2d 256, 263 (1988);
Cronin v. Central Valley School District, 12 Wn. App. 2d 99, 111, 456 P.3d 843, review
denied, 195 Wn.2d 1030, 468 P.3d 617 (2020). During the first appeal, Diane Christian
could not have presented a question of recovery under a traditional causation theory
because she then lacked evidence to support recovery. If she had such evidence, the trial
court would have never granted the 2014 summary judgment motion, and this court
would not have entertained an appeal. We find no case, and Dr. Tohmeh cites no case,
that precludes a party from changing theories on remand if the party garners updated
information.
13 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
Finally, we deny application of the third version of the law of the case. We issued
no ruling in 2015 as to whether Diane Christian could recover under a traditional
causation theory.
Judicial Estoppel
Dr. Antoine Tohmeh next contends that Diane Christian’s theory of traditional
causation should be dismissed on the grounds of judicial estoppel. He suggests that both
the 2014 order on summary judgment and this court’s 2015 decision operate to preclude
an argument on traditional proximate cause principles. Christian responds that proving
causation under a traditional causation theory does not conflict with forwarding a lost
chance theory. She also contends that judicial estoppel is not appropriate within a single
proceeding. We do not resolve Christian’s second argument because we conclude that
Christian’s pursuing her medical malpractice claim under a traditional causation theory
does not conflict with any position taken by her earlier in this litigation.
Judicial estoppel is an equitable doctrine that precludes a party from asserting one
position in a court proceeding and later seeking an advantage by taking a clearly
inconsistent position. Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538-39, 160 P.3d 13
(2007). A clearly inconsistent position is one in which the positions are “diametrically
opposed to one another.” Kellar v. Estate of Kellar, 172 Wn. App. 562, 581, 291 P.3d
906 (2012). Stated another way, “to give rise to an estoppel, the positions must be not
14 No. 37027-5-III Diane Christian v. Antoine Tohmeh, MD
merely different, but so inconsistent that one necessarily excludes the other.” Markley v.
Markley, 31 Wn.2d 605, 615, 198 P.2d 486 (1948).
As already analyzed Diane Christian’s earlier prosecution of her cause of action
under a reduced chance theory does not conflict with asserting traditional causation. A
party may proceed with both causation theories in the same case and ask the jury to
decide the case on whichever theory fits. In re Estate of Dormaier ex rel. Dormaier v.
Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828 (2013).
CONCLUSION
We affirm the trial court’s denial of Dr. Antoine Tohmeh’s request to preclude
recovery under a traditional causation theory. We remand for further proceedings.
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.
_________________________________ Fearing, J.
WE CONCUR:
______________________________ _________________________________ Lawrence-Berrey, J. Pennell, C.J.