Gustafson Feis v. Mayo

• Court: District Court, W.D. Washington
• Decided: April 24, 2024
• Docket: 2:23-cv-00462
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 LISA GUSTAFSON FEIS, et al., 9 Plaintiffs, Case No. C23-462-MLP 10 v. ORDER 11 KEITH MAYO, et al., 12 Defendants. 13

14 I. INTRODUCTION 15 In this medical malpractice action, Plaintiffs Lisa Gustafson Feis and Julien Feis 16 (together, “Plaintiffs”), proceeding pro se, allege orthopedic surgeons Dr. Keith Mayo and Dr. 17 Christopher Boone violated Washington’s medical negligence statute, Ch. 7.70 RCW, and 18 Swedish First Hill and Proliance Orthopaedics & Sports Medicine, respectively, are vicariously 19 liable. This matter is before the Court on three motions.1 20 First, Defendants Proliance Orthopaedics & Sports Medicine and Dr. Boone (together, 21 “Proliance Defendants”) filed a Motion for Summary Judgment. (Proliance Mot. (dkt. # 68).) 22 Plaintiffs filed an opposition. (Pls.’ Proliance Resp. (dkt. # 71).) Proliance Defendants filed a 23 1 The parties consented to proceed before the undersigned Magistrate Judge. (Dkt. # 17.) 1 reply on March 8, 2024 (Proliance Reply (dkt. # 77)), and a supplemental reply on April 12, 2 2024 (Proliance Suppl. Reply (dkt. # 95)). 3 Second, Swedish First Hill and Dr. Mayo (together, “Swedish Defendants”) filed a 4 Renewed Motion for Summary Judgment. (Swedish Mot. (dkt. # 80).) Swedish Defendants filed

5 a reply (Swedish Reply (dkt. # 93)), and Plaintiffs later filed an opposition to the motion (Pls.’ 6 Swedish Resp. (dkt. # 99)). Finally, Swedish First Hill filed a Motion to Compel. (Dkt. # 72.) No 7 response or reply was filed. 8 The Court held oral argument on all three motions on April 19, 2024. (Dkt. # 100.) 9 Having considered the parties’ submissions, oral argument, the governing law, and the balance of 10 the record, the Court GRANTS Proliance Defendants’ Motion (dkt. # 68), GRANTS Swedish 11 Defendants’ Motion (dkt. # 80), and DENIES as moot the Motion to Compel (dkt. # 72). 12 II. BACKGROUND 13 In 2016, Ms. Feis was struck by a motor vehicle, sustaining “severe spine and pelvis 14 injuries[.]” (Am. Compl. at ¶ 44.) Hardware was implanted, including in her sacrum. (Id. at

15 ¶ 50.) Plaintiffs allege Ms. Feis recovered completely from the 2016 injuries by late 2017. (Id. at 16 ¶¶ 74-77, 85-94.) 17 Dr. Mayo performed surgery on Ms. Feis on February 4, 2019, removing the sacrum 18 hardware that was implanted in 2016. (See Am. Compl. at ¶¶ 45, 50, 185; Bode Report (dkt. 19 # 71-1) at 5.) On January 16, 2020, Dr. Boone implanted different sacrum hardware, which 20 Plaintiffs allege was inappropriate for Ms. Feis’s treatment. (Am. Compl. at ¶¶ 244-45; Bode 21 Report at 7-8.) 22 Plaintiffs’ medical expert, Dr. Kenneth Bode, M.D., reviewed Ms. Feis’s medical 23 records, noting that certain portions were missing. (Bode Report at 2.) Dr. Bode opined Dr. 1 Mayo “failed to exercise that degree of care, skill, and learning expected of a reasonably prudent 2 health care provider” related to his “operative decision-making and preoperative workup[.]” (Id. 3 at 11.) Specifically, Dr. Bode opined Dr. Mayo should have obtained more diagnostic 4 information before proceeding with hardware removal. (Id. at 12.) Dr. Bode opined that, “as a

5 proximate result of such failure, the plaintiff suffered damages” but did not identify any specific 6 damages or provide any reasoning supporting his opinion. (Id. at 11.) With regard to whether 7 Ms. Feis gave informed consent for the surgery, Dr. Bode did not have the documentation and 8 thus was not able to determine if informed consent was obtained. (Id. at 12.) 9 Dr. Bode opined Dr. Boone “did not fail to exercise the degree of care, skill, and learning 10 expected” in his “operative decision-making and preoperative workup, based on the provided 11 documentation[.]” (Bode Report at 12.) Dr. Bode also opined Ms. Feis provided “informed 12 consent” for the procedure. (Id.) 13 After reviewing additional medical records and other evidence, Dr. Bode submitted an 14 addendum to his report. (Bode Suppl. Report (dkt. # 87-3) at 2.) Dr. Bode maintained his

15 opinions that Dr. Mayo violated the standard of care, proximately causing damages, and that Dr. 16 Boone did not violate the standard of care. (Id. at 15-16.) Dr. Bode also maintained his opinions 17 regarding informed consent for each doctor. (Id. at 16.) 18 On April 5, 2024, Dr. Bode sat for a deposition. (See Dow Decl. (dkt. # 94) at ¶ 2, Ex. 1.) 19 With regard to Dr. Mayo, Dr. Bode testified that he was not offering “any opinions as to 20 damages or causation of that damages[.]” (Id., Ex. 1 at 98:16-19.) With regard to Dr. Boone, Dr. 21 Bode reiterated his opinions that Dr. Boone did not violate the standard of care and obtained 22 informed consent. (Richards Decl. (dkt. # 97) at ¶ 1, Ex. 1 (dkt. # 97-1) at 111:8-20.) 23 1 Plaintiffs allege claims based on violation of the standard of care and lack of informed 2 consent. (See Am. Compl. at ¶¶ 12, 243-48, 282-84, 357.) Proliance Defendants contend 3 Plaintiffs have presented no competent expert testimony that Dr. Boone violated the standard of 4 care. Swedish Defendants contend Dr. Bode’s reports are inadmissible and, in any case, fail to

5 establish negligence or proximate cause. 6 III. DISCUSSION 7 A. Summary Judgment Standard 8 Summary judgment is appropriate when the “movant shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 10 Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party is 11 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 12 showing on an essential element of his case with respect to which he has the burden of proof. 13 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden 14 of showing the Court “that there is an absence of evidence to support the nonmoving party’s

15 case.” Id. at 325. The moving party can carry its initial burden by producing affirmative evidence 16 that negates an essential element of the nonmovant’s case or by establishing that the nonmovant 17 lacks the quantum of evidence needed to satisfy its burden at trial. Nissan Fire & Marine Ins. 18 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the 19 nonmoving party to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. 20 Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court must draw all reasonable inferences in 21 favor of the nonmoving party. Id. at 585-87. 22 Genuine disputes are those for which the evidence is such that a “reasonable jury could 23 return a verdict for the nonmoving party.” Anderson, 477 U.S. at 257. It is the nonmoving party’s 1 responsibility to “identify with reasonable particularity the evidence that precludes summary 2 judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoted source omitted). The 3 Court need not “scour the record in search of a genuine issue of triable fact.” Id. (quoted source 4 omitted); see also Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but

5 it may consider other materials in the record.”). Nor can the nonmoving party “defeat summary 6 judgment with allegations in the complaint, or with unsupported conjecture or conclusory 7 statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); see 8 McElyea v. Babbitt, 833 F.2d 196, 197-98 n.1 (9th Cir. 1987) (per curiam). 9 B. Informed Consent Claims 10 Informed consent claims require evidence that: (1) “the health care provider failed to 11 inform the patient of a material fact or facts relating to the treatment;” (2) “the patient consented 12 to the treatment without being aware of or fully informed of such material fact or facts;” (3) “a 13 reasonably prudent patient under similar circumstances would not have consented to the 14 treatment if informed of such material fact or facts;” and (4) “the treatment in question

15 proximately caused injury to the patient.” RCW 7.70.050(1). A plaintiff “must . . . establish[] by 16 expert testimony” material facts such as the nature and anticipated results of treatment, 17 alternatives, and serious risks. RCW 7.70.050(3). 18 Plaintiffs have provided no expert testimony that Dr. Mayo or Dr. Boone failed to inform 19 Ms. Feis as to any material facts. With regard to Dr. Mayo’s surgery, Dr. Bode stated he lacked 20 the information “to make a determination regarding [Ms. Feis’s] concerns of uninformed/ 21 unnecessary procedures.” (Bode Suppl. Report at 12.) Dr. Bode specifically opined Ms. Feis 22 gave “informed consent” to Dr. Boone’s surgery. (Id.) At his deposition, Dr. Bode confirmed it 23 1 was his “opinion that Dr. Boone obtained Ms. Feis’s informed consent with respect to the 2 surgery he performed in January of 2020[.]” (Richards Decl., Ex. 1 at 14-17.) 3 At the hearing, Plaintiffs argued that Dr. Boone did not inform Ms. Feis that he would 4 implant an iFuse device, but Plaintiffs admit their own expert “stated that surgeons do not have

5 to disclose what hardware they will use during a surgery[.]” (Pls.’ Swedish Resp. at 5.) Plaintiffs 6 assert that the iFuse manufacturer’s “website is very clear that the patients must be informed, 7 they have a buddy system, they have insurance advocates[.]” (Id. at 4.) Plaintiffs fail to produce 8 any evidence in support of their assertion. “[A] party opposing a properly supported motion for 9 summary judgment may not rest upon the mere allegations or denials of his pleading, but must 10 set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 11 (cleaned up). Such specific facts must be supported by “citing to particular parts of materials in 12 the record[.]” Fed. R. Civ. P. 56(c)(1)(A). Moreover, general information on a website is not 13 expert testimony as required to establish material facts such as the nature of treatment. RCW 14 7.70.050(3).

15 Plaintiffs have failed to make a sufficient showing that Ms. Feis was not informed of 16 material facts, an essential element with respect to which they have the burden of proof. 17 Accordingly, their informed consent claims are dismissed. See Celotex Corp., 477 U.S. at 18 322-23. 19 C. Medical Negligence Claims 20 “Medical negligence elements are ‘duty, breach, causation, and damages.’” Rounds v. 21 Nellcor Puritan Bennett, Inc., 147 Wn. App. 155, 162 (Wash. Ct. App. Div. 3, 2008). 22 “Specifically, the plaintiff must prove ‘the injury resulted from the failure of the health care 23 1 provider to follow the accepted standard of care . . . [and][s]uch failure was a proximate cause of 2 the injury complained of.’” Id. (quoting RCW 7.70.040(1)) (alterations in original). 3 “[E]xpert testimony will generally be necessary to establish the standard of care and most 4 aspects of causation.” Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn. 2d 438, 449 (Wash.

5 1983) (internal citations omitted); see also Street v. Weyerhaeuser Co., 189 Wn. 2d 187, 199 6 (Wash. 2017) (requiring expert testimony to show medical causation); Driggs v. Howlett, 193 7 Wn. App. 875, 898 (Wash. Ct. App. Div. 3, 2016) (“A plaintiff must prove the relevant standard 8 of care through the presentation of expert testimony[.]”). 9 1. Proliance Defendants 10 Proliance Defendants contend Plaintiffs’ claims against them must be dismissed because 11 Plaintiffs’ sole medical expert, Dr. Bode, opined Dr. Boone “did not fail to exercise the degree of 12 care, skill, and learning expected of a reasonably prudent health care provider[.]” (Proliance Mot. 13 at 4 (quoting Bode Report at 12).) Dr. Bode’s supplemental report, incorporating additional 14 records, continues to opine Dr. Boone did not deviate from the standard of care. (Bode Suppl.

15 Report at 15.) Moreover, Dr. Bode maintained at his deposition that Dr. Boone did not violate 16 the standard of care. (Proliance Suppl. Reply at 2; see Richards Decl., Ex. 1 at 114:11-17.) Dr. 17 Bode confirmed that it was his “opinion based on a medical certainty that Dr. Boone did not fail 18 to exercise the standard of care in this case with respect to his preoperative, interoperative, and 19 post- operative care of Ms. Feis[.]” (Richards Decl., Ex. 1 at 111:8-13.) 20 Plaintiffs have failed to produce a medical expert who opines Dr. Boone violated the 21 standard of care, causing injury to Ms. Feis. Plaintiffs argue the doctrine of res ipsa loquitur 22 applies here and thus expert testimony is not required. (Pls.’ Swedish Resp. at 5-6 (citing 23 Swanson v. Peterson, 26 Wn. App. 2d 1009, 2023 WL 2756236 (Wash. Ct. App. Div. 1, 2023)).) 1 Under the doctrine of res ipsa loquitur in the medical malpractice context, sufficient 2 circumstantial evidence of negligence and causation to defeat summary judgment may be found 3 in certain very narrow situations, such as physicians “leaving foreign objects, sponges, scissors, 4 etc., in the body, or amputation of a wrong member[.]” Swanson, 2023 WL 2756236, at *3

5 (quoting Curtis v. Lein, 169 Wn. 2d 884, 891 (Wash. 2010)). In Swanson, after surgery “a 6 foreign object—a retained needle tip—was present in [the plaintiff’s] rotator cuff.” Id. at *4. 7 Plaintiffs argue the situation here is similar to Swanson because the hardware Dr. Boone 8 implanted is “an object that was left in the Plaintiff’s body[.]” (Pls.’ Proliance Resp. at 5.) The 9 hardware, however, is not a foreign body but the device that was intended to be implanted. 10 Plaintiffs have not shown that res ipsa loquitur applies here. Having failed to produce 11 evidence that Dr. Boone breached the standard of care, Plaintiffs’ claims against Dr. Boone, and 12 by extension Proliance Orthopaedics & Sports Medicine, are dismissed. 13 2. Swedish Defendants 14 Swedish Defendants contend they are entitled to summary judgment because Dr. Bode’s

15 opinions: (1) are not signed under penalty of perjury; (2) do not suffice to establish proximate 16 cause; (3) are inadmissible under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 17 509 U.S. 579 (1993); and (4) fail under Washington’s “different course of treatment” doctrine. 18 (Swedish Mot. at 6-12.) On reply, Swedish Defendants contend Dr. Bode’s deposition further 19 supports their motion, as Dr. Bode testified he would not provide an opinion as to causation of 20 damages. (Swedish Reply at 2, 8.) Plaintiffs contend they “can prove a prima facie case with the 21 medical records[.]” (Pls.’ Swedish Resp. at 2.) The Court finds this matter can be resolved on the 22 issue of causation, and thus need not address Swedish Defendants’ remaining arguments. 23 1 To prevail on a medical malpractice claim, an essential element is that a violation of the 2 standard of care was “a proximate cause of the injury complained of.” RCW 7.70.040(1). 3 “Generally in a medical malpractice claim, a plaintiff needs testimony from a medical expert to 4 establish two required elements—standard of care and causation.” Keck v. Collins, 184 Wn. 2d

5 358, 361 (Wash. 2015); see also Street, 189 Wn. 2d at 199 (requiring expert testimony to show 6 medical causation). 7 Dr. Bode’s reports state that “as a proximate result of [Dr. Mayo’s violation of the 8 standard of care], the plaintiff suffered damages.” (Bode Suppl. Report at 15.) This opinion fails 9 to identify what injury Ms. Feis suffered as a result, and thus is insufficient to meet the statutory 10 requirement to show that the malpractice proximately caused “the injury complained of.” RCW 11 7.70.040(1). 12 Dr. Bode testified at deposition that he would not “offer[] any opinions regarding 13 causation of damages[.]”(Dow Decl., Ex. 1 at 104:20-25; see also id. at 98:12-19.) Plaintiffs 14 have not offered any other medical expert testimony regarding causation. While Plaintiffs assert

15 that “the medical records” prove their case, they fail to produce any evidence in support of their 16 assertion. (Pls.’ Swedish Resp. at 2.) 17 At the summary judgment stage, Plaintiffs “may not rest upon . . . mere allegations or 18 denials” but must provide “specific facts” in the record. Anderson, 477 U.S. at 248. Plaintiffs 19 have not done so. Accordingly, their medical negligence claims against Dr. Mayo, and by 20 extension Swedish First Hill, must be dismissed. 21 IV. CONCLUSION 22 For the foregoing reasons, the Court ORDERS: 23 1 (1) Defendants Proliance Orthopaedics & Sports Medicine and Dr. Christopher 2 Boone’s Motion for Summary Judgment (dkt. # 68) is GRANTED. 3 (2) Swedish First Hill and Dr. Keith Mayo’s Renewed Motion for Summary 4 Judgment (dkt. # 80) is GRANTED.

5 (3) Swedish First Hill’s Motion to Compel (dkt. # 72) is DENIED as moot. 6 (4) This action is DISMISSED and any remaining pending motions stricken. 7 Dated this 24th day of April, 2024. 8 A 9 MICHELLE L. PETERSON United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23