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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DR. HUNG DANG, M.D., a single person, No. 83002-3-I
Appellant, DIVISION ONE
v. PUBLISHED OPINION
FLOYD, PFLUEGER & RINGER, PS, a Washington professional services corporation; and REBECCA SUE RINGER, an individual,
Respondents.
BIRK, J. — Hung Dang, MD, brought a legal negligence claim against Floyd,
Pflueger & Ringer PS and Rebecca Ringer (together FPR). Ringer represented
Dr. Dang in a hearing before the Washington Medical Quality Assurance
Commission (MQAC).1 Dr. Dang asserts that decisions to not call certain
witnesses, not offer certain exhibits, and not depose two witnesses, amounted to
a breach of the standard of care and proximately caused damage to Dr. Dang. We
conclude there is not a reasonable inference that had the omitted evidence been
admitted Dr. Dang would have received a more favorable outcome. As a result,
the trial court correctly granted summary judgment to FPR. We also conclude the
1 MQAC has since been renamed to Washington Medical Commission, but
for consistency with our previous opinion affirming the MQAC findings in Dr. Dang’s matter, we continue to refer to the commission as MQAC. See RCW 18.71.015, amended by Laws of 2019, Ch. 55, § 3(1). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/2
trial court properly denied Dr. Dang’s CR 56(f) motion to continue the summary
judgment hearing. We affirm.
I
A
The underlying facts are set forth in further detail in our opinion in Hung
Dang v. Department of Health, in which we upheld the discipline that MQAC
imposed on Dr. Dang. 10 Wn. App. 2d 650, 450 P.3d 1189 (2019), review denied,
195 Wn.2d 1004, 458 P.3d 781, cert. denied, 141 S. Ct. 371, 208 L. Ed. 2d 94
(2020). We summarize the facts here.
Dr. Dang is an otolaryngologist, specializing in the treatment of the ear,
nose, and throat (ENT). Dr. Dang worked at Group Health Cooperative. As a
condition of his employment with Group Health, Dr. Dang maintained staff
privileges and worked as an on call emergency ENT specialist at St. Joseph
Medical Center in Tacoma for all Group Health patients. St. Joseph is one of
several hospitals in the Franciscan Health System and is a level II trauma center.
Dr. Dang and his fellow Group Health ENT specialist colleagues (together
“Group Health ENT specialists”) took “community call” for St. Joseph patients,
covering the general St. Joseph population including those not covered by Group
Health. “Community call” means that if a patient presents to an emergency
department (ED) and specialty services are needed, a request can be made on
behalf of the patient for a specialty physician to come in to evaluate and care for
that patient. Active medical staff members are generally expected to take
community call.
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The Group Health ENT specialists taking community call at St. Joseph also
received consultation calls from EDs at Franciscan’s other affiliated hospitals, such
as St. Francis Hospital in Federal Way and St. Clare Hospital in Lakewood. ED
physicians at the other affiliated hospitals were provided a call schedule for on call
specialists who consulted on Group Health patients, and another call schedule for
on call specialists who consulted for Franciscan patients. The Group Health ENT
specialists received calls because the ED physicians at the affiliated Franciscan
hospitals possessed the ENT specialist rotation call schedule published by
Franciscan based on the specialists holding privileges at St. Joseph. This led to
the Group Health ENT specialists receiving consultation requests not only for
Group Health covered patients, but also for Franciscan’s other patient population.
Burdened with the additional caseload, the Group Health ENT specialists
objected to accepting consultation calls from Franciscan-affiliated hospitals other
than St. Joseph, reasoning that the Franciscan medical staff bylaws did not require
them to take such calls. ED physicians from the Franciscan-affiliated hospitals
argued Dr. Dang and his colleagues were responsible for the consultation calls
and failing to comply might be considered a violation of the Emergency Medical
Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd.
EMTALA requires hospitals to treat patients who need emergency medical
care, regardless of their ability to pay. 42 U.S.C. § 1395dd; Jackson v. E. Bay
Hosp., 246 F.3d 1248, 1254 (9th Cir. 2001). EMTALA was based in part on a
concern by Congress that hospitals were “dumping” patients who were unable to
pay for care, either by refusing to provide emergency treatment to these patients,
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/4
or by transferring the patients to other hospitals before the patients were stabilized.
Jackson, 246 F.3d at 1254. Under EMTALA, a hospital must provide appropriate
emergency medical care to stabilize the patient’s medical condition or transfer the
patient to another medical facility provided certain requirements are satisfied. 42
U.S.C. § 1395dd(b), (c).
Tony Haftel, MD, the former Franciscan vice president of quality and
associate chief medical officer, became involved in trying to resolve the community
call issue. Kim Moore, MD, succeeded Dr. Haftel and also sought to resolve the
issue. On October 5, 2011, Dr. Haftel e-mailed Dr. Dang and Dr. Moore to inform
them that Franciscan made it clear to their ED physicians that the Group Health
ENT specialists on community call were responsible for St. Joseph as the schedule
stated. In an e-mail dated April 30, 2014, Dr. Moore acknowledged meeting with
Craig Iriye, MD MHA, the medical center chief for Group Health’s Tacoma Medical
Center, to discuss the Group Health ENT specialists’ concerns. Dr. Moore also
suggested a screening checklist for the patient transfer center to use when getting
a request to contact a Group Health ENT for a patient consultation.
The Group Health administration told the Group Health ENT specialists that
they must comply with Franciscan’s request that the Group Health ENT specialists
manage the patients from the entire Franciscan system. Group Health reasoned
that doing otherwise might be seen as an EMTALA violation, and Group Health
wanted to maintain its partnership and cooperation with Franciscan.
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B
On March 30, 2016, the Washington State Department of Health (DOH) filed
a statement of charges against Dr. Dang, alleging violation of EMTALA and the
Uniform Disciplinary Act (UDA), chapter 18.130 RCW. The UDA governs licensing
and discipline of physicians. RCW 18.130.180 regulates unprofessional conduct.
Among other things, it is unprofessional conduct for a licensed health professional
to commit an act involving moral turpitude relating to the practice of the person’s
profession, or commit negligence, malpractice, or incompetence which results in
injury to a patient or which creates an unreasonable risk that a patient may be
harmed. RCW 18.130.180(1), (4). Additionally, it is unprofessional conduct for a
licensed health professional to violate any state or federal statute or administrative
rule regulating the profession in question, including any statute or rule defining or
establishing standards of patient care or professional conduct or practice. RCW
18.130.180(7).
The DOH statement of charges against Dr. Dang alleged violations of
EMTALA and RCW 18.130.180(1), (4), and (7) with respect to patients “A,” “B,”
and “C.” According to the charges, generally, Dr. Dang violated EMTALA and the
UDA by refusing to consult on three patients on the grounds that he was not on
call for the Franciscan hospitals to which the patients first presented.
Dr. Dang retained attorney Rebecca Ringer and filed an answer to the
statements of charges. MQAC proposed a settlement agreement which would
have consisted of stipulated findings of fact, conclusions of law, and an agreed
order, and which would have avoided a hearing on the charges. Dr. Dang rejected
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/6
the settlement offer. Ringer did not depose Dr. Moore in advance of the MQAC
hearing. In the prehearing filings, Ringer did not list Dr. Haftel as a witness or
identify as exhibits any of the e-mails in which Dr. Moore had acknowledged the
existence of the Group Health ENT specialists’ concerns about receiving
consultation requests from Franciscan hospitals other than St. Joseph.
Ringer later testified that she did not call Dr. Haftel because she did not
think he could provide any information needed for the time frame relevant to Dr.
Dang’s case. Ringer opted against deposing Dr. Moore because she viewed Dr.
Moore’s involvement as evident in the record and did not want deposition
questioning to allow an adverse witness to become better prepared. Ringer
preferred to avoid depositions because doing so would make it less likely the DOH
would depose Dr. Dang, and therefore less likely that it would discover the e-mails
concerning community call. Ringer did not offer the community call e-mails
because she believed using them as evidence would lead the DOH to other
evidence that she thought would do “more harm than good” and be “risky” and
“dangerous” for Dr. Dang at the hearing. Ringer believed relying on the e-mails
would have led the DOH to seek discovery of all related e-mails, beyond just those
Dr. Dang believed supported the existence of the community call dispute.
C
The three day MQAC hearing began on January 30, 2017. On September
29, 2017, MQAC issued its 22 page findings of fact, conclusions of law, and final
order. On December 20, 2017, MQAC issued amended findings of fact,
conclusions of law, and final order. This court upheld the MQAC’s amended
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/7
findings of fact, conclusions of law, and final order. Hung Dang, 10 Wn. App. 2d
at 675.
MQAC entered findings in regard to the three patients it had charged Dr.
Dang with refusing to transfer or see.
MQAC found patient A was seen at St. Clare for facial swelling, an enlarged
tongue with airway obstruction, and difficulty breathing and swallowing. It found,
based on patient A’s medical history and current condition, the ED physician was
concerned that patient A’s condition could worsen and a specialist who could
render a higher level of care was needed. It found St. Clare did not have an ENT
specialist on call. And it found Dr. Dang was contacted to care for patient A, but
he refused to accept patient A’s transfer to St. Joseph.
Dr. Dang testified that in the handling of the call with the ED physician for
patient A, Dr. Dang complied with EMTALA and the applicable standard of care.
Dr. Dang reasoned that based on the information he received from the St. Clare
ED physician, patient A was not suffering from serious airway issues, and the ED
physician should go through the transfer center to process patient A’s transfer out
of St. Clare.
MQAC found that Dr. Dang’s conduct regarding patient A did not violate the
standard of care or EMTALA. It found that patient A was not transferred to St.
Joseph and that Dr. Dang was not on call at St. Clare, so Dr. Dang had no duty to
treat or accept the transfer of patient A.
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MQAC found that patient B was seen at the St. Francis ED for a sore throat,
difficulties with swallowing and breathing, and fluid collection consistent with
tonsillar abscess. It found, based on patient B’s physical examination and the
computerized tomography scan results, the ED physician determined that it was
necessary to transfer patient B to St. Joseph for further treatment and to consult
with an ENT specialist. MQAC also found that Dr. Dang refused to discuss the
case with the ED physician, admit patient B, or agree to a transfer.
Dr. Dang testified that he did not refuse to consult with the ED physician
about patient B, but instead told the ED physician that he was driving so he would
call back. Dr. Dang stated he wanted to use his computer to look at patient B’s
medical records and test results to determine whether transferring patient B to St.
Joseph would be appropriate. Dr. Dang said when he returned the ED physician’s
call, patient B’s abscess had been successfully drained.
For patient B, MQAC found no EMTALA violation, but found Dr. Dang’s
refusal to consult with the ED physician concerning the care of patient B was an
act of moral turpitude that lowered the standing of the profession in the eyes of the
public, in violation of RCW 18.130.180(1). Additionally, MQAC found Dr. Dang’s
refusal to consult with a fellow physician acting in good faith to help a patient
created an unreasonable risk of harm to patient B. See RCW 18.130.180(4).
MQAC found that patient C was seen at the St. Clare ED for ear pain, a
sore throat, and trouble swallowing. It found the treating staff suspected a
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/9
retropharyngeal abscess, which is described in the record as a “deep neck space
infection[ ] that can pose an immediate life-threatening emergency with the
potential for airway compromise.” MQAC found the St. Clare ED physician spoke
with Dr. Dang, who was the on call specialist at St. Joseph. It found Dr. Dang
refused to consult on or accept a transfer of patient C, since he was not on call for
St. Clare. And, MQAC found the St. Clare ED physician contacted Harborview
Medical Center in Seattle, which did not have capacity to accept patient C, and
then the St. Clare ED physician contacted Dr. Moore.
Dr. Moore testified that she approved the transfer of patient C from St.
Clare’s ED to St. Joseph’s ED. Dr. Moore said Dr. Dang “refused to come in and
see the patient.” Dr. Moore called Dr. Dang and “asked him to go in and see the
patient.” According to Dr. Moore, Dr. Dang told her he “would not go in to see the
patient because the patient had come from St. Clare.” Dr. Moore testified that Dr.
Dang did not give “any other reason why he would not or could not come in and
see the patient.”
Dr. Dang testified that he did not consult on patient C. Dr. Dang testified
that he told Dr. Moore that he was “not physically capable” of treating patient C
because of his recently having taken pain medication. Dr. Dang testified that in
late February or early March 2014, he had had ankle surgery. Dr. Dang said that
he fell and injured his heel and took a “hydrocodone and acetaminophen
combination . . . pill” for the pain. Other than his testimony at the MQAC hearing,
there is no evidence that Dr. Dang indicated his physical incapacity to see patient
C contemporaneous with his conversation with Dr. Moore and refusal to see the
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patient. Rather, the first evidence of Dr. Dang asserting that he was physically
compromised was his testimony at the MQAC hearing, many months after patient
C sought treatment. The MQAC hearing panel stated it was not persuaded by Dr.
Dang’s “after-the-fact justification.”
For patient C, MQAC found that Dr. Dang violated EMTALA and RCW
18.130.180. MQAC noted that patient C was experiencing an emergency medical
condition that had not been stabilized, and his transfer to St. Joseph was
appropriate. Furthermore, even if the transfer was improper, MQAC concluded
that Dr. Dang was “nonetheless obligated under EMTALA to appear and treat
patient C once he was transferred to [St. Joseph].”
As a result of its findings on patients A, B, and C, MQAC ordered oversight
of Dr. Dang’s medical license for two years, monitoring requirements, and a $5,000
fine.
Ringer does not dispute that the existence of the community call dispute
was important to providing an explanation for Dr. Dang’s conduct with patients A,
B, and C. When Ringer cross-examined Dr. Moore regarding the community call
issue, Dr. Moore denied knowledge of the issue:
Q [Y]ou were already familiar with the fact that there was ongoing discussion between the [Group Health] ENT specialists and the Franciscans about the issue of community call; correct? A No, I was not aware. Q Did you take over for Tony Haftel? A I did.
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Q He didn’t alert you to the fact that this has been a brewing issue, there is ongoing conversation and this needs to be addressed? A No. Q Were - you were never made aware of that in any regard? A No. Q How about until right now? A Yes, before today I knew that it was an issue, but not back in 2012. Q And I’m talking about 2014? A 2014. Q So you were unaware that there was this issue between the ENT surgeons and the hospital about call? A No. I knew that the call structure was complicated, but I didn’t know that there were issues.
After Dr. Moore denied knowledge of the community call issue, Ringer
attempted to introduce the e-mails that Dr. Moore was copied on and replied to
from October 6, 2011 and April 30, 2014, but the health law judge excluded them
because they had not been disclosed earlier. Ringer testified that her original
concerns about relying on the community call e-mails no longer existed, because
by that point there would not be additional discovery. Ringer nevertheless did not
believe the community call e-mails would strongly impeach Dr. Moore about her
ability to recall discussions about the community call issue, and therefore did not
see those e-mails as important evidence.
D
On November 23, 2020, Dr. Dang filed suit against FPR, alleging legal
negligence. On January 11, 2021, FPR filed an answer, including affirmative
defenses and a counterclaim for unpaid legal fees. Dr. Dang deposed Ringer on
April 14, 2021. On May 4, 2021, FPR filed a motion for summary judgment. Dr.
Dang sought a continuance of that motion under CR 56(f) so that he could
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/12
complete the deposition of Ringer’s former associate. Dr. Dang filed a motion for
partial summary judgment on May 10, 2021, asking the trial court to determine that
Dr. Dang may recover emotional distress damages in his legal negligence case
and to reject several of FPR’s affirmative defenses.
The trial court denied Dr. Dang’s request for a CR 56(f) continuance and
granted FPR’s motion for summary judgment. The trial court declined to address
Dr. Dang’s motion for partial summary judgment as moot. FPR voluntarily
dismissed its counterclaim for unpaid fees.
Dr. Dang appeals.
II
A party seeking summary judgment bears the initial burden to show the
absence of a genuine issue of material fact. Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989). This burden may be met by showing an
absence of evidence to support the nonmoving party’s burden of proof at trial. Id.
at 225 n.1. Then, the burden shifts to the nonmoving party to show the existence
of a genuine issue of material fact. Id. at 225. We review an order granting
summary judgment de novo. Id. at 226. We view the evidence and all reasonable
inferences therefrom in the light most favorable to the nonmoving party. Id.
To establish a legal negligence claim, a plaintiff must prove (1) the existence
of an attorney-client relationship which gives rise to a duty of care on the part of
the attorney to the client, (2) an act or omission by the attorney in breach of the
duty of care, (3) damage to the client, and (4) proximate causation between the
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attorney’s breach of the duty and the damage incurred. Hizey v. Carpenter, 119
Wn.2d 251, 260-61, 830 P.2d 646 (1992).
Dr. Dang’s assertions of negligence concern Ringer’s exercise of
professional judgment about the manner in which to handle the defense to the
DOH’s charges. As a result, Dr. Dang’s assertions of negligence must be analyzed
under Washington’s attorney judgment rule. Dr. Dang argues that the attorney
judgment rule is an affirmative defense, and that because FPR did not state it in
its answer, FPR therefore waived it.
In the context of a legal negligence claim, the attorney judgment rule is not
an affirmative defense which a defendant must plead. Rather, the attorney
judgment rule is an aspect of the attorney standard of care. As explained in Clark
County Fire District No. 5 v. Bullivant Houser Bailey PC, in matters of professional
judgment, a plaintiff may establish legal negligence by showing that “no reasonable
Washington attorney would have made the same decision as the defendant
attorney”—in other words, by showing that the decision itself violated the standard
of care because it was not within the range of reasonable alternatives from the
perspective of a reasonable, careful, and prudent attorney in Washington. 180
Wn. App. 689, 706, 324 P.3d 743 (2014). Alternatively, the plaintiff may establish
legal negligence by showing that the decision was arrived at in a manner that
violated the standard of care, such as because it was an uninformed decision. Id.
The attorney judgment rule does not protect a decision that is not within the
standard of care for a particular situation, that was arrived at through means
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violating the standard of care, or that was not made in good faith. See Cook,
Flanagan & Berst v. Clausing, 73 Wn.2d 393, 396, 438 P.2d 865 (1968) (generally
approving a jury instruction stating an attorney is not liable for malpractice where
the method employed to solve a legal problem is one recognized and approved by
reasonably skilled attorneys practicing in the community as a proper method in the
particular case); Clark County Fire Dist., 180 Wn. App. at 704-05 (attorney not
liable for making an allegedly erroneous decision involving honest, good faith
judgment if (1) that decision was within the range of reasonable alternatives from
the perspective of a reasonable, careful, and prudent attorney in Washington, and
(2) in making that judgment decision the attorney exercised reasonable care).
In general, an error in professional judgment or in trial tactics, without more,
does not subject an attorney to liability for legal negligence merely because the
professional judgment or tactic led to a disadvantageous outcome. Halvorsen v.
Ferguson, 46 Wn. App. 708, 717, 735 P.2d 675 (1986). The attorney judgment
rule is dependent on the attorney arriving at a professional judgment or trial tactic
while exercising the standard of care consisting of “the degree of care, skill,
diligence, and knowledge commonly possessed and exercised by a reasonable,
careful, and prudent lawyer in the practice of law in this jurisdiction.” Hizey, 119
Wn.2d at 261. The attorney judgment rule reflects that a range of strategic
approaches may be reasonable and within the standard of care in a given
representation, notwithstanding that a reasonable strategy based on an
appropriate evaluation may not lead to the desired outcome.
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This principle is not an affirmative defense that must be pleaded in a
defendant’s answer under CR 8, but rather reflects the definition of the standard
of care. By definition, when a professional judgment or a trial tactic falls into the
attorney judgment rule because it was a reasonable decision, appropriately arrived
at, within the standard of care, and made in good faith, it does not amount to
negligence. In Halvorsen, the plaintiff asserted legal negligence based on an
attorney’s handling of the apportionment of the value of two businesses owned by
divorcing spouses. 46 Wn. App. at 710-11. The issue of apportionment was then
“an uncertain and unsettled legal area” in Washington law, and the record showed
that the attorney in his trial brief both appropriately presented the available
Washington authorities and made the available arguments based on “informed
judgment.” Id. at 718-19. This court concluded that the plaintiff’s evidence failed
to show a breach of the standard of care, where the plaintiff’s experts testified only
that they would have handled the issue differently, but conspicuously not that the
attorney’s handling of the issue was a breach of the standard of care. See id. at
718. Halvorsen applied the attorney judgment rule by analyzing the adequacy of
the plaintiff’s evidence to show a breach of the standard of care, not by requiring
the attorney defendant to meet an affirmative burden of proof.
We are not persuaded that this court previously held that the attorney
judgment rule is an affirmative defense, as opposed to a component of the
standard of care, despite language suggesting otherwise in Clark County Fire
District, 180 Wn. App. at 707, and in Spencer v. Badgley Mullins Turner PLLC, 6
Wn. App. 2d 762, 796, 432 P.3d 821 (2018).
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Although Spencer described the attorney judgment rule as an affirmative
defense to a legal negligence claim, it said so while evaluating a breach of fiduciary
duty claim based on alleged violations of the Rules of Professional Conduct
(RPCs). 6 Wn. App. 2d at 793-96. That context matters. In Spencer, the jury
concluded that an attorney committed legal negligence by failing to submit
available evidence, within an extremely short time frame, that the plaintiffs would
have been able to buy out co-owners of investment real estate, so as to avoid sale
to a third party. Id. at 770, 772, 776. But the trial court concluded the attorney did
not violate the RPCs and did not breach any fiduciary duty. Id. at 800-01. In
context, this court’s comment about the attorney judgment rule concerned whether
an attorney’s good faith exercise of judgment may be asserted as a defense to a
claim that the attorney has violated the RPCs. Id. at 796. Thus, the court was not
directly commenting on the elements of legal negligence, but rather identifying the
issue raised by the parties of whether good faith, in some circumstances, may be
a defense to certain alleged RPC violations. Additionally, the court in Spencer
ultimately did not reach whether the attorney judgment rule would provide a
defense to alleged RPC violations, because the court upheld the trial court’s rulings
that the attorney did not violate the RPCs. Id. at 796.
Similarly, in Clark County Fire, despite the court’s reference to the attorney
judgment rule as an affirmative defense, like earlier Washington cases, it analyzed
the rule in the context of evaluating the sufficiency of the plaintiff’s evidence. 180
Wn. App. at 701, 705. The court held that the plaintiff’s expert testimony that the
defendant attorney’s decisions breached the standard of care supported the
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inference that the decisions were not within the range of reasonable alternatives
from the perspective of a reasonable, careful and prudent attorney in Washington.
180 Wn. App. at 702, 709, 711. Despite referring to the attorney judgment rule as
being an affirmative defense, neither Spencer nor Clark County Fire applied the
rule as a defense depending on a defendant making an affirmative showing.
Accordingly, we hold that the attorney judgment rule is not an affirmative
defense that a defendant must plead in an answer under CR 8.
To show proximate cause in a legal negligence claim arising out of a
litigation matter, the client must show that the client would have fared better “but
for” the asserted mishandling of the representation by the attorney. Daugert v.
Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985). Washington courts have often
remarked that the general principles of causation are usually no different in a legal
negligence action than in an ordinary negligence case. Ward v. Arnold, 52 Wn.2d
581, 584, 328 P.2d 164 (1958); Sherry v. Diercks, 29 Wn. App. 433, 437, 628 P.2d
1336 (1981); Boguch v. Landover Corp., 153 Wn. App. 595, 611, 224 P.3d 795
(2009). This is true insofar as the plaintiff must show that the plaintiff would have
achieved a better result had the attorney performed the representation without
negligence. Daugert, 104 Wn.2d at 257; VersusLaw, Inc. v. Stoel Rives, LLP, 127
Wn. App. 309, 328, 111 P.3d 866 (2005). But the manner in which the plaintiff
must go about showing that a better result would have been achieved but for an
attorney’s negligent handling of a litigation matter involves “unique characteristics”
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compared to other types of tort cases. Brust v. Newton, 70 Wn. App. 286, 290,
852 P.2d 1092 (1993).
At issue is the cause in fact component of proximate cause. See Ang v.
Martin, 154 Wn.2d 477, 482, 114 P.3d 637 (2005). Determining cause in fact in a
legal negligence case arising out of a litigation matter requires a “trial within a trial.”
Id. The plaintiff re-presents the underlying matter to a trier of fact, this time
presenting the matter free of the deficiencies of the original presentation alleged
to be negligent. Daugert, 104 Wn.2d at 257; Aubin v. Barton, 123 Wn. App. 592,
608-09, 98 P.3d 126 (2004). The trier of fact assessing the matter without the
original asserted deficiencies may then “replicate” the judgment that would have
been obtained without negligence. Brust, 70 Wn. App. at 293. The difference in
the trier of fact’s conclusion in the legal negligence case, if any, shows “what a
reasonable jury or fact finder in the initial cause of action would have done,” and
therefore shows any disparity in outcome that is the “but for” consequence of the
original lawyer’s allegedly deficient performance. See Shepard Ambulance, Inc.
v. Helsell, Fetterman, Martin, Todd & Hokanson, 95 Wn. App. 231, 235-36, 244-
45, 974 P.2d 1275 (1999).
Proximate cause is generally determined by the trier of fact, but the court
can determine proximate cause as a matter of law if reasonable minds can reach
only one conclusion. Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864,
147 P.3d 600 (2006). To avoid summary judgment, “the plaintiff must produce
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evidence that the error in judgment did in fact affect the outcome.” Clark County
Fire Dist., 180 Wn. App. at 707.
Dr. Dang did not present expert testimony specifically on cause in fact, but
this is not dispositive. The nature of the cause in fact inquiry in legal negligence
cases arising out of litigation matters demonstrates that a plaintiff is not necessarily
required to come forward with expert testimony specifically establishing that but
for the attorney’s alleged negligence the plaintiff would have fared better. The
focus of the re-presentation of the case is not on what a particular trier of fact would
have done, but rather on what a reasonable trier of fact would have done, i.e., what
the result would have been without negligence. Brust, 70 Wn. App. at 293.
Therefore, when cause in fact is to be established by a trier of fact’s assessment
of the re-presented case, a plaintiff is not necessarily required to present expert
testimony on causation, because the trier of fact will assess the merits of the matter
as re-presented in the legal negligence case. Slack v. Luke, 192 Wn. App. 909,
918, 370 P.3d 49 (2016).
Purported expert testimony to the effect that a trier of fact would have
responded more favorably in the original matter may be subject to exclusion as
inherently speculative. See Halvorsen, 46 Wn. App. at 721-22. Some decisions
of this court have at times pointed to a lack of expert testimony on cause in fact as
supportive of summary judgment for lack of proof in legal negligence cases. Estep
v. Hamilton, 148 Wn. App. 246, 257, 201 P.3d 331 (2008) (“Estep provides no
evidence she would have prevailed. Her expert . . . did not opine on the subject.”);
Geer v. Tonnon, 137 Wn. App. 838, 851, 155 P.3d 163 (2007) (“Geer failed to
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/20
provide expert testimony or other evidence to demonstrate that such a breach of
Tonnon’s duty of care was the cause in fact of Geer’s claimed damages.”). Expert
opinion may be relevant to demonstrate the evidence that should have been
presented in the original proceeding. Aubin, 123 Wn. App. at 609-10. The key,
however, is that the evidence in the legal negligence matter must be sufficient to
allow the trier of fact to reach a conclusion that is more favorable than the one that
was reached based on the original presentation. This evidence may take the form
of additional evidence that was not in the original presentation. As a result, expert
testimony on causation is not necessarily required to show cause in fact in a legal
negligence matter.
Dr. Dang argues that for purposes of summary judgment he needed to
establish only that his position would have been materially strengthened but for
Ringer’s alleged negligence. But Dr. Dang’s burden of proof on cause in fact was
to show that with the representation he asserts was called for, a trier of fact could
reasonably reach a better outcome. Daugert, 104 Wn.2d at 257; Versuslaw, 127
Wn. App. at 328; cf. 6 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY
INSTRUCTIONS: CIVIL 107.07, at 654 (7th ed. 2019). Properly framed, the issue for
the trial court on summary judgment was whether, with the original MQAC record
strengthened by the evidence which was allegedly negligently omitted and by the
foreknowledge from depositions Dr. Dang says was lacking, a reasonable trier of
fact in the legal negligence case could reach a conclusion that was more favorable
than the conclusion the MQAC panel reached. Cf. Spencer, 6 Wn. App. 2d at 779.
Upon such a showing, the question of cause in fact on Dr. Dang’s legal negligence
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claim would be one for the trier of fact to resolve through a trial within a trial, and
summary judgment would be properly denied.
This inquiry can be made without expert testimony, by comparing the
reasonable inferences that a trier of fact in the legal negligence case may make
from the original MQAC record as supplemented with the evidence Dr. Dang
asserts was lacking, with the conclusions the MQAC panel in fact reached.
Speculation about what the original MQAC panel would have done is not relevant.
Brust, 70 Wn. App. at 293. We do not need to assess the precise boundaries of
expert opinion evidence potentially relevant to cause in fact in legal negligence
cases, and we do not hold as a general matter that such evidence is necessarily
improper. But Dr. Dang’s claim does not fail merely because his standard of care
expert appropriately declined to speculate about what the original MQAC panel
would have decided if it had had the record Dr. Dang claims should have been
presented. Rather, we assess in the light most favorable to Dr. Dang how a trier
of fact might reasonably view the MQAC record as he says it should have been
developed.
For patient A, MQAC stated that there was insufficient evidence to find that
Dr. Dang violated the standard of care or violated EMTALA. Dr. Dang could not
have received a more favorable outcome on these MQAC findings. It is significant
that, for patient A, MQAC accepted that Dr. Dang did not have an obligation to
provide treatment or accept a transfer because Dr. Dang was not on call at St.
Clare, where patient A first presented. As discussed below, when MQAC found
21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/22
violations for patient B and patient C, it did so based on actions by Dr. Dang that
were independent of the fact those patients first presented at hospitals other than
St. Joseph where Dr. Dang was on call. This further demonstrates why additional
evidence concerning Dr. Dang’s basis for disputing call responsibilities towards
patients originating at Franciscan hospitals other than St. Joseph does not support
a trier of fact in the legal negligence case in reaching a more favorable conclusion
on the MQAC charges.
For patient B, MQAC stated that there was insufficient evidence to find that
Dr. Dang violated EMTALA. However, it found that Dr. Dang’s refusal to consult
with the St. Francis ED physician concerning patient B’s care lowered the standing
of the profession in the eyes of the public in violation of RCW 18.130.180, and his
refusal to consult with the ED physician, who acted in good faith on behalf of patient
B, created an unreasonable risk of harm to patient B.
The omitted evidence forming the basis for Dr. Dang’s legal negligence
claim would have had no effect on these findings. Dr. Dang’s rationale for declining
to consult with the ED physician about patient B based on call disputes between
Group Health and Franciscan, whether appropriate or not, does not change the
fact that Dr. Dang, in fact, declined to consult. Based on the MQAC findings, this
put patient B, who experienced difficulties swallowing and breathing, at an
unreasonable risk of harm and delayed treatment. Both findings by MQAC make
clear that Dr. Dang’s violations concerned the relationships between the patients
and public with the medical profession, not the relationships between providers
and provider institutions. Dr. Dang presents no evidence about possible testimony
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by Dr. Haftel or Dr. Moore, and there is no inference from the omitted e-mails, that
would support a trier of fact in the legal negligence case in reaching a different
conclusion than the MQAC panel reached.
For patient C, the MQAC panel found that Dr. Dang violated EMTALA when
he failed to treat patient C, while he was on call for St. Joseph. The amended
MQAC order expressly states, “[F]ailure to utilize a Patient Placement Center does
not relieve a practitioner from his/her obligations under [EMTALA].” Even if the
transfer was improper or the call structure unsatisfactory, the MQAC panel found
that Dr. Dang was nonetheless obligated to treat patient C once he was transferred
to St. Joseph.
Dr. Dang and Kenneth Kagan, Dr. Dang’s standard of care expert, take
issue with Ringer’s failure to depose Dr. Moore, failure to depose Dr. Haftel or list
him as a witness, and failure to introduce Dr. Dang’s e-mails with Dr. Moore and
others concerning the ongoing community call issue. All of this evidence concerns
the community call issue the Group Health ENT specialists faced. Dr. Dang called
one of his Group Health ENT specialist colleagues, Alex Moreano, MD, who
testified extensively on the community call issue. Dr. Moreano and his colleagues
believed that they were not obligated to care for patients seen outside of St. Joseph
based on the bylaws. Dr. Moreano described the “pushback” he and his
colleagues received from the Franciscan ED physicians, who believed the Group
Health ENT specialists could be committing an EMTALA violation by refusing to
take calls from the other Franciscan-affiliated hospitals. Group Health and the
Franciscan administrations sought to address the issue, but ultimately Group
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Health informed Dr. Dang and Dr. Moreano that they must comply with
Franciscan’s request to manage patients from their entire system.
Even based on an MQAC hearing record supplemented with the e-mails
and the depositions of Dr. Moore and Dr. Haftel, Dr. Dang does not demonstrate
that the evidence would support a trier of fact in the legal negligence case in
reaching a more favorable conclusion with regard to the specific circumstances of
the violations found as to patient C. Although Kagan saw the disputes between
Franciscan and the Group Health ENT specialists as critical to the case, the record
is clear that MQAC did not. Whether patient C was properly or justifiably
transferred to St. Joseph under the applicable procedures was irrelevant, and
MQAC expressly found that Dr. Dang was obligated to treat patient C at St. Joseph.
Moreover, the evidence Dr. Dang asserts was negligently omitted concerning the
community call dispute would not have had any bearing on Dr. Dang’s assertion
at the hearing that he did not see patient C because he was under the influence of
medication, nor the MQAC panel’s rejection of that assertion. Because it was
undisputed that Dr. Dang was on call at St. Joseph and refused to treat or consult
patient C after transfer to St. Joseph, while patient C was facing a potentially life-
threatening condition, additional evidence that there had been a dispute about call
requirements would not support a trier of fact in the legal negligence case in
arriving at a more favorable outcome for Dr. Dang.
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In reaching this holding, we do not rely on finding that EMTALA imposes a
standard of care or directly applies to Dr. Dang.2 Courts have broadly recognized
that EMTALA was not enacted to establish a federal medical negligence cause of
action nor to establish a national standard of care. Bryant v. Adventist Health
Sys./W., 289 F.3d 1162, 1166 (9th Cir. 2002); Nartey v. Franciscan Health Hosp.,
2 F.4th 1020, 1025 (7th Cir. 2021) (joining seven other circuit courts that concluded
EMTALA cannot be used to challenge the quality of medical care), cert. denied,
142 S. Ct. 2770 (2022). Instead, we rely on the Washington statutory provisions
that govern the standard of care and unprofessional conduct of health
professionals under RCW 18.130.180. The statute contemplates that a physician
may violate a statute independently of whether the physician has violated the
standard of care towards a patient. See RCW 18.130.180(4), (7). Regardless, we
do not review in this appeal the propriety of the findings that MQAC made. Rather,
we review whether Dr. Dang’s evidence, as supplemented by the omitted e-mails
concerning community call, would support a trier of fact in the legal negligence
case in reaching a more favorable conclusion. We do not need to determine
whether MQAC was correct in concluding Dr. Dang violated EMTALA when he
failed to treat patient C, because the community call e-mails do not support a
conclusion other than that he failed to treat the patient. Because the omitted
2 The additional authority which Dr. Dang referenced at oral argument nevertheless leaves open the possibility that EMTALA may apply directly to “an on-call physician who ‘fails or refuses to appear within a reasonable period of time.’” Martindale v. Indiana Univ. Health Bloomington, Inc., 39 F.4th 416, 423 (7th Cir. 2022) (quoting 42 U.S.C. § 1395dd(d)(1)(C)).
25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83002-3-I/26
community call e-mails would not alter MQAC’s factual findings, they likewise
would not alter the panel’s conclusion about the significance of those findings.
We conclude that, considered in the light most favorable to Dr. Dang, the
omitted depositions and e-mails, together with the reasonable inferences
therefrom, would not support a trier of fact in the legal negligence case in reaching
a conclusion more favorable to Dr. Dang on the MQAC charges. Nor does Dr.
Dang make any argument or offer any evidentiary basis for concluding that any of
the omitted evidence would support a trier of fact in imposing lesser discipline than
was imposed. Dr. Dang fails to present a material issue of fact on cause in fact,
and his claim necessarily fails.
III
Finally, we conclude the trial court did not err by denying Dr. Dang’s request
to continue the summary judgment hearing under CR 56(f). Erica Roberts was a
former associate at Floyd, Pflueger & Ringer who assisted Ringer with Dr. Dang’s
case. Dr. Dang contends the trial court “condoned the defense gamesmanship” of
delaying Roberts’s deposition when the court proceeded with the summary
judgment hearing. Dr. Dang argues that he was unable to depose Roberts and
her work constituted the majority of services on Dr. Dang’s case before the MQAC
hearing. Kagan took issue with some of those services that he deemed critical to
the issue of whether Ringer’s judgments were informed. FPR responded by
arguing that Dr. Dang waited to seek Roberts’s deposition until seven weeks
before both parties filed their motions for summary judgment and Roberts’s
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testimony would not create a genuine fact dispute regarding breach and
concerning causation.
A trial court may continue a summary judgment hearing if the nonmoving
party shows a need for additional time to obtain additional affidavits, take
depositions, or conduct discovery. CR 56(f). When the party opposing a summary
judgment motion shows reasons why the party cannot present facts justifying its
opposition, the trial court has a duty to give that party a reasonable opportunity to
complete the record before ruling on the case. Mannington Carpets, Inc. v.
Hazelrigg, 94 Wn. App. 899, 902-03, 973 P.2d 1103 (1999). However, the trial
court may deny a motion to continue when (1) the requesting party does not have
a good reason for the delay in obtaining the evidence, (2) the requesting party
does not indicate what evidence would be established by further discovery, or (3)
the new evidence would not raise a genuine issue of material fact. Tellevik v.
31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d 1325 (1992).
A trial court’s decision on a request to continue a summary judgment
hearing under CR 56(f) is reviewed for abuse of discretion. Bldg. Indus. Ass’n of
Wash. v. McCarthy, 152 Wn. App. 720, 743, 218 P.3d 196 (2009). A trial court
abuses its discretion if it bases its decision on untenable or unreasonable grounds.
Id.
At the summary judgment hearing, the trial court rejected Dr. Dang’s
argument that Roberts may have had information to contradict Ringer’s testimony
that Ringer made the decisions at issue. Further, the trial court deemed any
argument to the contrary as merely speculative.
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Dr. Dang claims that had he been allowed to depose Roberts, he would
have expected to further investigate the decision-making process used by Ringer
when she decided to omit Dr. Haftel and the community call e-mails from Dr.
Dang’s witness and exhibit list. Ringer testified that she and Roberts discussed
what to include, Roberts made the preliminary selections, and Ringer finalized the
list and approved it.
Even if we were to find that Dr. Dang had a good reason for any delay in
obtaining Roberts’s deposition, the evidence Dr. Dang sought was at most
speculative, and its discovery would not raise a genuine issue of material fact. Dr.
Dang cannot point specifically to what about Ringer’s decision-making process he
would learn from Roberts’s deposition. Further, Dr. Dang cannot point to any
additional evidence relevant to proximate cause that would be learned at Roberts’s
deposition. Dr. Dang does not show how testimony by Roberts would support
inferences justifying a more favorable outcome on the MQAC charges. Although
the community call issue became the main thrust of Dr. Dang’s defense at the
hearing, MQAC did not give that argument the weight that Dr. Dang attributes to it.
MQAC did not reference the community call issue in the conclusions of law section
of its decision as to both EMTALA and RCW 18.130.180 violations. Roberts’s
deposition would not give rise to a genuine issue of material fact supporting cause
in fact, and the trial court did not abuse its discretion when it denied Dr. Dang’s CR
56(f) motion.
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Because Dr. Dang’s claim fails due to lack of evidence of cause in fact, the
emotional distress damages issue is moot, and we need not address it.
Affirmed.
WE CONCUR: