IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
JAMES READY, an individual, No. 87054-8-I
Appellant,
v.
SEAN K. KEEM, MD,
Respondent,
SWEDISH HEALTH SERVICES, d/b/a: SWEDISH MEDICAL CENTER, a Washington nonprofit corporation; THE POLYCLINIC MADISON CENTER, a Foreign Limited Liability Company, UNPUBLISHED OPINION d/b/a: THE POLYCLINIC MSO, LLC; MARK W. SMITH, MD; THE POLYCLINIC, PLLC, a Washington Professional Limited Liability Company; THE POLYCLINIC, d/b/a: POLYCLINIC MANAGEMENT SERVICES COMPANY, LLC, a Washington Limited Liability Company; JOHN AND JANE DOES 1 - 5,
Defendants.
BOWMAN, A.C.J. — James Ready appeals the trial court’s summary
judgment dismissal of his medical negligence claim. Ready argues the trial court
erred by concluding that his claim was unsupported by sufficient expert
testimony. We affirm. No. 87054-8-1/2
FACTS
On November 14, 2018, orthopedic spinal surgeon Dr. Sean Keem
performed anterior lumbar spine surgery on Ready at Swedish Medical Center
First Hill Campus.1 Postsurgery, Ready developed short-term urine retention,
significant ileus,2 elevated creatinine,3 and small red blood cells in his urine.
Consulting physician Dr. Mark Smith diagnosed Ready with a urinary tract
infection, and Swedish discharged Ready on November 22, 2018.
Less than a week later on November 27, Swedish readmitted Ready for
pain, distension, and nausea. A CT4 scan showed a large collection of fluid on
his pelvis and a transection of his left ureter.5 Between November 28 and
December 8, doctors performed four more surgical procedures to manage
Ready’s complications from the transected ureter.6 Swedish discharged Ready
1 The surgical procedures included (1) an anterior lateral interbody decompression arthrodesis of the lumbosacral joint (L5-S1); (2) anterolateral interbody decompression arthrodesis of the fourth and fifth lumbar vertebrae (L4-5) as a separate and distinct procedure, using a different surgical technique and approach; (3) posterior spinal arthrodesis of the fourth lumbar vertebrae and first sacral vertebrae; (4) anterior instrumentation of the L5-S1; and (5) insertion of intervertebral prosthesis into the L4-5 and the L5-S1. 2 “Ileus” is an obstruction of the bowel, usually accompanied by nausea, vomiting, bloating, and pain. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1125 (2002). 3 “Creatinine” is a white crystalline compound formed from creatine in the muscle, blood, and urine. See WEBSTER’S at 532. 4 Computed tomography. 5 A “ureter” is a pair of ducts that carry urine from the kidneys to the bladder. Humans have two. See WEBSTER’S at 2521. 6 The four procedures were (1) placing a left nephrostomy tube and intraabdominal drain on November 28, (2) placing a left leg duplex and an inferior vena cava filter on December 2, (3) placing a fluid collection drain on December 6, and (4) performing an urgent thrombectomy, stenting, and fasciotomy for arteriovenous fistula and phlegmasia on December 28.
2 No. 87054-8-1/3
again on December 28. Doctors repaired Ready’s ureter through another
surgery on March 6, 2019.
On November 14, 2022, Ready sued Swedish,7 Dr. Keem, the Polyclinic,8
and John and Jane Does 1 through 5 for medical negligence, lack of informed
consent, and corporate negligence under chapter 7.70 RCW. A week later on
November 22, Ready amended his complaint to add defendants Dr. Smith, the
Polyclinic PLLC, and the Polyclinic doing business as the Polyclinic Management
Services Company LLC.9
In his complaint, Ready alleged that Dr. Keem negligently transected his
left ureter during surgery and that “Dr. Keem and/or Dr. Smith should have been
on notice of [his] iatrogenic ureteral injury sustained during surgery on November
14, 2018, by virtue of the post-surgical clinical evidence of such injury.” He said
Dr. Keem, Dr. Smith, and “Swedish’s employees and nurses owed [him] a duty of
care . . . to prevent such incident from occurring.” And his pain, nausea, erectile
dysfunction, drop foot, and other medical problems “were a direct and proximate
result of the iatrogenic ureteral injury sustained during surgery on November 14,
2018, and subsequent failures to identify it.”10
7 Ready identified Swedish as Swedish Health Services doing business as Swedish Medical Center 8 Ready identified the Polyclinic as the Polyclinic Madison Center doing business as the Polyclinic MSO LLC. The Polyclinic is now known as Optum. 9 Ready alleged the Polyclinic “employed and/or contracted with” Dr. Keem and Dr. Smith. 10 On July 15, 2024, the trial court granted defendants Swedish, the Polyclinic, and Dr. Smith’s motions for summary judgment. Ready does not appeal those orders.
3 No. 87054-8-1/4
On June 14, 2024, Dr. Keem moved for summary judgment, arguing that
Ready’s claims were unsupported by expert testimony. Ready opposed the
motion and filed a declaration from orthopedic spinal surgeon Dr. Sohrab
Gollogly. Dr. Gollogly explained that “[i]dentification of the ureter is crucial during
any surgical procedure involving its proximity to prevent potential damage,” and
that “[p]ost[ ]operative care for this procedure requires vigilance for potential
complications, prompt recognition, and immediate management.” He said that a
CT scan with IV11 contrast should have been performed “immediately” after
learning of Ready’s elevated creatinine levels. He pointed out that the
“orthopedic surgery team” did not mention to the postoperative care team that
“the constellation of signs and symptoms could have been caused by a ureteral
injury.” Dr. Gollogly then concluded that there were several opportunities to
arrive at a definitive diagnosis earlier in the postoperative period if the possibility
of a ureteral transection had been considered in the differential diagnosis and
that Ready’s injuries could have been avoided.
The court heard oral argument on July 12, 2024. During argument, Ready
told the court he was “not asserting or alleging any negligence with respect to the
initial transection of the ureter.” Instead, his allegation of medical negligence
“has to do with the postoperative care and the lack of communication of the
possibility of the [transected] ureter.”12 Ready then argued that Dr. Keem had a
11 Intravenous. 12 On appeal, Ready tries to revive his claim that Dr. Keem negligently transected his ureter during surgery. But we will not consider an issue on appeal that was abandoned at oral argument below. Holder v. City of Vancouver, 136 Wn. App. 104, 106-07, 147 P.3d 641 (2006).
4 No. 87054-8-1/5
duty to warn the postoperative team of the possibility of a transected ureter, that
Dr. Keem was negligent in failing to do so, and that his failure was the proximate
cause of Ready’s injuries.
The trial court granted summary judgment for Dr. Keem. It concluded that
Dr. Gollogly’s declaration did not sufficiently show that an orthopedic spinal
surgeon’s standard of care compelled Dr. Keem to warn the postoperative staff
about the possibility of a transected ureter or that any breach of that standard
proximately caused Ready’s injuries.
Ready appeals.
ANALYSIS
Ready argues that the trial court erred by dismissing his medical
negligence claim against Dr. Keem at summary judgment. We disagree.
We review a trial court’s grant of summary judgment de novo. Campanelli
v. PeaceHealth Sw. Med. Ctr., 34 Wn. App.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
JAMES READY, an individual, No. 87054-8-I
Appellant,
v.
SEAN K. KEEM, MD,
Respondent,
SWEDISH HEALTH SERVICES, d/b/a: SWEDISH MEDICAL CENTER, a Washington nonprofit corporation; THE POLYCLINIC MADISON CENTER, a Foreign Limited Liability Company, UNPUBLISHED OPINION d/b/a: THE POLYCLINIC MSO, LLC; MARK W. SMITH, MD; THE POLYCLINIC, PLLC, a Washington Professional Limited Liability Company; THE POLYCLINIC, d/b/a: POLYCLINIC MANAGEMENT SERVICES COMPANY, LLC, a Washington Limited Liability Company; JOHN AND JANE DOES 1 - 5,
Defendants.
BOWMAN, A.C.J. — James Ready appeals the trial court’s summary
judgment dismissal of his medical negligence claim. Ready argues the trial court
erred by concluding that his claim was unsupported by sufficient expert
testimony. We affirm. No. 87054-8-1/2
FACTS
On November 14, 2018, orthopedic spinal surgeon Dr. Sean Keem
performed anterior lumbar spine surgery on Ready at Swedish Medical Center
First Hill Campus.1 Postsurgery, Ready developed short-term urine retention,
significant ileus,2 elevated creatinine,3 and small red blood cells in his urine.
Consulting physician Dr. Mark Smith diagnosed Ready with a urinary tract
infection, and Swedish discharged Ready on November 22, 2018.
Less than a week later on November 27, Swedish readmitted Ready for
pain, distension, and nausea. A CT4 scan showed a large collection of fluid on
his pelvis and a transection of his left ureter.5 Between November 28 and
December 8, doctors performed four more surgical procedures to manage
Ready’s complications from the transected ureter.6 Swedish discharged Ready
1 The surgical procedures included (1) an anterior lateral interbody decompression arthrodesis of the lumbosacral joint (L5-S1); (2) anterolateral interbody decompression arthrodesis of the fourth and fifth lumbar vertebrae (L4-5) as a separate and distinct procedure, using a different surgical technique and approach; (3) posterior spinal arthrodesis of the fourth lumbar vertebrae and first sacral vertebrae; (4) anterior instrumentation of the L5-S1; and (5) insertion of intervertebral prosthesis into the L4-5 and the L5-S1. 2 “Ileus” is an obstruction of the bowel, usually accompanied by nausea, vomiting, bloating, and pain. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1125 (2002). 3 “Creatinine” is a white crystalline compound formed from creatine in the muscle, blood, and urine. See WEBSTER’S at 532. 4 Computed tomography. 5 A “ureter” is a pair of ducts that carry urine from the kidneys to the bladder. Humans have two. See WEBSTER’S at 2521. 6 The four procedures were (1) placing a left nephrostomy tube and intraabdominal drain on November 28, (2) placing a left leg duplex and an inferior vena cava filter on December 2, (3) placing a fluid collection drain on December 6, and (4) performing an urgent thrombectomy, stenting, and fasciotomy for arteriovenous fistula and phlegmasia on December 28.
2 No. 87054-8-1/3
again on December 28. Doctors repaired Ready’s ureter through another
surgery on March 6, 2019.
On November 14, 2022, Ready sued Swedish,7 Dr. Keem, the Polyclinic,8
and John and Jane Does 1 through 5 for medical negligence, lack of informed
consent, and corporate negligence under chapter 7.70 RCW. A week later on
November 22, Ready amended his complaint to add defendants Dr. Smith, the
Polyclinic PLLC, and the Polyclinic doing business as the Polyclinic Management
Services Company LLC.9
In his complaint, Ready alleged that Dr. Keem negligently transected his
left ureter during surgery and that “Dr. Keem and/or Dr. Smith should have been
on notice of [his] iatrogenic ureteral injury sustained during surgery on November
14, 2018, by virtue of the post-surgical clinical evidence of such injury.” He said
Dr. Keem, Dr. Smith, and “Swedish’s employees and nurses owed [him] a duty of
care . . . to prevent such incident from occurring.” And his pain, nausea, erectile
dysfunction, drop foot, and other medical problems “were a direct and proximate
result of the iatrogenic ureteral injury sustained during surgery on November 14,
2018, and subsequent failures to identify it.”10
7 Ready identified Swedish as Swedish Health Services doing business as Swedish Medical Center 8 Ready identified the Polyclinic as the Polyclinic Madison Center doing business as the Polyclinic MSO LLC. The Polyclinic is now known as Optum. 9 Ready alleged the Polyclinic “employed and/or contracted with” Dr. Keem and Dr. Smith. 10 On July 15, 2024, the trial court granted defendants Swedish, the Polyclinic, and Dr. Smith’s motions for summary judgment. Ready does not appeal those orders.
3 No. 87054-8-1/4
On June 14, 2024, Dr. Keem moved for summary judgment, arguing that
Ready’s claims were unsupported by expert testimony. Ready opposed the
motion and filed a declaration from orthopedic spinal surgeon Dr. Sohrab
Gollogly. Dr. Gollogly explained that “[i]dentification of the ureter is crucial during
any surgical procedure involving its proximity to prevent potential damage,” and
that “[p]ost[ ]operative care for this procedure requires vigilance for potential
complications, prompt recognition, and immediate management.” He said that a
CT scan with IV11 contrast should have been performed “immediately” after
learning of Ready’s elevated creatinine levels. He pointed out that the
“orthopedic surgery team” did not mention to the postoperative care team that
“the constellation of signs and symptoms could have been caused by a ureteral
injury.” Dr. Gollogly then concluded that there were several opportunities to
arrive at a definitive diagnosis earlier in the postoperative period if the possibility
of a ureteral transection had been considered in the differential diagnosis and
that Ready’s injuries could have been avoided.
The court heard oral argument on July 12, 2024. During argument, Ready
told the court he was “not asserting or alleging any negligence with respect to the
initial transection of the ureter.” Instead, his allegation of medical negligence
“has to do with the postoperative care and the lack of communication of the
possibility of the [transected] ureter.”12 Ready then argued that Dr. Keem had a
11 Intravenous. 12 On appeal, Ready tries to revive his claim that Dr. Keem negligently transected his ureter during surgery. But we will not consider an issue on appeal that was abandoned at oral argument below. Holder v. City of Vancouver, 136 Wn. App. 104, 106-07, 147 P.3d 641 (2006).
4 No. 87054-8-1/5
duty to warn the postoperative team of the possibility of a transected ureter, that
Dr. Keem was negligent in failing to do so, and that his failure was the proximate
cause of Ready’s injuries.
The trial court granted summary judgment for Dr. Keem. It concluded that
Dr. Gollogly’s declaration did not sufficiently show that an orthopedic spinal
surgeon’s standard of care compelled Dr. Keem to warn the postoperative staff
about the possibility of a transected ureter or that any breach of that standard
proximately caused Ready’s injuries.
Ready appeals.
ANALYSIS
Ready argues that the trial court erred by dismissing his medical
negligence claim against Dr. Keem at summary judgment. We disagree.
We review a trial court’s grant of summary judgment de novo. Campanelli
v. PeaceHealth Sw. Med. Ctr., 34 Wn. App. 2d 24, 35, 565 P.3d 933 (citing
McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d 469 (2013)),
review denied, 5 Wn.3d 1012, 577 P.3d 375 (2025). We “engage[ ] in the same
inquiry as the trial court, considering all facts and reasonable inferences in the
light most favorable to the nonmoving party.” Davies v. Holy Fam. Hosp., 144
Wn. App. 483, 491, 183 P.3d 283 (2008) (citing Kahn v. Salerno, 90 Wn. App.
110, 117, 951 P.2d 321 (1998)), abrogated on other grounds by Frausto v.
Yakima HMA, LLC, 188 Wn.2d 227, 393 P.3d 776 (2017). Summary judgment is
appropriate when “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” CR 56(c).
5 No. 87054-8-1/6
A defendant moving for summary judgment bears the initial burden of
showing that there is no genuine issue of material fact or that the plaintiff lacks
competent evidence to support an essential element of their claim. Davies, 144
Wn. App. at 492 (citing Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068
(2001)). The plaintiff must then produce sufficient evidence to create a genuine
issue of material fact for trial. Campanelli, 34 Wn. App. 2d at 35; see Reyes v.
Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018) (citing Morinaga v.
Vue, 85 Wn. App. 822, 935 P.2d 637 (1997)). This is a burden of production, not
persuasion. Campanelli, 34 Wn. App. 2d at 36 (citing Chervilova v. Overlake
Obstetricians & Gynecologists, PC, 30 Wn. App. 2d 120, 125, 543 P.3d 904
(2024)).
RCW 7.70.040 governs a medical negligence claim. Campanelli, 34 Wn.
App. 2d at 35 (citing Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 443-33,
663 P.2d 113 (1983)). To prevail on such a claim, a plaintiff must show that the
health care provider “failed to exercise that degree of care, skill, and learning
expected of a reasonably prudent health care provider at that time in the
profession or class to which he or she belongs, in the state of Washington, acting
in the same or similar circumstances,” and that the failure was the proximate
cause of the injury. RCW 7.70.040(1). Generally, qualified expert witness
testimony must support each element. Reyes, 191 Wn.2d at 86 (citing Miller v.
Jacoby, 145 Wn.2d 65, 71-72, 33 P.3d 68 (2001)). The expert’s opinion must be
grounded in fact and cannot be based on conjecture or speculation. Chervilova,
30 Wn App. 2d at 125.
6 No. 87054-8-1/7
Here, Ready supports his medical negligence claim with a declaration
from Dr. Gollogly, who explains that Ready’s postoperative care required
vigilance for potential complications to ensure prompt recognition and immediate
management.13 In Dr. Gollogly’s opinion, the postoperative team should have
performed a CT scan with IV contrast when it learned that Ready’s urine
contained red blood cells and that his creatinine levels were elevated. Yet “there
was no mention by the orthopedic surgery team that the constellation of signs
and symptoms could have been caused by a ureteral injury,” which is “a known,
albeit rare, complication of anterior spine surgery.” So, “the medical care
provided by Dr. Keem and the staff at Swedish . . . fell below the standard of care
of a reasonably prudent physician, practicing in the state of Washington at that
time.”
But no evidence shows that Dr. Keem knew that Ready’s urine contained
red blood cells or that his creatinine levels were elevated after the operation. Nor
does Dr. Gollogly state that the standard of care for an orthopedic surgeon
requires notifying a postoperative team that transection of the ureter is a known
but rare complication of anterior spine surgery. As a result, Dr. Gollogly’s
declaration fails to support the elements of Ready’s medical negligence claim
against Dr. Keem.
Still, Ready argues that an expert witness need not utter “magic words” or
testify in a particular format. And he cautions that such a requirement would
elevate the form of an expert’s testimony over its substance. Even so, an opinion
13 The parties do not dispute Dr. Gollogly’s qualifications as an expert witness.
7 No. 87054-8-1/8
alleging breach of an unidentified standard of care that is not grounded in fact
lacks substance, not form.
Viewing the evidence in a light most favorable to Ready, he fails to
support his medical negligence claim against Dr. Keem with expert testimony. As
a result, we affirm the trial court’s dismissal of that claim on summary judgment.
WE CONCUR: