Leaverton v. Cascade Surgical Partners, PLLC

160 Wash. App. 512
CourtCourt of Appeals of Washington
DecidedMarch 10, 2011
DocketNo. 28846-3-III
StatusPublished
Cited by6 cases

This text of 160 Wash. App. 512 (Leaverton v. Cascade Surgical Partners, PLLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leaverton v. Cascade Surgical Partners, PLLC, 160 Wash. App. 512 (Wash. Ct. App. 2011).

Opinion

f 1 This appeal follows the summary dismissal of a medical negligence suit by a patient against her general surgeon. The plaintiff’s experts are otolaryngologists (ear, nose, and throat specialists), not general surgeons, and each refused to comment on the “standard of care” for a general surgeon. The trial judge concluded that the failure to introduce opinions on the standard for a general surgeon was fatal to the patient’s suit and he summarily dismissed her complaint. We conclude that the expert’s familiarity with the disease and its management, surgically, is sufficient to submit the matter to jury and we therefore reverse the summary dismissal and remand for trial.

Sweeney, J.

FACTS

f 2 Lajuana Leaverton suffered from a multinodular goiter (enlargements of her thyroid) and hyperthyroidism (excessive secretions of her thyroid). Her physician referred her to Dr. Robert J. Conroy of Cascade Surgical Partners [515]*515PLLC (CSP) for surgical treatment. Dr. Conroy is board certified in general surgery.

¶3 He examined Ms. Leaverton and found an enlarged thyroid with several palpable nodules. He decided that a subtotal thyroidectomy (removal of only a portion of the thyroid) was more appropriate than a total thyroidectomy and so advised Ms. Leaverton. His medical judgment is generally based on the anatomy of the patient, the difficulty of dissection, and identification of certain laryngeal nerves. He also advised Ms. Leaverton of the risks associated with the surgery. Those risks included injury to what is called the recurrent laryngeal nerves. Ms. Leaverton agreed to the procedure.

¶4 Dr. Conroy performed a subtotal thyroidectomy on Ms. Leaverton in late November 2003. During the surgery, Dr. Conroy could not identify the left recurrent laryngeal nerve. He used “electrocautery” (cauterization using an electrical device) to divide the thyroid gland so he could remove part of it. Dr. Conroy was able to identify the right recurrent laryngeal nerve.

¶5 After the surgery, Ms. Leaverton had high-pitched, harsh sounding respiration, called stridor. Dr. Conroy consulted with another specialist, who examined Ms. Leaverton, evaluated her, and noted “mild vocal cord and vocal fold edema [and] bilateral cord abductor and adductor paralysis.” Clerk’s Papers (CP) at 108. The condition, inspiratory stridor, persisted, so Dr. Conroy referred Ms. Leaverton to Dr. Allen Hillel at the University of Washington Medical Center. He is an otolaryngologist. Dr. Hillel tried to correct the problem but he was unsuccessful. Ms. Leaverton’s vocal cords remained fixed.

¶6 Ms. Leaverton sued Dr. Conroy and CSP for damages. She alleged that Dr. Conroy negligently performed the surgery. Ms. Leaverton disclosed Dr. Gregory K. Chan and Dr. Charles R. Souliere Jr. as expert witnesses during the discovery process. Both are otolaryngologists, not general surgeons. Both do total thyroidectomy surgeries; neither does subtotal thyroidectomies. Both were conversant with [516]*516Ms. Leaverton’s condition and the techniques for surgically correcting that condition. Both expressed opinions that the cause of the injury was the use of electrocautery too close, within 0.5 centimeters, of the left recurrent laryngeal nerve. But neither would express an opinion on the “standard of care” for general surgeons and neither performed subtotal thyroidectomies as a matter of practice. Dr. Conroy and CSP moved for summary judgment, relying on the refusal of Dr. Chan and Dr. Souliere to express an opinion on the standard of care for a general surgeon.

¶7 The judge concluded that the refusal of Ms. Leaverton’s experts to give opinions on the standard of care for a general surgeon was fatal to her claim and he dismissed her suit.

DISCUSSION

|8 Ms. Leaverton contends that her experts showed expertise in her medical condition and its management surgically and that should have been enough under the case law in this state to admit their opinions on the standard of care for treatment of this condition. Dr. Conroy contends that the trial judge got it right. He argues that neither of Ms. Leaverton’s experts perform or have experience with subtotal thyroidectomies. Neither of them is a general surgeon or was prepared to express opinions on whether this general surgeon, Dr. Conroy, met the standard of care required of general surgeons. And so the trial judge properly dismissed the suit.

¶9 We review an order granting summary judgment de novo. Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438, 445, 177 P.3d 1152 (2008). Like the trial judge, the question before us is whether Ms. Leaverton produced sufficient evidence to support the essential elements of a medical negligence claim. Id. In a medical negligence action, evidence concerning the standard of care and a breach of that standard must generally be shown by expert medical testimony. Id. at 446. We view the evidence, and any [517]*517inferences that may be drawn from that evidence, in a light most favorable to the nonmoving party, here Ms. Leaverton. Id. at 445.

¶10 Ms. Leaverton must then show that Dr. Conroy “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 belongs, in the state of Washington, acting in the same or similar circumstances.” RCW 7.70.040(1). She used the opinions of Dr. Chan and Dr. Souliere to try to do this.

Scope of Knowledge

¶11 The scope of an expert’s knowledge, not his or her professional specialty, governs “ ‘the threshold question of admissibility of expert medical testimony in a malpractice case.’ ” Hill, 143 Wn. App. at 447 (quoting Pon Kwock Eng v. Klein, 127 Wn. App. 171, 172, 110 P.3d 844 (2005)). “A physician with a medical degree is qualified to express an opinion on any sort of medical question, including questions in areas in which the physician is not a specialist, so long as the physician has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue in the : . . action.” Id.

¶12 Dr. Chan and Dr. Souliere both have medical degrees. Both have extensive experience in thyroid surgery and the potential complications, especially to recurrent laryngeal nerves. Both have basic training in general surgery. The trial judge agreed that Dr. Chan and Dr. Souliere “are both well-qualified board certified otolaryngologists, who have experience and familiarity with thyroid disease and thyroidectomy.” CP at 79. They both have a working familiarity with the resulting complication here — paralysis of the vocal cords and resultant stridor.

¶13 Dr. Conroy argues, nevertheless, that these experts are not prepared to express opinions on the specific medical procedure at issue here, a subtotal thyroidectomy, and that is what he performed. Nor are they prepared to express opinions on the standard of care for a general surgeon [518]*518performing this surgery. But his argument couches the question before us too narrowly. The question is not whether Dr. Conroy was negligent for his decision to perform a subtotal thyroidectomy versus a total thyroidectomy or use of electrocauterization. The criticism of Dr.

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Bluebook (online)
160 Wash. App. 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leaverton-v-cascade-surgical-partners-pllc-washctapp-2011.