Rathod v. Providence Health & Services

• Court: District Court, W.D. Washington
• Decided: November 21, 2022
• Docket: 2:20-cv-00064
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 ANAND RATHOD, et al., Cause No. C20-0064RSL 8 Plaintiffs, ORDER GRANTING 9 v. DEFENDANT’S MOTION 10 FOR SUMMARY PROVIDENCE HEALTH & SERVICES, et JUDGMENT 11 al., 12 Defendants. 13

14 This matter comes before the Court on “The United States’ Motion for Summary 15 Judgment.” Dkt. # 94. Plaintiffs Anand and Aesha Rathod are the parents of plaintiff PR, who is 16 17 represented in this action by Joshua Brothers as Guardian ad Litem. Plaintiffs filed this lawsuit 18 to recover damages related to the labor and delivery of PR at Providence Regional Health Center 19 – Everett (“Providence”) on March 14, 2017, identifying various theories of recovery. Dkt. # 1 20 21 at ¶ 4.4. The United States substituted itself as defendant in place of Amy Rodriguez, M.D., and 22 Community Health Center of Snohomish County (“CHCSC”) pursuant to 28 U.S.C. 23 § 2679(d)(1). Plaintiffs settled with all other defendants. The United States seeks a summary 23 25 determination of most of plaintiffs’ claims under Rule 12(b)(6) on the ground that plaintiffs have 26 failed to raise an inference that their injuries are causally related to any breach of the standard of 27 28 1 care and failed to support their lack of informed consent claim. It also moves for dismissal of 2 plaintiff’s corporate negligence claim for lack of subject matter jurisdiction under Rule 12(b)(1). 3 Summary judgment is appropriate when, viewing the facts in the light most favorable to 4 5 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 6 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 7 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 8 9 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 10 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 11 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 12 13 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 14 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 15 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 16 17 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 18 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 19 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 20 21 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 22 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes 23 whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a 23 25 motion for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 26 2014). In other words, summary judgment should be granted where the nonmoving party fails to 27 28 1 offer evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. 2 Am. Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 3 Having reviewed the memoranda, declarations, and exhibits submitted by the parties1 and 4 5 taking the evidence in the light most favorable to plaintiffs, the Court finds as follows: 6 BACKGROUND 7 Plaintiff Aesha Rathod learned she was pregnant in July 2016. Due to a change in her 8 9 insurance, Ms. Rathod had to change providers and chose Dr. Rodriguez at CHCSC. Dr. 10 Rodriquez is board-certified in family medicine, which allows her to provide prenatal and 11 obstetric care as part of her practice. She is not, however, a specialist in obstetrics and is not 12 13 credentialed to perform cesarean or forceps-assisted deliveries. She did not discuss the limits of 14 her certifications with Ms. Rathod. 15 Early in the morning of March 13, 2017, Ms. Rathod’s water broke. She went to 16 17 Providence and was placed on continuous fetal heartrate monitoring to measure the fetus’ 18 heartrate and heartrate patterns. Ms. Rathod went into labor and was given an epidural at 19 approximately 9:00 p.m. Ms. Rathod began pushing at 12:16 p.m. on March 14, 2017. Up until 20 21 that time, the fetal heartrate measurements were reassuring, and plaintiffs’ expert obstetrician, 22 Harold Zimmer, M.D., agrees that Ms. Rathod’s treatment during this period met the standard of 23 care. 23 25 26 1 Plaintiffs have not relied on the opinions of Laura Mahlmeister, R.N., Ph.D., to support their 27 claims. The Court therefore need not determine whether those opinions are admissible. 28 1 Ms. Rathod pushed for approximately two-and-a-half hours, but the fetal station did not 2 progress. Dr. Rodriguez documented that Ms. Rathod was tired and experiencing increased pain 3 with contractions. While providers worked to get Ms. Rathod another dose of epidural 4 5 medication, Dr. Rodriguez consulted obstetrician Dana Blackham, M.D., for his expertise in 6 determining whether a cesarean delivery were necessary. Dr. Blackham examined Ms. Rathod at 7 3:25 p.m. and decided to rotate the fetal head in utero so that the head could descend. The plan, 8 9 with which Dr. Rodriguez agreed, was to allow the second epidural to take effect, then have Ms. 10 Rathod resume pushing. Dr. Blackham would reassess Ms. Rathod in an hour to see whether a 11 cesarean or forceps-assisted delivery were necessary. 12 13 Less than half an hour after the second epidural was administered, the fetal head had 14 descended significantly, and Ms. Rathod resumed pushing. Dr. Blackham returned at 4:45 p.m., 15 evaluated the fetal position, and used forceps to bring the fetus to crowning. He then delivered 16 17 PR. During the forceps-assisted delivery, Ms. Rathod experience a fourth-degree perineal tear. 18 PR was born with globally decreased tone, minimal spontaneous movement, and minimal 19 respiratory efforts. Providence providers performed neonatal resuscitation and were concerned 20 21 that PR had hypoxic-ischemic encephalopathy (“HIE”),2 a type of encephalopathy that is caused 22 by a prolonged disruption of the fetal-maternal exchange of oxygen and carbon dioxide which 23 overwhelms the fetus’ compensatory abilities and leads to neurologic injury. They transferred 23 25 26 2 Dr. Zimmer uses the acronym HIE to mean “hemorrhagic ischemic encephalopathy.” Dkt. 27 # 100-2 at 4. 28 1 PR to Seattle Children’s Hospital for further care. PR was found to have a right-sided spinal 2 injury affecting her right arm and diaphragm. When she was first admitted to Seattle Children’s, 3 PR’s problem list included neonatal encephalopathy, a broad category that includes HIE but also 4 5 encompasses other causes of injury to a newborn’s neurological function. After five weeks in 6 the hospital, the diagnosis was stated variously as neonatal encephalopathy, HIE, or suspected 7 HIE related in some way to a cervical spine injury arising from or caused by the forceps-assisted 8 9 delivery: 10 PR is a “female with neonatal HIE and chronic respiratory failure from right 11 diaphragmatic paralysis secondary to cervical spine hemorrhage from a forceps assisted 12 delivery and prolonged resuscitation”

13 “PR is an ex-term infant who was injured after a traumatic forceps delivery resulting in 14 HIE and C2-C3 cervical spine bleed leading to a R diaphragmatic paralysis” 15 PR had a “complicated forceps delivery, neonatal encephalopathy . . . with areas of 16 restricted diffusion on MRI and hematoma on at the C2-3 level on the right on MRI C- 17 spine” 18 Dkt. # 95-19 at 2; Dkt. # 95-20 at 3. See also Dkt. # 95-19 at 2-3; Dkt. # 95-20 at 2-3. 19 20 DISCUSSION 21 A. Medical Negligence 22 A medical negligence claim, like other negligence claims, requires a showing of duty, 23 23 breach, causation, and damages. “[T]o recover damages for medical negligence, the plaintiff 25 must establish that (1) the health care provider breached the accepted standard of care and 26 27 (2) the breach was a proximate cause of the injury complained of.” Hill v. Sacred Heart Med. 28 1 Ctr., 143 Wn. App. 438, 447 (2008). In order to show that a health care provider failed to follow 2 the accepted standard of care, one must prove that the “provider failed to exercise that degree of 3 care, skill, and learning expected of a reasonably prudent health care provider at that time in the 4 5 profession or class to which he or she belongs, in the state of Washington, acting in the same or 6 similar circumstances.” RCW 7.70.040(1)(a). Expert testimony is generally required to establish 7 the standard of care and causation in medical malpractice cases. Brotherton v. U.S., No. 2:17- 8 9 CV-00098-JLQ, 2018 WL 3747802, at *5 (E.D. Wash. Aug. 7, 2018) (citing McLaughlin v. 10 Cooke, 112 Wn.2d 829, 836-37 (1989)). 11 Plaintiffs argue that, but for Dr. Rodriguez’s breach of the standard of care, PR would 12 13 have been delivered by cesarean section and they would have avoided the spinal injury, the 14 hypoxic ischemia, and the perineal tear. They rely on the testimony of Dr. Zimmer to establish 15 both the standard of care and causation. Dr. Zimmer reviewed the fetal heartrate tracing and 16 17 found that, once Ms. Rathod began pushing, there were moderate to severe decelerations with 18 almost every contraction, spanning approximately seventy minutes. The fetal heartrate rose 19 again at approximately 2:15 p.m., and its variability decreased. After noting the recurrent 20 21 decelerations and the failure of the baby to descend, Dr. Rodriguez asked for a consultation from 22 Dr. Blackham. It is Dr. Zimmer’s opinion that the fetal heartrate tracings showed signs that PR 23 was: 23 25 becoming intolerant of the stress of labor. Those signs were not recognized and resulted in lack of oxygen to the brain which caused the Hemorrhagic Ischemic 26 Encephalopathy. Had those signs been recognized and a timely intervention by 27 Cesarean Section been performed in the time range of [1:15 p.m. - 2:00 p.m.], the 28 1 baby would, more likely than not, not have been damaged in this way. This failure to recognize the fetal distress and intervene was a clear violation of the standard of 2 care. 3

4 Dkt. # 100-2 at 4-5.3 5 At his deposition, Dr. Zimmer faulted Dr. Rodriguez for failing to interpret the tracing 6 properly and failing to consult with an obstetrician in a timely manner. Dkt. # 100-3 at 11. He 7 8 asserts that, had Dr. Rodriguez applied the modern obstetrics interpretation of tracings, she 9 would have understood that intervention was necessary. Dkt. # 100-3 at 32. The government is 10 seemingly willing to assume that there is a triable issue of fact regarding a breach of the 11 12 standard of care, but argues that it is nevertheless entitled to summary judgment on the medical 13 negligence claim because Dr. Zimmer’s conclusory declaration of causation is insufficient to 14 establish that any breach on the part of Dr. Rodriguez caused plaintiffs’ injuries. Dr. Zimmer 15 16 acknowledges that he did not attempt to identify which of PR’s diagnoses were caused by the 17 deteriorating condition that was reflected on the tracings and concedes that another expert – such 18 as the doctors at Seattle Children’s – would have to testify regarding the effects of Dr. 19 20 Rodriguez’ failure to properly interpret the tracings and initiate an expeditious change of care. 21 Dkt. # 95-7 at 37-39. 22 23 23 25 3 Dr. Zimmer also opines that Dr. Blackham’s application of forceps traction was excessive and caused injury to PR’s spinal cord. Dkt. # 100-2 at 5. As discussed below, plaintiffs have not attempted to 26 establish a direct causal connection between Dr. Rodriguez’s actions and the way in which the forceps were used. Dkt. # 95-7 at 18-19. Similarly, plaintiffs have not offered expert testimony in support of 27 their claims that Dr. Rodriguez proximately caused Ms. Rathod’s perineal tear. Dkt. # 95-7 at 18. 28 1 Plaintiffs argue that expert testimony establishing causation is not necessary in this case 2 because the causal connection is so clear. According to plaintiffs, had Dr. Rodriguez recognized 3 that the fetal heartrate tracings required intervention, PR would have been born by cesarean 4 5 section, she would not have experienced a prolonged disruption of the fetal-maternal exchange 6 of oxygen and carbon dioxide, she would have avoided the forceps-related injury to her spinal 7 cord, and Ms. Rathod would not have experienced a perineal tear. Where medical facts are an 8 9 essential element of a cause of action, they “must be proven by expert testimony unless they are 10 ‘observable by [a layperson’s] senses and describable without medical training.’” Harris v. 11 Robert C. Groth, M.D., Inc., P.S., 99 Wn. 2d 438, 449 (1983) (quoting Bennett v. Dep’t of Labor 12 13 & Indus., 95 Wn.2d 531, 533 (1981)). Thus, “expert testimony is always required except in 14 those few situations where understanding causation does not require technical medical 15 expertise.” Frausto v. Yakima HMA, LLC, 188 Wn. 2d 227, 232, 393 P.3d 776, 779 (2017) (en 16 17 banc) (internal quotation marks and citation omitted). 18 In Frausto, expert testimony tying the development of bedsores to the alleged failure to 19 move, turn, and provide plaintiff with an appropriate bed was deemed necessary. In this case, 20 21 the processes at issue are far more complicated and likely to be well outside the ordinary juror’s 22 understanding and/or observation. Plaintiffs apparently intend to put before the jury nothing 23 more than evidence of a failure to meet the standard of care and evidence of an injury, then to 23 25 ask the jury to make a causative finding without any expert assistance. If permitted, the jury 26 would be required to guess whether Dr. Rodriguez’ failure to obtain an obstetrics consult 27 28 1 between 1:15 p.m. and 2:00 p.m., the turning of the fetus in utero and subsequent descent into 2 the birth canal, or the forceps-assisted delivery caused the prolonged interruption in the fetus’ 3 oxygen supply that, in turn, caused the neurologic injuries at issue. What happened to PR at 4 5 these various stages of labor and delivery is neither observable nor describable without medical 6 training and a detailed evaluation of the medical evidence in this case. Plaintiffs have failed to 7 offer any expert testimony tying the decelerations observed while Ms. Rathod was pushing to 8 9 PR’s subsequent diagnosis of HIE. 10 With regards to the use of forceps and the perineal tear, plaintiffs have similarly failed to 11 raise a triable issue of fact regarding causation. As the record currently stands, the jury would 12 13 have to speculate that Dr. Blackham would have evaluated the situation differently and 14 recommended a cesarean section had Dr. Rodriguez sought an obstetrics consult at 2:00 p.m. 15 rather than at 3:00 p.m. As it was, Dr. Blackham recommended rotating the fetus in utero and 16 17 waiting to make the decision between a cesarean or forceps-assisted delivery until the epidural 18 bolus had taken effect and the fetus had a chance to descend.4 There is no indication that Dr. 19 Blackham would have recommended a less conservative strategy – i.e., surgery – an hour 20 21 earlier, nor is there any reason to believe that Ms. Rathod would have chosen a cesarean delivery 22 over a forceps-assisted delivery if the doctors failed to agree on a recommendation. 23 23 25

26 4 Dr. Zimmer does not fault Dr. Rodriguez for failing to overrule Dr. Blackham’s plan to rotate the fetus and wait to see what happens, stating that “she didn’t necessarily have the indication” that an 27 immediate cesarean section was needed. Dkt. # 95-7 at 17. 28 1 Even if the Court were to assume that these causation-related facts do not require expert 2 testimony, they show that Dr. Rodriguez’ conduct was not the legal cause of plaintiffs’ injuries. 3 Proximate causation is divided into two elements: cause in fact and legal 4 causation. . . . “Cause in fact” refers to the actual, “but for,” cause of the injury, 5 i.e., “but for” the defendant’s actions the plaintiff would not be injured. . . . 6 Establishing cause in fact involves a determination of what actually occurred and is generally left to the jury. . . Unlike factual causation, which is based on a 7 physical connection between an act and an injury, legal cause is grounded in 8 policy determinations as to how far the consequences of a defendant’s acts should 9 extend. Thus, where the facts are not in dispute, legal causation is for the court to 10 decide as a matter of law. . . . The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the 11 defendant is too remote or insubstantial to impose liability. A determination of 12 legal liability will depend upon mixed considerations of logic, common sense, 13 justice, policy, and precedent. . . .

14 Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478-79 (1998) (internal quotation marks, 15 citations, and footnote omitted). 16 17 It is quite possible, and often helpful, to state every question which arises in 18 connection with [legal causation] in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact 19 occur? Such a form of statement does not, of course, provide any answer to the 20 question, or solve anything whatever; but it does serve to direct attention to the 21 policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make 22 up causation in fact. 23 23 Id. at 479-80 (quoting William L. Prosser, The Law of Torts 244–45 (4th ed. 1971)). Here, it is 25 undisputed that Dr. Rodriguez could not perform either a cesarean or a forceps-assisted delivery 26 and that she appropriately sought an obstetrics consult regarding those options. It is also 27 28 1 undisputed that Dr. Blackham recommended a forceps-assisted delivery and had sole control of 2 the forceps during the procedure. Dr. Zimmer concedes that Dr. Rodriguez had no duty to 3 control Dr. Blackham’s operation of the forceps (Dkt. # 95-7 at 18-19): she therefore had no 4 5 ability or duty to protect plaintiffs from any injuries resulting from their use, namely the spinal 6 cord hemorrhage and the perineal tear. Legal causation simply does not exist in these 7 circumstances, even though one could argue that the injuries would not have occurred “but for” 8 9 Dr. Rodriguez’ failure to insist on a cesarean section or her decision to consult Dr. Blackman in 10 the first place. Holding a general practitioner who is unable to perform a particular procedure 11 responsible for the acts of a specialist she consulted and upon whose expertise she non- 12 13 negligently relied would be illogical, nonsensical, and unjust, it would discourage resort to and 14 reliance on specialized expertise, and it is seemingly without precedent in Washington law. 15 In light of Dr. Zimmer’s acknowledgment that he did not analyze and would not opine on 16 17 causation, plaintiffs cite the report of Dr. Robert Cooper, M.D., which states that PR has been 18 diagnosed with “[h]ypoxic ischemic encephalopathy following birth on March 14, 2017” and a 19 “[r]ight-sided C2-C3 spinal cord injury.” Dkt. # 100-4 at 101. A statement regarding the 20 21 conditions affecting PR sheds no light on the cause of those conditions, however. Nor does 22 plaintiffs’ suggestion that they “may call treating healthcare providers at trial to testify on the 23 issues of causation and damages” (Dkt. # 100 at 11) satisfy their burden of raising a triable issue 23 25 of fact regarding a legally significant causal connection between Dr. Rodriguez’ failure to obtain 26 27 28 1 an obstetrics consult prior to 2:00 p.m. and plaintiffs’ injuries. The government is therefore 2 entitled to judgment as a matter of law on plaintiffs’ medical negligence claim. 3 B. Informed Consent 4 5 To prevail on their informed consent claim, plaintiffs must prove that: 1) Dr. Rodriguez 6 failed to inform Ms. Rathod of a material fact or facts relating to the treatment; 2) Ms. Rathod 7 consented to the treatment without being aware of or fully informed of such material fact or 8 9 facts; 3) a reasonably prudent patient under similar circumstances would not have consented to 10 the treatment if informed of such material fact or facts; and 4) the treatment in question 11 proximately caused injury to the patient. See Backlund v. Univ. of Wash,, 137 Wn.2d 651, 667 12 13 (1999). Whether a fact relating to treatment is material depends on “the existence of a risk, its 14 likelihood of occurrence, and the type of harm in question.” Smith v. Shannon, 100 Wn 2d 26, 15 34 (1983). “Only a physician (or other qualified expert) is capable of judging what risks exist 16 17 and their likelihood of occurrence.” Collins v. Juergens Chiropractic, PLLC, 13 Wn. App. 2d 18 782, 800, review denied, 196 Wash. 2d 1027 (2020) (quoting Smith, 100 Wn.2d at 33). Neither 19 Dr. Zimmer nor Dr. Cooper opine regarding the relative risks of a cesarean section versus a 20 21 forceps-assisted delivery in the circumstances presented here. Indeed, Dr. Zimmer was asked to 22 assume that Ms. Rathod had consented to her care, an assumption which he deemed appropriate 23 in light of the written materials he was provided. Dkt. # 95-7 at 6. In the absence of expert 23 25 26 27 28 1 testimony regarding the risks involved in proceeding with a vaginal delivery at the time that 2 decision was made, plaintiffs cannot succeed on their informed consent claim.5 3 C. Corporate Liability 4 5 The United States has not waived its sovereign immunity for claims against a non- 6 individual entity such as CHCSC. Regardless whether there would be a triable issue of fact if 7 CHCSC were a private medical practice, the claim cannot be brought against the United States. 8 9 The corporate negligence claim must therefore be dismissed under Rule 12(b)(1). 10 D. Damages 11 Because there are no triable claims remaining in this case, the Court need not determine 12 13 whether plaintiffs have adequately supported their claims for lost earnings, lost earning capacity, 14 or medical expenses. 15

16 17 // 18

19 // 20 21 22 23 23 25 5 To the extent plaintiffs’ informed consent claim was predicated on Dr. Rodriguez’ alleged 26 failure to notify Ms. Rathod that, as a family practitioner, she could not perform a cesarean section or a forceps-assisted delivery, it is not clear that the alleged failure qualifies as a material fact under RCW 27 7.70.050(3), and plaintiffs have abandoned the claim. 28 1 For all of the foregoing reasons, the government’s motion to dismiss (Dkt. # 94) is 2 GRANTED and plaintiffs’ claims are DISMISSED.6 The Clerk of Court is directed to enter 3 judgment in favor of defendant and against plaintiffs. 4 5 6 DATED this 21st day of November, 2022. 7

10 Robert S. Lasnik United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 23 25 6 In light of the dismissal, the Court need not resolve the government’s “Motion to Strike the 26 Supplemental Reports of Robert Cooper, M.D., and William Davenport, M.B.A.” (Dkt. # 78), “Motion to Modify Plaintiffs’ Subpoenas to Defense Expert Witnesses” (Dkt. # 83), and “Motion to Exclude 27 Opinions of Robert Cooper, M.D.” (Dkt. # 96). 28