Rebecca Curley v. Skagit Valley Hospital

• Court: Court of Appeals of Washington
• Decided: July 22, 2019
• Docket: 78250-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

REBECCA CURLEY, ) No. 78250-9-I

Appellant, ) DIVISION ONE

v. ) UNPUBLISHED OPINION

SKAGIT VALLEY HOSPITAL (Public ) Hospital District No. 1 dlbla SKAGIT ) REGIONAL HEALTH); and DR. ROGER ) P. ESTEP, ) Respondents. ) FILED: July 22, 2019

ANDRUS, J. — Rebecca Curley appeals the dismissal of her negligence

claims against Dr. Roger Estep and Skagit Valley Hospital arising out of the care

she received in the triage unit of the hospital’s Family Birth Center. The

experience, resulting in the stillbirth of her child, was clearly traumatic for Rebecca

and her husband, Thomas1. But Rebecca did not allege Dr. Estep or the hospital

caused the fetal demise. She instead alleged that the care she received

exacerbated her pre-existing post-traumatic stress disorder (PTSD). Because

Rebecca did not present competent expert testimony to establish the standard of

care, breach, or causation, we affirm the dismissal of her claims.

1 We refer to the Curleys by their first names for clarity only. We mean no disrespect in doing so. No. 78250-9-1/2

FACTS

On May 1, 2015, Rebecca, then 21 weeks into her fourth pregnancy, called

the University of Washington Medical Center (UWMC) to report symptoms of

abdominal pains and vomiting. UWMC had previously diagnosed Rebecca with

suspected “invasive placentation,”2 and had advised her that this condition could

cause life-threatening bleeding and would require a Cesarean section delivery and

hysterectomy. UWMC instructed Rebecca to seek an evaluation, either from

UWMC Seattle or a hospital closer to her home. Rebecca testified UWMC told her

she needed an ultrasound and would have to be airlifted to that facility if she went

into labor because she was at risk of hemorrhaging. Rebecca and Thomas drove

to Skagit Valley Hospital for this evaluation.

The Curleys arrived at Skagit Valley at 2:45 p.m. Per hospital policy, all

pregnant women over 20 weeks’ gestation are triaged in the Family Birth Center,

the hospital’s maternity ward, so Rebecca was attended to by the triage nurse, Tori

Jackson. Because Rebecca did not have a provider at Skagit Valley, Jackson

used a computerized system to assign a physician, Dr. Estep, from the unassigned

on-call rotation list.

During the initial intake, Rebecca reported she was not in pain, bleeding, or

in active labor. Jackson triaged Rebecca as in need of “urgent” care, the mid-level

triage classification at Skagit Valley. Under this classification, the patient “will not

2 Invasive placentation occurs when the placenta is attached too strongly or grows into the uterine wall. It can be a life-threatening condition as it can cause significant blood loss during childbirth. It requires delivery via Cesarean section and sometimes involves a hysterectomy (removing the uterus). ~ https://www.swedish org/services/maternal-and-fetal-specialty .

care/pregnancy-complications/complications-of-the-placenta. -2- No. 78250-9-1/3

deteriorate with slight delay in care,” and the nurse must notify a physician once

she has completed her assessment.

By 3:10 p.m., Jackson had determined, using a fetal monitor and then a

Doppler,3 that there was no fetal heartbeat. Jackson testified, and her medical

notes indicated, that at her request, another nurse, Holly Braaten, checked and

was also unable to locate a fetal heartbeat. Rebecca testified she and her husband

demanded that the hospital perform an ultrasound.

Jackson contacted Dr. Estep, who was seeing patients at a clinic and not

present at the hospital. Dr. Estep made a telephonic order for an ultrasound at

3:40 p.m. to determine fetal viability. Skagit Valley diagnostic medical

sonographer4 Carrie Chambliss completed the ultrasound at 4:12 p.m. Chambliss,

like Jackson and Braaten, was unable to detect a heartbeat. Chambliss informed

Jackson of the ultrasound results via telephone at 4:20 p.m., which Jackson

conveyed to Rebecca and Thomas. When Jackson notified Dr. Estep, he asked

Jackson to confirm through a vaginal examination that Rebecca was not in active

labor.

Dr. Estep testified that once he knew Rebecca was not in labor, he left a

message for Rebecca’s perinatologist at UWMC to discuss a care plan for her. He

intended to travel to Skagit Valley to discuss the plan with her once he discussed

it with her provider.

~ A Doppler is a handheld fetal heart rate monitor. See https:Ilwww.fda.govlRadiation EmittingProducts/RadiationEmittingProductsandProcedures/Medicallmaging/ucml 1 5357.htm. ~ A diagnostic medical sonographer is specially trained to perform ultrasounds and other diagnostic imaging mechanisms and is required to pass national board examinations. -3- No. 78250-9-114

Rebecca testified that by this time, she began to panic, thinking that her life

could be in danger. She felt that no one was communicating with her and Thomas

about what could be done or what they needed to do. She felt the triage room

walls begin to close in on her. At that point, the Curleys decided they needed to

leave the hospital and drive to UWMC in Seattle.

Jackson called Dr. Estep at 4:40 p.m. to alert him that Rebecca was anxious

to leave Skagit Valley to receive treatment at UWMC Seattle. Jackson testified

that she explained to Rebecca that Dr. Estep was awaiting further instruction from

UWMC and that it was not advisable to leave Skagit Valley by private car.

At 5:00 p.m., the formal ultrasound report came back in which radiologist

Dr. Scott Harrison confirmed fetal demise. At 5:04 p.m., Thomas informed Jackson

they were leaving. Rebecca signed a “Leaving Hospital Against Medical Advice”

form. Her stay at Skagit Valley was approximately 2 hours and 11 minutes.

UWMC Seattle admitted Rebecca at 7:58 p.m. that evening. Her UWMC

records note that she arrived in good condition; she was not bleeding or

experiencing any cramping or contractions. Four days later, Rebecca underwent

a hysterectomy.

Rebecca filed a lawsuit against Dr. Estep and Skagit Valley, alleging

medical malpractice under chapter 7.70 RCW. She also alleged claims of loss of

consortium, outrage, intentional infliction of emotional distress, and negligent

infliction of emotional distress.

On November 9, 2017, the trial court dismissed Rebecca’s claims of

negligent infliction of emotional distress and outrage but granted a CR 56(f)

continuance as to Rebecca’s medical negligence claims. -4- No. 78250-9-1/5

After completing further discovery, Rebecca submitted supplemental

documents in opposition to the summary judgment motions, including an expert

report of forensic psychiatrist Dr. Shobhit Negi, and a report from Dr. Frederick

Gonzalez, a board-certified obstetrician-gynecologist from New York. Dr. Estep

and Skagit Valley challenged the sufficiency of these reports to establish the

standard of care, breach, and causation.

During the hearing, Rebecca confirmed she did not blame either Dr. Estep

or the hospital for the loss of her child; she claimed instead that their treatment

worsened her pre-existing PTSD. Rebecca identified two breaches of the standard

of care: (1) Dr. Estep’s failure to personally evaluate Rebecca before the hospital

staff confirmed fetal demise; and (2) Skagit Valley’s failure to provide an

obstetrician-gynecologist, rather than a family medicine practitioner, to evaluate

her.

The trial court granted summary judgment and dismissed Rebecca’s

malpractice claims. Rebecca appeals.5

ANALYSIS

We review an order granting summary judgment de novo, engaging in the

same inquiry as the trial court. Volk v. DeMeerleer, 187 Wn.2d 241, 254, 386 P.3d

254 (2016). Summary judgment is proper when the pleadings, affidavits,

depositions, and admissions demonstrate there is no genuine issue of material

fact. Berqerv. Sonneland, 144 Wn.2d 91, 102,26 P.3d 257 (2001).

~ Rebecca does not appeal the dismissal of the negligent infliction of emotional distress or the outrage claims. -5- No. 78250-9-1/6

When an alleged injury results from healthcare, chapter 7.70 RCW governs.

144 Wn.2d at 109. ROW 7.70.030 states in relevant part:

No award shall be made in any action or arbitration for damages for injury occurring as the result of health care unless the plaintiff . . .

establishes one or more of the following propositions:

(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;

Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by a preponderance of the evidence.

Moreover, ROW 7.70.040 provides:

The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:

(1) The health care provider6 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;

(2) Such failure was a proximate cause of the injury complained of.

Rebecca argues that the trial court erroneously dismissed her claims on

summary judgment because the declarations of Dr. Gonzalez and Dr. Negi create

genuine issues of material fact as to the applicable standard of care, breach, and

causation. We disagree.

In medical malpractice cases, an expert must “establish the applicable

standard and how the defendant acted negligently by breaching that standard.”

6 RCW 7.70.020 defines “health care provider” as: “(1) A person licensed by this state to provide

health care or related services including . a physician . . [and] nurse. . [or] (3) An entity, . . .

whether or not incorporated, facility, or institution employing one or more persons described in part (1) above, including . a hospital.” . .

-6- No. 78250-9-1/7

Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86-87, 419 P.3d 819 (2018).

Without this evidence, an expert’s testimony will not establish a genuine issue of

fact. ki. at 89.

1. Dr. Gonzalez’s testimony

Rebecca presented the declaration of Dr. Gonzalez to establish the

standard of care. Dr. Gonzalez testified:

On 5/1/15 [Rebecca] went to Skagit Valley Hospital, at 19 5/7 wks, with the complaint of pain and tenderness for a few days. She stated the fetus was moving. She was never seen by a physician even though she was a high risk pregnancy. She was evaluated and the nurses in attendance did not find a fetal heart rate. They communicated this to the covering physician who ordered an ultrasound. It took an hour to perform the ultrasound. The ultrasound technician confirmed the diagnosis of an intrauterine fetal demise. Her finding was never corroborated by a second observer or by a physician. It is standard procedure to have the diagnosis of an intrauterine fetal demise to be corroborated by a second observer [or] by a physician. She was never evaluated by a physician and there is no way of knowing if there was a fetal demise during the hour prior to having the ultrasound performed. Failure to evaluate the patient with an intrauterine fetal demise with pain and tenderness by a physician represents a departure from good and accepted medical care. The delay in obtaining the ultrasound was a departure from good and accepted medical care. In addition, the physician that was called, Dr. Estep was a family practitioner. Reviewing his qualifications on his delineation of privileges, he did not have the training or the expertise to manage the potential complications of a hysterotomy or hysterectomy which was potentially present with Mrs. Curley’s condition. The nurses, nurse Jackson, and Dr. Estep should have called a physician qualified and able to handle the potential complications of bleeding, hysterotomy, and hysterectomy. That should have been an obstetrician-gynecologist. That was not done.

Failure to evaluate the patient by a physician at the original hospital represents a departure from good and accepted medical care. Standard of care required an immediate evaluation in a high risk -7- No. 78250-9-1/8

pregnancy that was complicated by abdominal pain and the inability of the nurses to find a fetal heart rate. Failure to properly evaluate the ultrasound diagnosis of a fetal demise by a second observer or a physician is a departure from good medical care. Failure to call an appropriately qualified physician that could have managed the potential complications of Mrs. Curley is also a departure from good and accepted medical care. The duty of the physicians was to immediately evaluate the condition of the mother and the fetus, confirm that she was hemodynamically stable, confirmed that there was no coagulopathy, and planned for the safe evacuation of the uterus.

There are two major problems with Dr. Gonzalez’s testimony. First,

Dr. Gonzalez did not indicate that Dr. Estep or Skagit Valley failed to exercise the

“degree of care, skill, and learning expected of a reasonably prudent health care

provider . . . in the state of Washington, acting in the same or similar

circumstances” as required by RCW 7.70.040. Instead, Dr. Gonzalez’s opinion

was that their care did not meet “good and accepted medical care,” which is not

the legal standard in Washington.

Second, there was no indication that Dr. Gonzalez was familiar with the

standard of care in Washington. According to Dr. Gonzalez’s curriculum vitae, he

is a board-certified obstetrician-gynecologist, and at the time was licensed in New

York and Utah. His credentials did not indicate that he had ever been licensed to

or practiced medicine in Washington state.

Rebecca argues that an expert may base his opinions on a national

standard of care, citing to Elberv. Larson, 142 Wn. App. 243, 173 P.3d 990 (2007).

But in Elber, the expert testified that the standard for neurosurgeons is a national

standard. . at 247. The Elber court permitted the expert to testify because the

standard of care for neurosurgeons did not differ among states. ki. at 247-48.

-8- No. 78250-9-1/9

Rebecca also relies on Eng v. Klein, 127Wn. App. 171, 179, 110 P.3d 844 (2005),

in which the expert’s testimony was deemed admissible because he testified that

his opinion was based on “what would be [the] national standards of care for

diagnosing and treating meningitis.” Id. at 179. Here, Dr. Gonzalez did not indicate

that the standard of care for treating a woman diagnosed with suspected invasive

placentation is the same nationwide.

Conversely, Skagit Valley and Dr. Estep presented testimony from two

experts that the standard of care in Washington does not require an immediate

physical evaluation by an obstetrician-gynecologist. Skagit Valley presented the

expert opinion of Dr. Robert Olson, a board-certified obstetrician-gynecologist

practicing in Bellingham, Washington for over 30 years. Dr. Olson testified that he

was “familiar with the standard of skill, care, and learning expected of the

physicians and the hospital staff, including nurses, who provided care” for

Rebecca. Dr. Olson opined that it is common for patients who arrive at a hospital

for an unscheduled visit to be evaluated by a registered nurse in triage and for that

nurse to then telephone a physician with her findings and to receive further

instructions. Dr. Olson further testified that it is within the standard of care for the

physician to initially evaluate the patient’s needs by phone and that the standard

of care did not require Dr. Estep to see Rebecca in person at that time because

there was no objective evidence that Rebecca’s condition was worsening. He

noted that Rebecca had stable vital signs, no vaginal bleeding, no ruptured

membranes, no preterm labor and no evidence of any complications.

Dr. Estep presented the expert opinions of Dr. Nancy O’Neil, also a board

certified obstetrician-gynecologist in Washington. Dr. O’Neil testified that she was -9- No. 78250-9-1/10

‘familiar with the standard of care regarding assessing obstetrical patients who

present to the hospital for triage in the State of Washington as it existed in May

2015.” She stated that Dr. Estep met the standard of care of a reasonably prudent

obstetric provider and that the standard did not require him to come into the

hospital to personally evaluate Rebecca under the circumstances of this case.

Dr. Gonzalez’s declaration and report fail to contradict the standard of care

opinions of either Dr. Olson or Dr. O’Neil because he did not indicate a familiarity

with the applicable standard of care in Washington state as required by statute or

“state specific facts showing what the applicable standard of care was and how the

defendant violated it” as required by Reyes. 191 Wn.2d at 89. We agree with the

trial court’s conclusion that Dr. Gonzalez’s report failed to meet this statutory

requirement.

Rebecca argues that even if Dr. Gonzalez’s report did not set out the

applicable standard of care, Skagit Valley’s alleged non-compliance with its own

triage policies established an issue of fact on the element of breach of the standard

of care. Rebecca contends that Skagit Valley breached the hospital’s triage

policies by classifying her as “urgent,” the mid-level triage classification, rather than

“emergent,” the highest triage classification, and by failing to have her promptly

examined by a physician. Although it is certainly arguable that a hospital’s triage

policies might establish some standard of care, Dr. Gonzalez did not so testify.

Nor did Dr. Gonzalez opine that Skagit Valley or its nursing staff breached any

specific triage policy.

Finally, even if we were to accept Dr. Gonzalez’s opinions regarding the

standard of care, he did not link any alleged breach with Rebecca’s exacerbated -10- No. 78250-9-Ill 1

PTSD. Although Dr. Gonzalez testified that the fetus may have been alive when

Rebecca arrived at Skagit Valley, Rebecca conceded that there was nothing

Dr. Estep or the hospital could have done to save her baby. Moreover, Rebecca

did not experience any complications either while at Skagit Valley or after she was

admitted into UWMC. The risks of which Dr. Gonzalez expressed concern simply

did not happen here.

2. Dr. Negi’s testimony

Rebecca concedes that Dr. Gonzalez did not causally link her medical

treatment at Skagit Valley with her PTSD. She instead relies on the testimony of

Dr. Negi, a board-certified forensic psychiatrist, to establish causation. Dr. Negi

testified that Rebecca’s fear began around April 20, 2015, when she was

diagnosed with placenta accrete, a condition “associated with high mortality.”

Dr. Negi opined that Rebecca “sustained significant emotional harm due to the

quality of care she received at Skagit Valley Hospital on May 1, 2015.” He reported

that while at the hospital, Rebecca feared for her life. He stated this fear was due

to a combination of factors, including having a dead fetus inside her uterus and not

receiving clear communications from the staff as to the next steps in managing her

condition.

Dr. Negi reported that since losing her fetus in May 2015, Rebecca had

been anxious and depressed, fearful of leaving her house, afraid she or her

children might be taken to Skagit Valley Hospital if ill or injured, and experiencing

frequent nightmares and feelings of guilt for not going to a different hospital.

We do not doubt, given the trauma of losing a child, that Rebecca has

undergone the psychiatric symptoms she described to Dr. Negi. But Dr. Negi’s -11 - No. 78250-9-1/12

opinions fail to link Rebecca’s emotional condition to any specific breach of the

standard of care by Dr. Estep or Skagit Valley. Rebecca conceded that Dr. Estep

was unaware of her pre-existing PTSD. Although Rebecca argued Skagit Valley

should have known of this condition, she presented no testimony from Dr. Negi as

to what steps the hospital should have taken to prevent her from sustaining this

psychiatric injury. The only two alleged breaches of the standard of care—the

failure of a physician to personally evaluate her in the two hours she was at Skagit

Valley and the failure of Skagit Valley to call in a qualified obstetrician-gynecologist

to attend to her personally—have nothing to do with managing Rebecca’s

psychiatric condition. Dr. Negi did not testify that but for these particular breaches

in the standard of care, Rebecca would not have experienced the anxiety,

depression, and nightmares she has had.

Because Rebecca failed to present expert testimony from a physician

familiar with the standard of care in Washington to establish how the standard of

care was breached and failed to causally connect the alleged breaches to her

psychiatric condition, the trial court correctly granted summary judgment.7

Affirmed.

WE CONCUR: F

-

~ Because Rebecca has failed to establish a breach and causation, reject her contention that Skagit Valley is also liable under a corporate negligence theory. ~ Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991) (in order to prevail on a corporate negligence claim, the plaintiff must prove the requisite elements of negligence: duty, breach, and proximate cause). - 12-