                                                        This opinidh was filed for record
      IN eLiMn omcB
•UPNBE COURT,SnROPIIMHMOTQN
    DATE JUN 2 i          i
           {aAAAa                                         "■'SUSAN L. CARLSON
            jusnce
                                                          SUPREME COURT CLERK




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON

  JUDITH MARGARITA REYES, on her own
 behalf and on behalf of the Estate of Jose
 Luis Reyes, Deceased, and on behalf of her            No. 94679-5
 minor children, Erik (n/m/n) Reyes
 (dob: 3/12/98) and Leslie Maria Reyes                 En Banc
 (dob: 6/23/99),
                                                       Filed        JUN 2 1 2018
                  Petitioners,




  YAKIMA HEALTH DISTRICT, a public
  entity in the State of Washington; Christopher
  Spitters, M.D., John Does Nos. 1-20,

                  Respondents.


         OWENS, J. — This is a case about the sufficiency of expert witness testimony

  in a medical malpractice suit. Jose Reyes died after a course of treatment for

  tuberculosis. Judith Reyes alleges that her husband did not have tuberculosis and that

  the treatment prescribed to him for that disease caused him fatal liver damage due to

  an undiagnosed underlying liver disease.
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



        Judith Reyes alleges that the Yakima Health District(YHD)and Christopher

Spitters, MD,were negligent in treating Jose Reyes. A year after filing suit, her

expert witness submitted an affidavit alleging as much. Because allegations of

misdiagnosis without deviation from the proper standard of care are not the basis for

liability, we hold that the expert witness' affidavit was insufficient to create a genuine

issue of material fact and affirm the Court of Appeals. In so holding, we do not

require talismanic words, but the right words. For to paraphrase Mark Twain, the

want ofthe right word makes lightning from lightning bugs.

                                               FACTS


        In April 2010, Mr. Reyes arrived at the Yakima Chest Clinic complaining of

intermittent chest pain. He was initially diagnosed with pneumonia, but chest samples

were ordered when the symptoms did not abate. A sputum sample tested positive for

tuberculosis, and the positive results were reported to YHD. Additional sputum

samples also cultured positive for tuberculosis. On May 25, 2010, Mr. Reyes began

tuberculosis treatment with the YHD,consisting in part of a four-drug cocktail of

isoniazid, rifampin, ethambutol, and pyrazinamide, as well as directly observed

therapy. Because isoniazid can lead to severe and sometimes fatal liver toxicity,

baseline liver function testing was performed at that time. The results were within the

high range of normal. Mr. Reyes missed a series of directly observed therapy days in

late June and early July, and was tardy in submitting blood for a liver function test.
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



When a liver specimen was obtained on July 8, 2010, the testing demonstrated

abnormal liver values.

       Due to these abnormal liver readings, YHD withheld Mr. Reyes' tuberculosis

medications and directed him to report to an emergency room for inpatient treatment.

YHD also contacted Dr. Spitters at that time, and Dr. Spitters spoke to Mr. Reyes by

phone on July 15, 2010. Dr. Spitters directed Mr. Reyes to go to an emergency room,

but Mr. Reyes failed to do so. Dr. Spitters preliminarily diagnosed Mr. Reyes with a

drug-induced liver injury and instructed YHD staff to continue to hold Mr. Reyes'

tuberculosis medication and refer him to an emergency room. Mr. Reyes visited YHD

for additional testing on July 16, 2010, and Dr. Spitters saw him on July 22, 2010.

Mr. Reyes was admitted to the University of Washington Medical Center's

hepatology department, but he passed away from liver failure on August 6, 2010.

Ms. Reyes sued YHD and Dr. Spitters, asserting medical malpractice, wrongful death,

negligent hiring and supervision, and outrage. The negligent hiring and supervision

claim is not part ofthis appeal.

        The trial court granted summary judgment with regard to the medical

malpractice claim because Ms. Reyes' medical expert, Rosa Martinez, MD,failed to

identify either the standard of care or that she was familiar with that standard, and

failed to articulate with sufficient particularity the facts supporting her opinion that

YHD and Dr. Spitters were negligent. Ms. Reyes filed an untimely motion for
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



reconsideration regarding the medical malpractice claim and included a second

declaration by Dr. Martinez. The trial court denied the motion for reconsideration,

stating it would not consider the second declaration and it would not have been

sufficient to create a material issue of fact sufficient to survive summary judgment

even if it were considered.


       The defendants moved for summary judgment on the outrage claim, alleging

that RCW 7.70.010 to .160 had legislatively preempted a claim for outrage derivative

of medical malpractice and that the conduct complained of was not outrageous as a

matter oflaw. The specific conduct that Ms. Reyes cited as outrageous was an

alleged threat of incarceration made by YHD employees if Mr. Reyes did not comply

with his tuberculosis treatment regimen. The trial court granted the motion.

Regarding the wrongful death claim, the trial court granted summary judgment due to

a violation ofthe statute of limitations, relying on Fast v. Kennewick Public Hospital

District, 188 Wn. App. 43, 354 P.3d 858 (2015), which held that the applicable statute

of limitations for a wrongful death claim stemming from alleged medical malpractice

is the general three-year period in RCW 4.16.080.

       Ms. Reyes timely appealed the grant ofsummary judgment. During the

pendency ofthe appeal, this court reversed Fast and held that the one-year tolling

provision in RCW 7.70.110 applies to such a claim. Fast v. Kennewick Pub. Hasp.

Dist, 187 Wn.2d 27, 384 P.3d 232(2016). However,the Court of Appeals affirmed
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



the trial court's grant ofsummary judgment on the wrongful death claim on other

grounds, holding that as with the medical malpractice claim. Dr. Martinez failed to

create an issue of fact with regard to any allegedly wrongful conduct performed by the

defendants. The Court of Appeals also affirmed the trial court's grant ofsummary

judgment on the claim of outrage, agreeing that the defendants' conduct was not

outrageous enough to sustain a claim.

                                                ISSUES


        1. Did the medical expert's testimony create a genuine, material dispute

regarding negligent or wrongful conduct by the defendants?

       2. Was the alleged threat of quarantine sufficiently "outrageous" to support a

claim of outrage?

                                               ANALYSIS


        1. Allegations of Misdiagnosis Alone Are Generally Insufficient To Create a
           Material Dispute regarding Medical Negligence

       In a medical malpractice case, plaintiffs must show that "[t]he 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." RCW 7.70.040(1). The applicable standard of care in medical

malpractice actions must generally be established through expert testimony. Miller v.

Jacoby, 145 Wn.2d 65, 71-72, 33 P.3d 68(2001). If a plaintiff lacks competent expert
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



testimony to create a genuine issue of material fact with regard to one ofthe elements

ofthe claim and is unable to rely on an exception to the expert witness testimony

requirement, a defendant is entitled to summary judgment. Morinaga v. Vue, 85 Wn.

App. 822,935 P.2d 637(1997). Although a close call, Ms. Reyes has not created a
genuine issue of material fact through expert testimony, nor can she rely on the
doctrine ofres ipsa loquitur to satisfy that pleading requirement.

        An issue of material fact is genuine if the evidence is sufficient for a reasonable

jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., All
U.S. 242,248, 106 S. Ct. 2505,91 L. Ed. 2d 202(1986); Keck v. Collins, 184 Wn.2d

358, 370, 357 P.3d 1080(2015). Our analysis thus asks whether Dr. Martinez's

testimony could sustain a verdict in Ms. Reyes' favor. As this court held in Keck, in

the context of medical malpractice, this requires "an expert to say what a reasonable

doctor would or would not have done, that the [defendants] failed to act in that

manner, and that this failure caused [the] injuries." 184 Wn.2d at 371. The expert

may not merely allege that the defendants were negligent and must instead establish
the applicable standard and how the defendant acted negligently by breaching that
standard. Id. at 373. Furthermore, the expert must link her conclusions to a factual

basis. Id.
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



        A useful contrast can be drawn between two similar cases to demonstrate what

is required for a medical expert's testimony to create a genuine issue. In Keck, a suit
against oral surgeons, the plaintiffs expert testified as follows:
        "The surgeons performed multiple operations without really addressing
        the problem of non-union and infection within the standard of care... .
              ". . . With regards to referring Ms. Keck for follow up care, the
        records establish that the surgeons were sending Ms. Keck to a general
        dentist as opposed to an oral surgeon or even a plastic surgeon or an Ear,
        Nose and Throat doctor. Again, this did not meet the standard of care as
        the general dentist would not have had sufficient training or knowledge
        to deal with Ms. Keek's non-union and the developing
        infection/osteomyelitis."


Id. at 371. This court held that from this testimony "a jury could conclude that

 a reasonable doctor would have referred Keck to another qualified doctor for

 treatment—standard of care—and that the Doctors did not treat her issues or

 make an appropriate referral—^breach." Id. at 372.

        In Guile v. Ballard Community Hospital, a suit alleging negligent

 gynecological surgery, the plaintiffs expert testified as follows:
        "Mrs. Guile suffered an unusual amount of post-operative pain,
         developed a painful perineal abscess, and was then unable to engage in
         coitus because her vagina was closed too tight. All ofthis was caused by
         faulty technique on the part ofthe first surgeon. Dr. Crealock. In my
         opinion he failed to exercise that degree of care, skill, and learning
         expected of a reasonably prudent surgeon at that time in the State of
         Washington, acting in the same or similar circumstances."
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



70 Wn. App. 18, 26, 851 P.2d 689(1993). The Court of Appeals held that

statement insufficient, characterizing it as "merely a summarization of Guile's

postsurgical complications, coupled with the unsupported conclusion that the

complications were caused by Crealock's 'faulty technique.'" Id.

       In the present case. Dr. Martinez's first affidavit stated:

       (a)Jose Reyes did not have tuberculosis when he presented at Yakima
          Health District and Dr. Spitters, stated with reasonable medical
          certainty;
       (b)Jose Reyes did suffer from chronic liver disease, and was at risk for
          catastrophic liver failure if he were treated with medicines
           contraindicated for liver disease, stated with reasonable medical
           certainty;
       (c)Jose Reyes presented to Yakima Health District and Dr. Spitters with
          clinical symptoms of liver failure that should have been easily
          diagnosed by observation ofthe patient, stated with reasonable
          medical certainty;
       (d)The failure of Yakima Health District and Dr. Spitters to accurately
          diagnose Jose Reyes' liver disease and liver deterioration due to
          prescribed medications to treat tuberculosis that were contraindicated
          for Jose Reyes were direct and proximate causes of Mr. Reyes' liver
          failure and death, stated with reasonable medical certainty.


Clerk's Papers at 109-10. Dr. Martinez's second affidavit relevantly states that "[a]n

alternate drug should have been introduced for Mr. Reyes if the defendants chose to

treat Mr. Reyes empirically for tuberculosis." Id. at 231. The theory of Ms. Reyes'

case appears to be that YHD negligently misdiagnosed Mr. Reyes twice: a false

positive for tuberculosis and a false negative for liver disease. Yet allegations of

misdiagnosis alone are not enough. As this court held in Fergen v. Sestero,

"Misdiagnosis and the inexactness of medicine is not the basis for liability without a
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



deviation from the proper standard of care." 182 Wn,2d 794, 809, 346 P.3d 708

(2015). Instead, a misdiagnosis may subject a physician to a negligence action

"where such misdiagnosis breaches the standard of care." Backlund v. Univ. of Wash,

137 Wn.2d 651, 661, 975 P.2d 950(1999). There is no indication of what a

reasonable physician should have done other than diagnose liver failure by

observation ofthe patient. This circular conclusion is akin to the deficient expert

witness testimony in Guile, where an allegation that a reasonable doctor would not

have acted negligently was found insufficient to create a genuine issue of material

fact. 70 Wn. App. at 26.

       Nor can negligence be inferred from the factual allegations relating to

Mr. Reyes' tragic death. See Watson v. Hockett, 107 Wn.2d 158, 161, 727 P.2d 669

(1986)("[A] doctor will not normally be held liable under a fault based system simply

because the patient suffered a bad result."). Allegations amounting to an assertion

that the standard of care was to correctly diagnose or treat the patient are insufficient.

Instead, the affiant must state specific facts showing what the applicable standard of

care was and how the defendant violated it. Dr. Martinez failed to do so. In affirming

the Court of Appeals, we do not require affiants to aver talismanic magic words, but

allegations must amount to more than conclusions of misdiagnosis, with a basis in

admissible evidence that can support a claim. See Keck, 184 Wn.2d at 370.
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



       In the alternative, Ms. Reyes invokes the doctrine ofres ipsa loquitur to make

out a prima facie claim for medical malpractice without expert testimony. That

doctrine is inapplicable in this case because Ms. Reyes has failed to show that the act

of prescribing isoniazid does not ordinarily happen in the absence of negligence.

        The standard elements of a negligence claim are duty, breach, causation, and

damage. A plaintiff can, in limited circumstances, rely on the doctrine of res ipsa

loquitur to satisfy the breach element of his or her pleading requirements, provided

that the evidence shows that'"(1)the accident or occurrence producing the injury is of

a kind which ordinarily does not happen in the absence of someone's negligence,(2)

the injuries are caused by an agency or instrumentality within the exclusive control of

the defendant, and(3)the injury-causing accident or occurrence is not due to any

voluntary action or contribution on the part ofthe plaintiff.'" Pacheco v. Ames, 149

Wn.2d 431,436,69 P.3d 324(2003)(quoting Zukowsky v. Brown,79 Wn.2d 586,

593,488 P.2d 269(1971)). Here, the first element is absent.

        The first element may be satisfied in one ofthree ways:"'(1)[wjhen the act

causing the injury is so palpably negligent that it may be inferred as a matter oflaw,

i.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a

wrong member;(2) when the general experience and observation of mankind teaches

that the result would not be expected without negligence; and(3)when proof by

experts in an esoteric field creates an inference that negligence caused the injuries.'"


                                               10
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



Id. at 438-39(quoting Zukowsky,79 Wn.2d at 595).

       The act of prescribing isoniazid is not so "palpably negligent" as leaving

foreign objects in a body or amputating the wrong limb. Nor can a layperson's

"general experience and observation" show that it is negligent. That is why expert

testimony is required. Such testimony was absent in this case. Thus, res ipsa loquitur

is not applicable and cannot be used as a stand-in for expert testimony.

       Ms. Reyes has thus failed to create a genuine issue of material fact with regard

to any conduct of any defendant that breaches a specified standard of care. This is not

a case where the plaintiff did not have ample time to procure an adequate expert

witness affidavit. Civil Rule 56(f) provides safeguards for such instances.

Dr. Martinez had been working with the plaintiffs for over a year, which formed part

ofthe trial Judge's decision to decline to review her second affidavit. Accordingly,

this court affirms the Court of Appeals' grant ofsummary judgment for both ofthose

claims.


       2. Properlv Invoking a Quarantine Power Is Not Outrageous

       In addition, we affirm the grant ofsummary judgment on the outrage claim.

Ms. Reyes' outrage claim is based on the disputed allegation that YHD employees

threatened Mr. Reyes with incarceration if he did not comply with the prescribed

tuberculosis treatment regimen. The elements of a claim for the tort of outrage or the

intentional infliction of emotional distress are "(1) extreme and outrageous conduct.



                                               11
Reyes, et al. v. Yakima Health Dist., etal.
No. 94679-5



(2)intentional or reckless infliction of emotional distress, and(3)actual result to

plaintiff of severe emotional distress." Kloepfel v. Bokor, 149 Wn.2d 192, 195,66

P.3d 630(2003). The conduct must be '"so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.'" Grimsby v. Samson, 85

Wn.2d 52, 59, 530 P.2d 291 (1975)(italics omitted)(quoting RESTATEMENT

(Second)of Torts § 46 cmt. d(Am.Law Inst. 1965)). Liability generally will not

extend to threats alone. Id.


       That same section ofthe Restatement speaks to conduct that would be extreme

and outrageous but for a legal privilege to do it. RESTATEMENT § 46 cmt. g("The

conduct, although it would otherwise be extreme and outrageous, may be privileged

under the circumstances. The actor is never liable, for example, where he has done no

more than to insist upon his legal rights in a permissible way, even though he is well

aware that such insistence is certain to cause emotional distress."). The invocation of

a legal privilege does not per se immunize one's conduct from a claim for intentional

infliction of emotional distress. Were an official to use the threat of quarantine

improperly, either to induce action other than compliance with a treatment regimen or

where there is no reasonable basis to believe that a quarantine is warranted, a claim

may be warranted. See RESTATEMENT § 46 cmt. e.




                                              12
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



       In this case, the defendants had the power to execute the complained of

conduct. Washington State has a statutory scheme for diagnosing and treating

tuberculosis because the illness is highly contagious and has a relatively high

virulence. See RCW 70.28.005(2)("While it is important to respect the rights of

individuals, the legitimate public interest in protecting the public health and welfare

from the spread of a deadly infectious disease outweighs incidental curtailment of

individual rights that may occur in implementing effective testing, treatment, and

infection control strategies."). Noncompliance with a tuberculosis treatment regimen

is a misdemeanor, and RCW 70.28.031 provides local health officers with the power

to issue a quarantine order for persons who have been previously diagnosed as having

tuberculosis and who are under medical orders for treatment or periodic follow-up

examinations.


       The allegedly outrageous conduct was a threat of invoking the quarantine

power granted to health officials to combat the public enemy oftuberculosis. A suit

may arise when the manner of invoking a legal power intentionally inflicts emotional

distress, but here, no such allegations were made. The alleged conduct ofthe YHD

employees was not wrongful, let alone outrageous. Because the alleged conduct was

not outrageous as a matter of law, we affirm the Court of Appeals' grant ofsummary

judgment with regard to the outrage claim.




                                               13
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5



                                         CONCLUSION


       Dr. Martinez's affidavits amount to allegations of misdiagnoses but do not

explain the acts that the defendants should have taken to avoid these allegedly

erroneous conclusions. Because a misdiagnosis and resulting bad outcome alone is

not generally enough to support a claim for medical negligence, we affirm the trial

court's grant ofsummary judgment on the medical malpractice and wrongful death

claims. As well, we affirm the grant of dismissal on the outrage claim and find the

defendants' alleged conduct was not outrageous.




                                               14
Reyes, et al. v. Yakima Health Dist., et al.
No. 94679-5




                                                    7
WE CONCUR:




                                                    <r/   /I




                                               15
Reyes v. Yakima Health Dist.




                                     No. 94679-5



       GonzAlez, J.(concurring in part and dissenting in part)—The plaintiffs here

have suffered a tragic loss, the death of a family member. They contend that this

death was the result of medical malpractice. The defendants staunchly deny the

claim and suggest Jose Luis Reyes himself is significantly to blame for his own

death. We must decide whether Reyes's estate and family have submitted

sufficient evidence to allow a jury to decide the cause.


       I agree with the majority that this is a close call. I also agree that talismanic

words are not required to overcome a defendant's motion for summary judgment

on a medical malpractice claim. Taking all evidence, as we must, in the light most

favorable to the plaintiffs, they have shown that a material question offact

necessitates denial of Yakima Health District's motion for summary judgment. To

the extent the majority holds otherwise, I respectfully dissent.
Reyes v. Yakima Health Dist., No. 94679-5 (Gonzalez, J., concurring and dissenting)


       This case turns on whether the declaration ofthe plaintiffs expert, Dr. Rosa

Martinez, was sufficient to support the conclusion that Reyes's death '"resulted

from the failure of a health care provider to follow the accepted standard of care.'"

Keckv. Collins, 184 Wn.2d 358, 371, 357 P.3d 1080(2015)(quoting RCW

7.70.030). Plainly, Dr. Martinez, the former head of an internal medicine

department at a teaching hospital practicing in the local area, was qualified to

testify to both the standard of care and its breach. Hill v. Sacred Heart Med. Ctr.,

143 Wn. App. 438, 452-53, 177 P.3d 1152(2008). Dr. Martinez testified that

Reyes "presented . . . clinical symptoms of liver failure that should have been

easily diagnosed by observation ofthe patient." Clerk's Papers at 110. Dr.

Martinez's declaration detailed escalating symptoms of liver failure. She

specifically testified that one ofthe prescribed drugs, INH (isonicotinyl hydrazide),

"clearly should not be administered to a patient with liver problems." Id. She

concluded that Reyes died due to the defendants' failure "to observe the standard

of care for health care institutions and physicians acting in the same or similar

circumstances in the State of Washington." /c/. at 113. Based on her testimony

and construed in the light most favorable to the plaintiff, a jury could conclude that

the defendants failed to meet that standard of care and that failure proximately

caused Reyes's death.
Reyes v. Yakima Health DisL, No. 94679-5 (Gonzalez, J., concurring and dissenting)


       The majority, like the defendants, make much of Reyes's alleged

noncompliance with the (allegedly inappropriate) tuberculosis treatment regime.

Allocation offault is properly a matter for the jury, not this court, to resolve. I

note in passing that Dr. Martinez's declaration suggests that compliance was

increasingly painful (including an extremely swollen abdomen, extreme skin

discoloration, nausea, and vomiting) and likely led directly to Reyes's death.


       The majority seems to suggest that Dr. Martinez's declaration was

insufficient because it did not state "what a reasonable physician should have

done" and did not "explain the acts that the defendants should have taken."

Majority at 9, 13. I find no case—and the majority cites none—^that establishes

that the plaintiffs expert must "explain the acts the defendants should have taken"

to overcome a defendant's summary judgment motion. Certainly, such an

explanation could be sufficient to establish the standard of care and provide

eloquent evidence of its breach. See, e.g., Keck, 184 Wn.2d at 372. But it is not

necessary. Instead, under our law, the plaintiff"needs an expert to say what a

reasonable doctor would or would not have done, that the [defendants] failed to act

in that manner, and that this failure caused her injuries." Id. at 371 (emphasis

added). Further, taken in the light most favorable to the plaintiffs. Dr. Martinez

did testify so—^her declaration makes clear that given the symptoms Reyes
Reyes v. Yakima Health Dist., No. 94679-5 (Gonzalez, J., concurring and dissenting)


presented, a competent health care provider would have realized he was suffering

from liver toxicity and would have stopped administering isonicotinyl hydrazide.

       To the extent the majority holds otherwise, I respectfully dissent.
Reyes v. Yakima Health Dist., No. 94679-5 (Gonzalez, J., concurring and dissenting)
