        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




LEONARDO C. MARIANO,                                   No. 68924-0-


                      Appellant,                       DIVISION ONE


   v.


                                                                               f\5
SWEDISH CARDIAC SURGERY,                               UNPUBLISHED


                       Respondent.                     FILED: November 25. 2013




        Cox, J. — Leonardo Mariano appeals the summary judgment dismissal of

his medical malpractice and informed consent claims against Swedish Cardiac

Surgery.1 We affirm, holding that summary judgment was appropriate because

Mariano failed to provide required expert testimony for his claims.

        On April 4, 2006, Mariano underwent a quadruple coronary artery bypass

graft procedure at Swedish Medical Center. On May 2, 2011, Mariano filed this
lawsuit against Swedish, alleging medical malpractice and failure to obtain his

informed consent to the surgery. The complaint was based on Mariano's belief

that a bypass of his left coronary artery was unnecessary. Mariano argued that

he suffered damages from the procedure, including a lengthy recovery period,

lack of appetite, difficulty hearing, negative impacts on his employment

opportunities and social life, and "writer's block."

        The parties conducted discovery. In responding to interrogatories,

Mariano admitted, "I have no expert/medical witnesses at this time. I reserve my


   1 Swedish asserts that "Swedish Cardiac Surgery" is merely a division of Swedish
Medical Center, not an independent legal entity subject to suit. We are unable to
address this argument on the record before us. We adopt the naming conventions of the
parties and refer to the respondent as "Swedish."
No. 68924-0-1/2




right to name some after discovery and during the trial." He never named any

such experts.

       Swedish moved for summary judgment, arguing that Mariano's complaint

should be dismissed because he had not identified any expert support for his

claims. The trial court granted summary judgment in favor of Swedish. Mariano

moved for reconsideration. When the trial court denied Mariano's motion, it

clarified its order granting summary judgment:

       Summary Judgment was granted on March 2, 2012 on the
       grounds that Plaintiff did not have the required [evidentiary]
       support for his claims. In addition his claims are barred by the
       statute of limitations, which expired April 2009.[2]

       Mariano appeals.

                                 EXPERT TESTIMONY

       A defendant can move for summary judgment by showing that there is an

absence of evidence to support the plaintiff's case.3 If the defendant shows an

absence of evidence to establish the plaintiff's case, the burden then shifts to the

plaintiff to set forth specific facts showing a genuine issue of material fact for

trial.4 While we construe all evidence and reasonable inferences in the light most

favorable to the nonmoving party, ifthe plaintiff "fails to make a showing sufficient



    2 Clerk's Papers 42.
    3 Young v. Key Pharm., Inc., 112 Wn.2d 216, 225-26 n.1, 770 P.2d 182 (1989)
(quoting Celotex Corp. v. Catrett. 477 U.S. 317, 325, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d
265(1986)).
    4 Young, 112 Wn.2d at 225.
No. 68924-0-1/3




to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial," summary judgment is

proper.5 The plaintiff may not rely on mere speculation or unsupported

assertions, facts not contained in the record, or inadmissible hearsay.6 This court

reviews summary judgments de novo.7 We review the denial of a motion for

reconsideration for abuse of discretion.8

      Actions for damages occurring as a result of health care are controlled

exclusively by statute, regardless of how the claim is characterized.9 There are
three bases for such a claim:


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

          (2) That a health care provider promised the patient or his or her
       representative that the injury suffered would not occur; [or]

          (3) That injury resulted from health care to which the patient or
       his or her representative did not consent.1101
RCW 7.70.020 defines hospitals as health care providers. Mariano's complaint is

based on the first and third bases.




   5 Jones v. Allstate Ins. Co., 146Wn.2d.291, 300, 45 P.3d 1068 (2002): Young. 112
Wn.2d at 225 (quoting Celotex, 477 U.S. at 322).
   6 Higgins v. Stafford, 123 Wn.2d 160, 169, 866 P.2d 31 (1994).
   7 Michael v. Mosouera-Lacv. 165 Wn.2d 595, 601, 200 P.3d 695 (2009).
    8 Rivers v. Washington State Conf. of Mason Contractors, 145 Wn.2d 674, 685, 41
P.3d 1175 (2002).
    9 RCW 7.70.030; Branom v. State, 94 Wn. App. 964, 969, 974 P.2d 335 (1999).
    10 RCW 7.70.030.


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         To establish medical malpractice, Mariano must prove that Swedish "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 a proximate cause of the injury

complained of."11 Only experts are permitted to testify regarding the standard of

care and whether the physician met that standard.12 "What is or is not standard

practice and treatment in a particular case, or whether the conduct of the

physician measures up to the standard is a question for experts and can be

established only by their testimony."13 The policy behind this rule is to "prevent

laymen from speculating as to what is the standard of reasonable care in a highly

technical profession."14 If a plaintiff fails to produce competent expert testimony,

the defendant is entitled to summary judgment.15

         Here, Mariano failed to identify any expert who would testify in support of

his claims that the treatment he received at Swedish fell below the applicable

standard of care. As a result, Swedish was entitled to judgment as a matter of

law.




       11 RCW 7.70.040.
       12 Young, 112 Wn.2d at 228.
       13 Young, 112 Wn.2d at 228-29 (quoting Hart v. Steele, 416 S.W.2d 927, 932, 37
A.LR.3d 456, 462 (Mo. 1967)).
   14 Douglas v. Bussabarger, 73 Wn.2d 476, 479, 438 P.2d 829 (1968).
       15 Morinaoa v. Vue, 85 Wn. App. 822, 832, 935 P.2d 637 (1997).
No. 68924-0-1/5




       Mariano argues that expert testimony is not required where an ordinary

person could reasonably infer the ultimate fact required to be established. In the

alternative, Mariano argues, the evidence he presented is sufficient to entitle him

to an inference of negligence established by the doctrine of res ipsa loquitur.

       Mariano's arguments fail. For res ipsa loquitur to apply, the following three

criteria must be met: "(1) the accident or occurrence that caused the plaintiffs

injury would not ordinarily happen in the absence of negligence, (2) the

instrumentality or agency that caused the plaintiffs injury was in the exclusive

control of the defendant, and (3) the plaintiff did not contribute to the accident or

occurrence."16 It is true that "expert medical testimony is not necessary if the

questioned practice of the professional is such a gross deviation from ordinary
care that a lay person could easily recognize it."17 But the proper procedure for
coronary artery bypass surgery is far beyond the common understanding or

expertise of a layperson. And without knowing the professional standard of care
for a health care provider conducting such a surgery, a layperson would not be

able to infer negligence from Swedish's actions.

       Mariano also contends that Swedish did not secure his informed consent

to the surgery. Specifically, Mariano alleges that he expressed his desire to
pursue less invasive forms of treatment; that he was not informed of the risks of



    16 Curtis v. Lein, 169 Wn.2d 884, 891, 239 P.3d 1078 (2010).
    17 McLaughlin v. Cooke, 112 Wn.2d 829, 838, 774 P.2d 1171 (1989).
No. 68924-0-1/6




the operation; and that his consent was given under duress because he was "still

groggy from his diagnostic cardiac catheterization" when he signed the form.

         A plaintiff alleging breach of the duty to secure informed consent must

prove:


         (a) the health care provider failed to inform the patient of a
         material fact or facts relating to treatment; (b) the patient
         consented to treatment without being aware of or fully informed
         of such facts; (c) a reasonably prudent patient under similar
         circumstances would not have consented given such
         information; and (d) the treatment in question proximately
         caused injury to the patient.'181
Expert testimony is required to establish the nature and character of the
treatment proposed and administered; the risks and benefits to such treatment;

and any possible alternative forms of treatment.19 As with his medical
malpractice claim, Mariano has provided no expert testimony in support of his
claim. As a result, Mariano has not met his burden to set forth specific facts

showing a genuine issue of material fact for trial.20
         Mariano also failed to establish any of the grounds under CR 59(a)

justifying a reconsideration ofthe trial court's order. The trial court did not abuse
its discretion in denying reconsideration.




    18 RCW 7.70.050(1).
    19 RCW 7.70.050(3).
    20 Because the trial court properly dismissed Mariano's complaint for failure to
demonstrate material facts in dispute, we need not address whether his claims were also
barred by the statute of limitations.


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No. 68924-0-1/7




                                  OTHER ISSUES

       Mariano argues that the trial court erred in failing to continue the summary

judgment hearing so that he could conduct discovery. But the record indicates

that the trial court continued the hearing for more than two months at Mariano's

request. Mariano did not move for any further continuances. Furthermore,

Mariano had almost a year from the date of the filing of his complaint to conduct

discovery before his complaint was dismissed.

       Finally, Mariano argues that he was denied due process at the summary

judgment hearing because the hearing was too quick and was not recorded. But

Mariano's opening brief contains no authority in support of this claim. This court

will not consider arguments for which the appellant has cited no authority.21
While this court is mindful of Mariano's pro se status, pro se litigants are held to

the same standard as attorneys and must comply with all procedural rules on

appeal.22
                                MOTION TO STRIKE

       Swedish moved to strike the exhibits attached to Mariano's briefs on

appeal, which primarily included magazine or Internet articles dealing with bypass
surgery. The motion is granted as to all exhibits that were not included in the
clerk's papers or otherwise properly made a part ofthe record on appeal.23


    21 RAP 10.3(a)(6); State v. Bello, 142 Wn. App. 930, 932 n.3, 176 P.3d 554 (2008).
    22 Batten v. Abrams, 28 Wn. App. 737, 739 n.1, 626 P.2d 984 (1981).
    23 RAP 9.12; 10.3(a)(8).

                                             -7-
No. 68924-0-1/8




      We affirm the summary judgment order.

                                              ^PXyXJT
WE CONCUR:




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