                                                                                                FILED
                                                                                         isD`UiSi OF APPEALS


                                                                                        2011i SEP 23   AM 9: 33




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II


MICHAEL FOSS, an individual,                                                No. 44856 -4 -II


                                   Appellant,


         v.



STATE OF WASHINGTON,                                                  UNPUBLISHED OPINION


                                   Respondent.


        WORSWICK, P. J. —       Michael Foss filed a negligence complaint against the State of

Washington for medical care that he had received while in the custody of the Department of

Corrections. The State moved for summary judgment, and the trial court granted the State' s

motion, because Foss had presented no expert medical testimony establishing standard of care or


causation. Foss appeals, asserting that the trial court erred by granting summary judgment in

favor of the State. We affirm.

                                                  FACTS


         In August 2008, Michael Foss had an eye exam while being processed for incarceration

with   the Department   of   Corrections ( DOC). The eye exam included a check of fluid pressure


inside Foss'   s eye, which showed    he had   normal   intraocular   pressure.   In September 2008, Foss
No. 44856 -4 -II



was   transferred to      Olympic Corrections Center ( OCC), a minimum security work camp near


Forks, Washington. Upon his transfer to OCC, Foss was examined by Dr. Clifford Johnson, a

DOC physician who saw OCC patients twice a week. Johnson did not conduct an eye exam at

that time due to Foss' s recent eye examination the previous month, but he noted Foss' s medical

history of retinal detachment in the right eye.

             On December 14, 2008, Foss              submitted a "     Health Services Kite," in which he stated:


             I have been experiencing pain [ and] discomfort in my right eye. I am getting
             headaches on the right side a couple times a day. I also seem to be losing some
             vision   clarity [     and] peripheral vision....          My surgeon told me to watch my eye
             pressure and for gla[ u] coma. My symptoms may be the onset of gla[ u] coma. Could
             I please be allowed to get the pressure checked in my eye( s) so if it is gla[ u]coma I
             can start the drops to control it?



Clerk'   s   Papers ( CP)      at   105.   In response to his request, Johnson examined Foss on December 18.

             Johnson noted that Foss had a cataract in his right eye, which was likely a side effect of

Foss' s earlier retinal surgery in 2005. Because of the cataract, Johnson could not examine Foss' s

optic nerve. Johnson advised Foss to have his intraocular pressure checked by a specialist.

Johnson told Foss that an intraocular pressure check could not be performed at OCC because

OCC lacked the proper equipment and, thus, Foss would need to be transported to another DOC

facility for further testing. Foss declined to be transported to another DOC facility for further

medical testing, and Johnson cautioned " that if the pain returns, he needs to have it checked out

immediately[ and i]f the pain became very severe, he is to talk to his custody officer and go to
the emergency          room."        CP at 29.


             On December 22, Foss             submitted another        Health Services Kite that   stated, "   I saw the


 doctor      on   12/ 19/ 08   about    my   eye.   Could I   please see   him   again   ASAP[ ?] Thank   you[.]    My eye




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No. 44856 -4 -II


still   hurts   badly.   Gla[ u] coma."   CP at 106. Johnson conducted an examination of Foss on


December 24, at which time Foss agreed to be transported to Clallam Bay Corrections Center

 CBCC) for additional medical testing. Foss was transported to CBCC on December 29, the first

available date for transfer following the Christmas holiday. A CBCC medical specialist

examined Foss that same day .and performed an intraocular pressure test. The test showed that

Foss had abnormally high pressure in his right eye, which is a risk factor for developing

glaucoma. The specialist prescribed and immediately treated Foss with a topical medication to

lower the pressure in his right eye. Foss' s prison medical records show that his intraocular

pressure responded to the topical medication and returned to a normal pressure range. Foss had

additional intraocular pressure checks in January and February 2009, which showed a normal

pressure range.




           On February 22, 2012, Foss filed a complaint that alleged he had received negligent

health care while housed at the OCC, which negligent health care caused " essentially total loss of

useful vision      in his   right eye."   CP at 6. The State filed a summary judgment motion asserting

that Foss could not support the necessary elements of his medical negligence claim because he

lacked expert medical testimony to determine the standard of care and to prove causation. The

State' s summary judgment motion also asserted that Foss had failed to comply with the claim

filing statute and the statute of limitations. The superior court granted the State' s motion and

dismissed Foss' s suit with prejudice. Foss timely appeals.




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No. 44856 -4 -II



                                                          ANALYSIS 1

           Foss contends that the trial court erred by granting the State' s motion for summary

judgment. Because Foss has failed to establish a prima facie case for medical negligence


supported by expert testimony, we affirm the trial court summary judgment ruling.

           We review a trial court' s summary judgment ruling de novo. Dean v. Fishing Co. of

Alaska, Inc., 177 Wn.2d 399, 405, 300 P. 3d 815 ( 2013).                  When reviewing a trial court' s

summary judgment ruling, we consider the facts and all reasonable inferences from those facts in

the light most favorable to the nonmoving party, here Foss. Fabre v. Town ofRuston, 180 Wn.

App.   150, 158, 321 P. 3d 1208 ( 2014). "           Summary judgment in favor of the defendant is proper if

the plaintiff fails to make a prima facie case concerning an essential element of his or her claim."

Seybold     v.   Neu, 105 Wn.   App. 666, 676,        19 P. 3d 1068 ( 2001) ( citing       Young v. Key Pharm.,    112


Wn.2d 216, 225, 770 P. 2d 182 ( 1989)).


           To    establish a prima   facie   case   for   negligence, a plaintiff must show "(      1) the existence of


a   duty   owed   to the complaining party; ( 2)          a breach thereof; (3) a resulting injury; and (4) a

proximate cause        between the    claimed       breach   and   resulting   injury."   Pedroza v. Bryant, 101


Wn.2d 226, 228, 677 P. 2d 166 ( 1984).               Specifically, in the context of medical negligence claims,

RCW 4. 24. 290 provides:




1 As an initial matter, our Supreme Court' s recent decision in McDevitt v. Harbor Medical Ctr.,
 179 Wn.2d 59, 316 P. 3d 469 ( 2013),           holding that the 90 -day presuit notice requirement of
former RCW 7. 70. 100( 1) ( 2006) was constitutional as applied to a State defendant, does not
control the outcome of Foss' s appeal. Although Foss did not adhere to former RCW 7. 70. 100' s
90 -day presuit notice requirements in reliance on our Supreme Court' s earlier opinion in Waples
v.Yi, 169 Wn. 2d 152, 234 P. 3d 187 ( 2010), the McDevitt court announced that its holding                         would
have " prospective -only application." 179 Wn.2d at 75. And Foss filed his suit before our
Supreme Court issued its opinion in McDevitt.
No. 44856 -4 -II



           In any      civil action   for damages based      on professional negligence against ...              a

           member of       healing arts including ...
                           the                                    a physician ...      the plaintiff in order to
           prevail shall be required to prove by a preponderance of the evidence that the
           defendant or defendants failed to exercise that degree of skill, care, and learning
           possessed at that time by other persons in the same profession, and that as a
           proximate result of such failure the plaintiff suffered damages.

                 0402
RCW 7. 70.              similarly 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 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;



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

           It has been well established that, in general, expert testimony is required to determine the

standard of care and to prove causation in medical negligence cases. See, e. g., McLaughlin v.

Cooke, 112 Wn.2d 829, 836, 774 P. 2d 1171 ( 1989) (                 citation omitted) ( "     Expert testimony is

necessary to prove whether a particular practice is reasonably prudent under the applicable

standard of care. Usually, the standard of care must be established by expert testimony.");

Harris     v.   Groth, 99 Wn.2d 438, 449, 663 P. 2d 113 ( 1983) ( "              In general, expert testimony is

required when an essential element in the case is best established by an opinion which is beyond

the   expertise of a      layperson. "); Seybold, 105 Wn.         App.   at   676 ( "[ E] xpert   testimony is required to

establish the standard of care and most aspects of causation in a medical negligence action. ");

Morinaga         v.   Vue, 85 Wn.     App.   822, 831, 935 P. 2d 637 ( 1997) ( " Absent exceptional


circumstances, a patient must produce expert testimony to establish if the practice questioned is


2
    Laws   of   2011,    ch.   336, § 251    amended   former RCW 7. 70. 040 ( 1983),         adding language to
eliminate the gender -specific reference contained in the former version of the statute.


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No. 44856 -4 -II



reasonably   prudent. ").   Thus, a defendant to a medical negligence suit is entitled to summary

judgment where the plaintiff lacks competent expert testimony. Guile v. Ballard Comm. Hosp.,

70 Wn. App. 18, 25, 851 P. 2d 689 ( 1993).

       Foss admits that he lacks competent expert testimony to support his medical negligence

claim but argues that expert testimony is not required to support his claim under the rule

announced    in   Helling v. Carey, 83   Wn.2d 514, 519 P. 2d 981 ( 1974). We disagree.


       In Helling, our Supreme Court held that the defendant ophthalmologists were negligent

as a matter of law for failing to timely perform eye pressure tests on the plaintiff despite the

undisputed medical expert testimony that the standard of the profession did not require routine

pressure tests for persons under 40 years of age. 83 Wn.2d at 517 -19. In so holding, the Helling

court established " that reasonable prudence may require a standard of care higher than that

exercised   by the relevant professional    group."    Gates v. Jensen, 92 Wn.2d 246, 247, 595 P. 2d


919 ( 1979) (   citing Helling, 83 Wn.2d 514).

        Foss is correct that neither RCW 4.24. 290 nor former RCW 7. 70. 040, both of which were


enacted after the Helling decision, abrogated the reasonable prudence standard announced in

Helling. See Gates, 92 Wn.2d at 253; Harris, 99 Wn.2d at 447. Foss is incorrect, however, that
the reasonable prudence standard relieves him of the obligation to produce expert medical


testimony to support the elements of his medical negligence claim.

        Our Supreme Court       explained   in Harris that "[ m] edical facts in particular must be proven


by expert testimony unless they are ` observable by [ a layperson' s] senses and describable

without medical      training.'" 99 Wn.2d   at   449 ( alteration in   original) (   quoting Bennett v.

Department of Labor & Indus., 95 Wn.2d 531, 533, 627 P. 2d 104 ( 1981)).                    The Harris court




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No. 44856 -4 -II



reasoned that the requirement that a plaintiff produce medical testimony to establish the standard

of care and to prove causation " remain[ ed] true even under the reasonable prudence standard of


care, since the factual question of whether a particular medical practice is reasonably prudent is

generally   neither observable      by   or   describable   by   a   layperson."      99 Wn.2d at 449 n. 6.


        Harris   acknowledged, "         In some exceptional circumstances, laypersons may be capable of

balancing the costs and benefits of a particular procedure and deciding whether it was reasonably

prudent."   99 Wn.2d    at   449   n.   6. But Harris further        explained      that "[ t]his will be true, however,



only when the underlying costs and probabilities can be expressed in relatively exact quantitative

terms and there are no significant judgment factors involved. Moreover, these underlyingfacts

must   be proven by   expert   testimony." 99 Wn.2d          at      449   n.   6 ( emphasis   added) ( citation omitted).




Thus, even in the " exceptional" case where laypersons could determine whether a physician' s

decision to   conduct or not   to   conduct a medical        procedure was reasonably prudent under the

circumstances, a plaintiff must still produce expert medical testimony to establish the costs and


benefits of performing the medical procedure at issue, which Foss has failed to do. Harris, 99
Wn.2d at 449 n. 6.


         Here, absent expert medical testimony establishing the standard of care and causation, a

jury would have to speculate as to whether Dr. Johnson' s conduct in recommending Foss transfer

to a different DOC facility for an intraocular pressure test, which Foss had refused, rather than

recommending he be sent to an emergency room at a nearby hospital, was reasonably prudent

under the circumstances. A jury would also have to speculate as to whether Dr. Johnson' s

 conduct caused Foss' s alleged vision loss. Thus, this is not the " exceptional" case, as in Helling,

 where laypersons could determine whether a physician' s medical decision was reasonably




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No. 44856 -4 -II



prudent under the circumstances. And, even were this such an exceptional case, Foss failed to

produce expert medical testimony to establish the costs and benefits underlying Dr. Johnson' s

medical decision.


        Accordingly, we affirm the trial court' s ruling granting summary judgment in favor of the

State. Because we affirm the summary judgment on the grounds that Foss failed to establish a

prima facie case for medical negligence supported by expert testimony, we need not reach the

State' s arguments regarding Foss' s failure to comply with the claim filing statute and the statute

of limitations.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




 Maxa,




  e




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