                                                                  f LEL
                                                          COURT OF APPEALS WV I
                                                           STATE OF WASHINGTON

                                                          2018 FEB 20 fin 10:26



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LYNETTE ENEBRAD, individually and )
as the Personal Representative of the )   No. 75369-0-1
ESTATE OF ROBERT ENEBRAD,             )
                                      )   DIVISION ONE
                       Appellant,     )
                                      )   UNPUBLISHED OPINION
               v.                     )
                                      )
MULTICARE HEALTH SYSTEM, d/b/a )
MULTICARE AUBURN MEDICAL              )
CENTER, a Washington corporation      )
doing business within the State of    )
Washington, King County; MARK H.      )
TSENG, M.D. and JANE DOE TSENG, )
and the marital community composed )
thereof; MARK H. TSENG, M.D., P.C., )
a Washington professional corporation )
doing business within the State of    )
Washington, King County; HEALOGICS,)
INC., and its affiliated corporation, )
DIVERSIFIED CLINICAL SERVICES, )
both Delaware corporations registered )
to do business in Washington,         )

                  Respondents,

            and

HEALOGICS, INC., and its affiliated
corporation, DIVERSIFIED CLINICAL
SERVICES, both Delaware corporations
registered to do business in
Washington,                               FILED: February 20, 2018
                                      )
              Third Party Defendants. )
No. 75369-0-1/2

       TRICKEY, A.C.J. — In this medical malpractice case, Lynette Enebrad, on behalf of

her deceased husband, Robert Enebrad,1 sued MultiCare Health System d/b/a MultiCare

Auburn Medical Center (MultiCare Health), Healogics, Inc., Diversified Clinical Services,

Inc. (DCS), and Dr. Mark H. Tseng (collectively, MultiCare). The trial court granted

summary judgment dismissing Enebrad's loss of chance claims against MultiCare,

thereby restricting the case to her claim that Dr. Von Chang negligently failed to diagnose

Robert's cancer in 2013. At trial, the trial court admitted evidence of Robert's prior drug

use on limited issues. The jury found that the Dr. Chang was not negligent.

       Enebrad appeals, arguing that summary judgment was not appropriate and that

the trial court abused its discretion when it admitted evidence of Robert's prior drug use.

Because Enebrad failed to submit an expert declaration assigning a value to the

percentage of lost chance proximately caused by the defendants and has not

demonstrated that she was unfairly prejudiced by the trial court's admission of evidence

of Robert's prior drug use, we affirm.

                                           FACTS

       Robert was a patient of Kent MultiCare Family Practice. On January 18, 2013,

Robert saw Dr. Chang for an annual physical. Robert's medical records indicated that he

had a skin graft on his left forearm, had a history of intravenous (IV) drug use along with

heroin and cocaine abuse, and was taking methadone. Dr. Chang knew that Robert had

a history of infections and cellulitis that led to his skin graft procedure in 2002. Even after

the graft, Robert would occasionally develop ulcers in the scar tissue area of the graft.

       Robert did not report any acute concerns to Dr. Chang at the visit. Dr. Chang


1 We refer to Robert Enebrad as "Robert" and to Lynette Enebrad as "Enebrad" unless otherwise
noted. No disrespect to the parties is intended.
                                              2
No. 75369-0-1 / 3

observed that the skin donor site on Robert's left shin was dry but the skin graft site on

his left forearm looked normal.

         Dr. Chang saw Robert again on August 7, 2013. Robert was complaining of a

growing lesion in his skin graft, which was two inches in diameter at the time of his visit.

Dr. Chang referred Robert to the Wound Healing Clinic at MultiCare Health for immediate

care.

         On August 12, 2013, Robert saw Dr. Tseng at MultiCare Health. Dr. Tseng

measured the lesion and ordered a biopsy. Dr. Tseng saw Robert for six more visits from

August to early October. Robert's lesion grew aggressively.

         Dr. Tseng did not see the results of the biopsy until October, although the biopsy

report was dated August 14, 2013. The report concluded that "[t]he biopsy tissue is

extensively involved by well differentiated squamous cell carcinoma with areas of

necrosis."2 Dr. Tseng recommended that Robert go to Harborview Medical Center's

plastic surgery department for wound care and for covering of the lesion with a flap or

graft.

         On October 8, 2013, Dr. Jason Ko saw Robert at Harborview and reviewed his

biopsy report from MultiCare Health. Dr. Ko diagnosed Robert as having a Marjolin's

ulcer, a rare and very aggressive type of skin cancer.

         On October 14, 2013, Enebrad and Robert had an appointment with Dr. Chang

and requested stronger pain medication for Robert. Dr. Chang agreed to continue

Robert's pain medication for a week. But after consulting a pain specialist, Dr. Chang

decided to not provide Robert with future narcotics in light of his prior drug use.



2   Clerk's Papers(CP) at 64.
                                             3
No. 75369-0-1/4

         Robert had surgery to remove the cancer at Harborview. During the procedure, it

was discovered that the cancer was more extensive than previously thought. On

November 25, 2013, Robert's left arm was amputated. Despite the amputation, the

cancer continued to spread, and Robert died on October 19, 2014.

         In February 2014, Enebrad sued MultiCare Health for medical negligence and

damages. Enebrad alleged that MultiCare Health, through its employee or agent Dr.

Tseng, negligently misdiagnosed and failed to treat Robert's squamous cell skin cancer,

failed to review the biopsy report in a timely manner, and failed to immediately take steps

to refer Robert to specialist care. MultiCare Health responded that Robert's injuries were

caused by third parties. Healogics and DCS operated the Wound Healing Clinic, and Dr.

Tseng was not an employee of MultiCare Health. MultiCare Health also asserted a third-

party indemnity claim against Healogics and DCS. In October 2014, Enebrad amended

her complaint to assert claims against Dr. Tseng, Healogics, and DCS.

         MultiCare moved for summary judgment on Enebrad's claims. MultiCare argued

that Enebrad had not offered expert medical testimony to establish causation.

         Enebrad had asked Dr. Ko to submit a declaration in support of her case. On June

26, 2014, Enebrad e-mailed Dr. Ko and specifically asked him to "assign a percentage to

[Robert's lost] chance (or a range of percentage)."3 Dr. Ko responded that he could "[]not

assign a percentage (range)to [Robert's lost chance]."

         Enebrad ultimately submitted a declaration from Dr. Ko in response to MultiCare's

motions for summary judgment. Dr. Ko stated that the delay between Dr. Tseng's biopsy

and Dr. Ko's diagnosis negatively impacted Robert's chance of a better outcome but did


3   CP at 430.
4   CP at 429.
                                             4
No. 75369-0-1 / 5

not assign any percentage to his loss of chance. At Dr. Ko's deposition in April 2015, he

stated that his conclusion was that the delays in diagnosis and treatment did not change

the ultimate outcome of Robert's treatment.

         MultiCare responded that Dr. Ko had failed to identify a numerical percentage of

lost chance in his declaration and, therefore, it was legally insufficient to prevent summary

judgment on Enebrad's claims against MultiCare. The trial court granted Enebrad

multiple continuances so that she could submit a revised declaration from Dr. Ko.

         Enebrad eventually submitted a declaration from Dr. H. Thomas Temple instead

of a revised declaration from Dr. Ko. Dr. Temple declared that Robert likely had a lesion

on his skin graft at his January 18 appointment with Dr. Chang, which Dr. Chang failed to

notice or record. Dr. Temple stated that "[a]t the likely stage of Mr. Enebrad's cancer [at

the January 18 appointment] he would have had a 98% chance or better to not only avoid

amputation of his left forearm but to survive his disease."5

         In its supplemental reply, MultiCare argued that Dr. Temple's declaration only

supported a claim of negligence against Dr. Chang, and did not establish causation

between MultiCare's actions and Robert's harms. MultiCare moved for the trial court to

dismiss Enebrad's claims with prejudice, except for "those claims arising out of care

provided by[Dr. Chang]to Robert Enebrad on January 18, 2013:6 The trial court granted

summary judgment on the claims against MultiCare, leaving only the claims against Dr.

Chang arising from the January 18, 2013 appointment.

         Prior to trial, MultiCare filed a motion in limine requesting permission to offer

evidence of Robert's prior drug use at trial. MultiCare argued that such evidence was


5   CP at 495.
    CP at 618.
                                             5
No. 75369-0-1/6

relevant to Dr. Chang's affirmative defense of contributory negligence and on the issues

of Robert's life expectancy and truthfulness in reporting his symptoms. The trial court

ruled that evidence of Robert's prior drug use was relevant to life expectancy and pain

management, but reserved its decision on the relevancy of the evidence to contributory

negligence defense for trial.

       At trial, Enebrad argued that Robert had a visible lesion on his left forearm at his

January 18 appointment, and that Dr. Chang negligently failed to observe, diagnose, or

treat it.7 MultiCare contended that Dr. Chang performed a thorough examination of

Robert on January 18 and did not observe any lesions, as reflected in his notes from the

appointment. Further, Dr. Kent Carson testified about how Robert's prior drug use and

skin graft led to the cancer spreading to Robert's bones before it affected his skin.

        During trial, the trial court gave the jury an oral limiting instruction sua sponte.

During MultiCare's direct examination of Dr. Michael Kovar, the trial court instructed the

jury: "The Court has admitted evidence regarding Mr. Enebrad's drug usage, at least in

this context, for one purpose only. And that is there's going to be an issue that's going to

be raised with you regarding life expectancy. And I'm admitting this evidence so that you

can consider that issue. But you should not consider the drug usage for any other

purpose."8

       The jury found that Dr. Chang did not fail to comply with the standard of care.

Enebrad appeals.



7 Dr. Temple testified via Skype at trial without giving prior notice to MultiCare or the trial court.
The court reporter noted that Dr. Temple's entire testimony via Skype was inaudible and was not
recorded. It is assumed that Dr. Temple's testimony at trial was substantively the same as his
declaration.
8 Report of Proceedings(RP)(May 2, 2016) at 482-83.

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No. 75369-0-1/ 7

                                       ANALYSIS

                                  Summary Judgment

       Enebrad argues that the trial court erred in granting summary judgment dismissing

her loss of chance claims against MultiCare. Specifically, she contends that Dr. Ko's

declaration sufficiently supported her claims, and that there were material issues of fact

precluding summary judgment. Because the declarations of Dr. Ko and Dr. Temple did

not assign a percentage of Robert's lost chance to MultiCare's actions, we disagree.

      A lost chance claim is a form of a medical malpractice cause of action that can be

based on a lost chance of survival or a lost chance of a better outcome. Rash v.

Providence Health & Servs., 183 Wn. App. 612, 629-30, 334 P.3d 1154 (2014). A lost

chance of survival claim arises when the patient died as a result of allegedly negligent

treatment. Rash, 183 Wn. App. at 630. Specifically, in a lost chance of survival claim,

although the patient's chance of dying was greater than 50 percent prior to the negligence,

"the negligence reduced the patient's chances of surviving the condition." Rash, 183 Wn.

App. at 630 (citing Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wn.2d 609, 664

P.2d 474 (1983)).

       In contrast, a lost chance of a better outcome occurs when the patient does not

die but suffers adverse health consequences. Rash; 183 Wn. App. at 630-31. "In a lost

chance of a better outcome claim, the mortality of the patient is not at issue, but the

chance of a better outcome or recovery was reduced by professional negligence." Rash,

183 Wn. App. at 631 (citing Mohr v. Grantham, 172 Wn.2d 844, 857, 262 P.3d 490

(2011)). "[If] the malpractice reduced the chances of a better outcome by a percentage




                                            7
No. 75369-0-1 /8

of 50 percent or below," the case is analyzed as a lost chance of a better outcome. Rash,

183 Wn. App. at 631.

       In both types of lost chance claim, the amount of the plaintiffs damages is based

on the percentage of lost chance proximately caused by the negligence. Herskovits, 99

Wn.2d at 619 (Pearson, J., plurality opinion); Mohr, 172 Wn.2d at 858-59. The plaintiff

must submit "testimony from an expert health care provider that includes an opinion as to

the percentage or range of percentage reduction in the chance of survival." Rash, 183

Wn. App. at 636; see Christian v. Tohmeh, 191 Wn. App. 709, 731, 366 P.3d 16 (2015).

Without this percentage, a trial court cannot determine whether to submit the case to the

jury as a traditional malpractice wrongful death suit or as a lost chance claim or calculate

the appropriate amount of damages. Rash, 183 Wn. App. at 636; Estate of Dormaier v.

Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 851, 313 P.3d 431 (2013).

       An appellate court reviews "summary judgment rulings de novo, engaging in the

same inquiry into the evidence and issues called to the attention of the trial court." Dowler

v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011).

       Here, to survive summary judgment, Enebrad bore the burden of producing expert

medical testimony establishing Robert's percentage of lost chance proximately caused

by MultiCare. The declarations of Dr. Ko and Dr. Temple did not assign a percentage of

Robert's lost chance to MultiCare. Dr. Temple's declaration only assigned a percentage

of lost chance to Dr. Chang's individual negligence. Thus, Enebrad failed to carry her

burden, and we conclude that the trial court did not err when it granted summary judgment

dismissing her loss of chance claims against MultiCare.




                                             8
No. 75369-0-1/ 9

        Enebrad argues that Dr. Ko's declaration was sufficient by stating that the delay in

diagnosis led to a delay in Robert's receipt of treatments"whose purpose is to significantly

increase a patient's chance of a better outcome."9 In support of her argument, Enebrad

contends that the dictionary definition of "significant" supports an inference that Dr. Ko's

statement included a percentage of lost chance." She also analogizes the present case

to Volk v. DeMeerleer, which held that it was not error to admit an expert's affidavit that

did not provide a specific percentage of lost chance. 187 Wn.2d 241, 278-79, 386 P.3d

254 (2016).

        Enebrad's arguments are unpersuasive. Her citation to the dictionary definition of

"significant" cannot overcome case law clearly showing that Dr. Ko's declaration is legally

insufficient. Further, Volk is inapposite because the lost chance doctrine did not apply.

187 Wn.2d at 276-79. We reject Enebrad's argument.

        Enebrad also argues that a jury could have reasonably concluded that Robert

suffered from lost chance due to his untimely diagnosis, and thus summary judgment was

inappropriate." Enebrad's argument ignores her failure to satisfy the legal requirement

of providing an expert opinion assigning a percentage of lost chance in order to survive

summary judgment. We reject Enebrad's argument.




9 Br. of Appellant at 30. At oral argument, the parties argued over whether Dr. Ko's deposition
testimony contradicted his declaration. Because we conclude that Dr. Ko's declaration was
insufficient to satisfy Enebrad's obligation to offer expert testimony establishing a percentage of
lost chance, we decline to reach this issue.
10 Br. of Appellant at 29-30 (citing MERRIAM-WEBSTER'S ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/significant (last visited Mar. 21, 2017)).
11 Enebrad also states that "[Robert] and his family were deprived of a fair trial," citing to the trial
judge's evidentiary and summary judgment rulings. Br. of Appellant at 34. Enebrad does not
support this statement with citation to legal authority or significant argument. RAP 10.3(4), (6).
We decline to address Enebrad's unsupported reference to her right to a fair trial.
                                                   9
No. 75369-0-1/ 10

                        Admission of Evidence of Prior Drug Use

       Enebrad argues that the trial court abused its discretion when it admitted evidence

of Robert's prior drug use. Specifically, she contends that MultiCare's arguments were

pretextual and that the evidence was unfairly prejudicial. Because the evidence was

probative and Enebrad has not established that she was unfairly prejudiced by its

admission, we disagree.

      "All relevant evidence is admissible" unless otherwise barred. ER 402. But

relevant evidence "may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence." ER 403.

       The relevancy of the evidence is presumed, and the court's inquiry focuses on

"whether its probative value is outweighed by its prejudicial effect." Carson v. Fine, 123

Wn.2d 206, 222, 867 P.2d 610 (1994). Evidence is probative if it has "any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." ER 401.

       Shortened life expectancy is probative on the issue of recoverable damages in a

medical malpractice case. See Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123

Wn.2d 15, 33, 864 P.2d 921 (1993); Woolridge v. Woolett, 96 Wn.2d 659, 666-67, 638

P.2d 566 (1981). Similarly, the health, habits, and activity of the person whose life

expectancy is in question is relevant to the issue of damages. See Kramer v. J.J. Case

Mfq. Co., 62 Wn. App. 544, 557-60, 815 P.2d 798 (1991).




                                           10
No. 75369-0-1 / 11

       "[U]nfair prejudice is caused by evidence likely to arouse an emotional response

rather than a rational decision among the jurors." Carson, 123 Wn.2d at 223 (citing

Lockwood v. AC&S, Inc., 109 Wn.2d 235, 257, 744 P.2d 605(1987)). If the evidence at

issue is probative to a central issue in the case, the likelihood of it being outweighed by

the danger of unfair prejudice is "quite slim." Carson, 123 Wn.2d at 224 (quoting United

States v. 0.161 Acres of Land, 837 F.2d 1036, 1041 (11th Cir. 1988)).

       If the possibly prejudicial evidence is admitted, an explanation should be made to

the jury of the purpose for which it is admitted, and the trial court should give a cautionary

instruction that it is to be considered for no other purpose or purposes. State v. Goebel,

36 Wn.2d 367, 378-79, 218 P.2d 300 (1950). "The jury is presumed to follow the court's

instructions." Hizey v. Carpenter, 119 Wn.2d 251, 269-70, 830 P.2d 646 (1992).

       "[The burden of showing prejudice is on the party seeking to exclude the

evidence." Carson, 123 Wn.2d at 225. A trial court's decision to admit evidence under

ER 403 will be reversed only for manifest abuse of discretion. Carson, 123 Wn.2d at 226.

       Here, Robert's recreational drug use was probative on the issue of Robert's life

expectancy. Dr. Temple stated in his deposition testimony that drug abuse was correlated

with shortened life expectancy. At trial, Dr. Kovar testified that Robert's drug use habits

considerably shortened his life expectancy. In addition, Dr. Carson testified about the

aggressive nature of Marjolin's ulcers, and how trauma from Robert's drug use and his

subsequent skin graft led to the cancer spreading to Robert's bones prior to breaking

through the skin.12 Thus, expert testimony from both parties established that Robert's

prior drug use was probative to the issue of his life expectancy.


12 Enebrad's statement of issues discusses the relevance of Robert's prior drug use to an alleged
failure to mitigate damages. But Enebrad does not offer argument in support of this contention,
                                               11
No. 75369-0-1 /12

       Because Robert's prior drug use was probative on the issue of his life expectancy,

Enebrad bears the burden of demonstrating that the evidence's probative value was

outweighed by unfair prejudice. Enebrad has not carried that burden. First, Enebrad

argues that MultiCare "seized the opportunity to talk about drug use at every conceivable

opportunity and with every single witness to take the stand," thereby putting Robert's

character at issue and implying that he was not worthy of quality care.13 This is not

supported by the record. In questioning Enebrad's witnesses, MultiCare only asked

Enebrad about Robert's prior drug use, and asked Dr. Temple about Robert's time in the

methadone program. MultiCare did not raise the issue of Robert's prior drug use with two

of its own medical expert witnesses.           Further, MultiCare did not elicit testimony

disparaging Robert's character." Therefore, Enebrad's argument does not establish that

she was unduly prejudiced by MultiCare's circumspect use of this evidence.

       Second, Enebrad argues that the trial court's oral limiting instruction to the jury was

ineffective, as demonstrated by a juror's question to Dr. Chang about whether Robert was

completely sober during his visits. This is unpersuasive. The trial court provided the jury

with a limiting instruction regarding Robert's drug use that reminded the jury to only

consider it for the purpose for which it was admitted. Further, Dr. Chang responded to

the juror's question by saying, "He's not impaired, no. He's very clear."15 Dr. Chang's




and instead focuses solely on the life expectancy issue. We decline to address this argument.
RAP 10.3(a)(6).
13 Br. of Appellant at 23.
14 We note that Robert's family members used negative descriptions of Robert's drug use during
direct examination by Enebrad's counsel. See RP (April 27, 2016) at 229("You know, he wasn't
some gutter scum drug addict. He was a middle class drug addict"); RP (April 27, 2016) at 240
("I know the defense is trying to paint my father to be like he was a drug addicted rock star, but
that wasn't the case.").
15 RP (April 27, 2016) at 210.

                                               12
No. 75369-0-1 / 13

response is more related to whether Robert accurately reported his symptoms rather than

his continuing drug use. Therefore, Enebrad has not demonstrated that the juror's

question demonstrates that the trial court's limiting instruction was ineffective or that the

jury was unfairly prejudiced.

       Third, Enebrad argues that evidence of drug use is generally inadmissible because

it is inherently prejudicial. See State v. Tigano,63 Wn. App. 336, 344-45, 818 P.2d 1369

(1991); State v. Renneberg, 83 Wn.2d 735, 736-39, 522 P.2d 835 (1974). This is

unpersuasive. Both cases cited by Enebrad were criminal matters concerning the use of

evidence of the defendant's prior drug use for impeachment purposes. Enebrad brought

a civil malpractice suit in which evidence of Robert's drug use was admitted on the issue

of his life expectancy and pain tolerance. Therefore, Enebrad's citation to criminal cases

does not establish unfair prejudice outweighing the evidence's probative value.

       Enebrad also argues that MultiCare failed to provide substantial evidence that

Robert's life expectancy was shortened by his recreational drug use, analogizing to

Kramer v. J.I. Case Manufacturing Co., 62 Wn. App. 544, 815 P.2d 798 (1991). In

Kramer, the Court of Appeals held that cross-examination of witnesses about the

plaintiffs prior drug use before an offer of proof had been made was improper. It also

held that the probative value of evidence of the plaintiff's prior drug use was unclear

without evidence of its long-term adverse effects or how it affected his employment.

Kramer,62 Wn. App. at 559.

       The present case is distinguishable from Kramer. MultiCare made an offer of

expert testimony that established a link between Robert's drug use and his reduced life

expectancy. Dr. Kovar testified about the long-term impacts of heroin and cocaine use


                                             13
No. 75369-0-1 / 14

and about how Robert's prior drug use shortened his life expectancy. Dr. Carson testified

about the connection between Robert's drug use and the development of the Marjolin's

ulcer in his left forearm. Viewed together, MultiCare made an offer of expert medical

testimony that established the negative impacts of Robert's prior drug use on his life

expectancy and the progression of the Marjolin's ulcer. We conclude that Enebrad's

analogy to Kramer is inapposite.16

       In sum, evidence of Robert's prior drug use was probative on the issue of his life

expectancy. Enebrad's arguments in support of her contention that she was unfairly

prejudiced by the admittance of the evidence and her analogy to Kramer are

unpersuasive. We conclude that the trial court did not abuse its discretion when it

admitted evidence of Robert's prior drug use on the issue of life expectancy.

                                          Sanctions

       Dr. Tseng requests that this court impose sanctions on Enebrad's counsel for

continuing to rely on Dr. Ko's declaration despite knowing it was legally insufficient.

       The appellate court. . . may order a party or counsel . . . who uses these
       rules for the purpose of delay, files a frivolous appeal, or fails to comply with
       these rules to pay terms or compensatory damages to any other party who
       has been harmed... or to pay sanctions to the court.

RAP 18.9(a).

       Here, on appeal, Enebrad has raised debatable issues regarding the sufficiency of

Dr. Ko's declaration and disputed the necessity of providing a percentage value of lost




16 Enebrad also argues that Dr. Kovar's opinion was not factually supported, was inadmissible or
incompetent, or was insufficient because he did not provide a specific number of years by which
Robert's life expectancy was shortened. Enebrad has not cited legal authority or provided
argument substantively challenging Dr. Kovar's qualification as a medical expert or his
conclusions. We reject these arguments. RAP 10.3(a)(6).
                                              14
No. 75369-0-1/ 15

chance to survive summary judgment. We conclude that her appeal is not frivolous, and

decline to impose sanctions under RAP 18.9(a).

      Affirmed.




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WE CONCUR:




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