                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            July 28, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 LINDA J. ACOSTA,                                                   No. 52953-0-II

                                 Appellant,

         v.

 WASHINGTON STATE DEPARTMENT OF
 CORRECTIONS,                                                 UNPUBLISHED OPINION

                                 Respondent.

        WORSWICK, J. — Linda Acosta appeals an order granting summary judgment dismissal of

her medical negligence lawsuit against the Department of Corrections (DOC) arising out of the

DOC’s delay in allowing Acosta to obtain a medical diagnostic test and subsequent back surgery.

She argues that res ipsa loquitur applies, thus, expert testimony was not necessary to a

determination that the DOC departed from the standard of reasonable, prudent, and appropriate

medical care. We disagree and affirm the summary judgment order.

                                                FACTS

                                           I. BACKGROUND

        Linda Acosta is currently a 71-year old inmate at the Washington Corrections Center for

Women. During her time in incarceration, she has been diagnosed and treated for a multitude of

illnesses. Acosta’s medical history includes osteoporosis, degenerative disk disease, and

degenerative arthritis in the joints of the spine.

        In October 2014, Acosta tripped on a floor mat, fell backward, and suffered an injury to

her back. Acosta experienced extreme pain in her right lower back which radiated down to her
No. 52953-0-II


knee. On November 7, Acosta visited the DOC’s health clinic where she reported to the DOC

advanced registered nurse practitioner Pamelyn Saari that she was unable to get out of bed.

Acosta was in a wheelchair and could not walk more than 10 feet because of her injury. Saari

explained to Acosta that she should get out of the wheelchair, but reluctantly allowed Acosta to

continue its use.

       On November 13, Acosta underwent an X-ray which revealed a compressed fracture of

her L1 vertebra with over 50 percent loss of the vertebral body. Soon after the X-ray, Acosta

requested to see an orthopedic surgeon. Saari explained that she was treating Acosta

conservatively. Saari said that she had prescribed medications to treat Acosta’s osteoporosis,

and that Saari did not believe that an orthopedist would do anything differently. On December

30, Acosta returned to the DOC medical clinic complaining of severe pain in her lower back.

DOC medical personnel instructed Acosta to apply ice, walk, and take anti-inflammatories. The

next day, Acosta again appeared at the DOC clinic where she declared that she was in a

“[m]edical emergency” for pain and inability to stand. Clerk’s Papers at 171. She was given

Tylenol and an ice pack and referred to physical therapy.

       Acosta began requesting an MRI (magnetic resonance imaging) in January 2015, which

she intended to pay for herself. The DOC has a process for self-paid medical care that involves a

series of specific steps that must be taken by an inmate, including filing paperwork, gathering

medical information, paying a processing fee, and depositing the funds necessary to cover the

cost of the procedure or appointment. Offenders cannot independently decide or elect to have




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No. 52953-0-II


medical services performed at their will during incarceration. The DOC permits a self-pay

medical procedure or appointment only if it is “medically appropriate.”1 CP at 445.

       Between January 2015 and April 2015, Acosta sent multiple health services kites2 to

DOC staff, each containing some reference to or inquiry about her MRI appointment. In

February, Acosta sent kites to Saari requesting an accommodation for meals and for a

wheelchair, but Saari denied her requests, explaining that Acosta needed to continue movement.

       Acosta sent multiple kites to Saari in March. Saari replied to all of Acosta’s kites on

March 25. Acosta’s March 16 kite inquired whether TRA3 had supplied information on the cost

of her MRI, and Saari responded that she “[did not] know.” CP at 284. Acosta’s March 19 kite

again inquired if the DOC had received information on her requested MRI. Saari replied, “I

don’t know. We told the TRA people about your spine (L spine) and hip areas that need

attention. I have not heard a thing.” CP at 285. Acosta’s March 24 kite again requested the

status of her MRI. Saari replied that she had “reported the body parts that are requested to be

screened,” but she had not heard back. CP at 286.

       In May, DOC staff sent Acosta an initial cost estimate obtained from an outside medical

provider. Between June and September, Acosta sent four additional kites to DOC staff



1
  Policy number DOC 600.020, titled “Offender-Paid Health Care,” lists criteria for determining
what is “medically appropriate,” which requires that the requested service not be provided under
the offender health plan, and the likely benefits outweigh the risks of the requested service.
2
 A “kite” is a form used in prison for communication from inmates to prison staff. State v.
Puapuaga, 164 Wn.2d 515, 518 n.2, 192 P.3d 360 (2008).
3
 “TRA” refers to TRA Medical Imaging, the independent medical imaging company that
provided services to the DOC.



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No. 52953-0-II


requesting the status of her MRI request. In July, Saari told Acosta that an MRI could be as low

as $1,650, that she had sent estimates for the other sites, and that Acosta should begin depositing

funds into a medical account.

       On September 11, Acosta submitted an offender complaint, alleging that the DOC was

nonresponsive to her requests for an MRI. On September 16, DOC staff responded to the

complaint stating, “Ms. Acosta, as soon as DOC publishes the new policy, we will get you sent

out.” CP at 409. The DOC offender-paid health care policy was revised on September 21 and

outlined the necessary process for approval of self-paid medical services. On September 21,

Acosta completed and submitted a worksheet in accordance with that policy. The DOC finally

scheduled Acosta’s MRI in October.

       On November 24, Acosta’s MRI was performed, and DOC physician Mary Colter then

requested Acosta receive an outside surgical consult with recommended treatment. A DOC Care

Review Committee Report dated November 11 stated, in part:

        “. . . L-spine MRI indicating she may need urgent decompression, per Radiologist.
       . . . [January] X-ray findings reviewed by DOC Ortho and discussed. Per DOC
       Ortho, she needs surgical consultation regardless of physical symptoms. . . .

       Intervention Proposed: surgical consultation with treatment as indicated.

CP at 294.

       In December, Acosta saw a neurosurgeon, Dr. Marc Goldman, for a surgery consultation

related to her L1 compression fracture. In his report, Dr. Goldman stated, “[G]iven the

chronicity of this there is no urgency in treatment.” CP at 253. In January 2016, Acosta had a

CT (computed tomography) scan of her spine. In February, Acosta saw Dr. Goldman for a




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No. 52953-0-II


follow up. Dr. Goldman was unsure that surgery would be beneficial and sought a second

opinion.

          In March, Acosta received an assessment and a second surgical opinion from Dr.

Michael Martin and physician assistant Nicholas Harrison. Dr. Martin recommended surgery.

Saari then called Dr. Martin’s office and sent an e-mail to schedule Acosta’s surgery. On April

3, Acosta sent a kite to the DOC asking if her surgery had been scheduled, complaining that her

pain was increasing and that she could not sleep. On April 5, Saari replied, “You are

scheduled.”4 CP at 393. On April 7 and April 9, Acosta again inquired about her scheduled

surgery, and DOC Health Services Manager Jeff Perry replied that Acosta was going to receive

additional imaging.

          On April 12, Acosta saw Dr. Colter, complaining of chronic low back pain. Dr. Colter

prescribed Acosta narcotic pain medication. Acosta sent five additional kites between April 13

and May 3 requesting notice that her surgery had been scheduled, and DOC staff replied that

they were calling the surgeon’s scheduler every day, and that her surgery was a priority. Acosta

filed a grievance on April 20, complaining of the delay in scheduling her surgery. A DOC

grievance coordinator responded on May 6, stating, “I think we have made some progress with

your case. Both Dr. Colter and Dr. Anderson5 are now involved and have been able to make

contact with Dr. Martin’s surgery scheduler.” CP at 414.

          On May 4, Acosta underwent a preoperation assessment and evaluation. Before surgery,

Acosta’s pain prevented her from performing daily activities such as walking, bathing, dressing


4
    It appears from the record that the surgery was not scheduled at this time.
5
    Dr. Mary Lee Colter and Dr. Lisa Longano Anderson are DOC physicians.


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No. 52953-0-II


or using the restroom. She needed assistance from others to carry out these tasks. On June 7,

Acosta underwent spinal surgery for her Ll compression fracture. After surgery, Acosta’s back

pain substantially diminished, to where she was able to walk with a walker, and take care of her

personal needs.

                                     II. PROCEDURAL HISTORY

         Acosta filed a medical negligence lawsuit against the DOC related to the treatment she

received from the DOC. The DOC filed a motion for summary judgment, arguing that Acosta

could not establish that the medical staff violated the standard of care nor could she establish

causation. The DOC submitted declarations from Dr. Colter and Dr. Bede in support of its

motion. The declarations from Dr. Colter and Dr. Bede described all of Acosta’s medical

conditions the DOC was treating, explained the offender-paid health care policy, and opined that

DOC medical staff did not violate the standard of care. Dr. Bede declared that an MRI was an

appropriate action only after Acosta did not respond to initial conservative treatment. Finally,

Dr. Bede opined that no permanent injury was caused to Acosta due to the action or any action of

DOC medical personnel.

         Acosta did not submit expert testimony, but instead argued that the doctrine of res ipsa

loquitur applied to her case. As a reply to the res ipsa loquitur argument, the DOC submitted

additional testimony of Dr. Colter relating the offender-paid healthcare procedures and process.

The trial court granted the DOC’s motion, ruling that the doctrine of res ipsa loquitur did not

apply.

         Acosta appeals the trial court’s order granting summary judgment dismissal.




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No. 52953-0-II


                                            ANALYSIS

                                     I. STANDARDS OF REVIEW

       We review a grant of summary judgment de novo, viewing the facts and reasonable

inferences in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358,

368, 357 P.3d 1080 (2015). Summary judgment is properly granted when there is no genuine

issue of material fact and the moving party is entitled to summary judgment as a matter of law.

CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960 P.2d 919 (1998). The

defendant may meet this burden by challenging the sufficiency of the plaintiff’s evidence.

Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Whether res

ipsa loquitur applies in a given circumstance is a question of law reviewed de novo. Curtis v.

Lein, 169 Wn.2d 884, 889, 239 P.3d 1078 (2010).

                                       II. LEGAL PRINCIPLES

       1. Statutory Requirements for Medical Malpractice

       In Washington, actions for injuries resulting from health care are governed under chapter

7.70 RCW. To prevail on their claims, plaintiffs must prove

                 (1) [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;

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

       RCW 7.70.040.

       2. Expert Testimony Required To Establish Standard of Care and Causation

       In a medical negligence action, expert testimony is generally necessary to establish that

the health care provider failed to exercise the standard of care of a reasonably prudent health care


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No. 52953-0-II


provider. Frausto v. Yakima HMA, LLC, 188 Wn.2d 227, 232, 393 P.3d 776 (2017). However,

the plaintiff can meet this burden by showing that the doctrine of res ipsa loquitur applies. See

Miller v. Jacoby, 145 Wn.2d 65, 33 P.3d 68 (2001) (holding that expert medical testimony was

not required to establish that nurse and physician were negligent in failing to completely remove

Penrose drain from patient during postoperative procedure). That is, when medical facts are

“‘observable by [a layperson’s] senses and describable without medical training,’” a plaintiff can

establish the standard of care for a health care provider without expert testimony. Miller, 145

Wn.2d 65 at 72 (quoting Bennett v. Dep’t of Labor & Indus., 95 Wn.2d 531, 533, 627 P.2d 104

(1981)).

       Expert testimony is also required to establish causation in a medical negligence case.

Frausto, 188 Wn. 2d at 232. “Like the standard of care, expert testimony is always required

except in those few situations where understanding causation ‘does not require technical medical

expertise.’” Frausto, 188 Wn.2d at 232 (quoting Young, 112 Wn.2d at 228). Here, it is

undisputed that Acosta failed to submit expert testimony to establish either negligence or

causation. Instead, she relies on the doctrine of res ipsa loquitur to establish the first element,

and her personal testimony to establish the second.

                             III. RES IPSA LOQUITUR DOES NOT APPLY

       Acosta argues that res ipsa loquitur applies because the DOC’s delay in scheduling her

MRI and surgery would not have occurred in the absence of negligence. In making this

argument, she is defining the “occurrence producing the injury” as the DOC’s delay in obtaining

her MRI. Br. of Appellant at 9 (quoting Miller, 145. Wn.2d at 65). Conversely, the DOC argues

that its medical treatment was not of a kind that ordinarily does not happen absent negligence. In



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No. 52953-0-II


making this argument, the DOC is defining the “occurrence” as the DOC’s medical treatment of

Acosta’s injured back. We agree with the DOC.

       To prevail on a complaint for medical negligence, a plaintiff must satisfy traditional tort

elements of proof: duty, breach, injury, and proximate cause. Dunnington v. Virginia Mason

Med. Ctr., 187 Wn.2d 629, 636, 389 P.3d 498 (2017). The doctrine of res ipsa loquitur provides

a fact finder with an inference of the defendant’s breach of duty, thus allowing a plaintiff to

establish a prima facie case of negligence when he cannot prove a specific act of negligence.

Brugh v. Fun-Tastic Rides Co., 8 Wn. App. 2d 176, 180, 437 P.3d 751 (2019).

       Under some circumstances, the doctrine of res ipsa loquitur can apply to physicians and

hospitals. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wn.2d 12, 18, 499 P.2d 1 (1972). Res ipsa

loquitur is “ordinarily sparingly applied, ‘in peculiar and exceptional cases, and only where the

facts and the demands of justice make its application essential.’” Curtis, 169 Wn.2d at 889

(internal quotation marks omitted) (quoting Tinder v. Nordstrom, Inc., 84 Wn. App. 787, 792,

929 P.2d 1209 (1997)).

       The doctrine applies only when the evidence shows:

               (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 of the plaintiff.

Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003).

The first element is satisfied if one of three conditions is present:

               (1) When the act causing the injury is so palpably negligent that it may be
               inferred as a matter of law, 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


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No. 52953-0-II


               expected without negligence; and (3) when proof by experts in an esoteric
               field creates an inference that negligence caused the injuries.

Zukowsky v. Brown, 79 Wn.2d 586, 595, 488 P.2d 269 (1971)).

       The second element, exclusive control, includes situations when the defendant has the

right of control, as in a nondelegable duty, as when the defendant has actual physical control of

the agency. Hogland v. Klein, 49 Wn.2d 216, 219, 298 P.2d 1099 (1956).

       The third element requires the court to consider whether the plaintiff’s injury was due to

her voluntary action or inaction. Zukowsky, 79 Wn.2d at 595. This element can include

plaintiff’s negligence or assumption of the risk. Zukowsky, 79 Wn.2d at 595.

       1. Accident or Occurrence Producing the Injury of a Kind Which Ordinarily Does Not
          Happen in the Absence of Someone’s Negligence

       To apply res ipsa loquitur, the evidence has to show that that the occurrence producing

Acosta’s injury is of the type which does not ordinarily occur in the absence of negligence.

Pacheco, 149 Wn.2d at 436. Acosta can meet this element by meeting one of three conditions.

Acosta appears to argue only the first two conditions: whether the act causing the injury is so

palpably negligent that it may be inferred as a matter of law, and whether the general experience

and observation of mankind teaches that the result would not be expected without negligence.

Acosta meets neither condition.

       Regarding the first condition, the evidence does not show that the occurrence producing

her injury is of the type which does not ordinarily occur in the absence of negligence. As

mentioned above, Acosta narrowly defines the “occurrence” as the DOC’s delay in obtaining her

MRI. This is too narrow a view. But even if we accept this argument at face value, the evidence

does not show that a delay in obtaining a medical test is the type of occurrence that does not



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ordinarily occur in the absence of negligence. To the contrary, there can be a multitude of

reasons for the DOC’s delay in obtaining a self-paid MRI.

       For example, the evidence here shows that the MRI request required a DOC medical care

staff member to deem it “medically appropriate” before it could be approved. Acosta argues that

the delay here was caused by ineptitude and lies, but the particular facts regarding this delay are

not determinative. Our focus in analyzing this element of res ipsa loquitur is whether a delay in

obtaining a medical test is the type of occurrence that does not normally occur in the absence of

negligence. It is not, and Acosta’s argument fails on this point.

       Viewing the issue as more properly framed by the DOC, that we consider all of the

DOC’s medical treatment for Acosta’s injury, her failure of proof is even more evident. Acosta

filed a medical malpractice action, which generally requires expert testimony that the medical

care provider violated the applicable standard of care. Frausto, 188 Wn.2d at 232. Acosta

makes no effort to argue that the DOC’s medical treatment of her back injury is the type of

occurrence that normally occurs in the absence of negligence. And a review of the evidence

shows that the DOC’s conservative treatment of her lumbar spine fracture is not the type of

occurrence which ordinarily does not happen in the absence of negligence. In fact, the DOC

submitted Dr. Bede’s declaration showing that the DOC’s actions in this regard were not

negligent, but instead were within the standard of care in this case.

       During the entire time in question, Acosta was receiving medical care for the fall she

suffered in October 2014, and the record contains declarations from experts that describe that

care as meeting the requisite standard of care for medical professionals. Her medical providers,

the same people to review and possibly approve her MRI request, were unsure of the cause of her



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No. 52953-0-II


pain or the benefit of surgery. These facts take this case out of the realm of “palpable

negligence” where this doctrine would normally apply, i.e., drilling in the wrong side of a

patient’s jaw, leaving foreign objects in the body, or amputation of a wrong member. Pacheco,

149 Wn.2d at 438; Zukowsky, 79 Wn.2d at 595.

       Nor does the evidence establish the second condition: whether the general experience and

observation of mankind teaches that the result would not be expected without negligence. It is

simply not within the general experience of mankind that the result claimed here—pain and

suffering experienced prior to back surgery—would not be expected without negligence.

Although Acosta appears to blame this result on the delay, our consideration of this condition

looks to the injury, not the cause. Brugh, 8 Wn. App. 2d at 184.

       We hold that the evidence does not show that the accident or occurrence producing the

injury is of a kind which ordinarily does not happen in the absence of someone’s negligence.

Because Acosta fails on proving one of the necessary elements of the doctrine of res ipsa

loquitur, the doctrine is not applicable in this case and we need not consider the sufficiency of

the other required elements.

                               IV. SUMMARY JUDGMENT WAS PROPER

       The DOC argues that the summary judgment dismissal was proper because Acosta did

not provide expert testimony on the standard of care or causation. We agree.

       1. Standard of Care

       To establish the standard of care, Acosta must prove 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



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No. 52953-0-II


Washington, acting in the same or similar circumstances.” RCW 7.70.040(1). Because res ipsa

loquitur does not apply here, Acosta must prove this element with expert testimony. Frausto,

188 Wn.2d at 232. Acosta has offered no competent evidence about the standard of care in her

case, thus, she has not raised an issue of material fact as to the standard of care.

       2. Causation

       Acosta argues, without citation to authority, that expert testimony is not required to prove

causation in her case, and that she is qualified to testify to her pain and suffering. Acosta seems

to argue that causation in her case falls within one of the narrow exceptional cases our Supreme

Court discusses in Young v. Key Pharmaceuticals, Inc., where “the determination of negligence

does not require technical medical expertise.” 112 Wn.2d at 228. We disagree.

       To establish causation, the plaintiff must show that the alleged breach of the standard of

care “was a proximate cause of the injury complained of.” RCW 7.70.040(2). The exceptional

cases mentioned by the Supreme Court in Young that “[do] not require technical medical

expertise” include “amputating the wrong limb or poking a patient in the eye while stitching a

wound on the face.” 112 Wn.2d at 228. In Young, our Supreme Court held that lay testimony

could be admitted “to show obvious impairments,” and is “sometimes admissible for matters

such as observations of health, disease, or injury,” but that even a pharmacist was not competent

to testify as to causation between a physician defendant’s conduct and those observed

impairments. 112 Wn.2d at 228.

       Here, although Acosta’s pain and suffering may be obvious to her, it is the causation of

that pain and suffering that is at issue. Because Acosta has offered no competent evidence about




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the proximate cause of the injury complained of, she has not raised an issue of material fact as to

proximate cause.

                                          V. CONCLUSION

        We hold that the doctrine of res ipsa loquitur does not apply, thus the evidence is not

sufficient to raise genuine issues of material fact for each element of Acosta’s claim. Moreover,

Acosta failed to raise an issue of material fact as to proximate cause. Thus, trial court’s

summary judgment dismissal is affirmed.

        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.



                                                       ______________________________
                                                                 Worswick, J.


______________________________
 Melnick, J.



______________________________
 Sutton. A.C.J.




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