                                                                       FILED
                                                             • COURT OF APPEALS DIV
                                                               'STATE OF WASHINGTON

                                                                20110CT -2 AM 8:52




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


KIRT BROWNFIELD, an individual,         )       No. 75553-6-1
                                        )
                    Appellant,          )
                                        )       DIVISION ONE
                    v.                  )
                                        )
VALLEY GENERAL HOSPITAL                 )
FOUNDATION, a Washington                )
Corporation; PUBLIC HOSPITAL            )
DISTRICT NO. 1 OF SNOHOMISH             )
COUNTY, D/B/A, EVERGREEN                )
HEALTH, MONROE,a Washington             )
Corporation,                            )       UNPUBLISHED OPINION
                                        )
                    Respondent.         )       FILED: October 2, 2017
                                        )

       MANN, J. — Kirt Brownfield appeals the superior court's decision dismissing his

medical malpractice claim on summary judgment. Because Brownfield failed to produce

evidence of a breach in the standard of care or causation, we affirm.

                                        FACTS

       Brownfield underwent shoulder surgery in January 2011. After his surgery,

Brownfield began physical therapy at Valley General Hospital in Monroe. Physical

therapy helped Brownfield's recovery and by May 2011 he was "doing very well."

Brownfield claims, however, that his shoulder was reinjured during therapy:
No. 75553-6-1/2


      On or about May 6th, 2011, I went to physical therapy and was treated by
      a new therapist. This therapist performed a completely new movement on
      my arm, with no discussion about it beforehand. I was not told about any
      risks of the movement, or its supposed benefit. She didn't even tell me
      what she was going to do, and I definitely did not consent to any such
      movement.

      The movement involved her having me extend my left arm straight out
      from my body, parallel to the ground. She then put her right hand on my
      left wrist, and put her left hand on my shoulder, thereafter "pushing" my
      shoulder.1

       After a Magnetic Resonance Imaging (MRI)scan showed that Brownfield's

biceps tenodesis (the suture attaching the tendon to bone) was ruptured, he underwent

an exploratory surgery to repair the rupture. The surgery revealed that there was no

rupture and that the biceps tenodesis was intact. However, the surgery revealed an

infection with "purulent appearing fluid" collecting at the incision site. The infection was

cleaned and Brownfield was prescribed antibiotics.

       On July 1, 2015, Brownfield filed a complaint against Valley General for medical

malpractice, claiming that Title injury was due to the failure of Defendant's

employee/agent to exercise reasonable prudence, which fell below the applicable

standard of care."

       Valley General moved for summary judgment arguing that Brownfield lacked

medical evidence supporting his claim. After agreeing to Brownfield's request for a CR

56(f) continuance, Valley General renoted the motion several months later. After the

continuance, the trial court granted summary judgment for Valley General and

dismissed Brownfield's complaint.



       I Clerk's Papers(CP)at 42.
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No. 75553-6-1/3


                                       ANALYSIS

       Brownfield argues that the trial court erred in granting summary judgment and

dismissing his complaint. We review summary judgment orders de novo. Seybold v.

Neu, 105 Wn. App. 666, 675, 19 P.3d 1068(2001). Summary judgment is proper if

there is no genuine issue of material fact and the moving party is entitled to judgment as

a matter of law. CR 56(c).

      The defendant on summary judgment has the burden of showing the absence of

evidence supporting the plaintiff's case. Young v. Key Pharm., Inc., 112 Wn.2d 216,

225, 770 P.2d 182(1989). Once the moving party shows an absence of genuine issue

of material fact, the burden shifts to the nonmoving party. Young, 112 Wn.2d at 225.

       While we construe the evidence and reasonable inferences in the light most

favorable to the nonmoving party, if the nonmoving party "fails to make a showing

sufficient 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.

Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.

Ct. 2548, 91 L. Ed. 2d 265 (1986)). "Questions of fact may be determined on summary

judgment as a matter of law where reasonable minds could reach but one conclusion."

Smith v. Safeco Ins. Co., 150 Wn.2d 478,485, 78 P.3d 1274 (2003). The nonmoving

party may not rely on speculation to create a material issue of fact. Ranger Ins. Co. v.

Pierce County., 164 Wn.2d 545, 552, 192 P.3d 886(2008). "[M]ere allegations, denials,

opinions, or conclusory statements" do not establish a material issue of fact. Intl

Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774

(2004).

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No. 75553-6-1/4


      "[W]henever an injury occurs as a result of health care, the action for damages

for that injury is governed exclusively by RCW 7.70." Branom v. State, 94 Wn. App.

964, 969, 974 P.2d 335 (1999). Claims that an injury resulted from a failure to follow

the accepted standard of care are addressed by RCW 7.70.030(1) and RCW 7.70.040.

The plaintiff has the burden to prove by a preponderance of evidence each essential

element of the claim. RCW 7.70.030.

      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.

RCW 7.70.040(1),(2).

      "It is not always necessary to prove every element of causation by medical

testimony. If, from the facts and circumstances and the medical testimony given, a

reasonable person can infer that the causal connection exists, the evidence is

sufficient." McLaughlin v. Cooke, 112 Wn.2d 829, 837-38, 774 P.2d 1171 (1989).

However, expert testimony is generally "'necessary to establish the standard of care.

and most aspects of causation." Young, 112 Wn.2d at 228 (quoting Harris v. Groth, 99

Wn.2d 438, 449,663 P.2d 113(1983)). To defeat summary judgment in almost all

medical negligence cases, the plaintiff must produce testimony from a competent

medical expert. Young, 112 Wn.2d at 228.




                                         -4-
No. 75553-6-1/5


      The trial court did not error in granting summary judgment in favor of Valley

General. Valley General's motion argued that Brownfield lacked medical expert

testimony to establish the standard of care and causation. Brownfield's response

offered no medical expert's testimony in support of either a violation of the standard of

care or causation. Without medical expertise, Brownfield cannot establish either the

standard of care or causation.

       On appeal, Brownfield ignores his standard of care argument and lack of medical

evidence and instead devotes his argument to a claim that he did not plead: that his

injury resulted from health care to which he did not consent. While Brownfield is correct

that RCW 7.70.030(3) creates a cause of action for injuries resulting from health care to

which the patient did not consent, he did not plead that claim in his complaint.

       A civil complaint must "apprise the defendant of the nature of the plaintiffs claims

and the legal grounds upon which the claims rest." Kirby v. Tacoma, 124 Wn. App. 454,

469-70, 98 P.3d 827(2004)(citation omitted). "While inexpert pleadings may survive a

summary judgment motion, insufficient pleadings cannot." Pac. Nw. Shooting Park

Ass'n v. Seguim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006). "A party who does not

plead a cause of action or theory of recovery cannot finesse the issue by later inserting

the theory into trial briefs and contending it was in the case all along." Dewey v.

Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847(1999).

       Brownfield's complaint includes only one claim—that "[t]he injury was due to the

failure of[Valley General's] employee/agent to exercise reasonable prudence, which fell




                                          -5-
\


    No. 75553-6-1/6


    below the applicable standard of care." Accordingly, we decline to address Brownfield's

    claim that he was injured by treatment to which he did not consent.2

           We affirm the trial court's order dismissing Brownfield's complaint.




                                                                  1    /
                                                                       104441
                                                                                  I


    WE CONCUR:



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            2 We note, however, that even if Brownfield had asserted a cause of action for lack of consent,
    RCW 7.70.050((1)(d) still required Brownfield to prove, with medical evidence, that the treatment in
    question proximately caused his injury. Brownfield offers only his personal opinion that his injury was due
    to the May 6, 2011, treatment.
                                                     -6-
