                                                                       FILED 

                                                                   DECEMBER 15, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


DIANE CHRISTIAN and CASEY                    )
CHRISTIAN, wife and husband,                 )         No. 32578-4-111
                                             )
                      Appellants,            )
                                             )
       v.                                    )
                                             )         PUBLISHED OPINION
ANTOINE TOHMEH, M.D., and "JANE              )
DOE" TOHMEH, husband and wife, and           )
the marital community composed thereof;      )
PROVIDENCE HEALTH CARE, a                    )
Washington business entity and health        )
care provider; HOLY FAMIL Y                  )
HOSPITAL, a Washington business              )
entity and health care provider;             )
ORTHOPAEDIC SPECIALTY CLINIC                 )
OF SPOKANE, PLLC, a Washington               )
business entity and health care provider;    )
and DOES 1-5,                                )
                                             )
                      Respondents.           )

      FEARING, J. -    We face again the question of whether a patient presented essential

expert testimony to defeat her physician's summary judgment motion in a case in which

the patient claims a lost chance of a better outcome because of an alleged breach in the

standard of care by the physician. The patient in our appeal also pleads the tort of
 No. 32578-4-III
 Christian v. Tohmeh


 outrage, a cause of action unusual in the patient-physician setting. The trial court granted

 the physician summary judgment and dismissed both causes of action. The major

 question on appeal is whether the patient, in response to a summary judgment motion,

 must provide expert testimony particularizing or describing the nature of the better

 outcome in addition to offering a percentage for the chance of the improved outcome.

 We answer the question negatively. Thus, we reverse the judgment in favor of the

 physician on the medical malpractice claim. We affinn the judgment dismissing the

. claim of intentional infliction of emotional distress.

                                            FACTS

        Plaintiffs are Diane and Casey Christian, wife and husband. For ease in reading,

 we refer to the plaintiffs only as Diane Christian, the patient of defendants Dr. Antoine

 Tohmeh and Orthopaedic Specialty Clinic of Spokane, PLLC (Clinic). Tohmeh was a

 physician employed by the Clinic. We refer to the defendants collectively as Dr.

 Tohmeh.

        Dr. Antoine Tohmeh perfonned laminectomies on Diane Christian's lower back

 on December 5, 2005. According to Christian, Dr. Tohmeh must have caused damage to

 her cauda equina, a bundle of nerves in the low back, during the surgery. She does not

 argue that Tohmeh breached the standard of care when initiating damage to the cauda

 equina. She instead contends that her postoperative symptoms should have alerted

 Tohmeh to the possibility of damage and led Tohmeh to perfonn another surgery to

                                                2

        No. 32578-4-III
        Christian v. Tohmeh


        explore if the cauda equina suffered damage. In tum, Christian maintains that

        postoperative surgery would have increased her chances for a healthier recovery by forty

        percent. Although neither party discusses the nature or ramifications of postoperative

        surgery, presumably the surgery might have allowed Dr. Tohmeh to discover and repair

        any damage to the cauda equina. Diane Christian sues for a loss of a better chance of

        recovery from surgery.

               The principal question on appeal is whether Diane Christian presented expert

        testimony sufficient to overcome Dr. Antoine Tohmeh's summary judgment motion.

        Although we present the facts and the testimony that picture Christian's case in the best

        light, we also detail some of the opinion testimony favorable to Dr. Tohmeh.

               Plaintiff Diane Christian experienced chronic low back pain and weakness in her

        legs. On April 14, 2005, defendant Dr. Antoine Tohmeh evaluated Christian to address

        her continuing symptoms. Christian's general physician, Dr. Richard Parker, requested

        the evaluation.

               During the April 14 appointment, Diane Christian complained about pain in both

        legs, with the pain focused in the front thighs. The thighs also suffered numbness.

        Christian could not walk two blocks without assistance. Christian then encountered no

        bowel or bladder disturbance. We mention the lack of bowel and bladder problems

        because Christian underlines her suffering from bowel and bladder difficulties, after the

        surgery performed by Dr. Antoine Tohmeh, as evidence of cauda equina that should have


II 

                                               3

No. 32578-4-II1
Christian v. Tohmeh


led to a second surgery to repair damage to the cauda equina.

      After he reviewed Diane Christian's MRI (magnetic resonance imaging) and an

X ray of her lower back, Dr. Antoine Tohmeh diagnosed Christian with two bulging discs

and severe and abnormal narrowing of the spinal canal at multiple levels in the thoracic

and lumbar regions of the spine. Medicine labels abnormal narrowing of the spinal canal

as stenosis. On April 14, Tohmeh spoke at length with Christian and her husband about

her options for achieving pain relief. Christian understandably wished minimally

invasive surgery. Dr. Tohmeh explained, however, that given the abnormalities at

multiple levels of her spine, an open, invasive surgery would be more expedient and

efficient. At the conclusion of the April 14 consultation, the physician and patient

decided to forgo immediate surgery and instead pursue a course of epidural spinal

injections and physical therapy.

      Between April and October 2005, Diane Christian underwent three epidural

injections, which provided excellent, but temporary, pain relief. On October 18,2005,

Dr. Antoine Tohmeh evaluated Christian again. Christian reported continuing pain in

both legs from the anterior thigh down to her knees, but not in her abdomen or groin. She

recounted three recent falls. Christian did not report any bowel or bladder trouble.

Christian, her husband, and Tohmeh again discussed her options. Dr. Tohmeh again

recommended invasive surgery to resolve the symptoms at many levels of the spine.

Christian consented to laminectomies.

                                             4

No. 32578-4-111
Christian v. Tohmeh


       On December 5, 2005, Dr. Anotine Tohmeh perfonned on Diane Christian partial

L-2, complete L-3, complete L-4, and complete L-5 laminectomies. "L" stands for the

lumbar spine, and the number attached to the "L" refers to the level of the lumbar spine

with the lower number corresponding to a higher level. A laminectomy removes or trims

the lamina of the vertebra to widen the spinal canal and create more space for the spinal

nerves. Tohmeh also perfonned bilateral partial facetectomies and foraminotomies of the

L-2, L-3, and L-4 nerve roots. The latter two procedures release pressure on the spinal

nerves. During the surgery, Dr. Tohmeh accidentally punctured Christian's dura, a thick

membrane surrounding the spinal cord. The puncture resulted in leaking of spinal fluid.

Tohmeh sutured the needle-sized puncture wound completely to render the area

"watertight." Clerk's Papers (CP) at 471. Christian does not contend that the puncture

caused cauda equiila syndrome. Christian tolerated the surgery well.

       While recovering from surgery, Diane Christian experienced symptoms from

which she did not earlier suffer. Christian reported tingling and numbness in her feet,

pain in her buttocks, an inability to urinate and defecate, and a loss of sensation in her

vagina and perineum. She rated the pain in her buttocks as a seven out of a possible ten.

Christian also reported muscle spasms that impeded her ability to perfonn physical

therapy. Hospital staffplaced a Foley catheter into Christian's bladder to monitor urinary

function.




                                              5

        No. 32578-4-II1 

        Christian v. Tohmeh 



               On December 8,2005, hospital staff removed the Foley catheter. Diane Christian

        then attempted to void her bladder on her own, but could not do so completely. Bladder

        scans revealed that Christian retained between 400 and 500 ml of urine and could only

        void between 100-200 ml at a time. On December 9, hospital staff reinserted a catheter

        in Christian, and the tube finally enabled her to completely void her bladder. Dr. Antoine

        Tohmeh discharged Christian, with the catheter inserted, the same day. Tohmeh then

        instructed Christian to return to the hospital for removal of the catheter once she could

        void normally at home. Tohmeh prescribed in-home nursing care to monitor Christian's

        urinary output.
1
               On December 13,2005, Dr. Antoine Tohmeh referred Diane Christian to Dr.



I
I
        Michael G. Oefelein, an urologist in Spokane. Dr. Oefelein diagnosed Christian with

        urinary retention, constipation, and grade I cystocele. A cystocele is the weakening of



·I.~l
        the supportive tissues between the bladder and vagina. Dr. Oefelein recommended

~•.•.   Christian take Flomax and conduct a voiding trial. On December 14, Oefelein saw

        Christian again and performed an ultrasound. The ultrasound revealed that Christian

I       retained 220 cc of urine in her bladder after attempting to void. Oefelein instructed

        Christian to continue taking Flomax and to return to him in four weeks, or sooner if she

        was unable to void.

               On January 3, 2006, Diane Christian underwent a postoperative examination by

        Dr. Antoine Tohmeh. By January 3, the December 5 surgery had rid Christian of thigh

                                                     6

No. 32578-4-III
Christian v. Tohmeh


weakness and pain. Christian, nonetheless, suffered from a multitude of other symptoms,

such as constipation, inability to fully void her bladder, and numbness in her left buttock,

rectum, vagina, left leg, and right foot. Christian told Tohmeh that she stopped taking the

Flomax prescribed by Dr. Oefelein, after which she encountered increased difficulty

voiding her bladder. Dr. Tohmeh noted on his January 3 chart notes:

               Diane is recovering from her lumbar laminectomy. She has a
       multitude of symptoms. This could be related to chronic deconditioning
       and previous lack of activity as she was limited by her thigh pain and
       weakness and therefore would not walk enough to have foot symptoms.
       She recently went to Costco and walked around for about 20 minutes; she
       had to sit down because of foot pain. Prior to surgery she would use a
       shopping cart and lean over it when at the store. Overall, she has made
       some progress but needs water therapy for reconditioning. I also gave her a
       prescription for Cymbalta to hopefully improve her dysesthetic symptoms
       in the left buttock and left leg.

CP at 522. As a result of the January 3 symptoms, Tohmeh referred Christian again to

urologist Michael Oefelein and to a colorectal specialist.

       On January 4,2006, Dr. Michael Oefelein evaluated Diane Christian again. Dr.

Oefelein conducted a pelvic examination and found Christian still experienced perineal

numbness. Christian reported frequent urination, including voiding throughout the night.

Oefelein described Christian's condition as "neurogenic bladder with urinary retention

status post multilevel lumbar laminectomy." CP at 197. An ultrasound of Christian's

bladder after urination showed she only retained 36 cc of urine. Thus, Oefelein

concluded that Christian's urinary retention had resolved. He instructed Christian to



                                             7

No. 32578-4-III
Christian v. Tohmeh


decrease her fluid consumption to reduce frequent urination and to return in three to six

months if she experienced bladder difficulties again.

       On February 7, 2006, Diane Christian returned to Dr. Antoine Tohmeh. Christian

complained of continuing numbness of the left buttock, rectum, and vagina. She

described a sensation like a tourniquet around the left foot and complained of numbness

in the foot.

       During the February 7 examination, Dr. Antoine Tohmeh observed resolution of

Diane Christian's presurgery back symptoms. Tohmeh reviewed a note prepared by Dr.

Michael Oefelein on January 4 that stated Christian's urinary retention was resolved.

Christian told Tohmeh that her bladder symptoms are tolerable and need not be

addressed. Christian complained instead of vaginal numbness, and she told Tohmeh that

she could not feel an inserted tampon. Christian reported severe constipation for which

her primary physician prescribed Miralax. T ohmeh told Christian that her symptoms

could relate to inactivity, pain medications, and anesthesia. Dr. Tohmeh referred

Christian to Dr. Shane McNevin for a bowel workup and Dr. Larry Lamb for a nerve

conduction study on her left leg.

       On February 27, 2006, Dr. Larry Lamb conducted a nerve study on Diane

Christian. The study detected no abnormality that would cause either incontinence or

pain in the buttocks, perineum, and thighs. Nevertheless, the study did not monitor

nerves at the S3-S5 level of Christian's spine, the area of the cauda equina.

                                             8

No. 32578-4-111
Christian v. Tohmeh


       On March 2, 2006, Dr. Antoine Tohmeh sent a letter to Diane Christian regarding

concerns she expressed in the meantime to Tohmeh's assistant. Tohmeh explained to

Christian that both the nerve study and an urologist report established that the nerves that

might cause her symptoms functioned normally. Dr. Tohmeh concluded his letter by

noting that none of the testing presented objective reasons for Christian's pain and

discomfort. Tohmeh, however, referred Christian to a gynecologist for another

evaluation and reminded her that Dr. McNevin had yet to perform the bowel evaluation.

       On March 9, 2006, Dr. Shane McNevin conducted a segmental colonic transit time

study. The study measures flow in the colon and can detect constipation. Dr. McNevin

concluded that Diane Christian had a global abnormal delay in colon transit. McNevin

recommended physical therapy for pelvic floor rehabilitation.

       On March 16,2006, Diane Christian and her husband returned to Dr. Antoine

Tohmeh. Christian expressed disappointment with Tohmeh. Christian stated she wished

she had not undergone the laminectomies since her postoperative symptoms exceeded her

preoperation pain.

      During the March 16 conference, Diane Christian declared her belief that she

developed cauda equina syndrome. The cauda equina, Latin for "horse's tail," is a

bundle of spinal nerves and nerve roots in the lower back. The nerves innervate the

pelvic organs, perineum, bladder, sphincter muscles, hips, and legs. Cauda equina

syndrome constitutes a serious neurologic condition in which damage to the cauda equina

                                             9

No. 32578-4-II1
Christian v. Tohmeh


causes loss of function of nerve roots in the lower spinal canaL Cauda equina syndrome

results in severe back pain, numbness in the perineum, vagina, and anus, bladder and

bowel dysfunction, sexual dysfunction, pain radiating into the legs, and gait disturbance.

      During the March 16 meeting between patient and physician, Dr. Antoine Tohmeh

disagreed with Diane Christian's self-diagnosis because her leg pain and weakness

subsided significantly after the surgery and Christian never suffered from "overflowing"

bowel or bladder incontinence. Tohmeh urged Christian to visit his recommended

gynecologist and undergo the physical therapy prescribed by Dr. Shane McNevin.

Christian declined Tohmeh's referral to a gynecologist. She handed Tohmeh a letter

memorializing her grievances and concerns about her health. Tohmeh recommended that

Christian see another physician for a second opinion and ordered an MRI to provide the

second doctor with a complete evaluation.

      During the March 16 conference, Dr. Antoine Tohmeh raised his voice

defensively and interrupted Diane Christian and her husband when they questioned

Tohmeh's conclusion that Christian lacked any neurological symptoms. In her

deposition, Christian averred that Dr. Tohmeh yelled words to the effect of "[T]here['s]

nothing wrong with you!" CP at 187. Casey Christian testified during his deposition that

Dr. Tohmeh raised his voice when Diane challenged Tohmeh and insisted that she

developed cauda equina syndrome. Tohmeh corrected himself and apologized for raising

his voice. Diane Christian attested that neither she nor her husband grew angry during

                                            10 

No. 32578-4-111
Christian v. Tohmeh


the appointment with T ohmeh.

      By the end of the March 16 meeting, Diane Christian concluded that her patient

relationship with Dr. Tohmeh had ended since he insisted she had no injury. Dr.

Tohmeh, however, never declared the doctor-patient relationship terminated.

      On April 1, 2006, Diane Christian underwent an MRI of her lumbosacral spine.

The images showed no abnormalities that would explain Christian's persistent symptoms.

      In April 2006, Richard Parker, Diane Christian's primary care physician, referred

her to physiatrist Vivian Moise. Dr. Moise found Christian's symptoms to be "highly

consistent with a diagnosis of cauda equina injury." CP at 123. Moise opined that the

results of the nerve conduction study did not preclude a finding of cauda equina

syndrome because Christian's cauda equina symptoms lie in the S3, S4, and S5

dermatome and myotome muscles and the conduction study did not address those

muscles. Moise believed Christian experienced neurologic impairment.

      As a result of the April 2006 examination ofDiane Christian, Dr. Vivian Moise

ordered urodynamic testing and performed a rectal examination. According to Moise, the

May I test and examination confirmed that Christian had cauda equina syndrome. Dr.

Moise spoke with Dr. Tohmeh and shared her diagnosis with him. Tohmeh replied that

Christian experienced significant emotional or psychologic issues that called into

question her complaints. During her deposition, Moise declared that Tohmeh objected

angrily and strongly to her diagnosis of cauda equine syndrome.

                                            11 

No. 32578-4-111
Christian v. Tohmeh


                                       PROCEDURE

       Diane Christian filed suit against Antoine Tohmeh. Christian alleged that Dr.

Tohmeh violated the applicable standard of care by failing to provide "immediate and

emergency medical intervention" to address Diane's postsurgical symptoms. CP at 6.

Christian also alleged that Dr. Tohmeh "negligently or intentionally failed to order

'medical testing' of [Ms. Christian] that would [have] more definitively diagnose[d] or

rule[d] out cauda equina syndrome." CP at 15. Christian further alleged that Tohmeh

sought to obfuscate her symptoms in order to avoid legal liability , which conduct

constituted outrageous and extreme conduct. In essence, Christian pled medical

malpractice resulting in a lost chance of a better outcome and the tort of outrage.

       This case in part entails a battle of medical experts. Diane Christian retained Dr.

Stanley Bigos, an orthopedic surgeon, as an expert witness. Dr. Bigos opined that Diane

Christian suffered from cauda equina syndrome, although he did not know what caused

the syndrome. He testified that based on his education, training, background, experience,

and his review of Christian's file, Dr. Tohmeh breached the applicable standard of care in

his postoperative treatment of Christian. He testified that Christian's postoperative

symptoms should have aroused suspicion in Dr. Tohmeh as to lead him to review and

monitor her full neurologic picture.

       In a critical passage in his deposition, Dr. Stanley Bigos testified:




                                              12 

No. 32578-4-111
Christian v. Tohmeh


             Q Regardless of whatever an MRI might have shown back at that
      time, was Dr. Tohmeh obligated to go ahead and operate on a patient like
      this based on her postoperative complaints in December of 'OS?
             A Her postoperative complaints, yes. 

             Q So even if he had a clean MRI he still had to take her to surgery? 

             A I think that's the prudent thing to do. 

             Q And he would tell her beforehand that she needs to be explored 

      and has a 40 percent chance of achieving some improvement in her
      condition for reasons that we don't understand?
             A Yeah. That's right.

CP at 694.

      Dr. Bigos explained further:

              A ... If we have somebody with findings, we get an MRI. The
      MRI doesn't show anything obvious, we will still decompress it or go back
      in to make sure that the imaging didn't miss something, period.
              And, like I said, a fair enough of times you'll go in and you really
      don't see anything. You say, well, it might be this or it might be that. You
      close it back up. And you still get the improvement on some number of
      patients.
              Q What percentage of your patients had some kind of neurological
      symptom like toe tingling or something postoperatively?
              A Between 25 and 50 percent, I would suppose.
              Q And what percentage of those patients did you take back to
      surgery because they had that symptom?
              A Hardly any. That's not-there's a ratcheting up, like DEFCON 1,
      2,3,4 and 5. Changes in neurologic exam, like tingling in the toes, would
      only be DEFCON 1. It's really ratcheting up your index of suspicion
      saying I'll do more on the physical examination and figure out what's going
      on the best I can.
              Once you start getting into saddle symptoms, bladder and bowel
      symptoms, then you're there. The onus is really on you to say this is
      outside the paradigm of postoperative care. This is in the paradigm of
      something potentially serious with the patient.

             Q Just real quickly. Can you summarize your opinion about
      standard of care of Dr. Tohmeh.

                                           13 

No. 32578-4-111
Christian v. Tohmeh


              A Well, the only thing I can do is review the facts. One, we've got
      a cauda equina syndrome. We've got a patient who has significant
      difficulties related to the S2-3-4 nerves, okay, if you want to be specific.
      They came on during the postoperative care after her surgery. We saw the
      progression I already mentioned about going from tingling, DEFCON 1, to
      2,3,4 and 5. And she was sent home with a Foley catheter, without an
      MRI, and she has a bad result.
              Bottom line is that I-that's below the standard of care. 

              Q And so do you believe there was a breach of standard of care that 

      caused harm?
              MR. KING [Defense counsel]: Objection. Lacks foundation.
              BY MR. RICCELLI [plaintiffs counsel]:
              Q Do you believe there was a breach of standard of by care [sic] Dr.
      Tohmeh in the exercise of his obligation as a surgeon with Ms. Christian?
              A I believe, from the facts that I have available to me, that that does
      not meet the standard of care that people expect when they come to the
      hospital.
              Q Based on your education, training, background and experience? 

             A Yes. 

              Q And is that more probable than not your opinion? 

              A That's more probable than not my opinion. 

              Q Do you believe that had Dr. Tohmeh taken her back into surgery 

      to decompress or to explore that she would have an opportunity or chance
      at a better outcome? 

              MR. KING: Objection. Foundation. 

              . . . Bottom line is that it may have done nothing. It may have 

      improved her a little bit. Or it may have totally alleviated it. That's the
      experience in the literature, and that's all we really have to go on.

CP at 696-97.

      Dr. Bigos then testified that, if Dr. Antoine Tohmeh immediately returned Diane

Christian to surgery, Christian had a forty percent chance of decreased symptoms. Bigos,

based on medical literature, could not better Christian's forty percent chance of

improvement due to the infrequency of the variety of complications experienced by



                                            14 

No. 32578-4-II1
Christian v. Tohmeh


Christian.

              Q So if Dr. Tohmeh complied with the standard of care and took the
       patient to surgery after an MRI which didn't show anything, more likely
       than not there would have been no change in her neurologic status, because
       60 percent of the time the surgery doesn't do any good?
               A You could state it that way, but the bottom line is when we're-if
       you're driving along the road and there's a curve and there's a 500-foot
       drop, you drive a little slower around that curve.
               Q But the data tells us-
               A The data is totally incomplete to tell us what those percentages
       are. When we're talking about three out of five people, the P value goes
       out the window as far as being able to say anything statistically.
               Q But you're using the same data for 40 percent that I'm using for
       60 percent, right?
               A The 60/40 is there. But the 60/40 could not be confirmed with
       the information that we had.
               Q So all we're left to do is speculate then? Is that what you're
       saying?
               A That's right.
               Q Okay.
               A We'll put our hands in our pockets and wear suspenders and a
       belt.
               Q The current data, even though it's speculative, says more often
       than not surgery will not do any good?
               A Well, there isn't current data. There's smatterings of different
       things. Nobody has put it together and looked at the quality of different
       things. I use 40 percent because that's the best I can derive from the
       literature with specks of everybody's inexperience with four of them per
       career. I can't do 60/40 because I had only four.

CP at 147-48. Dr. Bigos also testified that it was not possible for him to determine with

certainty if Diane Christian would have fallen into the forty percent of patients that

experience improvement after a second corrective surgery.

       Diane Christian also retained Dr. Richard E. Seroussi of Seattle Spine & Sports


                                             15 

No. 32578-4-111
Christian v. Tohmeh


Medicine to examine her for litigation purposes. Dr. Seroussi diagnosed Christian with

cauda equina syndrome, multilevel bilateral lumbar radiculopathy, neurogenic bladder

dysfunction, neurogenic bowel dysfunction, impaired balance, impaired daily activities,

dysphoria, decreased vocational potential, and a preexisting history of obesity,

significantly worsened by complications from the laminectomies. Seroussi determined

that Christian had a poor prognosis of her body returning to normal function and, while

the symptoms might lessen over time, her injuries were chronic. Christian maintains that

Seroussi testified that Dr. Antoine Tohmeh breached the standard of care in his

postsurgical treatment of her. A deposition excerpt established that he intended to testify

to the standard of care, but the record lacks such testimony. Dr. Seroussi declared that

Christian exhibited new neurologic deficits after surgery. Seroussi also remarked that

lack of intensive pain and an abserice of incontinence, factors that T ohmeh used to rule

out cauda equina syndrome, would not have surfaced after the surgery due to Christian's

heavy ingestion of pain medication and extended use ofa Foley catheter.

       Dr. Antoine Tohmeh moved for partial summary judgment. In support of his

motion, Tohmeh offered deposition testimony from his expert, Dr. Jeffrey Larson, a

neurosurgeon. Dr. Larson testified that Diane Christian's immediate postoperative

symptoms could have also been the result of irritated nerve roots caused by an increased

blood flow to the cauda equina. He also testified, contrary to the opinions of Dr. Moise,

Dr. Bigos, and Dr. Seroussi, that Christian never developed cauda equina syndrome. Dr.

                                            16 

No. 32578-4-III
Christian v. Tohmeh


Larson supported Dr. Tohmeh's conclusion that a lack of weakness in Christian's legs

strongly indicated that she did not suffer from the syndrome.

       The trial court granted Dr. Tohmeh's motion for summary judgment "in total" and

dismissed all claims with prejudice. CP at 220. In a written ruling, the trial court

concluded that Diane Christian failed to satisfy her burden of proof on summary

judgment as to the standard of care or proximate cause. The written ruling made no

comment on the deficiencies of Christian's claim for intentional infliction of emotional

distress.

       Diane Christian moved for reconsideration. In the motion, Christian argued that

the trial court committed legal error. Christian also asked the trial court to consider

newly discovered evidence. The new evidence was a supplemental declaration from Dr.

Stanley Bigos, a declaration of Dr. Robert Pearlman, and the deposition of defense expert

witness, Dr. Jeffrey Wang. Christian could not depose Dr. Wang until after the summary

judgment motion hearing.

       In his deposition, Dr. Jeffrey Wang testified to the standard of care to which a

back surgeon should be held when a patient encounters the postoperative symptoms

experienced by Diane Christian. Dr. Wang testified that he reviewed Christian's hospital

charts and concluded Dr. Tohmeh had no reason to order an imaging study before he

discharged Diane Christian on December 9,2005. Wang, however, testified that the

standard of care required Tohmeh to order and review postoperative X rays of the patient

                                             17 

No. 32578-4-111
Christian v. Tohmeh


after laminectomies. Dr. Wang also averred that he would perform postoperative

exploratory surgery with patients who exhibited pain disproportionate to the initial

procedure.

      Dr. Stanley Bigos' declaration reiterated that Diane Christian would have had a

forty percent chance of diminished symptoms if Dr. Antoine Tohmeh performed

immediate postoperative exploratory surgery. Bigos averred:

              My deposition testimony was based upon my general knowledge of
      the literature as of that time, and coupled with the experience I had with
      similar situations during my practice. I understand there may be concern
      about the meaning of my testimony as contained on pages 83 and 84 of my
      deposition, but I believe careful reading of the transcript should dispel any
      confusion. I believe I set out the medical profession's understanding of the
      literature, and basic medical knowledge of human anatomy and physiology,
      collectively upon which physicians routinely rely to guide their daily
      practice. This results in an approximate 40 percent likelihood or
      probability of a better outcome. It was this 40 percent chance of
      improvement and related urgency that was the basis for requiring Cauda
      Equina symptoms to be a "Red Flag" emergency, to be explicitly ruled out,
      before returning Ms. Christian to ordinary post[]surgical care for back
      problems. This is, according to AHCPR Guide #14, comprised of the
      systematic review of the literature with 23 national consultants and 7
      international experts from 19 different disciplines.

CP at 238.

      Dr. Robert Pearlman is a professor of medicine at the University of Washington

and the Chief of Ethics Evaluation at the National Center for Ethics in Healthcare. In his

declaration, Pearlman faulted Dr. Antoine Tohmeh for deficiency in medical charting.

Pearlman stated that Dr. Tohmeh may have violated ethical standards by failing to



                                            18 

No. 32578-4-II1
Christian v. Tohmeh


provide Diane Christian of information that she suffered from cauda equina syndrome,

dissuading her from believing she suffered from the syndrome, and discouraging her

from seeing another physician.

       The trial court denied Diane Christian's motion for reconsideration. The order

denying the motion mentions that the court read the supplemental pleadings filed by

Diane Christian. The order, however, does not indicate whether the trial court considered

the evidence in the pleadings as newly discovered evidence and evidence to consider

when determining whether to grant the motion for reconsideration.

                                 LAW AND ANALYSIS

                  Motion for Reconsideration and Evidence on Appeal

      Before addressing the merits of Diane Christian's appeal, we must determine what

evidence to consider when deciding whether the evidence defeats Dr. Antoine Tohmeh's

summary judgment motion. As part of a motion for reconsideration, Christian asked the

trial court to consider the deposition of Jeffrey Wang, the declaration of Robert Pearlman,

and a supplemental declaration of Stanley Bigos. The trial court denied the motion, but

we do not know if the court excluded the additional testimony from contemplation when

denying the motion.

       On appeal, Diane Christian assigns error to the denial of the motion for

reconsideration and thus asks this court to include the Jeffrey Wang, the Robert

Pearlman, and the additional Stanley Bigos testimony in our calculation of whether the

                                            19 

No. 32578-4-111
Christian v. Tohmeh


summary judgment order should be affirmed. We decline to address this assignment of

error because Christian did not adequately briefthe law attendant to the assignment.

Thus, we refuse to consider the late filed testimony.

       Diane Christian restricts her argument on appeal. Although she assigns error to

the order denying the motion for reconsideration, the content of the argument comprises

one statement articulating the standard of review and a general statement that all

arguments against the grant of summary judgment should encompass the argument

against denial of the motion for reconsideration.

       Diane Christian did not follow RAP 10.3. RAP 10.3 (a)(6) directs that an appeal

brief include:

               The argument in support of the issues presented for review, together
       with citations to legal authority and references to relevant parts of the
       record.

To enforce the rule, this court does not review issues not argued, briefed, or supported

with citation to authority. Valente v. Bailey, 74 Wn.2d 857, 858, 447 P.2d 589 (1968);

Avellaneda v. State, 167 Wn. App. 474, 485 n.5, 273 P.3d 477 (2012). We do not

consider conclusory arguments. Joy v. Dep't ofLabor & Indus., 170 Wn. App. 614, 629,

285 P.3d 187 (2012), review denied, 176 Wn.2d 1021,297 P.3d 708 (2013). Passing

treatment of an issue or lack of reasoned argument is insufficient to merit appellate

review. Westv. Thurston County, 168 Wn. App. 162, 187,275 P.3d 1200 (2012);

Holland v. City ofTacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).

                                            20
No. 32578-4-III
Christian v. Tohmeh


       A thorough analysis and citation to authority is particularly needed for us to

consider Diane Christian's claimed error in the trial court's denial of her motion for

reconsideration. CR 59(a) lists nine grounds on which a trial court may reconsider a

decision. Diane Christian sought reconsideration on four grounds. Those grounds, with

their language from CR 59(a), are:

              (4) Newly discovered evidence, material for the party making the
       application, which the party could not with reasonable diligence have
       discovered and produced at the trial;

              (7) That there is no evidence or reasonable inference from the
       evidence to justify the verdict or the decision, or that it is contrary to law;
              (8) Error in law occurring at the trial and objected to at the time by
       the party making the application; or
              (9) That substantial justice has not been done.

This court reviews a trial court's decision to grant or deny a motion for reconsideration

for abuse of discretion. Davies v. Holy Family Hosp., 144 Wn. App. 483, 497, 183 P.3d

283 (2008).

       On appeal, Diane Christian does not identify upon which of the four

reconsideration grounds she relies, nor does she provide any analysis to assist us in

declaring one of the grounds germane. In her briefs, Christian cites to the subsequent

declaration of Dr. Stanley Bigos and the deposition testimony of Dr. Jeffrey Wang, and

she assumes we will consider the testimony. Nevertheless, Christian does not address

whether the evidence was newly discovered and whether the evidence could not have

reasonably been supplied to the trial court before entry of the summary judgment order.

                                              21 

 No. 32578-4-111 

 Christian v. Tohmeh 



                              Lost Chance of Better Outcome

        Diane Christian argues that the trial court erred in dismissing her claim for lost

 chance ofa better outcome. Dr. Antoine Tohmeh contends that the trial court correctly

 granted summary judgment because no reasonable juror could conclude that Christian

 developed cauda equina syndrome or that Tohmeh violated the standard of care by not

 diagnosing or treating the condition. Dr. Tohmeh further argues that Christian failed to

 provide expert testimony as to the nature of the better outcome alleged, and Tohmeh

- contends that such proof is essential to defeat a summary judgment motion. We side with

 Diane Christian. The supplemental testimony filed by Christian in support of a motion

 for reconsideration was not necessary to defeat a summary judgment motion. The

 deposition testimony of Dr. Stanley Bigos filed to initially oppose the motion suffices.

 Testimony of Drs. Richard Seroussi and Vivian Moise bolsters proof of some of the

 elements of Christian's claim.

        Washington, in line with other jurisdictions, recognizes a lost chance claim, a

 tweaked version of a medical malpractice cause of action. A lost chance claim is not a

 distinct cause of action but an analysis within, a theory contained by, or a form of a

 medical malpractice cause of action. Rash v. Providence Health & Servs., 183 Wn. App.

 612,630,334 P.3d 1154 (2014), review denied, 182 Wn.2d 1028,347 P.3d 459 (2015).

        Lost chance claims can be divided into two categories: lost chance of survival and

 lost chance of a better outcome. Herskovits v. Grp. Health Coop. ofPuget Sound, 99

                                              22 

No. 32578-4-111
Christian v. Tohmeh


Wn.2d 609,624,664 P.2d 474 (1983); Mohr v. Grantham, 172 Wn.2d 844,857,262 P.3d

490 (2011); Rash v. Providence Health & Servs., 183 Wn. App. at 630. Diane Christian

complains that Antoine Tohmeh decreased her chances of a better outcome. In a lost

chance of a better outcome claim, the chance of a better outcome or recovery was

reduced by professional negligence. Mohr v. Grantham, 172 Wn.2d at 857 (2011); Rash,

183 Wn. App. at 631. In a traditional medical malpractice case, a professional's

negligence likely led to a worse than expected outcome. Rash, 183 Wn. App. at 631.

Under a lost chance of a better outcome theory, the bad result was likely even without the

health care provider's negligence, but the malpractice reduced the chances of an

improved result by a percentage of fifty percent or below. Rash, 183 Wn. App. at 631.

       Washington lost chance decisions were decided with the backdrop of

Washington's 1976 health care act that covers actions for injuries resulting from health

care. Ch. 7.70 RCW. Under RCW 7.70.030: "Unless otherwise provided in this chapter,

the plaintiff shall have the burden of proving each fact essential to an award by a

preponderance ofthe evidence." (Emphasis added.) One essential element is that the

health care provider's "failure was aproximate cause ofthe injury complained of" RCW

7.70.040(2) (emphasis added). Based on Herskovits v. Group Health and Mohr v.

Grantham, a plaintiff need not forward medical testimony that negligence of the health

care provider was the likely cause of injury. Rash, 183 Wn. App. at 636. But, the




                                            23 

No. 32578-4-III
Christian v. Tohmeh


plaintiff must provide a physician's opinion that the health care provider "likely" caused

a lost chance of a better outcome. Rash, 183 Wn. App. at 631.

       A review of familiar summary judgment principles is as important to this appeal as

a discussion ofthe substantive law of a lost chance of a better outcome. Appellate courts

review a trial court's order granting summary judgment de novo. Briggs v. Nova Servs.,

166 Wn.2d 794,801,213 P.3d 910 (2009). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter oflaw. CR 56(c); Hartley v. State,

103 Wn.2d 768, 774, 698 P.2d 77 (1985). We construe all facts and reasonable

inferences in the light most favorable to the nonmoving party. Lybbert v. Grant County,

141 Wn.2d 29,34, 1 P.3d 1124 (2000).

       Expert testimony is required to establish the standard of care and most aspects of

causation in a medical negligence action. Seybold v. Neu, 105 Wn. App. 666, 676, 19

P.3d 1068 (2001). In a lost chance suit, a plaintiff carries the burden of producing expert

testimony that includes an opinion as to the percentage or range of percentage reduction

of the better outcome. Herskovits v. Grp. Health Coop. ofPuget Sound, 99 Wn.2d at 611

(1983); Mohr v. Grantham, 172 Wn.2d at 849 (2011); Rash v. Providence Health &

Servs., 183 Wn. App. at 636 (2014).




                                             24 

No. 32578~4-II1
Christian v. Tohmeh


       Dr. Antoine Tohmeh first argues that Diane Christian failed to present evidence

that she suffered from cauda equina syndrome. Tohmeh notes that no expert witness

testified on behalf of Christian that a postoperative hematoma, a dural graft, or any

conduct by Dr. Tohmeh during the surgery led to the syndrome. Tohmeh suggests that

Christian did not exhibit any of the cardinal signs or symptoms of cauda equina syndrome

while recovering in the hospital. He emphasizes testimony that an imaging study six

months after the surgery showed no bleeding, hematoma, or arachnoiditis and that this

negative imaging ruled out cauda equina syndrome. Tohmeh contends that none of the

specialists to whom he referred Christian diagnosed cauda equina syndrome. He then

maintains, based on the testimony of his own expert witness, Dr. Jeffrey Larson, that no

reasonable person could conclude that Christian developed cauda equina syndrome.

       Antoine T ohmeh looks into a large crowd and see only his friends. For purposes

of summary judgment. he may not limit the record to the opinions of his expert or

specialists to whom he referred Diane Christian. We may not weigh which physician's or

physicians' testimony is more credible. Drs. Stanley Bigos, Richard Seroussi. and Vivian

Moise testified that Christian developed cauda equina syndrome.

       We do not find any passage in which one of Diane Christian's experts directly

declared that the lower back surgery caused the syndrome. Dr. Stanley Bigos testified

that he did not know what caused the cauda equina syndrome, but one should not

conclude that he ruled out the syndrome developing during the laminectomies. A

                                            25 

No. 32578-4-111
Christian v. Tohmeh


reasonable inference from his testimony is that Bigos did not know what conduct during

the surgery caused the syndrome, despite the syndrome developing during the surgery.

Drs. Bigos, Seroussi, and Moise commented that Christian suffered from postoperative

symptoms. The term "postoperative" infers that symptoms occurred during the

operation. The inferences from all three physicians' testimony inescapably lead to a

conclusion that the cauda equina syndrome resulted from the low back surgery. Under

summary judgment principles, this court construes all facts and reasonable inferences in

the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434,

437,656 P.2d 1030 (1982); Barber v. Bankers Life & Cas. Co., 81 Wn.2d 140, 142,500

P.2d 88 (1972).

       Although testimony supports that the cauda equina syndrome occurred as a result

of the December 5,2005, surgery, such testimony is not indispensable. Diane Christian

and her experts criticize Dr. Tohmeh for failing to attend to Christian's symptoms that

appeared after the surgery. The reasonable inference may be drawn that the experts

would opine that Tohmeh failed to properly care for Christian after the surgery regardless

of whether the symptoms were causally related to the surgery. Christian exhibited cauda

equina syndrome symptoms that demanded immediate exploration.

       Dr. Antoine Tohmeh next argues that Diane Christian presented no testimony to

establish that he violated the standard of care. In so arguing, Tohmeh underscores that no

physician testified that he violated the standard of care during the surgery and that no

                                             26 

No. 32578-4-111
Christian v. Tohmeh


physician identified what action caused the cauda equina syndrome during the surgery.

We agree, but Tohmeh's emphasis ignores the focus of Diane Christian's allegation and

her expert's testimony. Christian contends Dr. Tohmeh violated the standard of care

when rendering postoperative care, not in performing the surgery. Dr. Stanley Bigos

testified to the applicable standard of care and that Tohmeh's postsurgical care of

Christian fell below that standard. According to Bigos, Christian's symptoms should

have led Dr. Tohmeh to perform a second exploratory surgery. Bigos further testified

that Tohmeh's failure to order additional imaging of Christian's lower back and to

conduct exploratory surgery deprived Christian of a forty percent chance of decreased

symptoms.

       Finally, Antoine Tohmeh astutely contends that Diane Christian fails to defeat the

summary judgment motion because her expert, Dr. Stanley Bigos, did not specify what

the better outcome would have been ifTohmeh conformed to the standard of care and

performed an exploratory operation. We agree that Bigos did not identify those

symptoms of cauda equina syndrome that had a forty percent chance of alleviation. He

was never asked his opinion on this question in his deposition. Dr. Tohmeh further

contends that Dr. Bigos testified that it would be pure speculation to say what the "better

outcome" might have been. We disagree. Bigos' reference to speculation came in

response to a different question in his deposition based on insufficient records of

Christian's care.

                                            27 

No. 32578-4-111
Christian v. Tohmeh


       Based on an absence of testimony as to the nature of the possible better outcome,

Antoine Tohmeh contends that a jury could not apply the loss of chance fonnula to her

damages. According to Dr. Tohmeh, the jury could not detennine those symptoms that

may have been reduced with the postoperative surgery. We recognize that ajury may

wish to hear additional testimony from Dr. Stanley Bigos or another physician as to what

symptoms of cauda equina syndrome might have been erased or reduced ifTohmeh

complied with the standard of care. Nevertheless, Tohmeh advances no case and we find

no case that demands a patient, in response to a summary judgment motion, qualifY or

quantifY the extent or nature of damages incurred. For instance, in a traditional medical

malpractice suit, the patient needs expert testimony that shows the breach of the standard

of care caused some damage or injury, but the law does not require that the expert detail

the precise pain and suffering caused by the defendant doctor's negligence. Absent such

case law, we hold that a plaintiff need only provide testimony from a qualified expert that

the violation of the standard of care caused some injury or reduced the chance of a better

outcome by a stated percentage to survive a summary judgment motion. A physician

need not particularize those symptoms that would have decreased.

       Dr. Antoine Tohmeh's argument fails to recognize that Dr. Stanley Bigos could

not definitively testifY to the nature and extent of a better outcome, because the outcome

depended on how quickly Tohmeh returned Diane Christian to surgery. The quicker the

return, the better the outcome, such that the forty percent chance of a better outcome

                                            28 

No. 32578-4-III
Christian v. Tohmeh


could have entailed a complete recovery if Tohmeh returned Christian to surgery the

following day.

       Our holding conforms to general principles emanating from the law of damages in

tort and other legal actions. The doctrine respecting the matter of certainty, properly

applied, is concerned more with the fact of damage than with the extent or amount of

damage. Gaasland Co. v. Hyak Lumber & Millwork, Inc., 42 Wn.2d 705, 712-13,257

P.2d 784 (1953); Alpine Indus., Inc. v. Gohl, 30 Wn. App. 750, 754, 637 P.2d 998, 645

P.2d 737 (1981). Damages are not precluded simply because they fail to fit some precise

formula for measuring them. Pugel v. Monheimer, 83 Wn. App. 688, 692, 922 P.2d 1377

(1996). We are reluctant to immunize a defendant once damage has been shown merely

because the extent or amount thereof cannot be ascertained with mathematical precision,

provided the evidence is sufficient to afford a reasonable basis for estimating loss.

Jacqueline's Wash., Inc. v. Mercantile Stores Co., 80 Wn.2d 784, 786,498 P.2d 870

(1972); Lewis River Golf, Inc. v. o.M Scott & Sons, 120 Wn.2d 712, 717, 845 P.2d 987

(1993);Dep't ofFisheries v. Gillette, 27 Wn. App. 815, 824, 621 P.2d 764 (1980).

                        Intentional Infliction of Emotional Distress

       Diane Christian next contends that the trial court erred in dismissing her claim for

intentional infliction of emotional distress or outrage. The tort of outrage is synonymous

with a cause of action for intentional infliction of emotional distress. Kloepfel v. Bokor,




                                             29 

No. 32578-4-111
Christian v. Tohmeh


149 Wn.2d 192,194,66 P.3d 630 (2003); Snyder v. A{ed. Servo Corp. ofE. Wash., 145

Wn.2d 233,250,35 P.3d 1158 (2001).

       In order to make a prima facie case of intentional infliction of emotional distress, a

plaintiff seeking to survive summary judgment must produce evidence showing three

elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of

emotional distress, and (3) actual result to the plaintiff of severe emotional distress.

Kloepfol v. Bokor, 149 Wn.2d at 195 (2003); Grimsby v. Samson, 85 Wn.2d 52,59,530

P.2d 291 (1975). This appeal focuses on element one of the tort. Extreme and

outrageous conduct must be conduct that the recitation of the facts to an average member

of the community would arouse his resentment against the actor and lead him to exclaim

"'Outrageous!'" Kloepfol, 149 Wn.2d at 196 (internal quotation marks omitted) (quoting

Reidv. Pierce County, 136 Wn.2d 195,201-02,961 P.2d 333 (1998)). Liability exists

only when the conduct has been so outrageous in character and extreme in degree as to go

beyond all possible bounds of decency and to be regarded as atrocious and utterly

intolerable in a civilized community. Grimsby, 85 Wn.2d at 59 (quoting RESTATEMENT

(SECOND) OF TORTS     § 46 cmt. d (1965)).

       Generally, the elements of a claim for intentional infliction of emotional distress

are questions of fact. Strong v. Terrell, 147 Wn. App. 376, 385, 195 P.3d 977 (2008).

On summary judgment, however, a trial court must make an initial determination as to

whether the conduct may reasonably be regarded as so extreme and outrageous as to

                                              30 

No. 32578~4~III
Christian v. Tohmeh


warrant a factual determination by the jury. Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn.

App. 859, 869,324 P.3d 763 (2014); Strong v. Terrell, 147 Wn. App. at 385. No case

suggests that the standard to defeat a summary judgment motion is harsher for plaintiffs

asserting outrage claims than plaintiffs in other tort suits. Nevertheless, Washington

courts, like other courts, have considered themselves gatekeepers for purposes of

allowing a jury to decide claims of intentional infliction of emotional distress. The trial

court and, in tum, the appeals court, renders an initial screening to determine whether the

defendant's conduct and mental state, together with the plaintiffs mental distress, rise to

the level necessary to make out a prima facie case. Benoy v. Simons, 66 Wn. App. 56,63,

831 P.2d 167 (1992); Orwick v. Fox, 65 Wn. App. 71, 87-88, 828 P.2d 12 (1992). The

requirement of outrageousness is not an easy one to meet. Ortberg v. Goldman Sachs

Grp., 64 A.3d 158, 163 (D.C. 2013). The level of outrageousness required is extremely

high. Reigel v. SavaSeniorCare LLC, 292 P.3d 977,990 (Colo. Ct. App. 2011).

       In response to Diane Christian's intentional infliction of emotional distress claim,

Dr. Antoine Tohrneh contends that his conduct was well within the standard of care and

that no witness testified that his conduct met the high threshold for liability for intentional

infliction of emotional distress. We disagree with the relevance of these twin arguments.

Conforming to a physician's standard of care may be a factor to consider in an outrage

suit against a doctor, but this factor does not control the outcome. Anyway, physicians

testified that Dr. Tohrneh violated the standard of care. No case supports a rule that an

                                              31 

No. 32578-4-III
Christian v. Tohmeh


expert witness, or any witness, must characterize the defendant's conduct as outrageous

in order to sustain a claim of intentional infliction of emotional distress.

       We list the conduct of Dr. Antoine Tohmeh that Diane Christian contends was

extreme and outrageous:

       1. Engaging in a pattern of intentional behavior to obfuscate a true diagnosis of

Christian's neurological deficits in an attempt to avoid legal liability;

       2. Referring Christian to neurologist Dr. Larry Lamb but not ordering nerve

conductions studies at the S3-S5 level, the nerves associated with cauda equina

syndrome;

       3 . Yelling and shouting at Christian;

       4. Telling Christian that she had no neurological deficits, her problems were all in

her head, and whatever was wrong would have happened anyway;

       5. Implying to Christian that she was lazy and obese;

       6. Speaking angrily to Dr. Vivian Moise and attempting to influence her diagnosis

of cauda equina syndrome;

       7. Telling Dr. Moise that Christian suffered from significant emotional or

psychological issues that rendered Christian's history less valid; and

       8. Referring Christian to urologist Dr. Michael Oefelein, who found a neurogenic

bladder, yet telling Christian that Oefelein's findings were normal.




                                              32 

 No. 32578-4-III
 Christian v. Tohmeh


        Diane Christian likens the conduct of Dr. Antoine Tohmeh to physicians in Doe v.

 Finch, 133 Wn.2d 96,942 P.2d 359 (1997) and Grimsby v. Samson, 85 Wn.2d 52 (1975).

 In Finch, Dr. Finch engaged in a sexual relationship with John Doe's wife, while Finch

 provided marital counseling for Doe and his wife. Our Supreme Court addressed whether

 the statute oflimitations barred Doe's suit. The court did not analyze the merits of the

 claim for intentional infliction of emotional distress.

        In Grimsby, Arne Grimsby allegedly watched his wife die in agonizing pain, while

 Dr. Werner Samson abandoned her care. On appeal, the Evergreen State Supreme Court

 recognized for the fIrst time the tort of outrage or intentional infliction of emotional

. distress. The trial court dismissed the suit on a motion to dismiss pursuant to CR

 12(b)(6) rather than a summary judgment motion. The court focused on whether

 Washington would recognize the tort. The Supreme Court reversed the dismissal, while

 recognizing that it needed to read Grimsby's complaint liberally.

        We evaluate Diane Christian's claim of outrage by reviewing and comparing

 reported decisions primarily from other jurisdictions. In these cases, health care

 professionals behaved in ways similar to conduct about which Diane Christian complains.

 In all ofthe decisions, the appellate courts ruled that the plaintiff failed to show facts

 suffIcient to sustain a cause of action because the health care professional's conduct was

 not outrageous. A review of the cases might lead one to ask if the conduct of a health

 care provider might ever be considered outrageous. Although the cases involve only one

                                               33 

No. 32578-4-111
Christian v. Tohmeh


or two of those behaviors attributed to Antoine Tohmeh rather than the full extent ofthe

alleged extreme behavior, we conclude that aggregating the behavior in this context adds

nothing to the analysis of whether Dr. Tohmeh's conduct was outrageous. Many ofthe

decisions involve more disgraceful cumulative behavior. Therefore, we affirm the trial

court's summary judgment dismissal of Diane Christian's intentional infliction of

emotional distress action.

       One Washington decision addresses whether conduct of a physician sustains a

claim for intentional infliction of emotional distress. In Benoy v. Simon, 66 Wn. App. 56,

831 P.2d 167 (1992), Saundra Benoy sued neonatologist Robert Simon for intentional

infliction of emotional distress. Benoy gave birth to a severely disabled premature child

at Kadlec Medical Center in Richland, where Dr. Simon provided care. When the

infant's condition deteriorated, Dr. Simon transferred him to Children's Orthopedic

Hospital in Seattle, where the boy later died. Benoy contended that Simon needlessly

pressured her family to create a guardianship, maintained the infant needlessly on life

support, led her to believe her son's condition improved when it deteriorated, told her to

bring her son's body home on a bus, and billed her for needless care. This court affirmed

summary judgment in favor of Dr. Simon. Even assuming the events occurred as

described by Benoy, the physician's conduct did not fall within the perimeters of

outrageous conduct.




                                            34
No. 32578-4-111
Christian v. Tohmeh


       Courts in other jurisdictions have also reviewed suits for outrageous conduct

against health care providers. In Reigel v. SavaSeniorCare LLC, 292 P.3d 977 (Colo. Ct.

App. 2011), the plaintiffs husband died from a heart attack. The wife visited the

husband in the nursing home, during which visit the husband exhibited signs of an attack.

According to the wife, nursing home staff refused her requests for assistance, told her in a

caustic voice that there was no emergency, implied that she overreacted and was crazy,

and falsified chart records. The Court of Appeals affirmed dismissal of the claim for

outrage.

       In Cangemi v. Advocate South Suburban Hospital, 364 Ill. App. 3d 446, 845

N.E.2d 792, 300 Ill. Dec. 903 (2006), a mother sued her obstetrician for damages suffered

by her son during birth. The mother alleged that the physician attempted to conceal the

injuries sustained by the boy by fraudulently telling her that the size ofthe baby's head

necessitated a caesarean section. The court summarily dismissed a claim for intentional

infliction of emotional distress.

       In Harris v. Kreutzer, 271 Va. 188,624 S.E.2d 24 (2006), Dr. Jeffrey Kreutzer

performed an independent medical examination on Nancy Harris, who claimed a brain

injury as a result of an automobile accident. Harris claimed that Dr. Kreutzer verbally

abused her, raised his voice at her, caused her to cry, and accused her of being a faker and

malingerer. The Virginia Supreme Court affirmed dismissal of the claim of outrage. The




                                            35 

No. 32578-4-111
Christian v. Tohmeh


court characterized the physician's conduct as insensitive and demeaning, but not

outrageous under caselaw.

       In Hart v. Child's Nursing Home Co., 298 A.D.2d 721, 749 N.Y.S.2d 297 (2002),

the plaintiffs complained about the care of their mother in a nursing home. The plaintiffs

alleged that nursing staff threatened them with physical violence, otherwise harassed

them, interfered in their visits with their mother, and provided them inaccurate

information regarding their mother's health and death. The reviewing court affirmed the

trial court's dismissal ofthe action for outrage. The conduct of the nursing staff did not

transcend the bounds of human decency.

       In Albert v. So limon , 252 A.D.2d 139,684 N.Y.S.2d 375 (1998), Crystal Albert

sued her physician, Ezzat Solimon. The doctor's nurse showed Albert and her service

dog to an examination room. When Dr. Solimon entered the room, the dog's head and

mouth lay on the examination table. The physician screamed: what is the dog doing

here? An upset Albert rushed out of the room with her dog. The reviewing court

affirmed dismissal of the cause of action for intentional infliction of emotional distress

because the conduct, viewed in the light most favorable to Albert, was not sufficiently

outrageous in character and extreme in degree as to exceed all bounds of decency.

       Finally, in eM v. Tomball Regional Hospital, 961 S.W.2d 236 (Tex. App. 1997),

plaintiff sought treatment at the hospital after being raped. She testified that hospital staff

treated her "like dirt," told her that the hospital does not treat rape victims, suggested that

                                              36 

No. 32578-4-111
Christian v. Tohmeh


she lost her virginity by riding a bike or horse, and interviewed her in a rude and

insensitive manner in a public waiting room. The Court of Appeals affirmed summary

dismissal of a claim for intentional infliction of emotional distress.

       A plaintiffs evidence of the defendant's behavior should not be viewed in

isolation, but considered in the context ofthe undisputed facts concerning the entire

relationship between the parties. Ortberg v. Goldman Sachs Grp., 64 A.3d at 163 (D.C.

2013); Richard Rosen, Inc. v. Mendivil, 225 S.W.3d 181, 192 (Tex. Ct. App. 2005). The

court should consider the totality of the evidence pertaining to the defendant's conduct.

Reigelv. SavaSeniorCare LLC, 292 P.3d at 991 (Colo. Ct. App. 2011).

       Diane Christian claims that Dr. Antoine T ohmeh outrageously attempted to avoid

liability by denying she experienced cauda equina syndrome. Nevertheless, Dr. Tohmeh

referred Christian to a gynecologist, neurologist, bowel specialist, and urologist.

Referring a patient to a number of specialists is not the conduct of a physician seeking to

avoid liability. Christian emphasizes that the neurologist did not study her nerve

conduction in the critical area of her spine, and she suggests Tohmeh is to blame for an

incomplete nerve study. Nevertheless, no evidence suggests that Tohmeh and the

neurologist conspired to hide information from Christian. The neurologist was free to

perform the conduction study at levels of the spine deemed appropriate.

       Diane Christian underscores Dr. Antoine Tohmeh's yelling at her in his office.

Casey Christian testified that, although Dr. Tohmeh raised his voice, Tohmeh corrected

                                              37 

No. 32578-4-III
Christian v. Tohmeh


himself and apologized. Neither Diane nor Casey Christian were angry or upset when

they left the appointment.

                                      CONCLUSION

       We affirm in part and reverse in part the trial court's dismissal of plaintiffs

Christians' claim. We affirm the summary judgment dismissal of the Christians' cause of

action for intentional infliction of emotional distress. We reverse the summary judgment

dismissal of the Christians' cause of action for medical malpractice.




WE CONCUR: 




                                                          Lawrence-Berrey, J.
                                                                                         j





                                             38 

