                                                                           FILED 

                                                                         JUNE 9,2015 

                                                                 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 


CHARLIE Y. CHENG,                             )
                                              )         No. 32198-3-III
                      Appellant,              )
                                              )
      v.                                      )
                                              )
SPOKANE EYE CLINIC,                           )         UNPUBLISHED OPINION
JASON H. JONES, MD, and                       )
ROBERT S. WIRTHLIN, MD,                       )
                                              )
                      Respondents.            )

      KORSMO, J. -      Appellant Charlie Cheng appeals the summary judgment dismissal

of his medical malpractice action. We agree with the trial court that the lack of an expert

witness to support the claims doomed this action. The judgment is affirmed.

                                          FACTS

      Mr. Cheng, an inmate at the Airway Heights Correctional Center, experienced

vision loss in his left eye. He was taken to the Spokane Eye Clinic (SEC) for treatment

on August 5, 2010. There two doctors diagnosed an infection. He was treated with

antibiotics and underwent a vitrectomy.l Due to pain following the vitrectomy, a third




       1 Vitrectomy   involves the removal ofthe vitreous gel from the middle of the eye.
No. 32198-3-III 

Cheng v. Spokane Eye Clinic, et al. 



doctor at SEC eventually perfonned an enucleation (removal) of the left eye on

September 3, 2010.

       In June 2013, Mr. Cheng, acting pro se, mailed a copy of a summons and

complaint by certified mail to SEC and the two doctors involved in the August treatment.

Attorney James B. King responded for the three defendants June 19, 2013 by letter

demanding that the action be filed in superior court. Mr. Cheng filed the action June 28,

2013. The complaint alleged tortious actions by governmental entities, contributory fault,

negligence, res ipsa loquitur, vicarious liability, and lack of infonned consent.

       On July 6, 2013, Mr. Cheng asked the superior court for permission to serve the

defendants by certified mail. The record does not reflect that permission was granted. A

sheriffs deputy thereafter served a complaint on the first doctor by leaving it with an

employee of SEC. A deputy sheriffIeft SEC's copy of the complaint with an attorney.

       SEC and the first doctor jointly answered the complaint on July 30, 2013,

asserting various defenses including lack of service and expiration of the statute of

limitations. The second doctor did not answer the complaint until September 9. He did

not challenge the timeliness of the action or the service of process.

       SEC and the first doctor moved for summary judgment on October 8 on various

theories, including lack of service and statute of limitations grounds. The second doctor

filed his motion for summary judgment the following day. The trial court ultimately

granted the motions for summary judgment on several grounds, including insufficient

                                             2

No. 32198-3-II1
Cheng v. Spokane Eye Clinic, et al.


service on SEC and the first doctor, a determination that negligence did not state a cause

of action for Eighth Amendment purposes, and a conclusion that all claims failed due to

lack of support by a medical expert.

       Mr. Cheng, still pro se, filed an appeal to this court.

                                        ANALYSIS

       Although the appeal asserts several theories challenging the summary judgment

ruling, we need only address the one issue common to all defendants since it is

dispositive of the appeal. That issue involves the absence of any medical expert support

for the action.

       Initially, however, we note the well settled standards governing review of this

summary judgment appeal. The appellate court reviews those matters de novo,

considering the same evidence presented to the trial court. Lybbert v. Grant County, 141

Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn

from them, are viewed in the light most favorable to the nonmoving party. ld. If there is

no genuine issue of material fact, summary judgment will be granted if the moving party

is entitled to judgment as a matter of law. ld.

       Mr. Cheng's claims against the doctors and clinic involve both negligence and

informed consent theories. Chapter 7.70 RCW. Although he eschews the label, a

negligence action brought against medical professionals is considered to be a malpractice
                                                                                             !
claim. See BLACK'S LAW DICTIONARY, 1044-45 (9th ed. 2004) (defining "malpractice"

                                              3


                                                                                             I
                                                                                             t
                                                                                             ;
No. 32198-3-III 

Cheng v. Spokane Eye Clinic, et al. 



as "An instance of negligence or incompetence on the part of a professional." BLACK'S

at 1044; and defining "medical malpractice" as "A doctor's failure to exercise the degree

of care and skill that a physician or surgeon of the same medical specialty would use

under similar circumstances." BLACK'S at 1044-45).

       A cause of action for medical negligence requires the plaintiff to show that (1) the

healthcare provider failed to exercise the requisite standard of care~ and (2) such failure

was a proximate cause of the plaintiffs injuries. RCW 7.70.040.

       To defeat summary judgment in almost all medical negligence cases, the plaintiff

must produce a medical expert witness establishing the elements. Seybold v. Neu, 105

Wn. App. 666, 676, 19 P.3d 1068 (2001); Young v. Key Pharm., Inc., 112 Wn.2d 216,

227-28,770 P.2d 182 (1989). There are a few exceptions to the general rule necessitating

an expert in medical malpractice cases. For example, no expert is needed when the facts

are within the understanding of lay persons, such as "the negligence of amputating the

wrong limb or poking a patient in the eye while stitching a wound on the face." Young,

112 Wn.2d at 228.

       Although Mr. Cheng argues to the contrary, this is not one of those obvious

exceptions. SEC did not remove or treat the wrong eye or poke his healthy eye while

treating his unhealthy eye. Instead, the claim raises questions of complex medical

conditions and treatment, such as the proper use and procedure for a vitrectomy and the

proper course of antibiotic treatment for Mr. Cheng's ailment. An expert was necessary

                                             4

No. 32 I 98-3-II1 

Cheng v. Spokane Eye Clinic, et al. 



here to establish the standard of care. The trial court correctly realized that Mr. Cheng's

failure to list or elicit testimony from an expert was fatal to his medical negligence claim.

       The same result applies to the informed consent theory. A cause of action for

informed consent requires the plaintiff to prove:

           (a) That the health care provider failed to inform the patient of material
       fact or facts relating to the treatment;

           (b) That the patient consented to the treatment without being aware of or
       fully informed of such material fact or facts;

           (c) That a reasonably prudent patient under similar circumstances
       would not have consented to the treatment if informed of such material fact
       or facts; and

           (d) That the treatment in question proximately caused injury to the
       patient.

RCW 7.70.050.

       RCW 7.70.050(2) defines a "material fact" as one to which significance would be

attached in deciding whether or not to submit to the proposed treatment and has been

defined by case law to mean a possible risk of a serious nature. See Bays v. St. Luke's

Hosp.,63 Wn. App. 876, 825 P.2d 319 (1992). Our courts have held that "expert

testimony is required ... to prove the existence of a risk, its likelihood of occurrence, and

the type of harm in question ...." ld. at 881.




                                             5

No. 32198-3-111
Cheng v. Spokane Eye Clinic, et at.


         Mr. Cheng failed to list an expert witness to establish the necessary facts for his

informed consent claim. Summary judgment in favor of defendants was proper on this

basis.

         Few medical treatment related causes of action can be litigated without expert

testimony establishing the nature of the medical issue, the standard of care, and the

defendant's alleged deviation from that standard. This case is not one of the rare

exceptions. Accordingly, the trial court properly dismissed the action due to the absence

of expert support for the claims.

         Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:


    -t4fi5i} \5,
         Lawrence-Berre ,J.




                                               6

