Diane Christian, et ux v. Antoine Tohmeh, MD, et ux , 191 Wash. App. 709 ( 2015 )

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
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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
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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.
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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.
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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
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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
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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.
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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
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No. 32578-4-II1
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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
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No. 32578-4-111
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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.
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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:
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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.
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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
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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.
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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
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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
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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
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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 Wash. 2d 857, 858, 447 P.2d 589 (1968);
Avellaneda v. State, 167 Wash. App. 474, 485 n.5, 273 P.3d 477 (2012). We do not
consider conclusory arguments. Joy v. Dep't ofLabor & Indus., 170 Wash. 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 Wash. App. 162, 187,275 P.3d 1200 (2012);
Holland v. City ofTacoma, 90 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 857 (2011); Rash,
183 Wash. App. at 631. In a traditional medical malpractice case, a professional's
negligence likely led to a worse than expected outcome. Rash, 183 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 611
(1983); Mohr v. Grantham, 172 Wash. 2d at 849 (2011); Rash v. Providence Health &
Servs., 183 Wash. 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 Wash. 2d 434,
437,656 P.2d 1030 (1982); Barber v. Bankers Life & Cas. Co., 81 Wash. 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 Wash. 2d 705, 712-13,257
P.2d 784 (1953); Alpine Indus., Inc. v. Gohl, 30 Wash. 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 Wash. 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 Wash. 2d 784, 786,498 P.2d 870
(1972); Lewis River Golf, Inc. v. o.M Scott & Sons, 120 Wash. 2d 712, 717, 845 P.2d 987
(1993);Dep't ofFisheries v. Gillette, 27 Wash. 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 Wash. 2d at 195 (2003); Grimsby v. Samson, 85 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. 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 Wash. App. 56,63,
831 P.2d 167 (1992); Orwick v. Fox, 65 Wash. 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 Wash. 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 Wash. 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