[No. 25583-2-III. Division Three. February 26, 2008.]
[1] Judgment Summary Judgment Review Standard of Review. A summary judgment is reviewed de novo. [2] Judgment Summary Judgment Burden on Nonmoving Party Averment of Specific Facts Elements of Claim. A defendant is not entitled to a summary judgment if the plaintiff avers sufficient facts that, if believed, would support the essential elements of the plaintiff's claim. [3] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviewing a summary judgment views the facts submitted and the reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party. [4] Judgment Summary Judgment Review Matters Considered Expert Opinion Qualifications. The qualifications and opinions of an expert whose affidavit is submitted in a summary judgment proceeding are part and parcel of the summary judgment. [5] Judgment Summary Judgment Review Matters Considered Evidentiary Rulings Deference. An appellate court reviewing a summary judgment dismissing an action does not defer to the trial court's evidentiary rulings. It is for the appellate court to decide whether and to what extent the plaintiff's factual averments should be considered and whether they are sufficient to support the plaintiff's claims. [6] Medical Treatment Malpractice Elements Statutory Provisions. Under RCW 7.70.040, a medical malpractice plaintiff must show that the defendant failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which the defendant belongs, in the state of Washington, acting in the same or similar circumstances and that such failure was a proximate cause of the injury complained of. [7] Medical Treatment Malpractice Expert Testimony Necessity. In a medical malpractice action, expert testimony is required to establish the standard of care and most aspects of proximate cause. [8] Medical Treatment Malpractice Proximate Cause Proof Expert Testimony Necessity Inference From Evidence. In a medical malpractice action, expert testimony is not required to prove every element of causation if a reasonable person could infer a causal connection from the facts and circumstances and the medical testimony given. [9] Medical Treatment Malpractice Standard of Care Expert Testimony Different Schools of Medicine Professional Title Effect. So long as a physician with a medical degree has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue in a medical malpractice action, he or she ordinarily will be considered qualified to express an opinion on any sort of medical question, including questions in areas in which the physician is not a specialist. It is the scope of the witness's knowledge and not the artificial classification by title that governs the threshold question of admissibility of expert medical testimony in a malpractice action. [10] Medical Treatment Malpractice Proximate Cause Prima Facie Case Proof Expert Testimony Necessity. In order to avoid a summary judgment in a medical malpractice action, the plaintiff must produce competent medical expert testimony establishing that the injury was proximately caused by the defendant's failure to comply with the applicable standard of care. The expert testimony must be based on a reasonable degree of medical certainty and must be based on the facts of the case, not speculation. [11] Medical Treatment Nurses Standard of Care Expert Testimony Physician or Nurse. Although expert testimony from a physician generally is necessary to establish causation in a medical malpractice action, a licensed nurse may be qualified to testify as an expert on the issue of proximate cause in an action alleging medical malpractice by a nurse. [12] Negligence Proximate Cause What Constitutes In General. The proximate cause of an injury is a cause that, in a direct sequence unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened. [13] Negligence Proximate Cause Elements. Proximate cause has two elements: (1) cause in fact and (2) legal causation. Both elements must be satisfied to establish proximate cause. [14] Negligence Proximate Cause Cause in Fact Proof "But For" Test. To prove cause in fact, a plaintiff must show that he or she would not have been injured but for the defendant's failure to use reasonable care. [15] Judgment Summary Judgment Affidavits Evidence External References. While factual averments in a summary judgment proceeding are required by CR 56(e) to be made upon the affiant's personal knowledge, an affiant may relate facts by reference to other sworn statements in the record, such as depositions and other affidavits. [16] Medical Treatment Nurses Standard of Care Expert Testimony Physician's Reference to Nurse's Affidavit. In a medical malpractice action, a physician's averment that a nursing standard of care as identified in the affidavit of a qualified nurse was violated in the particular instance may be sufficient to establish that the violation was the cause in fact of the plantiff's injury. [17] Judgment Summary Judgment Review Scope of Review. The job of an appellate court reviewing a summary judgment dismissing an action is to decide whether the plaintiff's burden of production was met, not whether the plaintiff has met the burden of persuasion, which is for the trier of fact to decide. [18] Medical Treatment Malpractice Prima Facie Case Expert Testimony Out-of-State Professional. The affidavit of an out-of-state medical professional may be sufficient to take a medical malpractice action to trial if the professional has a medical degree, has a demonstrated familiarity with the medical condition at issue and with the procedures to diagnose and treat the condition, and the standard of care in the situation is a national standard. [19] Medical Treatment Resident Physicians Standard of Care Expert Testimony. Resident physicians are held to the same standard of care as fully licensed physicians, and a fully licensed physician may be qualified to testify as an expert in a medical malpractice action against a resident physician. Nature of Action: Action for damages for medical malpractice. The action was filed against a hospital, a medical clinic, and several physicians. Superior Court: The Superior Court for Spokane County, No. 06-2-02405-7, Salvatore F. Cozza, J., on October 16, 2006, entered a summary judgment in favor of the hospital and five of the physicians. Court of Appeals: Holding that the trial court erred by dismissing the expert opinions of two out-of-state physicians and a nurse and that the plaintiffs produced sufficient factual averments to establish a prima facie case of medical malpractice, the court reverses the judgment and remands the case for further proceedings. Robert J. Crotty-; and Darrell W. Scott- and Matthew J. Zuchetto- (of The Scott Law Group, PS), for appellants. Carole L. Rolando- and Keith D. Brown- (of Randall & Danskin, PS); Pamela A. Okano- and Michael N. Budelsky- (of Reed McClure); Geana M. Van Dessell-, Benjamin S. Coleman-, and Brian T. Rekofke- (of Witherspoon Kelley Davenport & Toole, PS); and Mary H. Spillane- (of Williams Kastner & Gibbs), for respondents. Ά1 SWEENEY, C.J. This is a medical malpractice case. The court concluded that the plaintiffs failed to show the necessary qualifications of their experts and that the plaintiffs' affidavits were not sufficient to show a causal relationship between any breaches of the duty of care and the plaintiffs' injury. We conclude that the plaintiffs have met their threshold burden of producing sufficient evidence. And we reverse the summary dismissal of their complaint and remand for trial. FACTS BACKGROUND Ά2 John Hill underwent bilateral knee surgery at Sacred Heart Medical Center in June 2004. Dr. Timothy Lovell, his orthopedic surgeon, ordered Lovenox injections for nine consecutive days following surgery. Lovenox is a heparin compound used to prevent blood clots. Ά3 Sacred Heart nurses cared for Mr. Hill throughout the nine days of the Lovenox injections. A nurse noted a rash and bruising at the injection site (the lower left quadrant of Mr. Hill's abdomen) and suggested that the wound be assessed. Ά4 Drs. Judy Benson, Judy Swanson, Louise Harder, Bryce Andrus, and Klaus Gottlieb, among others, cared for Mr. Hill beginning on the third day of the Lovenox treatment. Drs. Benson and Swanson were Mr. Hill's attending physicians. They both specialize in internal medicine. Drs. Harder and Andrus were residents in internal medicine at the hospital. Drs. Benson and Swanson supervised them. Dr. Gottlieb is an internist specializing in gastroenterology. He was called in by Dr. Andrus to investigate a possible bowel obstruction. Ά5 Neither Dr. Swanson nor Dr. Benson visited or examined Mr. Hill after the fifth day of the injections. Dr. Andrus reported increased hardening of the skin around Mr. Hill's lesion at the Lovenox injection site after eight days of injections. He examined Mr. Hill in the morning on the ninth day and noted that Mr. Hill's platelet count had dropped 70 percent in two days. He also reported that Mr. Hill's injection site had blistered. Ά6 Dr. Gottlieb examined Mr. Hill on July 1, the ninth day of the Lovenox treatment. His medical record reflects that he noted a "large blood blister" at the site of the Lovenox injections. But the record does not reflect that Dr. Gottlieb reviewed Mr. Hill's medical chart. Ά7 Dr. Harder cared for Mr. Hill on the evening of the ninth day. She noted a black blister measuring eight centimeters by three centimeters at the injection site. She also noted that Mr. Hill was pale, confused, drowsy, short of breath, and difficult to rouse. Dr. Harder recorded that Mr. Hill was not likely experiencing a pulmonary embolism. She ordered unfractionated heparin after midnight on the tenth day after a telephonic consultation with Dr. Swanson. Someone then ordered that Mr. Hill be taken off of heparin-based anticoagulants approximately 10 hours later. Ά8 That day, Mr. Hill suffered a stroke, Ά9 Health care providers estimate the probability that a patient has HIT by evaluating and assigning point values to a patient's platelet fall, the timing of onset of platelet fall, the presence/absence of thrombosis SUMMARY JUDGMENT PROCEEDINGS Ά10 The Hills sued Sacred Heart and all of the physicians involved in Mr. Hill's care for damages. They alleged medical negligence for the failure to properly monitor, diagnose, and treat Mr. Hill's condition. Sacred Heart and some of the physicians (Dr. Andrus, Dr. Gottlieb, Dr. Benjamin M. Muir, the Rockwood Clinic, Dr. Lovell, Dr. Pugh, Dr. Benson, Dr. Swanson, and Dr. Harder) moved for summary judgment. Ά11 The Hills responded with the affidavits of experts. They submitted the affidavit of Kenneth Bauer, MD. He is a hematologist. Dr. Bauer teaches at Harvard Medical School. He is the Chief of Hematology at the VA Boston Healthcare System and the Director of Thrombosis Clinical Research at Beth Israel Deaconess Medical Center. He is also a member of a number of relevant medical societies. Ά12 He reviewed the records of Mr. Hill's care. He testified that the standard for the physicians responsible for this case was a national standard and it therefore applied to all of the physicians involved here. And he testified that the standard had been violated here. Ά13 The Hills also submitted the affidavits of Kaye-Eileen Willard, MD. She is a Wisconsin internist. Dr. Willard is board certified in internal medicine and currently practices that specialty in Wisconsin. She did her residency in internal medicine in the state of Washington. And she practiced medicine in Washington for over 20 years until 1999. Dr. Willard has worked in multispecialty group practices in Washington and Wisconsin and is familiar with the practices of a gastroenterologist. Ά14 Dr. Willard was also "familiar with the standard of care for . . . protecting the patient from the significant adverse effects of [prescribed] drugs. . . . [T]his standard is a national standard and through [her] own medical practice and continuing medical education, [she is] aware that the Washington standard of care in 2004 was the same as the national standard of care." Clerk's Papers (CP) at 250-51. Her affidavit says that the standard applies to physicians, including internal medicine physicians. Dr. Willard testified that the standard of care was violated here and proximately caused Mr. Hill's injuries. CP at 253-54. Ά15 Finally, the Hills submitted the affidavit of Candice Mohar, RN, PhD. She is a nurse. She said the nurses violated applicable standards of care for nurses and that these factors contributed to Mr. Hill's injuries. Ά16 The trial judge concluded that Nurse Mohar was not competent to provide evidence on medical causation, as a matter of law, because of our decision in Colwell v. Holy Family Hospital. Ά17 The trial judge then dismissed the Hills' action against Sacred Heart and Drs. Andrus, Benson, Swanson, Harder, and Gottlieb. DISCUSSION Ά21 The scope of the expert's knowledge, not his or her professional title, should govern "the threshold question of admissibility of expert medical testimony in a malpractice case." Pon Kwock Eng v. Klein, 127 Wn. App. 171, 172, 110 P.3d 844 (2005). A physician with a medical degree is qualified to express an opinion on any sort of medical question, including questions in areas in which the physician is not a specialist, so long as the physician has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue in the medical malpractice action. Morton v. McFall, 128 Wn. App. 245, 253, 115 P.3d 1023 (2005). PROXIMATE CAUSE Ά22 Sacred Heart argues, and the trial judge concluded, that Nurse Mohar was not qualified to express an opinion on the relationship between the nursing care Mr. Hill received and his injury. Sacred Heart also argues that Dr. Willard could not rely on the affidavit of Nurse Mohar to express opinions on the proximal relationship between the nursing failures and the injury here. Ά23 But we need not decide that question here nor did we need to decide the question in Colwell. A witness may testify as an expert if he or she possesses knowledge, skill, experience, training, or education that will assist the trier of fact. ER 702. Here, Nurse Mohar is a trained nurse. She has over 30 years of experience in the nursing field, both as a nurse and as a nurse educator. She holds a PhD in nursing. And she is familiar with the standards of nursing in Washington and, specifically, standards of appropriate nursing vigilance, clinical nursing practice, and system errors in nursing. Ά24 Again, to recover damages for medical negligence, the plaintiff must establish that (1) the health care provider breached the accepted standard of care and (2) the breach was a proximate cause of the injury complained of. RCW 7.70.040. The issue is whether the Hills' experts established the second element. Ά25 Mr. Hill suffered the following injuries: venous and arterial thrombotic complications, including stroke, pulmonary embolism, and deep vein thrombosis. This left him with paralysis on the right side of his body, expressive aphasia, weakness and fatigue, the inability to blink his left eye, skin necrosis, inability to walk, and mood swings. Ά26 Expert testimony from a medical doctor will generally be necessary to establish causation in a medical malpractice case. Harris, 99 Wn.2d at 448-49; Seybold, 105 Wn. App. at 676. The testimony must be based on the facts of the case and not speculation. Seybold, 105 Wn. App. at 677. It must also be based on a reasonable degree of medical certainty. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). Expert medical testimony must demonstrate proximate cause. Ά27 Nurse Mohar certainly had the necessary knowledge, skill, experience, training, and education to establish the standard of care for nurses and to say whether those standards were violated here. The failure claimed here on the part of the physicians and the nursing staff is to recognize the symptoms of thrombocytopenia, diagnose the condition, and then properly manage that condition. Ά30 Dr. Willard testified that: 10. The following are some of the standard of care violations identified by [the] Affidavit of Candice Mohar, R.N[.,] that, if true, would have contributed to Mr. Hill's HIT being undiagnosed before his catastrophic injuries manifested: failing to ensure that a wound assessment was performed for the site of the Lovenox injections after requesting a wound assessment on June 29th and 30th; failing to ensure a physician evaluated and considered the significance of Mr. Hill's dramatic platelet count drop on the morning of July 1st. 11. The standard of care violation identified by Candice Mohar, regarding Sacred Heart Medical Center's failure to adequately train its nurses on HIT, if true, would have contributed to Jack Hill's HIT being undiagnosed before his catastrophic injuries manifested. CP at 253-54. Dr. Bauer testified that: Had Mr. Hill's medical providers promptly recognized the thrombocytopenia, determined that it was attributable to Lovenox, discontinued Lovenox, and placed Mr. Hill on a non-heparin based anti-coagulant, it is more likely than not that Mr. Hill would not have suffered the catastrophic consequences he sustained from HIT. CP at 138. Ά31 Sacred Heart argues that Dr. Willard's references to Nurse Mohar's affidavit do not show the necessary legal causation between the nursing failures and the injury here. And generally the affidavits must set forth facts based upon personal knowledge admissible as evidence that the affiant is competent to testify. CR 56(e). "However, evidence may be presented in affidavits by reference to other sworn statements in the record such as depositions and other affidavits." Mostrom v. Pettibon, 25 Wn. App. 158, 162, 607 P.2d 864 (1980). Ά32 Here, Dr. Willard testified that the nursing failures identified by Nurse Mohar resulted in Mr. Hill's HIT being undiagnosed. She further posits that the nurses probably contributed to HIT being undiagnosed by failing to ensure that a doctor performed a wound assessment on Mr. Hill's lesion; that they probably contributed to HIT being undiagnosed by failing to ensure that a doctor evaluated and considered the significance of the drop in Mr. Hill's platelet count; and that they probably contributed to HIT being undiagnosed by failing to adequately train its nurses about HIT. This, for us, is an ample showing that the failure to diagnose HIT is what caused the injury to Mr. Hill. Ά33 Nurse Mohar posits that the nurses should have been trained to recognize and should have recognized HIT and determined that the symptoms were attributable to Lovenox. The nurses here, along with the physicians, were health care providers. RCW 7.70.020(1). Ά34 Dr. Bauer's affidavit refers to health care providers. It also asserts that "[t]he administration of unfractionated heparin to Jack Hill, while Mr. Hill was manifesting the signs and symptoms of . . . HIT . . . contributed to the injuries and complications suffered by Mr. Hill." CP at 138. Nurse Mohar said Sacred Heart nurses violated their standard of care when they failed to "properly administer . . . Lovenox." CP at 145. Dr. Bauer's opinions on causation then apply to Sacred Heart. Ά35 The nurses administered the unfractionated heparin to Mr. Hill. And no administration of unfractionated heparin would have been proper: "When there is a high clinical likelihood of HIT, heparin or low molecular weight heparin must be discontinued . . . to protect the patient from thrombotic events." CP at 138. Dr. Bauer's affidavit goes on to state: "Instead of discontinuing all heparin containing products, Mr. Hill's health care providers placed him on unfractionated heparin, which placed Mr. Hill at great risk for suffering a major thrombotic complication." CP at 138. Ά36 Mr. Hill's injuries were then, on this showing, a direct result of the administration of heparin-based anticoagulants. Continued administration of heparin increased Mr. Hill's risk of injury. The nursing failures are then, on this record, a cause of the injury here. Ά37 We conclude that there is a sufficient showing of a relationship between the breaches of care alleged by the Hills and the resulting injury to avoid summary dismissal of the Hills' complaint against Sacred Heart Medical Center. STANDARD OF CARE Ά39 The questions required by the statutory scheme are: (1) Is the expert a physician with a medical degree? and (2) Did the expert produce sufficient facts to demonstrate his or her familiarity with HIT as a medical problem and the procedures for diagnosing and treating HIT? RCW 7.70.040(1). Ά40 And we pass on the threshold question of whether the Hills have met their burden of production. Renz v. Spokane Eye Clinic, PS, 114 Wn. App. 611, 623, 60 P.3d 106 (2002). The weight that should be attributed to these opinionsthe burden of persuasionis a matter for the trier of fact. Id. Ά41 First, all of the physicians here have medical degrees. And all of the physician defendants here practice internal medicine in one form or another. The Hills' experts, Dr. Willard and Dr. Bauer, both have medical degrees and both practice in the area of internal medicine. Ά42 Second, the medical problem at issue is HIT. The medical procedures at issue then are those for recognizing and treating HIT. Dr. Gottlieb argues that the medical procedure at issue, for him, is a bowel obstruction or, more accurately, an examination limited to bowel obstruction. But the Hills do not allege that Dr. Gottlieb failed to properly evaluate for bowel obstruction. They allege and show instead that he failed to perform procedures that a physician should perform when confronted with the symptoms Mr. Hill presented. The question is then whether Dr. Willard and/or Dr. Bauer were competent to testify as to the diagnostic and treatment procedures for a patient who presents symptoms like those Mr. Hill presented. When the issue is so phrased and we consider the affidavits in a light most favorable to the Hills, that answer is obvious. Reasonable inferences drawn from the experts suggest that both are familiar with HIT and the procedures to diagnose and treat HIT. Ά43 Dr. Willard's affidavit says that she is a medical doctor who specializes in internal medicine and has been practicing for more than 20 years. Internists diagnose and treat diseases affecting adult internal organs and systems. A reasonable inference drawn from this fact is that Dr. Willard is familiar with blood-related diseases, including HIT. Another inference is that she is familiar with diagnosing and treating HIT. Ά44 Dr. Bauer's affidavit supports that he is familiar with HIT and HIT-related procedures. He is a chief of hematology. He is the Director of Thrombosis Clinical Research at Beth Israel Deaconess Medical Center. He is an expert in the areas of thrombosis, hemostasis, and hematology. Ά45 Both Dr. Willard and Dr. Bauer belong to the same profession and practice in the same area as the defendant physicians here. Their knowledge of the medical problem and procedures at issue, diagnosing and treating a patient presenting symptoms like Mr. Hill did, is uncontested. Dr. Willard and Dr. Bauer were, then, competent to testify as to the standard of care in this case as to all physicians. Ά46 Dr. Willard's and Dr. Bauer's affidavits show that the applicable standard of care is the national standard. The standard of care in Washington is, then, the same standard as in their states. The same standard that applies to Dr. Willard in Wisconsin and to Dr. Bauer in Massachusetts applies to physicians here in Washington. Ά47 In sum, then, the affidavits here show that the applicable standard of care required the physicians to: suspect HIT, perform a wound assessment, review the patient's blood work, recognize an abnormal lab report, report abnormal lab results to the supervisor's attention, be aware of the known risks of the prescribed medication, monitor blood platelets for a post-operative patient on Lovenox, be alert to the signs of potential complications from those medications, diagnose HIT, determine that Mr. Hill's symptoms were caused by an adverse reaction to Lovenox, discontinue heparin-based medications immediately, administer a non-heparin based anti-coagulant promptly, ensure compliance with the applicable standard of care, ensure that Mr. Hill's medical care is not left in the hands of unsupervised residents, attend to the patient, supervise residents, ensure that residents evaluate lab work properly, and supervise Mr. Hill's medical condition closely. Ά49 Dr. Willard's first affidavit does not identify a group when setting forth the standard of care. But her supplemental affidavit does. There she says that the standard of care applies to physicians generally and to physicians practicing in internal medicine particularly. Dr. Willard's affidavit then does define the group to which the standard of care she cites to applies. It is sufficient that the group defined is a profession (physicians and internists) and not the title "resident." RCW 7.70.040(1) ("The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider . . . in the profession or class to which he belongs." (emphasis added)). Ά50 Washington does not recognize a lower standard of care for resident physicians. The term "health care provider" in RCW 7.70.040 is defined in relevant part as an employee or agent of "a person licensed by this state to provide health care." RCW 7.70.020(1), (2). Ά51 The affidavits of Drs. Willard and Bauer raise genuine issues of material fact when viewed in a light most favorable to the Hills. We reverse the summary dismissal of the Hills' complaint against Sacred Heart Medical Center, Dr. Bryce Andrus, Dr. Judy Benson, Dr. Judy Swanson, Dr. Louise Harder, and Dr. Klaus Gottlieb. BROWN, J., and STEPHENS, J. PRO TEM., concur.