Opinion
No. 60622-1-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-38348-6, Richard A. Jones, J., entered August 24, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
Failure to comply with the notice requirements of RCW 7.70.100(1) and RCW 4.96.020(4) requires dismissal of a complaint. Because Xusheng Chen failed to comply with these statutes, and because he lacked both standing and the requisite expert testimony to pursue his claims, we conclude the trial court properly dismissed his complaint for the alleged wrongful death of his mother.
FACTS
On December 8, 2003, 86-year-old Pinfang Liu was hospitalized at Valley Medical Center (VMC), in Renton. Dr. Lawrence Isola examined Ms. Liu and diagnosed her as having "influenza with diarrhea and progressive dehydration leading to syncope or near syncope with a rhabdomyolysis."
On December 12, 2003, the hospital discharged and transferred Ms. Liu to a skilled nursing facility, Seattle Keiro, where her attending physician was Dr. I-Jen Chen. His diagnosis included Alzheimer's disease, cataracts, non-insulin dependent diabetes, syncope, influenza, acute renal failure, and degenerative joint disease.
On the evening of December 13, 2003, Ms. Liu suffered respiratory distress and received CPR. Paramedics revived her and transported her to Harborview Medical Center. She died the next day. The death certificate listed the cause of death as bradycardia due to, or as a consequence of, hypotension and hypoxemia due to, or as a consequence of, pneumonia.
In December 2006, Ms. Liu's son, Xusheng Chen, filed a pro se complaint alleging medical malpractice on the part of VMC, Dr. Isola, Dr. Chen, and others. The complaint alleged, in part, that Ms. Liu died from a severe allergic reaction to medications, and that various acts and omissions, including the failure to provide or use a translator, contributed to her death. The defendants moved for summary judgment, arguing, among other things, that Xusheng failed to satisfy RCW 7.70.100(1) and evidentiary requirements for establishing the applicable standard of care and proximate cause. The superior court granted summary judgment. Xusheng appeals.
Because Xusheng Chen is the appellant and Dr. I-Jen Chen is a respondent, in the interest of clarity, we refer to the appellant as Xusheng.
DECISION
We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c); Hearst, 154 Wn.2d at 501.
Respondents contend, and we agree, that Xusheng's failure to comply with the requirements of RCW 7.70.100(1) warranted dismissal of his complaint. Xusheng does not dispute that he failed to provide 90 days' notice of his intent to sue as required by RCW 7.70.100(1). He simply asserts that he "did not know [about] RCW 7.70.100 until January 11, 2007." This assertion overlooks the well established rule that ignorance of the law excuses no one. Kingery v. Dep't of Labor Indus., 132 Wn.2d 162, 175, 937 P.2d 565 (1997) (quoting Leschner v. Dept. of labor Industries, 27 Wn.2d 911, 926, 185 P.2d 113 (1947)); Retired Pub. Employees Council of Wash., 104 Wn. App. 147, 152, 16 P.3d 65 (2001). Xusheng's undisputed failure to comply with the statute supports the court's decision on summary judgment. See Waples v. Yi, Wn. App., 189 P.3d 813 (2008) (notice requirement in RCW 7.70.100 is mandatory).
RCW 7.70.100(1) provides in part: "No action based upon a health care provider's professional negligence may be commenced unless the defendant has been given at least ninety days' notice of the intention to commence the action."
Summary judgment was also proper, because Xusheng lacked standing to sue on his mother's behalf. Wrongful death and survivor actions may be prosecuted only by a deceased's personal representative. RCW 4.20.010; 4.20.020; 4.20.046; 4.20.060; Atchison v. Great W. Malting Co., 161 Wn.2d 372, 382, 166 P.3d 662 (2007) ("Our statutory scheme grants only the personal representative the right to sue for wrongful death."); Beal v. City of Seattle, 134 Wn.2d 769, 776, 954 P.2d 237, (1998) ("A wrongful death action must be brought by the personal representative of the decedent's estate and cannot be maintained by the decedent's children or other survivors.") (citation omitted); Benoy v. Simons, 66 Wn. App. 56, 831 P.2d 167 (1992) (dismissing claims under RCW § 4.20.020 and 4.20.060 brought by grandparents of a minor child for failure to establish the appointment of a personal representative); Hatch v. Tacoma Police Dept., 107 Wn. App. 586, 589, 27 P.3d 1223 (2001) (holding that a spouse could not bring post-death loss of consortium claim where she was not the personal representative of her deceased husband's estate). Although respondents challenged Xusheng's standing below, he made no attempt to either establish his standing or counter respondents' arguments.
On appeal, Xusheng asserts that VMC violated his mother's civil rights and discriminated against her when it failed to provide her with an interpreter. Even assuming this theory was asserted below, Xusheng fails to establish his standing to bring this claim as well.
Xusheng's failure to provide expert testimony as to the standard of care and proximate cause also supports dismissal. Generally, plaintiffs in medical negligence cases "must produce competent medical expert testimony establishing that the injury was proximately caused by a failure to comply with the applicable standard of care." Seybold v. Neu, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). A defendant moving for summary judgment has the initial burden of showing either the absence of a genuine issue of material fact, or alternatively, the absence of competent evidence to support an essential element of the plaintiff's claim. Id. When the defendant meets this initial burden by showing that the plaintiff lacks admissible expert testimony to support his or her case, the burden shifts to the plaintiff to present expert testimony establishing that the alleged injury was proximately caused by the defendant's actions. Id.
Here, Dr. Chen's motion for summary judgment pointed out the absence of any expert testimony establishing the standard of care and causation. In response, Xusheng offered no expert testimony and argued, without citation to authority or meaningful analysis, that the doctrine of res ipsa loquitur applied and relieved him of his obligation to provide such testimony. On appeal, he reasserts this argument but, again, fails to provide any meaningful analysis or authority supporting application of the doctrine to this case. We need not consider claims that are inadequately argued or unsupported by authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments not supported by authority or analysis need not be considered); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (appellate court need not consider claims that are insufficiently argued); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999) (appellate court need not consider pro se arguments that are conclusory). The absence of expert testimony supports the dismissal of Xusheng's complaint.
Finally, Xusheng's claims against VMC were properly dismissed for his admitted failure to give VMC, a public hospital, the 60-day notice required by RCW 4.96.020. See Burnett v. Tacoma City Light, 124 Wn. App. 550, 558, 104 P.3d 677 (2004) (requiring strict compliance with notice requirement even when defendant had actual knowledge of suit; "[f]ailure to comply with a notice of claim statute results in dismissal of the suit."); RCW 4.96.010(2) (statute applies to suits against a "public hospital").
Affirmed.