Opinion
No. 30197-1-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 01-2-01754-5. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Russell W Hartman.
Counsel for Appellant(s), Randy Wallace Loun, Loun Tyner, 509 4th St. Ste 6, Bremerton, WA 98337-1401.
Counsel for Respondent(s), Richard S. Lowell, Magnuson Lowell PS, 16398 NE 85th St. Ste 200, Redmond, WA 98052-3555.
Paramedic Timothy Gates, employee of North Kitsap Fire and Rescue (NKFR), caused David Morgan's neck to fracture in the course of intubating him while en route to the hospital. The fractured neck led to Morgan's death shortly thereafter. Because the Estate of David Morgan failed to produce evidence of Gates' gross negligence, we affirm the trial court's grant of summary judgment in favor of NKFR.
Facts
Helen Morgan (Ms. Morgan), the widow of David Morgan and personal representative of his Estate, brought a wrongful death suit against NKFR. She alleges that paramedic Gates' gross negligence in treating Morgan directly caused his death.
Before the incident that led to this claim, Morgan was confined to a wheelchair as a result of numerous ailments. And as a result of arthritis, his neck was 'fused' in a downward position, inhibiting him from moving his neck into a full upright position, or laying it flat against a bed. Clerk's Papers (CP) at 32.
On January 30, 1999, Morgan complained to his wife that he 'didn't really feel that well.' CP at 29. Later that evening, she noticed that Morgan was slumped over in his wheelchair, drooling, unresponsive, and his eyes looked 'glazed.' CP at 29. She then called to her son Mike to come quickly from downstairs and she also called 911.
Paramedic Gates and a number of EMTs arrived at Morgan's home. Gates and the EMTs asked Ms. Morgan a number of questions about Morgan's condition. The parties dispute whether Ms. Morgan told the paramedics about Morgan's arthritic neck.
The EMTs placed Morgan on the stretcher and adjusted it to accommodate his neck position. The parties dispute whether at this time Ms. Morgan or Mike told the paramedics about Morgan's neck fusion.
En route to Harrison Memorial Hospital in Bremerton, Morgan had a seizure. Gates determined that it would be best to transport him to Harborview Hospital in case neurosurgery facilities became necessary. When Morgan's seizures stopped, his mouth was clenched shut, indicating a condition called tismus. Concerned that Morgan's air passage might become restricted, Gates decided to intubate him.
In preparation, Gates removed Morgan's pillow and lowered his body to a horizontal position. Although Morgan's head would not lie flat on the stretcher, Gates continued with the intubation process. This caused Morgan's neck to fracture.
After Morgan was airlifted to Harborview, Gates phoned the Morgan home and spoke with the Morgan's daughter in law. When he asked her if Morgan had any neck surgeries, she replied no but that Morgan's 'neck was pretty much fused together from the arthritis and they were told that.' CP at 71. Gates relayed this information to the staff at Harborview.
Morgan's broken neck led to his death four days later from pulmonary failure. Expert testimony posited that it would have required an 'extreme amount of force' to cause Morgan's head to lie flat on the stretcher. CP at 22.
The Estate argues that the trial court erred in ruling that (1) the Estate needed expert testimony to prove that the paramedic was grossly negligent; and (2) the expert testimony that the Estate did provide was insufficient to show the paramedic's gross negligence.
Analysis
We review a grant of summary judgment de novo, from the same position as the trial court. McGowan v. State, 148 Wn.2d 278, 289, 60 P.3d 67 (2002). Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). 'A material fact is one upon which the outcome of the litigation depends.' Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993).
The court views all facts and inferences in the light most favorable to the nonmoving party. Clements, 121 Wn.2d at 249. But the moving party will prevail if its position is the only conclusion that a reasonable person could reach. Clements, 121 Wn.2d at 249.
I. Requirement of Expert Testimony
The Estate first contends that the court should not require expert testimony to establish Gates's breach of the applicable standard of care. It asserts that the medical facts here are describable and understandable without medical training.
To defeat a summary judgment motion in a medical negligence case, the nonmoving party must typically establish a breach of the applicable standard of care using expert testimony. McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706-07, 782 P.2d 1045 (1989); RCW 7.70.040. Expert testimony is required where understanding an essential element of the case is beyond the expertise of a layperson. Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983).
RCW 7.70.040 states
The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:
(1) The health care provider 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 he belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such failure was a proximate cause of the injury complained of.
The medical facts regarding the intubation process and its alternatives are not describable or observable without medical training. See Miller v. Jacoby, 145 Wn.2d 65, 72-73, 33 P.3d 68 (2001). Also, Morgan's spinal fusion and stroke are conditions that complicate the determination of whether Gates breached his standard of care. Thus, the Estate must provide expert testimony to establish breach of the applicable standard of care.
II. Establishing Gross Negligence
The Estate next contends that it produced sufficient expert testimony to show that Gates breached the standard of care and was grossly negligent. A professional typically breaches the standard of care by failing to exercise the 'skill, care and learning possessed at that time by other persons in the same profession.' RCW 4.24.290; see Harris, 99 Wn.2d at 443-44. But paramedics have a qualified immunity from suit based on their acts or omissions in rendering emergency services. RCW 18.71.210. They are liable only for those acts or omissions that constitute gross negligence or willful or wanton misconduct.
RCW 18.71.210 states that
No act or omission of any physician's trained emergency medical service intermediate life support technician and paramedic . . . done or omitted in good faith while rendering emergency medical service . . . to a person who has suffered illness or bodily injury shall impose any liability upon: (6) Any licensed ambulance service; or (7) Any federal, state, county, city or other local governmental unit or employees of such a governmental unit. . . . This section shall not apply to any act or omission which constitutes either gross negligence or willful or wanton misconduct.
The Estate offered the declaration of expert James Verone, a licensed paramedic, who stated that 'in my judgment, there was a breach of standard of care.' CP at 22. Verone qualified his conclusion by stating that the 'standard of care for a paramedic is that you do no more harm to an individual to exacerbate their injuries and/or illness.' CP at 22. Verone also stated that Gates had not acted as a 'prudent practitioner' would in the circumstances. CP at 22. Although Verone's opinion may be sufficient to establish a breach of the standard of care for professional negligence under RCW 4.24.290, it clearly was not sufficient to show that Gates was grossly negligent or willful or wanton in his actions, the standard set forth in RCW 18.71.210. Marthaller v. King County Hosp. Dist. No. 2, 94 Wn. App. 911, 915, 973 P.2d 1098 (1999). As in Marthaller, this evidence did not overcome the qualified immunity granted to paramedics rendering emergency services. See Marthaller, 94 Wn. App. at 918 (expert testimony that a paramedic 'failed to meet the appropriate standard of care for endotracheal intubation' inadequate to show that the paramedic was grossly negligent or acted in bad faith).
James Verone's declaration states in relevant part:
One should ask, was the standard of care followed? In my professional opinion the standard of care for this patient was not. Additional harm was done to the patient as undue force upon intubating this patient endotracheal tube and larynoscope, larynoscope being the long-bladed metal handle that is inserted into the patient's oral airway and the manipulation of the patient's neck for the endotracheal intubation itself. I feel that this paramedic used undue force and pressure in trying to manipulate this patient's neck back to a neutral sniffing position which caused his cervical fracture, due to the fused spine.
. . . .
[I]n my summary I must conclude that you have to ask yourself was the standard of care met by this paramedic? And in my judgment there was a breach of standard of care. Was the paramedic acting as a prudent individual, as a prudent practitioner clearly shows in this case that the paramedic knew of the patient's fused neck as in his report hyperflexion of the neck prior to intubating, and during intubation progressive movement to the rear and neutral position for the procedure, extreme amount of force had to have been used to get this patient's neck and head back down to the stretcher in a complete supine mutual position for intubation which is not part of the standard of care. I will clarify standard of care for a paramedic is that you do no more harm to an individual to exacerbate their injuries and/or illness.
CP at 21, 22.
In support of its motion to reconsider the grant of summary judgment, the Estate submitted a supplementary declaration by Verone. Verone apparently elaborated on his opinion and said that Gates had been grossly negligent. The trial court denied the Estate's motion to reconsider and the Estate has not assigned error to that ruling.
Because the Estate failed to provide expert testimony showing that Gates was grossly negligent, the trial court did not err in granting summary judgment.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., and QUINN-BRINTNALL, C.J., concur.