Opinion
No. 66933-8-I.
Filed: June 20, 2011. Unpublished Opinion
Appeal from a judgment of the Superior Court for Pierce County, No. 09-2-10437-4, Stephanie A. Arend, J., entered March 26, 2010.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, C.J., and Leach, J.
In the course of treating a child for leukemia, Dr. Ronald Louie accidentally gave her a dose of medication at a level much higher than prescribed. The child died months later from complications of leukemia. Her estate sued Louie, alleging that the mistaken dose caused adverse effects to the child and, ultimately, her death. Because the estate failed to present expert testimony as to causation, the trial court properly dismissed the suit on summary judgment.
Tatiyania Harris was diagnosed with acute lymphoblastic leukemia in 2002. She was treated with a cancer drug called methotrexate. The drug was injected into her spinal canal. In December 2003, doctors began to inject the drug directly into ventricles in Tatiyania's brain.
In January 2006, Tatiyania's parents were told that Tatiyania had about six months to live. Despite this prognosis, Tatiyania's mother, Timika Sanford, reported that her daughter did very well until an incident in late March involving her methotrexate treatment.
On March 24, 2006, Dr. Ronald Louie administered methotrexate to Tatiyania. Dr. Louie was substituting for Tatiyania's primary doctor, Dr. Robert Irwin, who was away. Dr. Louie gave Tatiyania what he thought was her prescribed dose of 2 milligrams of methotrexate. Shortly after administering the drug, Dr. Louie realized he had given Tatiyania someone else's methotrexate dose. This dose was 12 milligrams, six times the normal amount Tatiyania usually received. Dr. Louie called Tatiyania's parents to report the mistake. A colleague of Dr. Louie suggested to him the dose was not toxic. Nevertheless, Dr. Louie admits he breached the standard of care.
Later in the afternoon of the same day, Tatiyania came back to the office. One of her eyes was red. She was diagnosed with conjunctivitis, an inflammation of the lining in the eyelid around the eye. In May, Tatiyania's eye worsened, and she complained of blindness. In July 2006, Tatiyania had a recurrence of leukemia around her brain. She continued treatment, but her condition worsened.
In December 2006, Tatiyania died from complications of leukemia. She was eight years old. On June 23, 2009, her estate sued Louie for medical malpractice. Louie moved for summary judgment on December 11, 2009. He argued there was no evidence that the higher methotrexate dose had any impact on Tatiyania's health or cancer treatment. This argument was supported by a declaration of Dr. Irwin. After granting the estate two continuances, the court granted Louie's motion for summary judgment on March 26, 2010. The estate appeals.
An appellate court reviewing a summary judgment order places itself in the position of the trial court. Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989). The moving party has the burden to show an absence of material fact. Young, 112 Wn.2d at 225. A defendant may meet that burden by showing that the plaintiff lacks sufficient evidence to establish an essential element of the plaintiff's case. Young, 112 Wn.2d at 225; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the plaintiff fails to show sufficient evidence to establish the existence of an element essential to the plaintiff's case, a court should grant the motion. Young, 112 Wn.2d at 225. A court considers all the evidence and reasonable inferences in the light most favorable to the nonmoving party. Young, 112 Wn.2d at 226.
A medical malpractice action requires that the plaintiff prove a breach of the duty of care owed by the health care provider and that the breach was a proximate cause of the complained harm. RCW 7.70.040. Expert testimony is generally necessary to establish the standard of care and most aspects of causation. Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.3d 113 (1983). Expert testimony is required to establish causation when an injury involves obscure medical factors that would require an ordinary lay person to speculate or conjecture in making a finding. Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819, review denied, 107 Wn.2d 1003 (1986); see also O'Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968). The evidence must be more than that the accident "might have," "may have," "could have," or "possibly did," cause the physical condition. Miller v. Staton, 58 Wn.2d 879, 886, 365 P.2d 333 (1961). While factual causation is generally a question for the trier of fact, when the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion, factual causation may become a question of law for the court. Bruns v. PACCAR, Inc., 77 Wn. App. 201, 214, 890 P.2d 469, review denied, 126 Wn.2d 1025 (1995).
In this case, the estate's claim that the higher than prescribed methotrexate dose caused Tatiyania's leukemia relapse or other physical harm is medically complex. The science involved is beyond ordinary lay knowledge. The estate had the burden of presenting expert medical testimony to demonstrate a causal link between the drug dose and the harmful effect.
In its attempt to meet this burden, the estate presented a declaration from Dr. Robert Gale. Dr. Gale's declaration is worded in such a way as to suggest that he is stating an expert opinion as to causation on a "more probable than not" basis:
9. I reviewed medical records in this case and have also reviewed the depositions [of] Drs. Irwin and Louis and that [of] Timika Sanford. I give the opinion in this declaration on a more probable than not standard of medical certainty.
10. Tatiyania Harris had acute lymphoblastic leukemia, a cancer of the blood and bone marrow which can spread throughout the body including to the central nervous system. On March 24, 2006, plaintiff received a 6-fold higher intrathecal dose of methotrexate (12 mg rather than 2 mg) than that prescribed by her physicians. This higher dose is sometimes associated with adverse signs and symptoms. Because the higher than prescribed intrathecal dose of methotrexate was given synchronous with a central nervous system relapse of acute lymphoblastic leukemia in the plaintiff, it is probable the higher dose could cause adverse effects indistinguishable from those of central nervous system relapse of acute lymphoblastic leukemia in the plaintiff.
Clerk's Papers at 350. Despite the use of the phrase "more probable than not," Dr. Gale's declaration does not say the increased dose actually or even probably caused harm to Tatiyania. It states only that it is "probable" the high dose "could cause adverse effects." As a matter of law, this is insufficient to create a genuine issue for trial on causation. Therefore, the estate's claims fail.
The estate argues that other circumstantial evidence, when combined with Dr. Gale's opinion, establishes a sufficient causal link. For example, Tatiyania was diagnosed with conjunctivitis in her eye on the same day in March as when she was given the higher methotrexate dose. Tatiyania was also diagnosed with chemotherapy toxicity in May. Further, Tatiyania's mother described Tatiyania's condition as changing drastically for the worse after the mistake. But this kind of evidence is speculative. It is insufficient to convert Dr. Gale's opinion of "could cause" into an opinion that a causal link existed more probably than not.
The estate argues that even if it does not have sufficient evidence to establish a causal link between the dose and Tatiyania's death, the evidence is sufficient to establish that the dose caused Tatiyania to experience pain and suffering before her death. This is the same argument recast in a different form. It fails for lack of an expert opinion attesting to a causal link.
The trial court properly granted Louie's motion for summary judgment.
Affirmed.
WE CONCUR