Christian v. Tohmeh

DIANE CHRISTIAN and CASEY CHRISTIAN, Respondents, v. 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 FAMILY HOSPITAL, a Washington business entity and health care provider;ORTHOPAEDIC SPECIALITY CLINIC OF SPOKANE PLLC, a Washington business entityand health care provider; DOES 1-5, Petitioners.

No. 37027-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

March 2, 2021

UNPUBLISHED OPINION

FEARING, J. — This appeal raises the unique question of whether the claimant, after this court reverses dismissal of her lost chance theory in a medical malpractice action and remands to the trial court, may expand her action to a traditional causation theory because she finds a new expert that opines that the purported negligence of the physician caused injury on a more probable than not basis. We answer in the affirmative and thereby affirm the superior court.

FACTS

This court previously reviewed this suit in Christian v. Tohmeh, 191 Wn. App. 709, 366 P.3d 16 (2015) (hereafter Christian I). We abbreviate those facts.

Diane and Casey Christian, wife and husband, brought suit against defendants Dr. Antoine Tohmeh and the Orthopedic Specialty Clinic of Spokane, PLLC (Clinic). Diane Christian was Dr. Tohmeh's patient. We refer to the plaintiffs solely as Diane Christian. Tohmeh was a physician employed by the Clinic. We refer to the defendants collectively as Dr. Tohmeh.

On December 5, 2005, Diane Christian underwent an open and invasive spinal procedure performed by Dr. Antoine Tohmeh, which procedure aimed at relieving chronic low back pain and weakness in her legs. After the surgery, Christian reported symptoms not experienced before. These symptoms included 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. Christian also reported muscle spasms that impeded her ability to perform physical therapy. On December 9, the hospital discharged Christian, and she was scheduled to see Dr. Antoine Tohmeh in four weeks. In the discharge note, Dr. Tohmeh recommended in-home nursing care to monitor Christian's urinary function.

On January 3, 2006, during a postoperative examination, Dr. Antoine Tohmeh concluded that Diane Christian's presurgery symptoms of thigh weakness and pain had resolved. Christian, however, reported to Dr. Antoine Tohmeh that she continued to suffer from an inability to void her bladder and from numbness in her left buttock, rectum, vagina, left leg, and right foot. Dr. Tohmeh prescribed her Cymbalta to assist with symptoms experienced in her left buttock and left leg.

On January 4, 2006, Diane Christian visited Dr. Michael Oefelein, an urologist recommended by Dr. Antoine Tohmeh. Oefelein concluded that Christian still experienced perineal numbness. Christian told Oefelein that she experienced frequent urination. Oefelein conducted an ultrasound which showed that Christian retained only 36 cc of urine after voiding, he concluded that her urinary retention was resolved. Dr. Oefelein instructed Christian to decrease her fluids and to return if she again had problems voiding her bladder.

During a February 7, 2006 appointment with Dr. Antoine Tohmeh, Diane Christian reported continued numbness of her left buttock, rectum, and vagina in addition to severe constipation. Tohmeh made referrals for a bowel workup and nerve conduction study on Christian's left leg. He also noted that that her symptoms could relate to inactivity, pain medications, and anesthesia.

A February 27, 2006 nerve study by Larry Lamb, M.D. detected no abnormality that would cause Diane Christian's complained of symptoms. The study did notencompass the area of the cauda equina located at the bottom of the spine.

On March 16, 2006, Diane Christian returned to Dr. Antoine Tohmeh. Christian expressed her regret in having undergone the invasive surgery as her current symptoms resulted in more pain than her presurgery symptoms. At the appointment, Christian told Tohmeh that she believed she had 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 of the cauda equina stimulate the pelvic organs, perineum, bladder, sphincter muscles, hips, and legs. Cauda equina syndrome constitutes a serious neurologic condition in which damage to the cauda equine 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. Dr. Tohmeh disagreed with the self-diagnosis.

In April 2006, Diane Christian saw physiatrist Vivian Moise for a second opinion. Dr. Moise agreed that Christian's symptoms were consistent with cauda equina syndrome. Further testing, according to Dr. Moise, confirmed the diagnosis.

PROCEDURE

On December 4, 2009, Diane Christian filed suit against Dr. Antoine Tohmeh for medical malpractice. Christian alleged in her complaint that Tohmeh knew or should have known of the significance of her postsurgical neurological symptoms and that heviolated the applicable standard of care by failing to provide immediate and emergency medical intervention to address her postsurgical symptoms. Christian also alleged that Dr. Tohmeh negligently or intentionally failed to order medical testing that would have more definitively diagnosed or ruled out cauda equina syndrome. The complaint did not identify whether Christian sought recovery under a traditional causation theory or a loss of a better outcome theory.

On February 16, 2011, Diane Christian filed a witness list disclosing that she had retained orthopedic surgeon Stanley Bigos as an expert witness. Dr. Bigos provided deposition testimony on June 24, 2013. In Bigos's deposition, he opined that Dr. Antoine Tohmeh's actions did not meet the appropriate standard of care. He further opined that Dr. Tohmeh lessened Christian's chances of a better outcome by 40 percent. Dr. Bigos could not give a higher reduction in the chance of a better outcome. He indicated that, because of the dearth of data on the subject of cauda equine, he could not provide a definitive opinion or an opinion on a more probable than not basis.

In February 2014, Dr. Antoine Tohmeh moved for summary judgment. In his memorandum, he argued that "any and all claims" should be dismissed as Diane Christian lacked evidence that surgical intervention for the alleged cauda equina syndrome would have "prevented" or "resulted in any improvement" of the alleged neurologic deficits. Clerk's Papers (CP) at 431. In a memorandum of authorities in support of his motion, Dr. Tohmeh argued that Diane Christian failed to present sufficientexpert testimony to establish a causal link between Dr. Tohmeh's conduct and her injuries. He suggested that a causal link must be established on a more probable than not basis. In a reply memorandum, Dr. Tohmeh asserted that Christian lacked evidence on a more probable than not basis of a causal link between the alleged deviation from the standard of care and her injuries. He then separately addressed a loss of chance claim and argued that Dr. Stanley Bigos admitted the claim was based on speculation.

Diane Christian asked the trial court to deny the motion for summary judgment. She presented argument specific to a lost chance claim and emphasized that expert testimony established that Dr. Antoine Tohmeh breached the appropriate standard of care and caused a loss of chance or loss of a better outcome. In May 2014, the trial court granted summary judgment "in total" for Christian's failure to meet her burden as to the standard of care or proximate cause. CP at 684.

Diane Christian appealed to this court. On appeal, Christian categorized her theory of recovery as a loss of chance claim. She framed the issue as:

Whether competent medical testimony that states Dr. Tohmeh breached the standard of care in treatment of Ms Christian, which caused her at least a 40% loss of chance of a better outcome, is sufficient (if not necessary) to create issues of fact for a loss of chance claim to survive summary judgment.

Am. Br. of Appellant at 3, Christian v. Tohmeh, No. 32578-4-III (Wash. Ct. App. 2015). She did not argue recovery based on traditional causation.

In its 2015 ruling, this appeals court characterized the claim before it as a "lost chance of a better outcome" claim resulting from an alleged breach of the standard of care by Dr. Antoine Tohmeh. Christian v. Tohmeh, 191 Wn. App. at 711, 720, 729. This court determined that genuine issues of material fact existed which precluded summary judgment dismissal. This court reversed dismissal of "the Christians' cause of action for medical malpractice." Christian v. Tohmeh, 191 Wn. App. at 742.

Following remand and in December 2016, Diane Christian gave notice that she intended to to call neurosurgeon W. Bradford DeLong to testify as an expert. CP 809-10. During a deposition in August 2017, Dr. DeLong opined that, if Dr. Antoine Tohmeh had intervened by surgery when Christian complained of numbness in her vaginal area, Christian would not be suffering permanent residual symptoms. DeLong placed Christian's loss of chance at 90 percent. In other words, DeLong testified that Dr. Tohmeh's breach of the standard of care likely prevented Christian's full recovery.

In July 2019, Dr. Antoine Tohmeh brought a motion to dismiss and/or motion in limine arguing that this appeals court's decision foreclosed any argument under a traditional theory of proximate causation. Stated differently, Dr. Tohmeh contended that Diane Christian could not present testimony or recover damages based on an opinion that the violation of the standard of care likely prevented her recovery. Tohmeh...