Tanya I. Stock, Appellant V. Harborview Medical Center, Et Ano., Respondents

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
TANYA I. STOCK,
No. 71768-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 8, 2015
£g 	coo
c— 	pi
Appellant,
v.
I
CO
o
-n
i-n;
HARBORVIEW 	MEDICAL 	CENTER;
UNIVERSITY 	OF 	WASHINGTON/UW
PHYSICIANS, ET AL; AND THOSE AS
LISTED AS 1 THROUGH 11,
Respondents.
<S>rnVi
VD 	CDt/?
#•"1 	-3^"<
Leach, J. — Tanya Stock appeals the trial court's summary dismissal of
her 	professional 	negligence 	claims 	against 	Harborview 	Medical 	Center,
University 	of Washington/UW 	Physicians, 	and 	her 	individual 	care 	providers
(collectively Harborview). 	Stock contends that she provided adequate notice of
her 	lawsuit against the 	State and 	that 	she 	did 	not 	need 	to 	present expert
testimony to oppose Harborview's summary judgment motion. 	Because Stock
did not provide the presuit notice required by RCW 4.92.100 and because she
did not support her claims with required expert testimony, the trial court did not
err in granting summary judgment to Harborview. 	We affirm.
Background
Tanya Stock drove her car into a pole at around midnight on February 8,
2012. 	A 	witness found 	her unconscious 	behind the wheel and 	called 911.

No. 71768-5-1/2
Emergency medical technician responders arrived at the scene, intubated her,
and transported her to Harborview Medical Center.
Stock had a small right intraventricular hemorrhage and a blood alcohol
concentration of 0.21. 	Hospital staff extubated her the same day. 	Physicians
took CT (computerized tomography) scans of Stock's brain, determined that her
hemorrhage was 	stable, 	and 	did 	not detect other injuries. 	The emergency
department then transferred her to the intensive care unit (ICU) where specialists
evaluated her, including psychiatrists in the neurosurgery department. 	A social
worker attempted to find Stock's next of kin by leaving messages with several of
her contacts on Facebook and her professional web site.
On February 11, 2012, the neurosurgery department cleared Stock, and
the hospital discharged her. 	The hospital provided her with paperwork instructing
her to follow up with her primary care provider within the week and to obtain a CT
scan before she returned to the Harborview neurosurgery clinic within two weeks
for a follow-up visit. 	When Harborview did not hear from Stock, it unsuccessfully
attempted to contact her.
In her declaration in support of her response to defendant's motion for
summary judgment, 	Stock alleged 	several 	additional 	facts 	that she 	claimed
deviate 	from 	an 	acceptable 	standard 	of 	care. 	She 	claims 	that 	one 	nurse
improperly administered midazolam while Stock was in a coma and gave blood
taken from Stock to a police officer without a warrant or Stock's consent. 	She
asserts that the doctors that saw her on intake failed to address her treatment

No. 71768-5-1/3
needs and did not attend to her afterward. 	She recounted that a social worker
required her to sign a power of attorney when she was unstable and not in a
position 	to make a decision. 	She asserts that her 	Harborview primary care
physician discharged her without ever interacting with her or the doctors that did
attend to her. 	She claims Harborview released her to an unidentified stranger
when she was deteriorating and still wearing medical waste.
On November 13, 2012, Stock sent a letter to Washington State's Office
of Risk Management and to University of Washington Medicine, officially notifying
them that she intended to file a claim for "negligent care by Harborview Medical
Center/UW Physicians." She typed but did not sign her name to the letter.
On February 15, 2013, Stock filed a lawsuit against Harborview and seven
physician defendants, alleging medical negligence and lack of informed consent.
The 	complaint 	included 	allegations 	that 	social 	workers 	released 	confidential
medical information to Stock's Facebook and phone contacts in an attempt to
locate Stock's next of kin; that due to overcrowding, physicians transferred her to
the children's ICU, where she did not receive proper care; that her attending
physician never met with her; that physicians who saw her did not treat additional
injuries; that neurophysicians misdiagnosed Stock and prescribed her medication
that contributed to 	her decline; that they failed 	to provide her with informed
consent when she signed her release documents; and that they failed to follow
protocol when 	they 	released 	her. 	In Harborview's 	answer, 	it alleged 	as an
affirmative defense Stock's failure to comply with presuit notice requirements of

No. 71768-5-1/4
chapter 4.92 RCW. 	On September 9, 2013, Stock submitted a standard tort
claim form to the Office of Risk Management. 	By the January 6, 2014, deadline
for 	parties 	to 	identify 	primary 	witnesses, 	Stock 	listed 	only 	the 	defendant
physicians as her primary witnesses.
On 	February 27, 	2014, 	Harborview filed 	a 	summary judgment motion
based on Stock's failure to provide presuit notice and lack of expert testimony to
support her claims. 	The trial court granted summary judgment on these grounds.
Stock appeals.
Analysis
Stock 	argues 	that 	the 	trial 	court 	erred 	when 	it granted 	Harborview
summary judgment. 	We review a trial court's summary judgment order de novo,
looking to see if there are no remaining genuine issues of material fact, thus
entitling the moving party to summary judgment.1 	We view all evidence in the
light most favorable to the nonmoving party.2
Stock 	argues 	that 	she 	gave 	sufficient 	presuit 	notice 	to 	Harborview.
Harborview responds that chapter 4.92 RCW applies and that Stock failed to
follow the procedures required to sue the State for medical malpractice. 	RCW
4.92.100 requires a claimant filing suit against the State to file a standard tort
claim form with the Office of Risk Management. 	A party must do so at least 60
1 Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011) (quoting
CR 56(c)).
2 Young v. 	Key Pharm.. 	Inc.. 	112 Wn.2d 216, 	225-26, 	770 	P.2d 	182
(1989).

No. 71768-5-1/5
days 	before 	commencement of a 	lawsuit.3 	Harborview 	argues 	that Stock's
November 13, 	2012, 	letter failed to adequately comply with the requirements
listed in the statute and that her September 9, 2013, standard tort form failed to
give proper notice because Stock filed it after she filed her lawsuit.
Requirements for presuit notice for medical malpractice claims against the
State have changed several times. 	In 2006, the legislature added a provision to
RCW 7.70.100 requiring plaintiffs to give defendants a 	90-day notice of their
intent to file a medical malpractice suit.4 	In 2009, the legislature amended RCW
4.92.100 to 	include a 	medical malpractice exemption, 	requiring 	plaintiffs with
medical malpractice cases against the State to give presuit notice under RCW
7.70.100.5 	The 	legislature 	thus 	avoided 	inconsistent 	presuit 	notice
requirements.6 	But in 2010, Washington's Supreme Court held in Waples v. Yi7
that the 90-day presuit notice required by RCW 7.70.100(1) was a procedural
rule 	that 	conflicted 	with 	notice 	requirements 	in 	CR 	3(a) 	and 	was 	thus
unconstitutional. 	Before Stock filed suit, the legislature amended RCW 4.92.100
to remove the medical 	malpractice exemption, effective June 7, 2012.8 	This
restored presuit notice requirements in RCW 4.92.100 for medical malpractice
suits against the State.9 	Then, in 	McDevitt v. Harborview Medical Center.10
3 RCW 4.92.110.
4 Laws of 2006, ch. 8 § 314.
5 Laws of 2009, ch. 433 § 2.
6 McDevitt v. 	Harborview Med. Ctr.. 	179 Wn.2d 59, 68, 	316 P.3d 469
(2013).
7169Wn.2d 152, 159-61, 234 P.3d 187 (2010).
8 Laws of 2012, ch. 250 §1.
9 McDevitt. 179 Wn.2d at 76.

No. 71768-5-1/6
decided 	on 	November 14, 	2013, the court held that for 	medical 	malpractice
claims 	against 	the 	State, 	under 	article 	II, 	section 	26 	of 	the 	Washington
Constitution,11 the 90-day presuit notice under former RCW 7.70.100 (2006) was
constitutional. 	The court made prospective only the application of its decision,
requiring claimants to follow presuit procedures for medical malpractice claims
against the State under RCW 4.92.100 if filed before its decision and under RCW
7.70.100 if filed after the decision.12
Thus, 	because Stock's November 13, 	2012, 	letter, February 15, 2013,
lawsuit, 	and 	her 	September 9, 	2013, 	standard 	tort 	claim 	form 	all 	occurred
between the legislature's 2012 amendment to RCW 4.92.100 and the court's
decision 	in McDevitt, 	Stock had to follow 	presuit notice procedures of RCW
4.92.100. 	Claimants must substantially comply with the statute's requirements.13
Stock was required to include in her presuit notice a description of her injury or
damage, when and where it occurred, a list of names and contact information for
all those involved if known, a statement of the amount of damages claimed, and
a statement of the claimant's residence at the time of the claim and the time the
claim arose.14 	Also, she had to sign the claim.15 	Stock argues that she initially
complied with RCW 7.70.100 and did file and serve a verified standard tort claim
10 179 Wn.2d 59, 68, 316 P.3d 469 (2013).
11 "The legislature shall direct by law, in what manner, and in what courts,
suits may be brought against the state."
12 McDevitt. 179 Wn.2d at 75-76.
13RCW4.92.100(1)(a).
14SeeRCW4.92.100(1)(a).
15 See RCW 4.92.100(1 )(b).

No. 71768-5-1/7
form when Harborview raised the issue of noncompliance. 	But because Stock's
letter did not substantially comply with RCW 4.92.100 and because she filed the
standard tort claim form after she filed suit, she failed to properly give the State
notice of her lawsuit.
Stock next argues that the trial court erred when it dismissed her claims
because 	she 	did 	not 	present 	expert 	testimony 	to 	support 	her 	professional
negligence claims. 	Stock argues that she did 	not 	need expert testimony to
establish a medical malpractice claim for patient abandonment and if she did,
she 	could 	elicit 	such 	testimony 	through 	cross-examination 	of 	the 	physician
defendants at trial.
Harborview 	contends 	that 	Stock 	waived 	her 	"abandonment" 	claim
because she did not raise it in the trial court.16 	But Stock's complaint alleges that
she 	received 	inadequate 	and 	improper 	care 	and 	that 	Harborview "released
[Stock] prematurely and not according to protocol." 	Thus, she sufficiently raised
the issue below.
To 	bring 	a 	professional 	negligence 	claim 	against 	Harborview for 	her
premature discharge from the hospital, Stock must prove that the hospital or its
health care providers failed to meet an accepted standard of care.17 	Normally a
physician's 	expert 	testimony 	is 	necessary 	in 	medical 	malpractice 	cases 	to
establish 	a 	standard 	of 	care 	and 	defeat 	a 	defendant's 	summary judgment
16 See RAP 2.5(a).
17 RCW 7.70.030(1).
-7-

No. 71768-5-1/8
motion.18 	Only where "want of skill or lack of care is so apparent as to be within
the 	comprehension 	of 	laymen 	[requiring] 	only 	common 	knowledge 	and
experience to understand and judge it" will a court permit a plaintiff to fail to
provide 	expert 	testimony 	on 	the 	acceptable 	standard 	of care 	in a 	medical
malpractice case.19
Stock cites Meiselman v. Crown Heights Hospital20 as authority that she
did not need an expert because her condition could have suggested to a jury that
Harborview had improperly discharged her. 	In Meiselman. the court found that
because of the increasingly bad condition of a patient's legs after the hospital
discharged him to a doctor without experience, the plaintiff presented sufficient
evidence to establish a prima facie case for willful abandonment without expert
testimony.21 	Stock 	cites 	a 	Florida 	case 	where 	the 	court 	held 	a 	hospital
responsible for wrongful discharge of its patient where evidence showed that the
boy was "violently ill" when the hospital discharged him and obviously injured by
the hospital's tortious conduct.22 	Stock fails to assert any injury sufficient to
establish for a layperson or a jury that Harborview deviated from an acceptable
standard of care when it evaluated Stock and discharged her from the hospital.
Stock states in her declaration that at her release she wore medical waste in the
18 Young. 112 Wn.2d at 228.
19 Young. 112 Wn.2d at 228-29 (internal quotation marks omitted) (quoting
Hart v. Steele. 416 S.W.2d 927, 932 (Mo. 1967)).
20 285 N.Y. 389, 396, 34 N.E.2d 367 (1941).
21 Meiselman. 285 N.Y. at 396.
22 Le Juene Rd. Hosp.. Inc. v. Watson. 171 So. 2d 202, 203-04 (Fla. Dist.
Ct. App. 1965).
-8-

No. 71768-5-1/9
form 	of 	intravenous 	inserts 	and 	that 	Harborview 	released 	her to 	"person(s)
unknown and misinformed [as] to the nature of Ms. Stock's injuries and the care
needed and required." 	But her medical discharge summary indicated that she
was in "good" condition, and Stock's grievances do not amount to apparently
tortious conduct on the part of Harborview. 	As the trial court stated, Stock's
"contention that [her discharge from the hospital] is something that would not
ordinarily happen in the absence of negligence isn't one I can see in this case."
In the absence of readily apparent evidence showing noncompliance with an
applicable standard of care, Stock's medical malpractice claim required expert
testimony.
Stock argues that instead of providing expert testimony in opposition to
Harborview's motion, she could have established Harborview's deviation from the
standard of care through cross-examination of the physicians who cared for her.
However, 	as 	Harborview argues, 	Stock cannot 	rely 	on 	her ability to 	cross-
examine physicians at trial where she failed 	to establish, through competent
evidence, that their testimony raised a genuine issue of material fact.23 	When a
party files a motion for summary judgment, the nonmoving party must present
affidavits, depositions, or other evidence to create a genuine issue of material
fact.24 	Stock failed to provide the trial court with affidavits or depositions from
23 See Am. Express Centurion Bank v. Stratman. 172 Wn. App. 667, 675-
76, 292 P.3d 128 (2012).
24 CR 56(e); Becker v. Wash. State Univ.. 165 Wn. App. 235, 245-46, 266
P.3d 893 (2011).

No. 71768-5-1/10
any of the physicians she planned to cross-examine. 	Stock argues that the
parties agreed to forgo discovery until they resolved the issue of notice. 	But this
does 	not 	absolve 	her 	of 	the 	requirement 	that 	as 	the 	nonmoving 	party 	on
summary judgment, 	she 	must 	come forward 	with 	evidence 	to 	show that a
genuine issue of material facts exists. 	And she did not produce any evidence
demonstrating this.
Conclusion
We conclude that because Stock failed to provide proper presuit notice
under RCW 4.92.100 and because on summary judgment she failed to present
expert testimony evidence showing that Harborview deviated from an acceptable
standard of care, she cannot show a 	genuine issue of material fact existed.
Thus, the trial court did not err when it granted Harborview's summary judgment
motion. 	We affirm.
WE CONCUR:
Ir^key 	3
-10-