Court of Appeals Division III
State of
Opinion Information Sheet
Docket Number: 26646-0
Title of Case: Patricia Kay Rounds v.
File Date:
SOURCE OF APPEAL
----------------
Appeal from
Docket No:
Judgment or order under review
Date filed:
Judge signing:
Honorable Susan L Hahn
JUDGES
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Authored by Stephen M. Brown
Concurring: Dennis J. Sweeney
Kevin M. Korsmo
COUNSEL OF RECORD
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Counsel for Appellant(s)
David Roger Hevel
Attorney at Law
Counsel for Defendant(s)
Jerome R. Aiken
Attorney at Law
Dennis Lee
Fluegge
Attorney at Law
Counsel for Respondent(s)
Jerome R. Aiken
Attorney at Law
David A. Thorner
Thorner
Kennedy & Gano PS
Megan Murphy
Thorner
Kennedy Gano
Bryan George Evenson
Attorney at Law
IN THE COURT OF APPEALS OF THE STATE OF
PATRICIA KAY ROUNDS, individually, ) No. 26646-0-III
and as Personal Representative of
the )
Estate of
) Division Three
Appellant, )
)
v. )
)
NELLCOR PURITAN BENNETT, INC.; )
MALLINCKRODT, INC; TYCO )
INTERNATIONAL,
HEALTHCARE;
MEDICAL
which is a corporation; and )
GEOFFREY GREENBERG, REGAN B. )
WYLIE, JOHN S. BARANY, PHILIP I. )
MENASHE, and MARK S. BERMASN, )
)
Defendants, )
)
CENTER;
SYSTEM; HEALTH MANAGEMENT )
ASSOCIATES; and BALIIJIT K. )
SHARMA, )
)
Respondents.
)
)
No. 26646-0-III
Rounds v.
Brown, J. -
Patricia Kay Rounds, as surviving spouse and personal
representative for her husband's
estate, appeals the summary dismissal of her medical
negligence claims against Baljit K. Sharma, M.D. and Providence Yakima Medical
Center for the death of her husband, Alan D. Rounds, when a tracheostomy tube failed
after heart surgery performed by
Dr. Sharma at
trial court erred in deciding she
failed to show causation. We disagree,
and affirm.
FACTS
The facts are drawn
most favorably for Ms. Rounds as the non-moving party
under our summary judgment standard
of review. See Korslund
v. Dyncorp Tri-Cities
Servs. Inc., 156 Wn.2d 168, 177, 125 P.3d 119
(2005).
After his
Rounds suffered from numerous existing and developing
complications, including a
fungal infection leading to
multi-organ system failures. Important
here, Mr. Rounds'
respiratory problems required
ventilator support, initially received by a mouth-to-lungs
endotracheal
tube. Mr. Rounds' likelihood of survival
was about 20 percent before the
critical events described
next.
On
procedure on Mr. Rounds using a tracheostomy (trach) tube with an
inflatable cuff
designed to prevent air
escape. Dr. Sharma did not utilize
"stay sutures"1 when placing
1 "Stay
sutures" are long sutures, approximately eight to ten inches long, placed
on either side of the trachea, that
when pulled, lift the trachea to the surface.
A long
2
No. 26646-0-III
Rounds v.
the trach
tube. After he completed the procedure,
Dr. Sharma verified the trach tube was
working correctly. According to Dr. Sharma, he inflated the trach tube cuff to the
minimum occlusive pressure needed
to form a tracheal seal. Although no
measurements were taken at that
time, Dr. Sharma was satisfied he had inflated the
cuff to its proper level.
Following the
procedure, cuff pressure was checked by respiratory therapist
Brian Trombley. According to Mr. Trombley,
the pressure in the cuff should be the
minimum amount needed to maintain a
seal. The cuff pressure measured 60
centimeters of water at
was necessary to maintain a
seal. No evidence shows any
adjustment. Further, when
Mr. Trombley checked the pressure
in the cuff at
At about
Rounds for bathing when Nurse Trisler
heard air coming from around the trach tube
cuff and he concluded the cuff was
leaking. Mr. Trombley
unsuccessfully attempted to
put air into the cuff, via a
balloon. Mr. Trombley
concluded a leak was present either in
the cuff or in the tube connecting
the cuff to the balloon. Mr. Trombley could not tell
where the air was coming from, but
opined it was probable that air was coming out at
the cuff. Regan Wylie, M.D. and John S. Barany, M.D.
arrived and attempted to re-
intubate
Mr. Rounds. While Dr.
Barany was able to connect an endotracheal tube, Mr.
thread is tied to the suture and
then taped to the chest wall.
3
No. 26646-0-III
Rounds v.
Rounds' heart stopped and he died. His immediate cause of
death was the lack of air
to his lungs.
On
not relevant to this appeal, for
negligence. Ms. Rounds alleged both
Dr. Sharma failed to follow the accepted standard of care
while treating Mr. Rounds.
The parties asked the court to consider cross-motions for
summary judgment.
Ms. Rounds argued
against
permitted the trach
tube cuff to be over-inflated, causing it to rupture, and negligently
failed to inform a physician of the
high cuff pressure. Ms. Rounds alleged
that Dr.
Sharma breached the standard of care by failing to utilize
stay sutures when placing
the trach
tube, and by using a too-small trach tube. Ms. Rounds eventually agreed she
could not provide proof that Dr.
Sharma used an incorrect size of trach tube.
proximate cause of Mr. Rounds'
death, because (1) if Mr. Rounds had not died due to
the trach
tube leak, he would have soon died more probably than not of multisystem
organ failure, and (2) no expert
testimony established that had Mr. Trombley informed
a
physician of the trach-cuff pressure, the outcome would have changed.
Dr. Sharma
argued Ms. Rounds could not establish proximate cause because
she was unable to show that but for
Dr. Sharma's acts, Mr. Rounds would have
survived. Dr. Sharma asserted Ms. Rounds presented no
evidence showing the lack of
4
No. 26646-0-III
Rounds v.
stay sutures proximately caused Mr.
Rounds' death, and no evidence showing Mr.
Rounds' death would not have occurred had Dr. Sharma used a
different trach tube.
In response,
Ms. Rounds presented the medical-expert deposition evidence of
Jeffrey R. Simons, M.D., Luther F. Cobb,
M.D., and Dr. Gautam. Dr. Simons could not
say if the cuff ruptured or was
dislodged and agreed that either happening was just as
probable. When asked questions
about trach size, positioning, and 60-pressure cuff
problems, Dr. Simons summarized by
saying, "[w]e don't know. All of
this is
speculation because no one was
called." Clerk's Papers (CP) at 204-05. Dr. Simon
allowed that if the cuff was
positioned correctly and cuff pressure was 60 centimeters of
water, 72 hours was an appropriate
waiting time before operating to replace a trach
tube.
Dr. Cobb opined
that had stay sutures been used, the outside threads would be
self-explanatory to Dr. Wylie for
use to reposition a dislodged or misplaced trach tube
as a matter of "logical
deduction rather than speculation." CP at 226. Dr. Cobb
testified: "I think it's probably more likely that
the tube was displaced than the cuff
failed." CP
at 91. On the other hand, Dr.
Wylie testified she was not trained to use
stay sutures when doing emergency tracheostomies, and had they been present, she
testified, "I'm not sure how I
would have utilized them." CP at 125. After
reviewing a
medical article discussing stay
sutures in tracheostomy procedures, Dr. Wylie
answered that it would be
"difficult to say" if they could have been utilized to help Mr.
5
No. 26646-0-III
Rounds v.
Rounds. CP at 339.
In his
deposition, Dr. Gautam opined the trach
tube cuff ruptured on cartilage
exposed by necrosis of the
surrounding soft tissue, and "as the neck of the patient was
moved, it led to the cuff being
poked, being perforated by the sharp edge of the
tracheal cartilage, or maybe
cartilages." CP at 208. Dr. Gautam
acknowledged that in
order to determine whether necrosis
occurred in Mr. Rounds, an autopsy was
necessary, and one was not
done. Dr. Gautam
further acknowledged no evidence
showed necrosis.
The court
granted
Rounds could not establish proximate cause in her claim
against
Trombley's failure to inform a
physician of the pressure in the tracheostomy cuff;
and
(2) insufficient evidence existed
to raise a material issue of fact as to the liability of Mr.
Trombley for negligently causing
the tracheostomy cuff to be over-inflated, because no
evidence showed Mr. Trombley ever inflated the cuff. The court granted Dr. Sharma's
summary judgment motion, ruling Ms.
Rounds failed to show sufficient evidence of
proximate cause regarding Dr.
Sharma's failure to utilize stay sutures.
After Ms.
Rounds unsuccessfully sought reconsideration, she
appealed.
ANALYSIS
A. Summary Judgment
The issue is
whether the trial court erred in deciding Ms. Rounds failed to show
6
No. 26646-0-III
Rounds v.
proximate cause when granting summary
judgment to
We review de
novo summary judgment grants, engaging in the same inquiry as
the trial court. Colwell v. Holy Family Hosp., 104 Wn. App. 606, 611, 15 P.3d 210
(2001).
"A motion for summary judgment will be sustained if no
genuine issue of
material fact exists, viewing the
evidence in a light most favorable to the nonmoving
party."
562 (1990)). Further, we may affirm a grant of summary
judgment on any basis
supported by the record. Fabrique v. Choice
Hotels Int'l, Inc., 144 Wn. App. 675,
682,183 P.3d 1118 (2008) (citing
424, 426, 878 P.2d 483 (1994)).
"Summary
judgment in favor of the defendant is proper if the plaintiff fails to
make a prima facie case concerning
an essential element of his or her claim."
Seybold
v. Neu, 105 Wn.
App. 666, 676, 19 P.3d 1068 (2001). If
the defendant meets the
burden of showing no material facts
remain and the plaintiff lacks sufficient evidence to
support an essential element in the
case, "the burden shifts to the plaintiff to produce
evidence sufficient to support a
reasonable inference that the defendant was
negligent."
damages." Colwell, 104 Wn. App. at 611.
Specifically, the plaintiff must prove "the
injury resulted from the failure of
the health care provider to follow the accepted
standard of care . . . [and] [s]uch failure was a proximate cause of the injury complained
7
No. 26646-0-III
Rounds v.
of." RCW
7.70.040.
"A
'proximate cause' of an injury is defined as a cause which, in a direct
sequence, unbroken by any new,
independent cause, produces the injury complained
of and without which the injury
would not have occurred." Fabrique, 144 Wn. App. at
683 (citing Stoneman v. Wick
Constr. Co., 55 Wn.2d 639, 643, 349 P.2d 215 (1960)).
The proximate cause elements are: "(1) cause in fact
and (2) legal causation."
(citing Baughn
v. Honda Motor Co., 107 Wn.2d 127, 142, 727 P.2d 655 (1986)). "Both
elements must be
satisfied."
117 Wn.2d 747, 753, 818 P.2d 1337 (1991)). Cause in fact concerns "the 'but for'
consequences of an act, or the
physical connection between an act and the resulting
injury."
Medical expert
testimony is generally required to prove causation.
Generally, in medical negligence cases, "the plaintiffs
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, 105 Wn. App. at 676 (citing
RCW 7.70.040; McKee v. Am. Home Prods.
Corp., 113 Wn.2d 701, 706-07, 782 P.2d
1045 (1989)). Further, "the expert testimony must be
based on facts in the case, not
speculation or conjecture."
P.2d 952 (1990)). "The testimony must be sufficient to
establish that the injury-
producing situation 'probably' or
'more likely than not' caused the subsequent
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No. 26646-0-III
Rounds v.
condition, rather than the accident
or injury 'might have,' 'could have,' or 'possibly did'
cause the subsequent
condition." Merriman v. Toothaker, 9 Wn. App. 810, 814,
515
P.2d 509 (1973). The expert testimony must be based on a
reasonable degree of
medical certainty. McLaughlin v. Cooke, 112
Wn.2d 829, 836, 774 P.2d 1171 (1989).
Because
that Ms. Rounds lacked medical
expert testimony to establish causation, the burden
shifted to Ms. Rounds to produce
medical expert testimony on the issue of causation.
See Seybold, 105 Wn. App. at 675,
677-78 (explaining proximate cause burden
shifting); see also Fabrique, 144 Wn. App. at 685-86
(same).
1.
Mr. Rounds, based upon the
following actions of Mr. Trombley: (1) inflating the trach
tube cuff beyond the minimum occlusive
pressure or allowing the cuff to remain
overinflated and (2) failing to
notify one the attending physicians the cuff was severely
overinflated. Ms. Rounds contends these acts and omissions
led to the rupture of the
cuff, which proximately caused Mr.
Round's death.
However, Dr.
Simons could not state the cause of the trach tube
malfunction:
[Question:] And what happened
[the cuff] could have been simply
dislodged or could have been ruptured?
[Answer:] We don't know.
[Question:] Either one of those
is just as probable, correct?
[Answer:] Correct.
CP at 203. Regarding the problems of the cuff pressure
having been set at 60 during
9
No. 26646-0-III
Rounds v.
the tracheostomy,
the appropriateness of waiting 72 hours to adjust the trach
tube, and
reporting the cuff pressure to Dr.
Sharma, Dr. Simon summarized, "[w]e don't know. All
of this is speculation because no
one was called." Clerk's Papers (CP) at 204-05.
Further, Dr.
Cobb stated, "I think it's probably more likely that the tube was
displaced than the cuff
failed." CP at 91. Dr. Gautam stated
the cuff ruptured after the
soft tissue around the cartilage in
Mr. Rounds' trachea had necrosed, and the exposed
cartilage poked the cuff as Mr.
Rounds' was moved. However, Dr. Gautam
acknowledged no evidence showed
necrosis in the medical records, and no autopsy
was done to determine if necrosis
occurred.
None of Ms.
Rounds' three experts stated, more likely than not, the trach
tube
malfunction was caused by the
rupture of the cuff. Dr. Simons could
not state the
cause of the malfunction; Dr. Cobb
stated it was more likely caused by displacement of
the tube; and Dr. Gautam's opinion was based upon speculation and conjecture,
rather
than the facts of the case. See Seybold, 105 Wn.
App. at 677.
Ms. Rounds'
experts do not establish how the trach tube
malfunctioned. Thus,
she does not show that but for Mr. Trombley's failure to use reasonable care in
maintaining the cuff pressure, Mr.
Rounds would not have died. "To
establish the
cause in fact, the plaintiff must
show that he or she would not have been injured but for
the health care provider's failure
to use reasonable care." Hill v. Sacred Heart Med.
Ctr., 143 Wn. App. 438, 448, 177
P.3d 1152 (2008) (citing McLaughlin, 112 Wn.2d at
10
No. 26646-0-III
Rounds v.
837.
The sole expert
testimony submitted by Ms. Rounds regarding Mr. Trombley's
failure to notify an attending
physician of cuff over inflation came from Dr. Simons. But,
Dr. Simons gave nothing more than "speculation"
because "no one was called." CP at
204-05. Even if a call had been
made, no action was likely. In response
to
questioning, Dr. Simon agreed that
with 60 centimeters of water pressure and the cuff
in the right location, a 72 hour
wait was appropriate: "If you have
a pretty good seal
and the patient's arterial blood
gasses are good, you probably wait." CP at 205. Dr.
Simons' testimony does not show "the physical
connection between an act and the
resulting injury." Fabrique, 144 Wn. App. at 683. Dr. Simons did not opine based on
case facts, that had Mr. Trombley notified an attending physician the cuff was
overinflated, Mr. Rounds would not
have died. See Hill,
143 Wn. App. at 448.
In sum, Ms.
Rounds failed to produce medical expert testimony on the issue of
causation against
concerning causation, an essential
element of her claim, summary judgment was
properly granted. See Seybold, 105 Wn.
App. at 676.
2. Dr. Sharma.
Ms. Rounds contends Dr. Cobb's testimony establishes Dr.
Sharma's failure to use stay sutures proximately caused Mr.
Round's death. However,
Dr. Cobb thought, "it's
probably more likely that the tube was displaced than the cuff
failed." CP
at 91. And, while Dr. Cobb cast
his opinion as a "logical deduction" rather
11
No. 26646-0-III
Rounds v.
than "speculation," he
could do no more than speculate that Dr. Wylie would
understand the purpose of the stay
sutures. Further, Dr. Wylie testified
that stay
sutures would not be self
explanatory to her, undercutting Dr. Cobb's assessment.
Additionally, Dr. Wylie testified she was not familiar with
the use of stay sutures in
tracheostomies,
and she is not sure how she would have utilized them. We conclude
no fact issue remains on whether
the presence of stay sutures would have made any
difference in the actions Dr. Wylie
took in treating Mr. Rounds.
In sum,
assuming Dr. Sharma failed to comply with the standard of care by
failing to use stay sutures in the tracheostomy, Ms. Rounds' failed to produce medical
expert testimony showing this
failure proximately cause Mr. Rounds' death.
Dr. Cobb
failed to opine that it would have
made any difference in the outcome if stay sutures
had been used. His testimony was speculative. Accordingly, Ms. Rounds failed to
produce medical expert testimony on
the issue of causation against Dr. Sharma.
Because Ms. Rounds failed to produce evidence of causation,
an essential element of
her claim, summary judgment was
properly granted.
Because Ms.
Rounds fails to make out a prima facie case on causation, we do
not need to discuss if her loss of
chance theory applies on the issue of damages.
Affirmed.
__________________________
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No. 26646-0-III
Rounds v.
Brown, J.
WE CONCUR:
_________________________________
Sweeney, J.
_________________________________
Korsmo, J.
13