Boyer v. Morimoto

Decision Date10 September 2019
Docket NumberNo. 36166-7-III,36166-7-III
Citation449 P.3d 285
CourtWashington Court of Appeals
Parties Kathie and Joe BOYER, individual and the marital community composed thereof, Appellants, v. Kai MORIMOTO, M.D. individually and Plastic Surgery Northwest, a Washington Corporation, Respondents.


Fearing, J.

¶1 Should the superior court consider a supplemental declaration filed after its memorandum decision granting a party summary judgment, but filed before the court enters its formal order on summary judgment? In this appeal, we answer this question in the negative because the declaration’s protagonist did not file a motion for reconsideration or a motion for late filing and thus failed to present the superior court an opportunity to exercise discretion in determining the propriety of the late filing. Therefore, we affirm the superior court’s summary judgment dismissal of appellant Kathie Boyer’s suit for medical malpractice.


Because the superior court granted summary judgment to defendants Dr. Kai Morimoto and Plastic Surgery Northwest (PSNW), we retell the facts in a light favorable to plaintiff Kathie Boyer. Kathie Boyer’s husband Joe is also a plaintiff, but we generally refer to Kathie as the sole plaintiff.

Kathie and Joe Boyer reside in Anaconda, Montana, three hundred miles east of Spokane. On September 25, 2015, Kathie Boyer, after losing seventy pounds, consulted with Kai Morimoto, M.D., a plastic surgeon with Spokane’s PSNW. Joe attended the consultation. Kathie expressed unhappiness with the appearance of her abdomen and expressed interest in cosmetic abdominoplasty, a surgical procedure to remove excess skin and fat.

Kathie Boyer received saline breast implants on two earlier occasions, most recently in 2006. She noted in the months prior to her appointment with Dr. Kai Morimoto that her right breast implant had reduced in size and had developed rippling. Therefore, she also requested that Dr. Morimoto replace her breast implants and lift her breasts.

During the September 25 consultation, Dr. Kai Morimoto recommended exchanging Kathie Boyer’s saline breast implants for silicone implants, a procedure known as a bilateral mastopexy. Dr. Morimoto also recommended abdominoplasty and liposuction on Boyer’s back, hips, and breasts. The two confirmed October 26, 2015, as the date for the procedure.

Prior to driving to Spokane for Kathie’s surgery, Joe Boyer telephoned PSNW to ask whether Kathie’s surgery should be rescheduled because Kathie was due to begin menstruating. PSNW’s receptionist informed Joe that the surgery could proceed. When preparing for surgery on the morning of October 26, Kathie and Joe Boyer informed the surgical nurse that Kathie was menstruating. The nurse confirmed that Kathie could wear a tampon before surgery.

The surgical procedure by Dr. Kai Morimoto proceeded on October 26, 2015 at PSNW’s same day surgical suite in Spokane. Kathie Boyer received general anesthesia at 10:05 a.m. and remained anesthetized until 7:00 p.m. The surgical team noted no operative complications.

After surgery, Joe Boyer assisted Kathie to the restroom. Kathie urinated and inserted a tampon. She removed no tampon before urinating because Joe and she believed the surgical team removed the last one inserted before surgery. The couple saw no tampon string before Kathie urinated.

PSNW discharged Kathie Boyer from its surgical facility at 9:55 p.m. on October 26, the day of the surgery. PSNW staff then instructed Kathie Boyer to return to Spokane for an appointment with Dr. Kai Morimoto on November 13, 2015. Nevertheless, the Boyers lived many hours afar, so they wished to speak with Dr. Morimoto before departing for Montana. The Boyers remained in Spokane and returned to PSNW on October 28. Dr. Morimoto examined Kathie Boyer and found the operative sites acceptable. Still Boyer suffered persistent pain and fatigue. Boyer requested a stronger form of pain medication, and Dr. Morimoto accommodated that request by prescribing oxycodone 5 mg tablets. Morimoto instructed Boyer to return in two weeks for suture removal.

On November 4, 2015, while recovering at home in Anaconda, Kathie Boyer alternatively felt extreme hot and cold in her toes. Joe removed Kathie’s socks and the two saw blue toes. In the early afternoon, Joe drove Kathie to the Anaconda Community Hospital emergency room. Emergency room physicians diagnosed Boyer’s feet as hypoxic with peripheral cyanosis and mottling of the toes. Hypoxia is a lack of oxygen; whereas, cyanosis is blue coloring. The doctors also diagnosed Boyer with acute renal failure and significant injury to the liver. Anaconda emergency room physicians transferred Boyer to St. Patrick Hospital in Missoula, Montana. Late that evening, Missoula’s Dr. Stephen Hardy performed exploratory surgery in an attempt to ascertain the cause of Boyer’s illness. Dr. Hardy explored and debrided the abdominoplasty flap. He found no necrotizing infection.

On November 5, 2015, an infectious disease physician, Dr. David Christensen, performed a pelvic examination on Kathie Boyer at the Missoula hospital and found a tampon in her vaginal vault that had been present for ten days. Dr. Christensen suspected toxic shock syndrome. Christensen removed the tampon and administered antibiotics, after which Boyer improved dramatically.

St. Patrick’s Hospital retained Kathie Boyer for observation in its intensive care unit until November 19. Boyer’s discharge summary reads: "[n]o clear microbiologic diagnosis, but etiology most likely staphylococcal toxic shock syndrome, either related to surgical wounds or retained tampons." Clerk’s Papers (CP) at 91. Montana physicians predicted future need of amputation of the distal part of Boyer’s right foot toes. Boyer returned to Missoula one month later, when a surgeon removed most of the toes on her right foot. Boyer underwent additional surgeries for lingering injury.


Kathie Boyer filed suit against Dr. Kai Morimoto and PSNW. Boyer alleges that Dr. Morimoto failed to comply with the applicable standard of care for a plastic surgeon. Boyer also contends that nursing staff committed acts of negligence, for which PSNW is vicariously liable. Boyer claims that Morimoto and the PSNW nursing staff agreed to attend to her menstrual cycle during surgery. According to Boyer, PSNW and Dr. Morimoto affirmatively and falsely asserted that providers had removed any tampon utilized by her before the commencement of surgery and that the providers inserted no tampon or sanitary pad during or after surgery.

During discovery, Kathie Boyer disclosed two expert witnesses, Dr. Martin Siegel and Dr. John Shamoun. Dr. Kai Morimoto and PSNW thereafter filed a motion for summary judgment, asserting that Boyer could not present admissible testimony from a qualified expert to establish the standard of care and to testify to a violation of the standard of care that caused injury.

In response to the defense’s summary judgment motion, Kathie Boyer submitted a two-page declaration from Dr. Martin Siegel addressing causation. Boyer also submitted a five-page declaration from Dr. John Shamoun, a plastic surgeon, in order to support a violation of a standard of care.

In his declaration, Dr. John Shamoun testified concerning his background and his knowledge of a standard of care:

3. Throughout my career, I have studied, trained and practiced in a variety of locations throughout the country. I have been licensed to practice medicine in six states, with active licensure in two (Texas and California). I also maintain an active surgical license in the United Arab Emirates.
4. In addition to my professional experience, I have been qualified as a medical expert regarding the standard of care applicable to plastic surgeries like the one at issue in this litigation, in several jurisdictions.
5. One facet of my role in this case was to offer opinions regarding the standard of care applicable to the October 26, 2015 surgery at the heart of this litigation, as well as whether defendants’ conduct fell below the standard of care. The specific medical procedure in question consisted of the following: (1) bilateral breast implant exchange, with mastopexy ; (2) liposuction ; and (3) abdominoplasty. As a result of my education, training and experience, I am well-versed in the standard of care applicable to healthcare providers performing surgical procedures such as these.
6. The standard of care in this case required defendants to exercise the same degree of skill, care and learning expected of other reasonably prudent healthcare providers attempting the surgical procedure described in the preceding paragraph. This standard is not unique to the State of Washington and applies on a nationwide basis.

CP at 106-07.

In his declaration, Dr. John Shamoun averred that Dr. Kai Morimoto repeatedly violated the standard of care. Dr. Shamoun opined that Kai Morimoto should not have performed the extensive surgery of breast augmentation with mastopexy, liposuction, and abdominoplasty on an out-patient basis knowing that the patient lived three hundred miles away in Montana and would be traveling home after the procedure. Shamoun criticized the health care providers for discharging Kathie Boyer from the surgical facility at 10 p.m., after her undergoing extensive general anesthesia and a nine-hour surgery, without follow-up care scheduled until eighteen days later. Given the extent of the surgeries and in light of Boyer remaining under the effects of general anesthesia and narcotic pain medication, Boyer should have remained at the surgical center under the care of Morimoto and PSNW throughout the night of October 26-27. Alternatively,...

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5 cases
  • Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
    • United States
    • Washington Court of Appeals
    • 3 Marzo 2022 In this latter situation, the moving party need not support its summary judgment motion with affidavits." Boyer v. Morimoto , 10 Wash. App. 2d 506, 519, 449 P.3d 285 (2019) (citations omitted). Here, the PUD has established both: no genuine issue of material fact exists as to Parcel 1......
  • Maslonka v. Pub. Util. Dist. No. 1 of Pend Oreille Cnty.
    • United States
    • Washington Court of Appeals
    • 2 Agosto 2022 In this latter situation, the moving party need not support its summary judgment motion with affidavits." Boyer v. Morimoto , 10 Wash. App. 2d 506, 519, 449 P.3d 285 (2019) (citations omitted). Here, the PUD has established both: no genuine issue of material fact exists as to Parcel 1......
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    • 6 Diciembre 2022 a jury trial when they have evidence to present. Id. at 369, 402 P.3d 266. ¶30 Relying on our decision in Boyer v. Morimoto , 10 Wash. App. 2d 506, 449 P.3d 285 (2019), Whitewater argues that a trial court is not required to apply Burnet unless the party submitting the untimely declarati......
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