Christian v. Tohmeh

Decision Date15 December 2015
Docket NumberNo. 32578–4–III.,32578–4–III.
Citation191 Wash.App. 709,366 P.3d 16
Parties Diane CHRISTIAN and Casey Christian, wife and husband, 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 Specialty Clinic of Spokane, PLLC, a Washington business entity and health care provider; and Does 1–5, Respondents.
CourtWashington Court of Appeals

Michael Jon Riccelli, Attorney at Law, Bruce E. Cox, Law Office of Michael J. Riccelli, P.S., Spokane, WA, for Appellants.

Carole Lynne Rolando, Attorney at Law, Spokane, WA, for Defendants.

James B. King, Christopher Joseph Kerley, Markus William Louvier, Evans Craven & Lackie P.S., Spokane, WA, for Respondents.


¶ 1 We face again the question of whether a patient presented essential expert testimony to defeat her physician's summary judgment motion in a case in which the patient claims a lost chance of a better outcome because of an alleged breach in the standard of care by the physician. The patient in our appeal also pleads the tort of outrage, a cause of action unusual in the patient-physician setting. The trial court granted the physician summary judgment and dismissed both causes of action. The major question on appeal is whether the patient, in response to a summary judgment motion, must provide expert testimony particularizing or describing the nature of the better outcome in addition to offering a percentage for the chance of the improved outcome. We answer the question negatively. Thus, we reverse the judgment in favor of the physician on the medical malpractice claim. We affirm the judgment dismissing the claim of intentional infliction of emotional distress.


¶ 2 Plaintiffs are Diane and Casey Christian, wife and husband. For ease in reading, we refer to the plaintiffs only as Diane Christian, the patient of defendants Dr. Antoine Tohmeh and Orthopaedic Specialty Clinic of Spokane, PLLC (Clinic). Tohmeh was a physician employed by the Clinic. We refer to the defendants collectively as Dr. Tohmeh.

¶ 3 Dr. Antoine Tohmeh performed laminectomies

on Diane Christian's lower back on December 5, 2005. According to Christian, Dr. Tohmeh must have caused damage to her cauda equina, a bundle of nerves in the low back, during the surgery. She does not argue that Tohmeh breached the standard of care when initiating damage to the cauda equina. She instead contends that her postoperative symptoms should have alerted Tohmeh to the possibility of damage and led Tohmeh to perform another surgery to explore if the cauda equina suffered damage. In turn, Christian maintains that postoperative surgery would have increased her chances for a healthier recovery by forty percent. Although neither party discusses the nature or ramifications of postoperative surgery, presumably the surgery might have allowed Dr. Tohmeh to discover and repair any damage to the cauda equina

. Diane Christian sues for a loss of a better chance of recovery from surgery.

¶ 4 The principal question on appeal is whether Diane Christian presented expert testimony sufficient to overcome Dr. Antoine Tohmeh's summary judgment motion. Although we present the facts and the testimony that picture Christian's case in the best light, we also detail some of the opinion testimony favorable to Dr. Tohmeh.

¶ 5 Plaintiff Diane Christian experienced chronic low back pain and weakness in her legs. On April 14, 2005, defendant Dr. Antoine Tohmeh evaluated Christian to address her continuing symptoms. Christian's general physician, Dr. Richard Parker, requested the evaluation.

¶ 6 During the April 14 appointment, Diane Christian complained about pain in both legs, with the pain focused in the front thighs. The thighs also suffered numbness. Christian could not walk two blocks without assistance. Christian then encountered no bowel or bladder disturbance. We mention the lack of bowel and bladder problems because Christian underlines her suffering from bowel and bladder difficulties, after the surgery performed by Dr. Antoine Tohmeh, as evidence of cauda equina

that should have led to a second surgery to repair damage to the cauda equina.

¶ 7 After he reviewed Diane Christian's MRI (magnetic resonance imaging

) and an X ray of her lower back, Dr. Antoine Tohmeh diagnosed Christian with two bulging discs and severe and abnormal narrowing of the spinal canal at multiple levels in the thoracic and lumbar regions of the spine. Medicine labels abnormal narrowing of the spinal canal as stenosis. On April 14, Tohmeh spoke at length with Christian and her husband about her options for achieving pain relief. Christian understandably wished minimally invasive surgery. Dr. Tohmeh explained, however, that given the abnormalities at multiple levels of her spine, an open, invasive surgery would be more expedient and efficient. At the conclusion of the April 14 consultation, the physician and patient decided to forgo immediate surgery and instead pursue a course of epidural spinal injections

and physical therapy.

¶ 8 Between April and October 2005, Diane Christian underwent three epidural injections

, which provided excellent, but temporary, pain relief. On October 18, 2005, Dr. Antoine Tohmeh evaluated Christian again. Christian reported continuing pain in both legs from the anterior thigh down to her knees, but not in her abdomen or groin. She recounted three recent falls. Christian did not report any bowel or bladder trouble. Christian, her husband, and Tohmeh again discussed her options. Dr. Tohmeh again recommended invasive surgery to resolve the symptoms at many levels of the spine. Christian consented to laminectomies.

¶ 9 On December 5, 2005, Dr. Antoine Tohmeh performed on Diane Christian partial L–2, complete L–3, complete L–4, and complete L–5 laminectomies

. "L" stands for the lumbar spine, and the number attached to the "L" refers to the level of the lumbar spine with the lower number corresponding to a higher level. A laminectomy removes or trims the lamina of the vertebra to widen the spinal canal and create more space for the spinal nerves. Tohmeh also performed bilateral partial facetectomies and foraminotomies of the L–2, L–3, and L–4 nerve roots. The latter two procedures release pressure on the spinal nerves. During the surgery, Dr. Tohmeh accidentally punctured Christian's dura, a thick membrane surrounding the spinal cord. The puncture resulted in leaking of spinal fluid. Tohmeh sutured the needle-sized puncture wound completely to render the area "watertight." Clerk's Papers (CP) at 471. Christian does not contend that the puncture caused cauda equina syndrome. Christian tolerated the surgery well.

¶ 10 While recovering from surgery, Diane Christian experienced symptoms from which she did not earlier suffer. Christian reported 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. She rated the pain in her buttocks as a seven out of a possible ten. Christian also reported muscle spasms that impeded her ability to perform physical therapy. Hospital staff placed a Foley catheter into Christian's bladder to monitor urinary function.

¶ 11 On December 8, 2005, hospital staff removed the Foley catheter. Diane Christian then attempted to void her bladder on her own, but could not do so completely. Bladder scans revealed that Christian retained between 400 and 500 ml of urine and could only void between 100–200 ml at a time. On December 9, hospital staff reinserted a catheter in Christian, and the tube finally enabled her to completely void her bladder. Dr. Antoine Tohmeh discharged Christian, with the catheter inserted, the same day. Tohmeh then instructed Christian to return to the hospital for removal of the catheter once she could void normally at home. Tohmeh prescribed in-home nursing care to monitor Christian's urinary output.

¶ 12 On December 13, 2005, Dr. Antoine Tohmeh referred Diane Christian to Dr. Michael G. Oefelein, an urologist in Spokane. Dr. Oefelein diagnosed Christian with urinary retention, constipation, and grade I cystocele

. A cystocele is the weakening of the supportive tissues between the bladder and vagina. Dr. Oefelein recommended Christian take Flomax and conduct a voiding trial. On December 14, Oefelein saw Christian again and performed an ultrasound. The ultrasound revealed that Christian retained 220 cc of urine in her bladder after attempting to void. Oefelein instructed Christian to continue taking Flomax and to return to him in four weeks, or sooner if she was unable to void.

¶ 13 On January 3, 2006, Diane Christian underwent a postoperative examination by Dr. Antoine Tohmeh. By January 3, the December 5 surgery had rid Christian of thigh weakness and pain. Christian, nonetheless, suffered from a multitude of other symptoms, such as constipation, inability to fully void her bladder, and numbness in her left buttock, rectum, vagina, left leg, and right foot. Christian told Tohmeh that she stopped taking the Flomax

prescribed by Dr. Oefelein, after which she encountered increased difficulty voiding her bladder. Dr. Tohmeh noted on his January 3 chart notes:

Diane is recovering from her lumbar laminectomy

. She has a multitude of symptoms. This could be related to chronic deconditioning and previous lack of activity as she was limited by her thigh pain and weakness and therefore would not walk enough to have foot symptoms. She recently went to Costco and walked around for about 20 minutes; she had to sit down because of foot pain. Prior to surgery she would use a shopping cart and lean over it when at the store. Overall, she has made some progress but needs water therapy for reconditioning. I also gave her a prescription for Cymbalta to hopefully improve her dysesthetic symptoms in the left buttock and left...

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