David Maytash v. Daniel J. Garnett, M.d.
75434-3
| Wash. Ct. App. | Oct 30, 2017Background
- Decedent David Maytash underwent laparoscopic cholecystectomy on Dec. 12, 2012; surgeon Dr. Daniel Garnett (The Polyclinic) unintentionally perforated the small intestine during the procedure and again during a second exploratory surgery nine days later; both perforations were ultimately repaired after conversion to open surgery.
- Maytash experienced post‑op nausea, vomiting, tachycardia, leukocytosis, and a markedly dilated, fluid‑filled stomach; Swedish Medical Center treated him but did not timely diagnose the cause prior to the second operation.
- Maytash sued Dr. Garnett, The Polyclinic, and Swedish for medical negligence, lack of informed consent, fiduciary breach, and corporate negligence (filed Dec. 1, 2015).
- Defendants moved for summary judgment arguing plaintiff lacked admissible expert proof of breach of the standard of care and proximate causation; plaintiff produced declarations from Dr. Glenn Deyo (WA surgeon) and Dr. Candi McCulloch (CT internal medicine), the latter filed late and later struck for lack of foundation.
- Trial court granted summary judgment for Swedish and later for Garnett and The Polyclinic (striking McCulloch and finding Deyo’s declaration insufficient to establish breach or causation); motions for reconsideration were denied. Appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. McCulloch's declaration (expert qualification/foundation) | McCulloch (CT internist) was qualified to testify about Washington/national standard of care and her declaration should defeat summary judgment | Expert lacked requisite familiarity/experience with cholecystectomy technique to establish standard of care for this surgical specialty; declaration lacked foundation | Court affirmed striking McCulloch: not shown to have requisite foundation/experience for cholecystectomy standard of care |
| Informed consent adequacy | Consent form and Krames booklet failed to disclose bowel perforation risk; prior claims against Garnett should have been disclosed | Statutory informed‑consent duty concerns treatment‑related facts, not physician’s personal malpractice history; booklet warned of "injury to nearby organs" (incl. bowel) | Court held plaintiff’s experts did not show inadequate informed consent under Washington law; personal malpractice history disclosure not required |
| Summary judgment for Garnett and The Polyclinic (breach & causation) | Deyo’s declaration explains complication and surgery facts and supports inference of negligence | Deyo did not opine that Garnett’s technique breached the standard of care nor identify Polyclinic’s breach; expert testimony insufficient to create material fact | Affirmed: without admissible expert showing breach/proximate cause, malpractice claim fails as a matter of law |
| Summary judgment for Swedish (corporate negligence/independent hospital duty) | Swedish breached its independent corporate duty by failing to timely diagnose and treat post‑op infection/complication | Plaintiff produced no expert evidence on hospital standard of care or how Swedish breached it | Affirmed: corporate negligence claim fails for lack of expert proof of applicable standard/breach; summary judgment proper; reconsideration denial was appropriate |
Key Cases Cited
- Keck v. Collins, 184 Wn.2d 358 (court reviews summary judgment de novo; burden on expert proof in medical malpractice)
- Berger v. Sonneland, 144 Wn.2d 91 (expert testimony required for medical facts not observable by laypersons)
- Harris v. Groth, 99 Wn.2d 438 (expert testimony generally necessary to establish standard of care and proximate cause)
- McKee v. Am. Home Prods., Corp., 113 Wn.2d 701 (expert qualification principles)
- Elber v. Larson, 142 Wn. App. 243 (de novo review where expert qualifications intertwined with summary judgment; out‑of‑state expert may testify if familiar with national/Washington standard)
- Burnet v. Spokane Ambulance, 131 Wn.2d 484 (factors for excluding untimely disclosed testimony)
- Pon Kwock Eng v. Klein, 127 Wn. App. 171 (non‑specialist expert admissibility when expert has uncontested knowledge of the issue)
- Whiteside v. Lukson, 89 Wn. App. 109 (physician need not disclose personal malpractice history for informed consent)
- Pedroza v. Bryant, 101 Wn.2d 226 (hospital duty principles)
- Osborn v. Public Hospital Dist. 1, 80 Wn.2d 201 (hospital may owe independent duty)
- Ripley v. Lanzer, 152 Wn. App. 296 (hospital standard is that of an average competent facility)
- Adams v. Richland Clinic, Inc., 37 Wn. App. 650 (an expert merely advocating a different treatment does not establish standard of care)