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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MEGAN M. HOWARD and CHRISTOPHER

S. HOWARD, individually and on behalf of

their marital community,

 Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

 Defendant.

Case No. 05-5768 RJB

ORDER DENYING MOTION FOR

PARTIAL SUMMARY JUDGMENT

This matter comes before the Court on the plaintiffs’ Motion for Partial Summary Judgment

(Dkt. 32-1). The Court has considered the pleadings filed in support of and in opposition to the

motion and the file herein.

I. FACTUAL BACKGROUND

Plaintiff Megan Howard underwent a surgical procedure for gastroesophageal reflux disease at

the Bremerton Naval Hospital on July 16, 2004. Dkt. 32-2, Exh. 1 at 1. Ms. Howard was otherwise

healthy and a nonsmoker. Dkt. 32-2, Exh. 4 at 35, Exh. 1 at 1. 

On July 21, 2004, Ms. Howard presented at the Bremerton Naval Hospital General Surgical

Clinic for a followup examination and reported pain in her arm. Dkt. 32-2, Exh. 1 at 1. She was

instructed to apply warm compresses to her arm, increase physical activity, and slowly advance her

diet. Dkt. 32-2, Exh. 1 at 1.

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On the way home from the clinic, Ms. Howard collapsed and was transported to the

Bremerton Naval Hospital Emergency Department by aid unit. Ms. Howard underwent several tests in

the emergency room, including a D-dimer blood test to rule out a pulmonary embolism. Dkt. 32-2,

Exh. 1 at 1. The result of Ms. Howard’s first D-dimer test, at 5:23 p.m., was erroneously reported as

less than .22, a level considered normal. Id. 

Ms. Howard was taken to the operating room for an exploratory laparotomy, which is a

surgical incision in the abdomen, to determine whether she was bleeding internally. See id. Dr. Paul

Bown performed the procedure. See Dkt. 40-2. The laparotomy revealed no internal bleeding. Dkt.

32-2, Exh. 1 at 1. Ms. Howard was given Heparin, treatment for a pulmonary embolism,

intravenously. Id.; Dkt. 40-2 at 7. 

Ms. Howard was transported to the intensive care unit. Dkt. 32-2, Exh. 1 at 1. She became

unstable and did not have a pulse. Id. She was then resuscitated. Id. Another D-dimer test was

performed at 8:55 p.m., and Ms. Howard’s D-dimer was reported at 20.0. Id.

Ms. Howard was released from the Bremerton Naval Hospital on July 30, 2004. Id. The

discharge diagnoses were listed as massive pulmonary embolism and exploratory laparotomy. Id. at 2.

II. PROCEDURAL BACKGROUND

On November 28, 2005, Ms. Howard and her husband filed suit in federal court asserting that

the care she received at the Bremerton Naval Hospital was negligent under the theory of res ipsa

loquitur. Dkt. 1. The plaintiffs now move for judgment as a matter of law on the issues of duty,

breach, and proximate cause. Dkt. 32-1 at 1.

III. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a

sufficient showing on an essential element of a claim in the case on which the nonmoving party has the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact

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for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non

moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(nonmoving party must present specific, significant probative evidence, not simply “some metaphysical

doubt.”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if

there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve

the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W.

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must

consider the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a

preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc.,

809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving

party only when the facts specifically attested by that party contradict facts specifically attested by the

moving party. The nonmoving party may not merely state that it will discredit the moving party’s

evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec.

Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in

affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497

U.S. 871, 888-89 (1990).

B. MEDICAL MALPRACTICE

In Washington, malpractice suits are governed by the statutory framework in RCW 7.70 et

seq. Miller v. Jacoby, 145 Wn.2d 65, 72 (2001). If the plaintiff alleges that the health care provider

failed to adhere to the accepted standard of care, the plaintiff must demonstrate the following:

(1) The health care provider failed to exercise that degree of care, skill, and learning expected

of a reasonably prudent health care provider at that time in the profession or class to which he

belongs, in the state of Washington, acting in the same or similar circumstances;

(2) Such failure was a proximate cause of the injury complained of. 

RCW 7.70.040. 

1. Res Ipsa Loquitur

The plaintiffs move for partial summary judgment on the issues of duty, breach, and proximate

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cause, contending that the application of res ipsa loquitur establishes that they are entitled to

judgment as a matter of law. Dkt. 32-1 at 1. The defendant contends that res ipsa loquitur does not

apply to the plaintiffs’ cause of action because the issue of causation is too complex in this medical

malpractice action, because the alleged negligence is not of the sort traditionally subject to a res ipsa

loquitur analysis, because res ipsa loquitur cannot be employed to create an inference of emotional

damage occurring over a year after the alleged negligence, and because the surgery would have been

performed even if the D-dimer test were accurate. Dkt. 40-1 at 4-5.

In a negligence action, the plaintiff bears the burden of producing evidence that the defendant

breached its duty of care to the plaintiff and that such breach was the proximate cause of the plaintiff’s

injury. See Miller, 145 Wn.2d at 74 (2001). If there is an excusable lack of evidence with which to

establish negligence, the doctrine of res ipsa loquitur allows a plaintiff to establish a prima facie case

of negligence through circumstantial evidence. Marshall v. Western Air Lines, Inc., 62 Wn. App.

251,259 (1991); Morner v. Union Pac. R. Co., 31 Wn.2d 282, 291 (1948). Res ipsa loquitur literally

means “the thing speaks for itself.” Morner, 31 Wn.2d at 290. It is merely a rule of evidence allowing

the finder of fact to infer negligence from the proof of an injury and the attendant circumstances. Id.

Negligence cannot be inferred from the mere fact that an injury occurred, however. Tinder v.

Nordstrom, Inc., 84 Wn. App. 787, 792-93 (1997).

Whether res ipsa loquitur applies is a question of law. Id. at 791. In resolving this question,

the court’s inquiry is whether there is a reasonable inference of negligence. Id. at 792. Because it

allows the plaintiff to avoid establishing an otherwise complete prima facie case, courts apply the

doctrine “sparingly” and only to “peculiar and exceptional cases . . . where the facts and the demands

of justice make its application essential.” Morner, 31 Wn.2d at 293. 

If the court determines that res ipsa loquitur applies, the defendant has a duty to come

forward with exculpatory evidence to overcome the inference of negligence. Murphy v. Montgomery

Elevator Co., 65 Wn.App. 112, 114 (1992). If a defendant provides “evidence that is completely

explanatory of how an accident occurred and no other inference is possible that the injury occurred

another way,” res ipsa loquitur is inapplicable. Pacheco v. Ames, 149 Wn.2d 431, 440 (2003)

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(emphasis in original). Otherwise, the doctrine may apply even though the defendant offers weighty,

competent evidence of an alternative explanation. Id. 

Res ipsa loquitur is of questionable assistance to plaintiffs moving for summary judgment.

Where the doctrine applies, the finder of fact is permitted, but not required, to infer that the defendant

was negligent. Brauner v. Peterson, 16 Wn. App. 531, 533 (1976). Therefore, the application of the

doctrine does not warrant summary judgment in favor of plaintiffs unless the facts are undisputed.

Rathvon v. Columbia Pac. Airlines, 30 Wn. App. 193, 205 (1981). At the summary judgment stage,

the inference is given effect only until the opposing party presents contradictory evidence. Id. 

If the following three criteria are satisfied, res ipsa applies: 

(1) [T]he occurrence producing the injury must be of a kind which ordinarily does not occur in

the absence of negligence; 

(2) the injury is caused by an agency or instrumentality within the exclusive control of the

defendant; and 

(3) the injury-causing occurrence must not be due to any contribution on the part of the

plaintiff.

Miller, 145 Wn.2d at 74. Courts recognize three situations in which the first element may be satisfied: 

(1) When the act causing the injury is so palpably negligent that it may be inferred as a matter

of law, I.e., leaving foreign objects, sponges, scissors, etc., in the body, or amputation of a

wrong member; 

(2) when the general experience and observation of mankind teaches that the result would not

be expected without negligence; and 

(3) when proof by experts in an esoteric field creates an inference that negligence caused the 

injuries.

Zukowsky v. Brown, 79 Wn.2d 586, 595 (1971). 

The plaintiffs contend that the act causing Ms. Howard’s injuries (the misreporting of her Ddimer test results) is palpably negligent and that general experience and observation suggests that her

injuries would not be expected without negligence. Dkt. 32-1 at 5-6. The plaintiffs offer expert

testimony that the exploratory laparotomy would not have been performed if the D-dimer results had

been accurately reported. Dkt. 33 at 3. The defendants have not had an opportunity to depose this

proffered expert or review his expert report. Dkt. 40-1 at 4 n.3. Ms. Howard’s discharge notes

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suggest that the decision to operate was based upon the D-dimer results. Dkt. 32-2, Exh. 1 at 1

(“Given the lack of symptoms for a pulmonary embolism, the team opted to work this diagnosis up

following the exploratory laparotomy.”). 

The defendant disputes whether the inaccurate reporting of Ms. Howard’s D-dimer test result

is the cause of Ms. Howard’s injuries. The defendant asserts that there is no evidence of injury to Ms.

Howard attributable to the delayed treatment of her pulmonary embolism and that the exploratory

surgery would have been performed even if the D-dimer report had been accurate. Dkt. 40-2, Exh. A

at 5-7. In his deposition, Dr. Bown testified that he would have performed the laparotomy to check

for internal bleeding even if he had known that Ms. Howard’s D-dimer was 20 because a D-dimer is

not a completely accurate test and because the treatment for pulmonary embolism would have

worsened Ms. Howard’s internal bleeding. Dkt. 40-2 at 7. There is a dispute as to whether performing

an exploratory laparotomy is ordinarily contingent upon a patient’s D-dimer test results, and the Court

should therefore hold that the plaintiffs are not entitled to summary judgment under the doctrine of res

ipsa loquitur. 

2. Negligence

In the alternative, the plaintiffs move for summary judgment on the grounds that the

negligence elements of duty, breach, and proximate cause are satisfied under traditional negligence

principles. The defendant contends that summary judgment is inappropriate because there is a genuine

issue of material fact as to whether the alleged negligence is the cause of the plaintiffs’ injuries. Dkt.

40-1 at 5.

First , the plaintiffs offer expert testimony to establish the applicable duty of care. Dkt. 32-1 at

7 (“laboratory results should be correctly reported in order to meet this standard”). Dkt. 33 at 3. The

defendants have not had an opportunity to depose this proffered expert or review his expert report.

Dkt. 40-1 at 4 n.3. Therefore, this evidence does not warrant judgment as a matter of law establishing

the duty owed in this case, and the motion should be denied in this respect. 

Because the defendant admits that the D-dimer was initially misreported, Dkt. 32-2, Exh. 3 at

18, the plaintiffs contend that the issue of whether this duty was breached is uncontested and admitted.

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Dkt. 32-1 at 8, Dkt. 49 at 2. Because the duty of care owed to the plaintiffs is not yet established, the

Court cannot make a definitive ruling on whether that duty was breached.

Finally, the plaintiffs maintain that causation is satisfied because the exploratory surgery would

not have occurred if the D-dimer test had been accurately reported. Dkt. 32-1 at 8. As noted above,

there is a factual dispute regarding causation. In addition, proximate cause is dependent upon evidence

of the applicable duty of care and breach thereof, issues that are unresolved at this stage in the

proceedings. The Court should therefore deny the motion.

III. ORDER

Therefore, it is hereby

ORDERED that the plaintiffs’ Motion for Partial Summary Judgment (Dkt. 32-1) is

DENIED.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 11th day of October, 2006.

ARobert J. Bryan

United States District Judge

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