IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

DIANE CHRISTIAN and CASEY 

CHRISTIAN,

Respondents,

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 SPECIALITY CLINIC 

OF SPOKANE PLLC, a Washington 

business entity and health care provider; 

DOES 1-5,

Petitioners.

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No. 37027-5-III

UNPUBLISHED OPINION

FEARING, J. — This appeal raises the unique question of whether the claimant, 

after this court reverses dismissal of her lost chance theory in a medical malpractice 

action and remands to the trial court, may expand her action to a traditional causation 

theory because she finds a new expert that opines that the purported negligence of the 

FILED

MARCH 2, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

2

physician caused injury on a more probable than not basis. We answer in the affirmative 

and thereby affirm the superior court. 

FACTS

This court previously reviewed this suit in Christian v. Tohmeh, 191 Wn. App. 

709, 366 P.3d 16 (2015) (hereafter Christian I). We abbreviate those facts. 

Diane and Casey Christian, wife and husband, brought suit against defendants Dr. 

Antoine Tohmeh and the Orthopedic Specialty Clinic of Spokane, PLLC (Clinic). Diane 

Christian was Dr. Tohmeh’s patient. We refer to the plaintiffs solely as Diane Christian. 

Tohmeh was a physician employed by the Clinic. We refer to the defendants collectively 

as Dr. Tohmeh. 

On December 5, 2005, Diane Christian underwent an open and invasive spinal 

procedure performed by Dr. Antoine Tohmeh, which procedure aimed at relieving

chronic low back pain and weakness in her legs. After the surgery, Christian reported 

symptoms not experienced before. These symptoms included 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. Christian also reported muscle spasms that impeded her 

ability to perform physical therapy. On December 9, the hospital discharged Christian,

and she was scheduled to see Dr. Antoine Tohmeh in four weeks. In the discharge note, 

Dr. Tohmeh recommended in-home nursing care to monitor Christian’s urinary function. 
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On January 3, 2006, during a postoperative examination, Dr. Antoine Tohmeh 

concluded that Diane Christian’s presurgery symptoms of thigh weakness and pain had

resolved. Christian, however, reported to Dr. Antoine Tohmeh that she continued to 

suffer from an inability to void her bladder and from numbness in her left buttock, 

rectum, vagina, left leg, and right foot. Dr. Tohmeh prescribed her Cymbalta to assist 

with symptoms experienced in her left buttock and left leg. 

On January 4, 2006, Diane Christian visited Dr. Michael Oefelein, an urologist 

recommended by Dr. Antoine Tohmeh. Oefelein concluded that Christian still 

experienced perineal numbness. Christian told Oefelein that she experienced frequent 

urination. Oefelein conducted an ultrasound which showed that Christian retained only 

36 cc of urine after voiding, he concluded that her urinary retention was resolved. Dr. 

Oefelein instructed Christian to decrease her fluids and to return if she again had 

problems voiding her bladder. 

During a February 7, 2006 appointment with Dr. Antoine Tohmeh, Diane 

Christian reported continued numbness of her left buttock, rectum, and vagina in addition 

to severe constipation. Tohmeh made referrals for a bowel workup and nerve conduction 

study on Christian’s left leg. He also noted that that her symptoms could relate to 

inactivity, pain medications, and anesthesia. 

A February 27, 2006 nerve study by Larry Lamb, M.D. detected no abnormality 

that would cause Diane Christian’s complained of symptoms. The study did not 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

4

encompass the area of the cauda equina located at the bottom of the spine. 

On March 16, 2006, Diane Christian returned to Dr. Antoine Tohmeh. Christian 

expressed her regret in having undergone the invasive surgery as her current symptoms 

resulted in more pain than her presurgery symptoms. At the appointment, Christian told 

Tohmeh that she believed she had cauda equina syndrome. The cauda equina, Latin for 

“horse’s tail,” is a bundle of spinal nerves and nerve roots in the lower back. The nerves 

of the cauda equina stimulate the pelvic organs, perineum, bladder, sphincter muscles, 

hips, and legs. Cauda equina syndrome constitutes a serious neurologic condition in 

which damage to the cauda equine causes loss of function of nerve roots in the lower 

spinal canal. Cauda equina syndrome results in severe back pain, numbness in the 

perineum, vagina, and anus, bladder and bowel dysfunction, sexual dysfunction, pain 

radiating into the legs, and gait disturbance. Dr. Tohmeh disagreed with the selfdiagnosis. 

In April 2006, Diane Christian saw physiatrist Vivian Moise for a second opinion. 

Dr. Moise agreed that Christian’s symptoms were consistent with cauda equina

syndrome. Further testing, according to Dr. Moise, confirmed the diagnosis. 

PROCEDURE

On December 4, 2009, Diane Christian filed suit against Dr. Antoine Tohmeh for 

medical malpractice. Christian alleged in her complaint that Tohmeh knew or should 

have known of the significance of her postsurgical neurological symptoms and that he
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

5

violated the applicable standard of care by failing to provide immediate and emergency 

medical intervention to address her postsurgical symptoms. Christian also alleged that 

Dr. Tohmeh negligently or intentionally failed to order medical testing that would have 

more definitively diagnosed or ruled out cauda equina syndrome. The complaint did not 

identify whether Christian sought recovery under a traditional causation theory or a loss 

of a better outcome theory. 

On February 16, 2011, Diane Christian filed a witness list disclosing that she had 

retained orthopedic surgeon Stanley Bigos as an expert witness. Dr. Bigos provided 

deposition testimony on June 24, 2013. In Bigos’s deposition, he opined that Dr. Antoine 

Tohmeh’s actions did not meet the appropriate standard of care. He further opined that 

Dr. Tohmeh lessened Christian’s chances of a better outcome by 40 percent. Dr. Bigos 

could not give a higher reduction in the chance of a better outcome. He indicated that, 

because of the dearth of data on the subject of cauda equine, he could not provide a 

definitive opinion or an opinion on a more probable than not basis. 

In February 2014, Dr. Antoine Tohmeh moved for summary judgment. In his 

memorandum, he argued that “any and all claims” should be dismissed as Diane 

Christian lacked evidence that surgical intervention for the alleged cauda equina 

syndrome would have “prevented” or “resulted in any improvement” of the alleged 

neurologic deficits. Clerk’s Papers (CP) at 431. In a memorandum of authorities in 

support of his motion, Dr. Tohmeh argued that Diane Christian failed to present sufficient 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

6

expert testimony to establish a causal link between Dr. Tohmeh’s conduct and her 

injuries. He suggested that a causal link must be established on a more probable than not

basis. In a reply memorandum, Dr. Tohmeh asserted that Christian lacked evidence on a 

more probable than not basis of a causal link between the alleged deviation from the 

standard of care and her injuries. He then separately addressed a loss of chance claim 

and argued that Dr. Stanley Bigos admitted the claim was based on speculation. 

Diane Christian asked the trial court to deny the motion for summary judgment. 

She presented argument specific to a lost chance claim and emphasized that expert 

testimony established that Dr. Antoine Tohmeh breached the appropriate standard of care 

and caused a loss of chance or loss of a better outcome. In May 2014, the trial court 

granted summary judgment “in total” for Christian’s failure to meet her burden as to the 

standard of care or proximate cause. CP at 684. 

Diane Christian appealed to this court. On appeal, Christian categorized her 

theory of recovery as a loss of chance claim. She framed the issue as:

Whether competent medical testimony that states Dr. Tohmeh 

breached the standard of care in treatment of Ms Christian, which caused 

her at least a 40% loss of chance of a better outcome, is sufficient (if not 

necessary) to create issues of fact for a loss of chance claim to survive 

summary judgment.

Am. Br. of Appellant at 3, Christian v. Tohmeh, No. 32578-4-III (Wash. Ct. App. 2015).

She did not argue recovery based on traditional causation. 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

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In its 2015 ruling, this appeals court characterized the claim before it as a “lost 

chance of a better outcome” claim resulting from an alleged breach of the standard of 

care by Dr. Antoine Tohmeh. Christian v. Tohmeh, 191 Wn. App. at 711, 720, 729. This 

court determined that genuine issues of material fact existed which precluded summary 

judgment dismissal. This court reversed dismissal of “the Christians’ cause of action for 

medical malpractice.” Christian v. Tohmeh, 191 Wn. App. at 742. 

Following remand and in December 2016, Diane Christian gave notice that she 

intended to to call neurosurgeon W. Bradford DeLong to testify as an expert. CP 809-10. 

During a deposition in August 2017, Dr. DeLong opined that, if Dr. Antoine Tohmeh had 

intervened by surgery when Christian complained of numbness in her vaginal area, 

Christian would not be suffering permanent residual symptoms. DeLong placed 

Christian’s loss of chance at 90 percent. In other words, DeLong testified that Dr. 

Tohmeh’s breach of the standard of care likely prevented Christian’s full recovery. 

In July 2019, Dr. Antoine Tohmeh brought a motion to dismiss and/or motion in 

limine arguing that this appeals court’s decision foreclosed any argument under a 

traditional theory of proximate causation. Stated differently, Dr. Tohmeh contended that 

Diane Christian could not present testimony or recover damages based on an opinion that 

the violation of the standard of care likely prevented her recovery. Tohmeh emphasized 

that, in response to his 2014 summary judgment motion, Christian did not present 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

8

evidence to support a traditional causation theory and Christian appealed only the lost 

chance claim. 

Diane Christian responded that only one medical practice cause of action existed

and neither the superior court, nor this court, had barred reliance on a traditional 

causation theory. She suggested that Dr. Antoine Tohmeh caused lengthy litigation 

delays by its motion practices and that she should be able to benefit from an expanded 

opinion of causation based in part on new data on causa equina. 

The superior court denied Dr. Antoine Tohmeh’s motion to exclude evidence that 

any breach likely caused Diane Christian injury. Tohmeh petitioned for discretionary 

review, and this court granted discretionary review. 

LAW AND ANALYSIS

On review, Dr. Antoine Tohmeh contends the trial court erred in failing to limit 

Diane Christian to a causation theory of reduced chance of a better outcome. In other 

words, Tohmeh argues that Christian should be precluded at trial from presenting 

evidence that any violation of the standard of care by him caused Christian injury on a 

more probable than not basis. Dr. Tohmeh asserts that, because of this court’s decision in 

2015, Christian is limited, by the law of the case doctrine, to a reduced chance causation 

theory and judicial estoppel precludes Christian’s change in theory to a traditional 

causation theory. According to Tohmeh, Christian abandoned a claim based on 

traditional causation theory when she did not rely on traditional causation in response to 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

9

Tohmeh’s 2014 summary judgment motion and when this court reviewed the case in 

2015. We discuss the difference between a reduced chance of a better outcome theory 

and a traditional causation theory before we separately address the law of the case 

doctrine and judicial estoppel. 

Lost Chance of a Better Outcome

The law distinguishes between a medical malpractice action wherein the claimant 

relies on the traditional causation theory and one wherein the plaintiff depends on a lost 

chance. Traditional tort principles require a plaintiff to prove that negligence likely led to 

a worse than expected outcome. Rash v. Providence Health & Services, 183 Wn. App. 

612, 631, 334 P.3d 1154 (2014). Under traditional tort principles, the plaintiff must 

prove a loss of chance greater than 50 percent. In re Estate of Dormaier ex rel. Dormaier 

v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 846, 313 P.3d 431 (2013). 

Consistent with traditional tort principles, the lost chance doctrine requires the 

plaintiff to prove the defendant breached a duty owed to the patient, but the claimant need 

not prove that he or she likely sustained injury by reason of the breach. Contrary to 

traditional principles, the claimant prevails by showing the negligence proximately 

caused the patient to lose a chance of survival or a better outcome. In re Estate of 

Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. at 845.

In a claim for loss chance of a better outcome, the patient would have likely suffered a 

bad result even without a medical provider’s negligence, however, the provider’s 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

10

negligence likely worsened the outcome. Rash v. Providence Health & Services, 183 

Wn. App. at 631. In such a case, the plaintiff shows that the chance of a better outcome 

was reduced by 50 percent or less. Rash v. Providence Health & Services, 183 Wn. App. 

at 631; In re Estate of Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 

177 Wn. App. at 846. 

A lost chance claim is not a distinct cause of action but an analysis within, a 

theory contained by, or a form of a medical malpractice cause of action. Christian v. 

Tohmeh, 191 Wn. App. 709, 729 (2015). Thus, in In re Estate of Dormaier ex rel. 

Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 856 (2013), this 

court held that, at least in a wrongful death claim, the plaintiff need not expressly plead 

reliance on a lost chance theory of causation. We also held that the claimant may rely on 

both a traditional causation theory and a lost chance theory in the same suit. The lack of 

a need to plead the theory and the ability to assert both causation theories in the same 

lawsuit bolsters our conclusion that the law of the case doctrine and judicial estoppel do 

not preclude Diane Christian from changing her theory in midstream and on remand. 

Law of the Case

When asserting the law of the case doctrine, Dr. Antoine Tohmeh forwards two 

principal arguments. First, he contends that Diane Christian needed to present any 

evidence she had, in response to Tohmeh’s 2014 summary judgment motion, that 

Tohmeh caused her injuries on a more probable that not basis. The trial court must have 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

11

ruled, in response to Tohmeh’s 2014 motion, that Christian lacked evidence to support a 

traditional causation theory since it dismissed Christian’s action in total. In turn, the trial 

court was bound by its 2014 summary judgment ruling that dismissed any traditional 

causation theory because of lack of evidence. According to Tohmeh, Christian did not 

appeal the trial court’s 2014 ruling with regard to traditional causation, and thus, under 

the law of the case, Christian may not ask the issue to be revisited now. 

Second, Dr. Antoine Tohmeh argues that this reviewing court, in its 2015 opinion, 

reversed the trial court only as to the trial court’s dismissal of Diane Christian’s loss of 

chance theory. According to Tohmeh, the lack of a reversal of any traditional causation 

theory must be followed by the trial court under the law of the case doctrine. 

Diane Christian agrees that she did not provide argument under traditional 

causation principles in response to the 2014 summary judgment motion. Christian agrees 

that this reviewing court only relied on a lost chance of a better outcome theory when 

ruling that her medical malpractice action survived a summary judgment motion. 

Nevertheless, she contends that she may still now prosecute her medical malpractice 

claim against Tohmeh under any theory of causation for which she submits competent 

evidence at trial. We agree with Christian. 

Three main principles arise from the law of the case doctrine: (1) a trial court 

ruling maintains binding force during later stages of the trial (version 1), (2) an appeals 

court ruling carries conclusive effects at trial on remand (version 2), and (3) an appellate 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

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court will ordinarily not reconsider its own rulings of law on a subsequent appeal (version 

3). Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 56, 366 P.3d 1246 (2015). The law 

of the case doctrine, depending on the situation, can be mandatory or discretionary. 

Lodis v. Corbis Holdings, Inc., 192 Wn. App. at 56. On the one hand, the remand rule 

forbids a lower court from relitigating issues that were decided by a higher court, whether 

explicitly or by reasonable implication, at an earlier stage of the same case. Lodis v. 

Corbis Holdings, Inc., 192 Wn. App. at 56. On the other hand, the Court of Appeals may 

or may not, at its discretion, revisit an earlier decision that it issued in the same case. 

RAP 2.5(c); Folsom v. County of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988). 

Dr. Antoine Tohmeh seeks to apply all three versions of the law of the case doctrine. 

We question the validity of version one, which promotes the binding force of trial 

court rulings during later stages of the trial. The last sentence of CR 54(b) declares: 

In the absence of such findings [for the entry of a final judgment on 

less than all claims in the case], . . . the order or other form of decision is 

subject to revision at any time before the entry of judgment adjudicating all 

the claims and the rights and liabilities of all the parties.

Thus, even if Antoine Tohmeh’s trial court earlier dismissed any theory of Diane 

Christian based on traditional causation, the trial court could revise the ruling. 

Regardless, the trial court, in 2014, dismissed Christian’s cause of action for medical 

malpractice, not any discrete theory of causation. Thus, the first version of the law of the 

case does not control. 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

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We reject application of the second version of the law of the case principle for the 

same reason. This court, in 2015, did not rule that Diane Christian could not proceed 

under a traditional causation theory. We simply held that Christian possessed sufficient 

facts to litigate under a reduced chance of a better outcome theory and reversed the 

dismissal of the medical malpractice claim. As already discussed, there is only one cause 

of action for medical malpractice regardless of the causation theory or theories on which

the claimant relies. 

Dr. Antoine Tohmeh emphasizes the principle that the law of the case doctrine can 

apply to questions that could have earlier been decided on appeal. Under this rule, 

questions determined on appeal, or which might have been determined had they been 

presented, will not again be considered on a subsequent appeal without a substantial 

change in the evidence. Folsom v. County of Spokane, 111 Wn.2d 256, 263 (1988); 

Cronin v. Central Valley School District, 12 Wn. App. 2d 99, 111, 456 P.3d 843, review 

denied, 195 Wn.2d 1030, 468 P.3d 617 (2020). During the first appeal, Diane Christian 

could not have presented a question of recovery under a traditional causation theory 

because she then lacked evidence to support recovery. If she had such evidence, the trial 

court would have never granted the 2014 summary judgment motion, and this court 

would not have entertained an appeal. We find no case, and Dr. Tohmeh cites no case,

that precludes a party from changing theories on remand if the party garners updated 

information. 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

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Finally, we deny application of the third version of the law of the case. We issued 

no ruling in 2015 as to whether Diane Christian could recover under a traditional 

causation theory. 

Judicial Estoppel

Dr. Antoine Tohmeh next contends that Diane Christian’s theory of traditional 

causation should be dismissed on the grounds of judicial estoppel. He suggests that both 

the 2014 order on summary judgment and this court’s 2015 decision operate to preclude 

an argument on traditional proximate cause principles. Christian responds that proving 

causation under a traditional causation theory does not conflict with forwarding a lost 

chance theory. She also contends that judicial estoppel is not appropriate within a single 

proceeding. We do not resolve Christian’s second argument because we conclude that 

Christian’s pursuing her medical malpractice claim under a traditional causation theory 

does not conflict with any position taken by her earlier in this litigation. 

Judicial estoppel is an equitable doctrine that precludes a party from asserting one 

position in a court proceeding and later seeking an advantage by taking a clearly 

inconsistent position. Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538-39, 160 P.3d 13 

(2007). A clearly inconsistent position is one in which the positions are “diametrically 

opposed to one another.” Kellar v. Estate of Kellar, 172 Wn. App. 562, 581, 291 P.3d 

906 (2012). Stated another way, “to give rise to an estoppel, the positions must be not 
No. 37027-5-III

Diane Christian v. Antoine Tohmeh, MD

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merely different, but so inconsistent that one necessarily excludes the other.” Markley v. 

Markley, 31 Wn.2d 605, 615, 198 P.2d 486 (1948). 

As already analyzed Diane Christian’s earlier prosecution of her cause of action 

under a reduced chance theory does not conflict with asserting traditional causation. A 

party may proceed with both causation theories in the same case and ask the jury to 

decide the case on whichever theory fits. In re Estate of Dormaier ex rel. Dormaier v. 

Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828 (2013).

CONCLUSION

We affirm the trial court’s denial of Dr. Antoine Tohmeh’s request to preclude 

recovery under a traditional causation theory. We remand for further proceedings. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

______________________________ _________________________________

Lawrence-Berrey, J. Pennell, C.J.