On August 27, 2015, Cheri Tiller was 26 weeks pregnant when she noticed some bleeding and abdominal pain after intercourse. She called SSWC to leave a message about her symptoms. She received a call back from a SSWC nurse, who advised her that the symptoms were not abnormal after intercourse and that she should call if she had any more concerns.
The next morning, Cheri’s abdominal pain persisted and her bleeding increased to the point where she required a pad. Cheri called SSWC again. She was told that she could continue to see bleeding for another day, and that she should not worry unless the bleeding continued for 48 hours or more.
That night, Cheri’s symptoms continued, and she decided to go to the emergency room. At that point, her contractions were 10 minutes or less apart. Cheri presented with symptoms of placental abruption, a condition where the placenta detaches from the uterine wall. She was given medication in an attempt to slow down the contractions, but her labor progressed. Cheri ultimately delivered a baby by caesarian section that night. Cheri’s baby was admitted to the neonatal intensive care unit at Tacoma General Hospital due to his premature birth, and the baby was not discharged until three months later.
The Tillers filed their Washington medical malpractice lawsuit individually and on behalf of their son against various defendants, including SSWC. The Tillers alleged that each defendant owed them a duty of care and that each defendant failed to exercise reasonable care in their treatment of Cheri and her son, causing them personal injuries that required medical care and treatment.
The trial court granted summary judgment to the defendants, and the Tillers appealed.
The Court of Appeals of the State of Washington filed an unpublished opinion on September 12, 2023 in which it stated: “The Tillers argue that the testimony of Dr. Psomiadis was sufficient to create a genuine issue of material fact as to whether Cheri’s delivery could have been stopped or arrested. We disagree. Dr. Psomiadis did not testify that if SSWC had promptly referred Cheri for medical treatment, it was more probable than not that Cheri’s labor would have been stopped or arrested. Instead, he stated that Cheri’s labor could have been stopped or arrested. He also stated that “it was possible” that medication would stop Cheri’s labor. CP at 243. In other words, instead of stating that SSWC’s negligence probably caused the claimed injury, Psomiadis stated that SSWC’s negligence possibly caused the claimed injury. But a mere possibility is not sufficient to satisfy the reasonable medical probability standard. Rounds, 147 Wn. App. at 163. The Tillers argue that we should interpret the term “could have” in Dr. Psomiadis’s declaration as meaning the same thing as “would have.” We decline to do so. In this context, the terms have different meanings. We conclude that the testimony of Dr. Psomiadis was insufficient to create a genuine issue of material fact regarding causation. Therefore, we hold that the trial court did not err in granting summary judgment in favor of SSWC on the Tillers’ medical negligence claim.”
Loss Of Chance Claim
In medical negligence cases, the loss of chance theory allows a plaintiff to satisfy the causation element even if the injury probably would not be avoided in the absence of the health care provider’s negligence. The plaintiff can prevail if they show that the negligence proximately caused the loss of the chance of a better outcome. Under the lost chance theory, the plaintiff has the burden to provide expert testimony on a percentage or percentage range of a better outcome.
“Here, Dr. Psomiadis failed to provide an expert opinion as to the percentage or percentage range for the loss of chance for a better outcome. Therefore, we hold that the Tillers did not produce sufficient evidence to avoid summary judgment on a loss of chance theory.”
Source Tiller v. South Sound Women’s Center Professional, L.L.P., No. 57149-8-II.
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