In November 2022, as a healthy 33-year-old, Xinnan Nancy Zhong underwent an egg-retrieval procedure to preserve her eggs until she was ready to have children. Before conducting the operation, her obstetrician directed her anesthesiologist to give her cefazolin, which is an optional prophylactic antibiotic. Dr. Randall Baker dispensed it after he sedated her, and she was not part of their decision to administer it.
The antibiotic reacted adversely with the penicillin allergy she had disclosed, but her doctors did not realize its negative effects until she did not wake up from the surgery. Unable to resuscitate her, they intubated her and then paramedics transferred her to an emergency department. Ultimately, Zhong sustained brain damage and is now in a permanently impaired, minimally conscious state requiring full-time care.
Her court-appointed guardian ad litem, Joshua Brothers, and Zhong’s mother, Yuzhen Wang, filed a lawsuit asserting several causes of action against multiple parties, including Dr. Baker, the anesthesiologist who administered the antibiotic, and Matrix Anesthesia PS (“Matrix”), the physician group which employed him. Matrix is a corporation employing anesthesiologists to provide anesthesia services to hospitals and surgery centers.
Zhong’s negligence claim asserted that Matrix itself had independent obligations as a health care provider distinct from her anesthesiologist’s actions in administering the antibiotic. In opposing Matrix’s motion for summary judgment, Zhong specified that this claim was based on the physician group’s allegedly negligent inaction. Namely, she alleged Matrix was liable because it failed to adopt and implement policies to ensure that its employees took proper steps to identify and, where present, eliminate or mitigate against risks of harm to patients before starting medical procedures. She also alleged it failed to ensure its employees were prepared to respond to adverse reactions once procedures began.
The trial court granted summary judgment to the defendants on two of Zhong’s claims, and she thereafter appealed.
The Court of Appeals of the State of Washington Division One stated in its Published Opinion filed on June 29, 2026: “So conceived, Zhong’s negligence claim against Matrix should have survived summary judgment because there were genuine issues of material fact regarding the existence, and Matrix’s possible breach, of its duty … it is unavailing on summary judgment to assert, as Matrix does here, that the plaintiff’s expert witness has not conclusively established the accepted standard of care. The resolution of this issue will determine whether or not Matrix is liable for failing to meet the “accepted” standard of care as a health care provider and, as such, is liable under the malpractice statute … we remand Zhong’s claim, which was properly raised pursuant to RCW 7.70.020(3) and RCW 7.70.030(1), for further proceedings.”
Battery Claim
The Washington appellate court further stated, “a common law cause of action for battery protects an individual’s right to consent as a matter of privacy and bodily integrity … a plaintiff need only offer evidence that the intentional touching was done “with the intention of bringing about [either] a harmful or offensive contact.””
“Here, there is no dispute that Dr. Baker acted with the intention of bringing about contact with Zhong’s body when he injected her with the antibiotic nor is there any dispute that this touching ultimately caused her severe, adverse consequences. The dispositive issue, therefore, is whether Dr. Baker intentionally contacted Zhong without her consent. If so, the touching was offensive as well as harmful (although it need not be both) and, therefore, battery as claimed. We conclude there is a genuine issue of material fact regarding Zhong’s consent, so summary judgment was improper.”
“The facts in the record before us to not support that a problem arose during the procedure or that the antibiotic was a “another procedure.” At a minimum, reasonable minds could disagree over whether Zhong consented to a purely elective, pre-surgery antibiotic, i.e., one prior to any problem arising during the egg-retrieval procedure. Moreover, there are at least several additional pieces of evidence in the record which create a genuine issue of fact as to whether Dr. Baker injected her with the antibiotic without her consent. Namely, Zhong’s surgeon stated in a deposition that the choice to give her cefazolin was made when she was already unconscious. And there is evidence suggesting she was never told about the possibility a prophylactic antibiotic might be administered, let alone that it could react adversely with her disclosed allergy. Although another form produced in discovery mentions the use of antibiotics, that form does not include her signature … because there are several genuine issues of material fact as to whether Zhong consented to be injected with a prophylactic antibiotic at the start of the egg-retrieval procedure, the court erred by dismissing her battery claim against Dr. Baker on summary judgment.”
Source Joshua Brothers v. ORM Bellevue LLC, No. 87897-2-I.
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