Mohr v. Grantham

¶1136 (dissenting) — A central tenet of tort liability for medical malpractice is that a plaintiff must *863prove a physician’s acts or omissions caused a patient’s actual physical or mental injury before liability will attach. The lost chance doctrine adopted by the majority punishes physicians for negligent acts or omissions that cannot be shown to have caused any actual physical or mental harm. Because traditional tort justifications for imposing liability are missing, we should not extend a cause of action for a lost chance of a better outcome as a form of medical malpractice claim beyond its current application.

¶2¶37 Black letter negligence law requires proof on a more probable than not basis that the injury was caused by the negligence of another. The majority holding rests on the fiction that the “injury” is actually the loss of a chance of a better outcome. This is semantic pretense. No matter how the cause of action is described, at the end of the day liability is based on no more than the mere possibility that the physician’s negligence has caused harm, a result that conflicts with black letter law that “negligence in the air” is not actionable.

¶3¶38 The majority claims that the tort principles of deterrence and compensation are served by adopting the doctrine. It is incorrect. Deterrence of negligence that does not cause actual harm is a meaningless proposition, and there can be no compensation of injury because the actual injury that occurs may be the result of the preexisting condition. Compensating plaintiffs for preexisting harm is not a legitimate goal of the tort system.

¶4¶39 The majority’s holding is also contrary to RCW 7.70.040. If the lost chance doctrine is to be accepted in this state, it should be through action of the legislature, which can consider the numerous public policy questions implicated by the doctrine that the majority never considers and, indeed, is not suitably in a position to consider.

¶5¶40 The lost chance doctrine is also uniquely unfair because only the health care profession is exposed to liability under it. This court, like others, has refused to apply the basic doctrine against members of any other profession. If a *864lawyer is sued for malpractice, the plaintiff must prove proximate causation of real harm, but this is not true under the lost chance doctrine when a plaintiff sues a physician for negligent treatment that cannot be shown to have proximately caused real harm. The inequity is obvious.

¶6Analysis

¶7¶41 It is a fundamental principle that in a medical malpractice action the plaintiff must prove causation of the plaintiff’s actual physical (or mental) injury before tort liability will be imposed. To avoid the difficulty posed by this requirement, the majority recognizes a cause of action for which the plaintiff does not have to prove that “but for” the physician’s negligence, the injury would not have occurred. Majority at 850-51 (citing Herskovits v. Grp. Health Coop. of Puget Sound, 99 Wn.2d 609, 619, 664 P.2d 474 (1983) (Dore, J., lead opinion); id. at 634-35 (Pearson, J., plurality)). That is, because the majority finds the traditional causation-of-injury requirement to be an insurmountable obstacle, it employs a different concept to anchor a lost chance claim. Majority at 850. The majority simply redefines the injury as the lost chance. With this semantic leap — essentially a fiction — the causation problem is fixed.

¶8¶42 But in reality the problem remains. No matter how the lost chance cause of action is characterized, the plaintiff is freed of the requirement of proving causation because, no matter how the action is described, the end result is that liability is imposed based on possibilities and not on probabilities. See, e.g., Jones v. Owings, 318 S.C. 72, 77, 456 S.E.2d 371 (1995) (“[l]egal responsibility in this approach is in reality assigned based on the mere possibility that a tortfeasor’s negligence was a cause of the ultimate harm”); Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 305, 512 A.2d 1126 (1986) (rejecting plaintiff’s reliance on the “loss of a chance” doctrine expressed in Hicks v. United States, *865368 F.2d 626 (4th Cir. 1966); the Hicksrule that allows relaxation of the causation requirement where the defendant increased the risk of harm is ill advised; “[c]ausation is a matter of probability, not possibility”).

¶9¶43 The lost chance doctrine contravenes the long-standing rule that a verdict in a medical malpractice action must not rest on “ ‘conjecture and speculation.’ ” Douglas v. Bussabarger, 73 Wn.2d 476, 505, 438 P.2d 829 (1968) (internal quotation marks omitted) (quoting Glazer v. Adams, 64 Wn.2d 144, 148, 391 P.2d 195 (1964)). A “ ‘possibility’ ” is not enough. Id.

¶10¶44 Trying to skirt this obstacle by saying that “a plaintiff would still have to establish the loss of chance by a preponderance of the evidence,” as the plaintiff argued in Crosby v. United States, 48 F. Supp. 2d 924, 931 (D. Alaska 1999), is not an acceptable excuse because it leads to unacceptable results. As the court in Crosbycorrectly responded, “[i]f a plaintiff’s chance of recovery was reduced from 20 percent to 10 percent, then permitting recovery for that 10 percent loss enables a plaintiff to recover damages even when the plaintiff’s actual physical injury was not more likely than not caused by a defendant’s alleged negligence.” Id.(emphasis added).

¶11¶45 The majority tries to justify the lost chance doctrine on the ground that it serves the tort principles of deterring negligence and compensating for injury when “the ultimate harm is permanent disability.” Majority at 856. But as the majority itself explains, these justifications rest on actual physical harm to the plaintiff, “permanent disability” in the majority’s own words. But a chance of a better outcome, by definition, is not the same as an actual better outcome because there is no way to establish that any physical harm in fact resulted from the negligent act or omission of the physician. Not only does the doctrine not require proof of “but for” causation, “but for” causation cannot be proved in any event.

¶12*866¶46 The “deterrence” justification identified by the majority is in fact unrelated to preventing harm-causing negligence. As Benjamin Cardozo famously explained long ago, “ ‘negligence in the air’ ” is not actionable.8 Physicians, and indeed individuals involved in thousands of actions, are negligent every day without legal consequence because, despite the involvement or presence of others, their acts do not actually cause harm to the other persons.

¶13¶47 The Texas Supreme Court aptly observed, when it “reject[ed] the notion that the enhanced deterrence of the loss of chance approach might be so valuable as to justify scrapping [the] traditional concepts of causation,” that “[i]f deterrence were the sole value to be served by tort law, we could dispense with the notion of causation altogether and award damages on the basis of negligence alone.” Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 406 (Tex. 1993) (emphasis added). By rejecting the traditional causation in favor of the possible deterrent effect of the lost chance doctrine, the majority imposes liability for damages based on negligence alone — “negligence in the air.”

¶14¶48 Moreover, the goal of compensation is not served, either, because there is no way to prove a physician’s acts or omissions in fact caused the actual physical harm, rather than the actual harm resulting from the preexisting condition. In fact, under this theory of liability, plaintiffs may be compensated where they suffer absolutely no physical injury as a result of the physician’s conduct. Indeed, the Maryland high court has determined that the lost chance doctrine does not result in accurate compensation for any plaintiff’s injuries (when the lost chance is less than 50 percent). Fennell v. S. Md. Hosp. Ctr., Inc., 320 Md. 776, 789-90, 580 A.2d 206 (1990).9

¶15*867¶49 Of perhaps greater importance, in a practical sense, the lost chance doctrine does not conform to RCW 7.70.040. Under this statute, a plaintiff in a medical malpractice action must prove:

(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.

¶16RCW 7.70.040.10 Expert testimony is generally required to establish the standard of care and causation. Putman v. Wenatchee Valley Med. Ctr, 166 Wn.2d 974, 988, 216 P.3d 374 (2009); Berger v. Sonneland, 144 Wn.2d 91, 110-11, 26 P.3d 257 (2001); Harris v. Robert C. Groth, MD, Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983). To remove the issue of cause in fact “from the realm of speculation, the medical testimony must at least be sufficiently definite to establish that the act complained of ‘probably’ or ‘more likely than not’ caused the subsequent disability.” O’Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968) (quoting Ugolini v. *868States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967)).

¶17¶50 The statute provides that a plaintiff must prove the health care provider failed to exercise the requisite degree “of care, skill, and learning” and this failure “was a proximate cause of the injury complained of.” RCW 7.70.040. “Injury” in the statute undoubtedly reflects prevailing law stated in O’Donoghue, 73 Wn.2d at 824, that the failure to exercise the required degree of care must be a proximate cause of “the subsequent disability.” In other words, the legislature meant an actual physical disability resulting from the failure to exercise proper care, not an amorphous “lost chance” that may well involve no actual disability at all.

¶18¶51 In considering the comparable Alaska statute, which like ours requires a plaintiff to prove the health care provider failed to exercise the proper standard of care and as a “proximate result of this” failure “the plaintiff suffered injuries that would not otherwise have been incurred,” Alaska Stat. § 09.55.540(a)(3), the federal court in Crosby, 48 F. Supp. 2d at 931, concluded that “the ‘loss of chance’ theory disrupts traditional causation principles set forth by statute.” The court said “AS 09.55.540 clearly and unambiguously requires plaintiffs to establish that a defendant’s alleged negligence was more likely than not the cause of injury.” Id.The federal court aptly said that “[t]he statute rejects any presumption of negligence.” Id.The court concluded that “[rjecognizing a ‘loss of chance’ theory under the circumstances of this case would enable plaintiff to recover even when her injury was not proximately caused by the defendant” and contravene the statute. Id.

¶19¶52 Similarly, the Vermont Supreme Court reached the same conclusion in connection with its comparable state statute, observing that the statutory elements traditionally required that plaintiff produce evidence of a “ ‘reasonable probability or reasonable degree of medical certainty’ that the defendant’s conduct caused the injury.” Smith v. Parrott, *8692003 VT 64, 175 Vt. 375, 380, 833 A.2d 843 (quoting Greene v. Bell, 171 Vt. 280, 285, 762 A.2d 865 (2000)). The court said that the “loss of chance theory of recovery is thus fundamentally at odds with the settled common law” codified in the statute. Id.

¶20¶53 The same is true in Washington. Our statute setting out the elements that a plaintiff must prove in a medical malpractice action does not permit a presumption of negligence. It requires proof of proximate cause, not as to a chance of malpractice resulting in possible injury, but as to actual physical injury to the plaintiff.

¶21¶54 If there is to be any change in this law, it should come from the legislature, after appropriate hearings, collection of data, and consideration of competing interests. Only the legislature has the authority to amend the statute.

¶22¶55 Moreover, the legislature is best positioned to consider the myriad of public policy matters implicated by the lost chance doctrine. Among them are concerns about the potential impact on the practice of medicine, the costs of medical malpractice insurance, the costs of medical care, and the costs to society as a whole of compensating an entirely new class of plaintiffs who formerly had no claim under the common law. See Smith, 175 Vt. at 381; Fennell, 320 Md. at 792-95. As one court mentioned, “society is wallowing near the water line with the burdensome and astronomical economic costs of universal healthcare and medical services.” Kemper v. Gordon, 272 S.W.3d 146, 152 (Ky. 2008). Malpractice insurance costs are rising and are a part of this financial burden. Id.At the same time, medical science and technology are advancing at a phenomenal pace and our expectations based upon these advancements rise as they advance. Id.But humans must still effectuate the advances, and there are no guarantees notwithstanding our expectations.

¶23¶56 The lost chance doctrine also gives rise to other questions. “For instance, what is a ‘late diagnosis’? Does a diagnosis missed this week, but made next week, rise to the *870level of diminished chance?” Id.What about a case where experts could present “evidence ... that an MRI misread on Monday, but accurately discerned on Friday, perhaps gives rise to an infinitesimal loss of a chance to recover. Yet, under this doctrine, even a small percentage of the value of human life could generate substantial recovery and place burdensome costs on healthcare providers” that would ultimately be passed on to each person in the jurisdiction. Id.

¶24¶57 What about in the very case before this court, where we are not considering the passage of weeks, or even days, but of hours?

¶25f 58 In addition, even courts rejecting the doctrine have noted “ ‘appealing’ ” arguments exist in favor of the lost chance doctrine, e.g.,id. (quotingSmith, 175 Vt. at 381), and these, too, should be considered by the legislature.

¶26¶59 The ramifications of the majority’s opinion are unknown but potentially far reaching. The majority opinion has the potential to alter health care in this state, as physicians would have to contemplate whether to provide an unprecedented level of care to avoid liability for even a slightly diminished chance of a better outcome. As noted, even a small percentage of chance can equal a substantial award. At the same time, it is no secret that health care insurance coverage is already strained, for those who even have such insurance, and adopting this doctrine cannot help but impact the nature and extent of insurance reimbursement for potential tests and treatments ordered as an eventual result of the majority’s decision to expand liability to an unprecedented degree in this state.

¶27¶60 All of these matters are public policy considerations for the legislature.

¶28¶61 Another issue is the inequity of applying the lost chance doctrine in the medical field. As in other states, this court has declined to extend the lost chance of survival doctrine, the specific form set out in Herskovits, to permit *871suits against other professionals. See Daugert v. Pappas, 104 Wn.2d 254, 704 P.2d 600 (1985) (refusing to extend lost chance doctrine to legal malpractice actions). Courts have questioned the inconsistent application of the doctrine depending upon whether the action is for medical malpractice or other professional malpractice. Smith, 175 Vt. at 381; Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1019-20 (Fla. 1984) (“[hjealth care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result” while “[n]o other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury”).

¶29¶62 This basic inequity weighs against extension of the doctrine, yet the majority never considers it. In fact, the majority declines to fully consider any of the many reasons why the doctrine should not be accepted. Instead, the majority says that they simply mirror concerns addressed in Herskovits, that Herskovitshas not caused any problems, and for the same reasons favoring Herskovits, the lost chance doctrine should be adopted where the ultimate harm is injury short of death.11

¶30¶63 I do not share the majority’s view that Herskovitshas caused no serious harm and therefore it is unlikely that the majority’s present opinion will. Nor do I agree that because the majority can find no reason to distinguish the rationale for the decision in Herskovits, this court’s hands are essentially tied and we must reach a similar conclusion here.

¶31¶64 First, we have no idea what the impact of Herskovitshas been. We do not know how often the case is followed, *872how often actions brought under it have been settled, or what cases were decided but not appealed. Second, whatever the effect of Herskovits, it is impossible to conclude that effects of the present case will be comparable. If nothing else, the added burdens to society presented by this case will be cumulative to any produced by Herskovits. But in any event, and regardless of Herskovits, we are simply not in a position to casually conclude that there will be little discernible negative impact. We simply do not know, and the court does not represent the branch of government with the capability of weighing all of the policy arguments and other considerations that should be weighed.

¶32¶65 Rather than assume that the issue before us is essentially already determined, as the majority does, this case presents issues and concerns that should be carefully examined before extending the lost chance doctrine and effecting such a sweeping change in the law. The court should not just apply Herskovitsto injury short of death, but should instead take the opportunity to examine the issue much more closely.12 At the end of the examination, the court’s conclusion should be that extending the lost chance doctrine is incompatible with RCW 7.70.04013 and *873that whether the doctrine should be adopted is a question that must be decided by the legislature.

¶33¶66 Given that the decision whether to extend the lost chance doctrine should belong to the legislature, it is my hope that the legislature will examine this issue. If the legislature concludes that the doctrine should become a part of our state law, then it will be doing so as a duly informed representative body. If not, or if the legislature determines that a different version of the doctrine should be adopted, the legislature can effectively abrogate the majority’s holding by amending RCW 7.70.040.14

¶34¶67 For the reasons stated in this opinion, I dissent.

¶45¶68 (dissenting) — The majority improperly extends Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 664 P.2d 474 (1983) to create a cause of action for Mrs. Linda Mohr and her husband against the emergency professionals and hospital that provided for her care after she crashed her own car. These medical professionals did not proximately cause the ultimate, sad injury Mrs. Mohr suffered — namely, a distal *874dissection of her right internal carotid artery and loss of brain tissue. Proximate cause is a required element under Washington’s liability law (RCW 7.70.040). Because the majority creates a speculative cause of action that is beyond the express legislative mandate of RCW 7.70.040,1 dissent.

¶46Facts

¶47¶69 Mrs. Mohr crashed her car into a utility pole at approximately 45 miles per hour after running into four other vehicles during an accident in which she was driving alone. The Richland Fire Department responded. Mrs. Mohr was treated by emergency medical personnel (EMPs) and brought by ambulance15 to the emergency room at Kadlec Medical Center (KMC) at 3:44 p.m. on August 31, 2004.

¶48¶70 Mrs. Mohr was seen in the emergency room by Dr. Dale Grantham. Dr. Grantham and nursing staff noted that Mrs. Mohr had suffered injuries to her head, face, mouth, right forearm, and left leg due to the accident. Dr. Grantham and nursing staff also noted that Mrs. Mohr suffered from diabetes, that her blood sugar was low upon rescue by the EMPs at the crash site, and that she had not been ambulatory at the scene of the accident.

¶49¶71 Dr. Grantham performed a physical exam. During the exam, Mrs. Mohr did not report or demonstrate any acute distress, swelling of the head, numbness, or neck pain. She did not exhibit any motor or sensory deficits. Dr. Grantham ordered blood samples and a finger stick glucose sample, and had Mrs. Mohr taken for X rays. He also ordered a computerized tomography (CT) scan of her head. The X rays and CT scan came back normal; they did not show any broken bones, fractures, dislocations, or intracranial injury.

¶50¶72 Mrs. Mohr suffered lacerations to her right eyelid and right hand as a result of her accident. Dr. Grantham *875sutured these lacerations at 6:36 p.m. He also fed her at this time and noted that she was alert and able to walk to the bathroom, albeit “slightly wobbly on foot.” Clerk’s Papers (CP) at 91, 94. Another finger stick glucose sample was taken, and a nurse applied antibacterial ointment and dressed Mrs. Mohr’s leg wound.

¶51¶73 Dr. Grantham returned at 7:56 p.m. to speak with Mrs. Mohr and her husband. She reported a pain level of “7” on a scale of 1 to 10. Dr. Grantham prescribed Darvocet, a pain medication, and warned Mr. and Mrs. Mohr about its sedative effect. Dr. Grantham noted that Mrs. Mohr was in “good condition, stable condition and improved condition.” Id. at 94. The doctor proceeded to give Mrs. Mohr and her husband discharge instructions, telling them to return or contact their physician immediately if her condition worsened or changed unexpectedly, if she did not improve, or if other problems arose. The Mohrs left for their home at 8:20 p.m.

¶52¶74 At 6:32 a.m. the following morning, Mr. Mohr called the Richland Fire Department. Mrs. Mohr was experiencing weakness, a lack of coordination, and nausea. The fire department transported Mrs. Mohr to the emergency room at the same hospital (KMC). She was admitted at 7:11 a.m.

¶53¶75 Mrs. Mohr was seen by Dr. Brian Dawson at 7:16 a.m. She reported weakness and difficulty walking, but no numbness or tingling.16 Dr. Dawson was aware of Mrs. Mohr’s history and performed a physical exam. Dr. Dawson noted that she was somnolent (drowsy), had normal speech, and had weakness on her left side. He ordered a CT scan, which was performed between 8:10 a.m. and 8:19 a.m.

¶54¶76 The results of this CT scan, which came back before 9:30 a.m., were not normal. Instead, it revealed findings that the radiologist thought “may be secondary to evolving *876infarct which is in the right middle cerebral artery territory.”17 The radiologist recommended a magnetic resonance imaging (MRI) examination. Mrs. Mohr was transported to receive the MRI at 9:30 a.m.

¶55¶77 The results of the MRI, which came in by 10:32 a.m., led to the discovery of a dissected right internal carotid artery. Dr. Dawson discussed the situation with Dr. Brooks Watson II, and they agreed upon a treatment plan. Mrs. Mohr was transferred to the intermediate care unit at 11:46 a.m., and Dr. Watson prescribed aspirin around 2:00 p.m.

¶56¶78 An urgent ultrasound was performed to rule out carotid dissection in the common carotids, but that procedure could not assess the distal internal carotid artery. For this, a CT angiogram was ordered. The CT angiogram was performed at 2:30 p.m. and confirmed that Mrs. Mohr had a distal dissection of the right internal carotid artery. The findings were discussed with Dr. Watson at 4:50 p.m.

¶57¶79 Dr. Watson discussed the situation with Harborview Medical Center after trying to attempt “neurosurgical input locally.”18 He connected with Dr. Jerry Jurkovitz of Harborview, who agreed to accept Mrs. Mohr and to assume care. It was arranged for Mrs. Mohr to be “life-flighted” to Harborview Medical Center. Dr. Watson ordered intravenous heparin (an anticoagulant) for stabilization. However, he did not administer that drug because her physician sons and the neurosurgeons at Harborview requested that medication be withheld. The doctors at Harborview were not, however, opposed to Dr. Watson’s providing aspirin therapy. Aspirin was administered to Mrs. Mohr that evening by a nurse, at the direction of Mrs. Mohr’s sons. Some time *877afterward, Mrs. Mohr was transported to Harborview, where various doctors provided her care.19

¶58¶80 One of Mrs. Mohr’s sons, a fifth-year resident in diagnostic radiology at the University of Washington, testified at deposition that Mrs. Mohr had lost between one-quarter and one-third of her brain tissue in the period following the accident on August 31, 2004.20 The record does not indicate the numerous patients Drs. Grantham, Dawson, and Watson cared for in the emergency room during the time period in question, nor does it detail events after Mrs. Mohr was taken to Harborview.

¶59Analysis

¶60¶81 This case boils down to statutory interpretation. Because RCW 7.70.040 does not provide the cause of action the majority creates, its analysis and result are incorrect. Our legislature has simply not required the impossible of medical caregivers: to guarantee the best possible outcome for patients they help.

¶61A. Standard of Review

¶62¶82 Statutory interpretation is a question of law that this court reviews de novo. Berger v. Sonneland, 144 Wn.2d 91, 104-05, 26 P.3d 257 (2001); cf. majority at 850 (citing Berger, 144 Wn.2d at 103). If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. Berger, 144 Wn.2d at 105. Plain words do not require construction. Id.Instead, courts assume the legislature means exactly what it says. Id.Courts should not force a given construction by imagining a variety of alternative interpretations. See id.(quoting W. Telepage, Inc. v. City of Tacoma Dep’t of Fin., 140 Wn.2d 599, 608, 998 P.2d 884 (2000)).

¶63*878B. Respondents Are Entitled to Judgment as a Matter of Law: the Mohrs Have Not Established the Statutorily Required Element of Proximate Cause

¶64¶83 The language of RCW 7.70.040 is plain and unambiguous. With respect to the issue raised in this motion for summary judgment, the health care provider’s alleged failure to exercise the acceptable standard of care must be a “proximate cause of the injury complained of” before that health care provider may be subject to liability under chapter 7.70 RCW. Proximate cause is a necessary element of proof. RCW 7.70.040.

¶65¶84 A “proximate cause” of an injury is defined as a cause that, in a direct sequence, unbroken by any new, independent cause, produces the injury complained of and without which the injury would not have occurred. Stoneman v. Wick Constr. Co., 55 Wn.2d 639, 643, 349 P.2d 215 (1960). To establish proximate cause, the plaintiff must show both “cause in fact” (that the injury would not have occurred but for the act in question) and “legal causation.” Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 753, 818 P.2d 1337 (1991). “Legal causation” depends on considerations of “ ‘logic, common sense, justice, policy, and precedent.’ ” King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974) (quoting 1 Thomas Atkins Street, The Foundation op Legal Liability 110 (1906)). It involves the “determination of whether liability should attach as a matter of law given the existence of cause in fact.” Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985).

¶66¶85 The injury complained of in this case is the distal dissection of Mrs. Mohr’s right internal carotid artery, which led to a loss of brain tissue. The appellants offer no evidence or testimony, however, that Drs. Grantham, Dawson, or Watson caused this injury. They have not established cause in fact. Consequently, the appellants have not made a showing sufficient to establish the existence of an element essential to their case, and on which they will *879bear the burden of proof at trial: proximate cause. See Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, there can be no “genuine issue as to any material fact,” and the respondents are entitled to a “judgment as a matter of law.” CR 56(c); Celotex, All U.S. at 322.

¶67Conclusion

¶68¶86 We should affirm the trial court and answer the question certified to us in the negative. The nonbinding plurality opinion in Herskovitsshould not be extended to rewrite the medical malpractice statutory scheme adopted by the legislature. Our application of the separation of powers doctrine is not a one-way street.

¶69¶87 Recovery on the basis of “a lost chance of a better outcome” from these targeted medical care providers is highly speculative and places an impossible burden on doctors and hospitals.21 Order of Certification at 1. This is not a compensable injury under Washington law. I dissent.