FILED MARCH 17, 2022 In the Office of the Clerk of Court WA State Court of Appeals Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE RONALD A. DICUS and DIANE K. ) DICUS, husband and wife, and the marital ) No. 37533-1-III community, ) ) Appellants, ) ) v. ) UNPUBLISHED OPINION ) ANTOINE TOHMEH, M.D., and “JANE ) DOE,” husband and wife, and the marital ) community composed therof; ) ) Respondents ) ) ORTHOPAEDIC SPECIALTY CLIINC ) OF SPOKANE, a Washington business ) entity and health care provider; and DOES ) 1-5, ) ) Defendants. ) FEARING, J. — A jury ruled in favor of Dr. Antoine Tohmeh in a medical malpractice suit brought by Ronald Dicus. On appeal, Dicus claims procedural and instructional error. We disagree and affirm the superior court. FACTS We gather the facts primarily from trial testimony. This case arises from two back surgeries Antoine Tohmeh, M.D. performed on Ronald Dicus in 2007. No. 37533-1-III Dicus v. Tohmeh, M.D. Dr. Antoine Tohmeh provided Ronald Dicus continuing care from February 13, 2007 until July 12, 2012, for pain emanating from Dicus’ spine. On May 9 and 14, 2007, Dr. Tohmeh respectively performed two surgeries on Dicus’ spine to fuse multiple levels of vertebrae. The fusion surgeries included the insertion of metal screws in the vertebrae pedicles. Pedicles are cylinder-shaped notches that project from the back of each vertebral body. Each vertebra has two pedicles, one on each side. Dr. Tohmeh placed one of the pedicle screws on the right side of the fifth lumbar vertebra (L5). A surgeon inserts the screws through the pedicle into the vertebral body. Dicus’ spine had previously been fused between L5 and the first sacral vertebra (S1). As a result, Dr. Tohmeh inserted the right L5 pedicle screw through an existent fusion mass. Dr. Antoine Tohmeh performed outcome studies on his patients by periodically monitoring and obtaining information from them concerning recovery from surgery. On May 3, 2008, one year after Ronald Dicus’ surgeries, Dicus completed a questionnaire related to the surgeries. On the form, Dicus indicated that he was “‘very satisfied’” with his surgical outcome and that he “‘definitely would’” elect to undergo the same surgeries given his current condition. Report of Proceedings (RP) (Dec. 5, 2019) at 345. Another year later, Ronald Dicus completed a May 26, 2009 questionnaire. Dicus again reported he was “‘very satisfied’” with the outcome of his procedures and that he likely would choose to have the same surgeries again. RP (Dec. 5, 2019) at 345-46. 2 No. 37533-1-III Dicus v. Tohmeh, M.D. In May 2012, approximately five years after Ronald Dicus’ surgeries, he visited Richard Bransford, M.D., a Seattle orthopedic surgeon. According to Dr. Bransford, Dicus reported right-sided lower extremity pain, traveling down the thigh, calf, and the top of his foot. During Dicus’ initial visit to Dr. Bransford, Dicus remarked that he had not initiated a claim or lawsuit related to his symptoms, but that he …
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