1 2 3 4 5 6 7 8 9 SUPERIOR COURT OF WASHINGTON FOR SPOKANE COUNTY LOGAN MAGNEY, a minor; BRIAN MAGNEY and EMILY MAGNEY, Plaintiffs, No. 17-2-00266-1 PLAINTIFFS' MOTION FOR RECONSIDERATION 10 vs. 11 TRUC PHAM, M.D.; A YUMI I. CORN, M.D.; LIQUN YIN, M.D.; and INCYTE 12 DIAGNOSTICS, a Washington corporation, 13 Defendants. 14 15 16 17 18 19 20 21 22 23 I. RELIEF REQUESTED Pursuant to CR 59(a)(8) and (9), Plaintiffs move the Court for reconsideration of its order granting the motion for summary judgment filed on behalf of Defendants Ayumi I. Corn and Liqun Yin, dated March 5, 2021. II. FACTS The "second opinions" of Corn and Yin were used to eliminate uncertainty regarding the original (mis)diagnosis by co-Defendant True Pham and forestall Magney's treating oncologist, Angela Trobaugh-Lotrario, from obtaining independent second opinions. According to Trobaugh- Lotrario: NO. 17-2-00266-1 PLAINTIFFS' MOTION FOR RECONSIDERATION Page 1 of9 AHREND LA w FIRM ru.c 457 I st Ave. NW P.O. Box 816 Ephrata, WA 98823-08 I 6 (509) 764-9000 • (509) 464-6290 Fax
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SUPERIOR COURT OF WASHINGTON FOR SPOKANE COUNTY
LOGAN MAGNEY, a minor; BRIAN MAGNEY and EMILY MAGNEY,
Plaintiffs,
No. 17-2-00266-1
PLAINTIFFS' MOTION FOR RECONSIDERATION
10 vs.
11 TRUC PHAM, M.D.; A YUMI I. CORN, M.D.; LIQUN YIN, M.D.; and INCYTE
12 DIAGNOSTICS, a Washington corporation,
13 Defendants.
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I. RELIEF REQUESTED
Pursuant to CR 59(a)(8) and (9), Plaintiffs move the Court for reconsideration of its order
granting the motion for summary judgment filed on behalf of Defendants Ayumi I. Corn and Liqun
Yin, dated March 5, 2021.
II. FACTS
The "second opinions" of Corn and Yin were used to eliminate uncertainty regarding the
original (mis)diagnosis by co-Defendant True Pham and forestall Magney's treating oncologist,
Angela Trobaugh-Lotrario, from obtaining independent second opinions. According to Trobaugh-
Lotrario:
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1 Q.
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At this time was Logan Magney's pathology sent to Seattle Children's for a second opinion?
It was not at that point because he went on a study; so I knew there would be a second review by that pathologist.
Okay, the next sentence reads, "Dr. Corn in 3/23 as well and can be able to review." Do you see that.
Yes.
Do you know what that refers to?
Dr. Pham told me that Dr. Corn would be in the office on 3/23 and would be able to review it.
I did feel more comfortable knowing that Dr. Com was also going to review because that's a second opinion right there.
11 Plfs. Resp. Ex. 8 at 42:23-43:8 & 43:19-21 (ellipses added). Further:
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Okay. Did you consider getting an outside second opinion prior to administration of chemotherapy for Logan Magney?
I considered it and then she said - Dr. Pham said that she was going to have Dr. Com have a second review, and that was at the time that Dr. Pham told me she had 99.9999 percent sure that she was correct, that ifl wanted somebody else to take a look, Dr. Corn would take a look, and I did feel comfortable with that, and I did not send it to Seattle.
Id. at 90:17-91:1.
Corn and Yin describe their activities and Incyte's quality assurance policies as going well
beyond "prospective" review in order to cloak their misdiagnoses with immunity. In their reply
brief, they state:
InCyte's CQIP specifically calls for both retrospective and prospective reviews, information both retrospective and prospective is provided within the confines oflnCyte's CQIP so as to confer upon the reviewer immunity. InCyte's CQIP specifically discusses prospective review in multiple places. InCyte's CQIP states that "[i]t is preferred that cases be reviewed before the report is sent out," Yin Deel., Ex. A at 17, that in cases of deficiencies, "the form, report, and slides are then returned to the original pathologist for action ... [ d]eficiencies corrected prior to the release of the report are designated as such ... ",
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1 id. at 21, and that the overall purposes of the CQIP include not only retrospective but also prospective review to "contribute to patient management in a timely manner," id. at 1-2.
2 Thus, the fact that Dr. Yin and Dr. Com may have prospectively provided information in furtherance of the CQIP before Dr. Pham finalized her report does not mean that Dr. Yin's
3 or Dr. Com's review occurred outside the CQIP. Instead, Dr. Yin and Dr. Com did exactly what they were supposed to do under the CQIP.
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Defs. Reply at 3:22-4:8; accord id. at 8:21-23.
There are a number of other relevant provisions of the CQIP policy in addition to those
acknowledged by Com and Yin that seek to bring diagnosis within the ambit of quality assurance.
The stated "GOAL" of the CQIP policy is "[t]o ensure the referring physician is provided with an
accurate diagnostic report containing clinically relevant data that contributes to patient
management in a timely manner." Plfs. Resp. Ex. 9 at 1 :25-2:2. Paragraph IV provides:
IMMEDIATE HANDLING OF DEFICIENCIES:
If the reviewing pathologist detects deficiencies or discrepancies in the original report, these are appropriately noted in the review form. In most situations, the form, report, and slides are then returned to the original pathologist for action. In some situations. the reviewer may initiate corrective action, and any actions taken are documented on the QI form. In the latter situation, the material is subsequently returned to the original pathologist with copies of all documentation. Deficiencies corrected prior to release of the report are designated as such on the QA form and are tracked separately.
Plfs. Resp. Ex. 9 at 21:6-15.
In addition to the CQIP policy, Incyte's PRPQA policy also purports to bring prospective
review of diagnoses within quality assurance. Paragraph 3.2 provides in pertinent part:
3.2 Case Types for Peer Review
The following are case categories that require a second pathologist review. Usually the review occurs, prospectively, prior to sign out of the case. Reports that have been peer reviewed prior to release include this statement: As part of Incyte Diagnostics Quality Assurance Program, this case has been reviewed by a second pathologist. The peer review pathologist's initials appear in the report.
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~ All malignant tissue and cytology case [subject to exceptions not applicable here].
Yin Dec. Ex. C (formatting in orig.). Paragraph 3.6 further provides in pertinent part:
3.6 Process of Peer Review
3.6.1 Pathologists:
For cases that require prospective peer review, the first pathologist will fill out the patient name and accession number on an Incyte Dianostics QA Anatomic Pathology Review Form and give the slides and form to a second pathologist to peer review. The second pathologist will examine the report and the slides. If there is an error, the second pathologist notes the error and level of err9r on the form and returns the slides and form to the first pathologist with discussion. If the error is corrected prior to release, this is noted on the form. For peer review of amendments, i.e., retrospectively reviewed cases, the corrected prior to release does not apply.
Yin Dec. Ex. C (formatting in orig.).
III. ARGUMENT
Quality assurance immunity cannot mean that physicians who participate in the process of
diagnosing a patient are immune for their diagnoses without running afoul of the constitutional
prohibition against special privileges and immunities. Wash. Const. Art. 1 § 12. Under their
interpretation of the quality assurance immunity statute, RCW 43.70.510(3), and lncyte's quality
assurance policies, Corn and Yin could even override a correct diagnosis by a treating physician,
and still .evade responsibility for their misdiagnoses.
In this case, Com's and Yin's misdiagnoses eliminated uncertainty regarding the diagnosis
of Magney, forestalled an independent second opinion, and delayed a correct diagnosis, thereby
causing him to undergo unnecessary chemotherapy. Presumably, Pham will attempt to apportion
fault to Corn and Yin at the time of trial for their role in misdiagnosing Magney. RCW 4.22.070(1 ).
To avoid constitutional infirmity and patent unfairness, the Court should reconsider its
summary judgment order. The Court has authority to reconsider its decision based on an error of
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law or substantial justice. CR 59(a)(8) & (9). In this case, the Court should reconsider its summary
2 judgment order under this rule because interpreting RCW 43.70.510(3) to provide immunity for
3 prospective diagnosis of a patient would confer an unconstitutional privilege and immunity
4 prohibited by Wash. Const. Art. 1 § 12.
5 Normally, Corn and Yin would be subject to liability for misdiagnosing Logan Magney
6 because they are healthcare providers and healthcare includes diagnoses like those they provided
7 in this case. RCW 7.70.010 (providing Ch. 7.70 RCW governs "all civil actions ... for damages
8 for injury occurring as a result of health care"); RCW 7.70.020(1) (defining healthcare providers
9 subject to Ch. 7.70 RCW to include "[a] person licensed by this state to provide health care ...
10 including ... a physician"); Berger v. Sonne/and, 144 Wn.2d 91, 109, 26 P.3d 257, 267 (2001)
11 (defining healthcare to mean "'the process in which [a physician is] utilizing the skills which [the
12 physician] had been taught in examining, diagnosing, treating or caring for the plaintiff as [the
13 physician's] patient.'"; alterations in orig.). Corn and Yin are joint tortfeasors together with Pham.
14 .Pursuant to the CQIP and PRPQA policies, they also acted in concert with each other in diagnosing
15 Magney. They are subject to liability both individually and as a "team." Grove v. PeaceHealth St.
16 Joseph Hosp., 182 Wn.2d 136, 148, 341 P.3d 261, 266 (2014) (holding healthcare providers who
17 collaborate as a "team" in providing care to an individual patient are subject to liability under Ch.
18 7.70 RCW).
19 However, Corn and Yin seek immunity for their participation in the process of diagnosing
20 Magney because such participation is mentioned in Incyte's CQIP and PRPQA policies. The
21 immunity statute provides in pertinent part:
22 Any person who, in substantial good faith, provides information to further the purposes of the quality improvement and medical malpractice prevention program or who, in
23 substantial good faith, participates on the quality improvement committee shall not he
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1 subject to an action for civil damages or other relief as a result of such activity. Any person or entity participating in a coordinated quality improvement program that, in
2 substantial good faith, shares information or documents with one or more other programs, committees, or boards under subsection (6) of this section is not subject to an action for
3 civil damages or other relief as a result of the activity or its consequences. For the purposes of this section, sharing information is presumed to be in substantial good faith. However,
4 the presumption may be rebutted upon a showing of clear, cogent, and convincing evidence that the information shared was knowingly false or deliberately misleading.
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RCW 43.70.510(3) (emphasis added).
The text of the statute provides a basis for distinguishing quality assurance activities from
the provision of health care. The general purpose of quality assurance statutes "is to encourage
health care providers to candidly review the work and behavior of their colleagues to improve
health care." Lowy v. PeaceHealth, 174 Wn.2d 769, 774, 280 P.3d 1078 (2012); accord Fellows
v. Moynihan, 175 Wn.2d 641, 649, 285 P.3d 864, 868 (2012). Quality assurance, in the broadest
sense, means "critical self-examination ... to improve quality of care and prevent malpractice."
Fellows, 175 Wn.2d at 653 (ellipses added). In contrast, healthcare means '"the process in which
[a physician is] utilizing the skills which [the physician] had been taught in examining, diagnosing,
treating or caring for the plaintiff as [the physician's] patient,"' as noted above. Berger, 144 Wn.2d
at 109.
RCW 43.70.510(3) refers to "provid[ing] information to further the purposes of [quality
assurance]." It does not expressly include the provision of healthcare. The statute further states
that immunity is limited "to an action for civil damages or other relief as a result of such activity ."
It does not expressly immunize any other activity.
Interpreting RCW 43. 70.510(3) to exclude the prov1s10n of healthcare from quality
assurance immunity is consistent with the required strict construction of immunity statutes. Just as
importantly, such an interpretation is necessary to avoid violating the constitutional prohibition
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against special privileges and immunities. The Court should interpret a statute to be consistent with
2 the constitution and avoid any constitutional problems if at all possible. Utter v. Bldg. Indus. Ass'n
Counsel for Corn & Yin: Scott M. O'Halloran Amanda K. Thorsvig Fain Anderson, et al. 1301 A St., Ste. 900 Tacoma, WA 98402 [email protected] amanda@favros .com
15 Signed on March -12._, 2021 at Spokane, Washington.
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Mary A. Rua
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