Wash. Court of Appeals published opinion — 845926.pdf

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why it was hard to reach her when she was away from ESC because of a cell phone

“dead spot” at the VA.

In response to the epistaxis patient treatment presented at the QI meeting, Dr.

Litvack explained her medical judgment and reasoning, that the patient was not harmed

by her actions, and that during QI meetings male doctors often undermined the clinical

judgment of female doctors. The day after the QI meeting, Dr. Davis e-mailed Dr.

Futran about Dr. Litvack’s performance with the patient which included these

descriptions: “significant level of poor medical decision making,” “poor decision making,”

“lack of expertise,” “poor medical decision making,” and “repeatedly provided evidence

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84592-6-I/28

that she should not be providing . . . rhinology care.” In response, Dr. Futran sought

feedback about Dr. Litvack from male colleagues Dr. Merati and Dr. Humphreys who

shared similar concerns about her capability and clinical judgement in complex cases.

Significantly, Dr. Litvack’s work at ESC was only a small portion of her practice

and where she worked about 20 shifts during her professorship. Even so, Dr. Futran

explained that based on Dr. Litvack’s performance issues, most of which involved her

work at ESC, there was no option for her to become permanent faculty and “further

activity will not change this.”

Dr. Litvack’s burden at summary judgment is one of production, not persuasion.

Scrivener, 181 Wn.2d at 445. Taken together and viewed in the light most favorable to

Dr. Litvack, the evidence supports reasonable inferences of both discriminatory and

nondiscriminatory motivations meaning a jury must determine the true motivation.