Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NANCY JAMES AS TRUSTEE FOR                  )
ESTATE OF CHERIE RULE,                      )       No. 61272-7-I
KATHRYN ELLIS AS TRUSTEE FOR                )
THE ESTATE OF RENA BURNS AND                )       DIVISION ONE
LISA MCDOUGAL,                              )
                                            )       UNPUBLISHED OPINION
                      Respondents,          )
                                            )
               v.                           )
                                            )
                                            )
CHARLES MOMAH, also d/b/a                   )
NORTHWEST CENTER FOR                        )
OBSTETRICS, GYNECOLOGY &                    )
INFERTILITY,                                )
                                            )       FILED:  January 17, 2012
                      Appellant.            )

       Grosse, J.  --  The appellate court reviews a jury verdict rendered in a civil case 

to determine whether it is supported by substantial evidence.  In order to review the 

sufficiency of the evidence supporting the verdict, the appellant must provide a record 

for review that includes all the evidence presented, not merely the evidence supporting

the appellant's position.    In this case, Charles Momah, appearing pro se on appeal, 

seeks to set aside the jury's verdicts finding  that  he provided medically negligent 

treatment to three former patients.  But Momah fails to provide a complete record to 

enable appellate review.  He also largely fails to support his factual assertions with 

accurate citations to the record or support his claims with meaningful legal analysis.  

These deficiencies are fatal to the claims he raises on appeal.  We affirm.

                                            FACTS 

No. 61272-7-I / 2

       Cherie Rule, Rena Burns, and Lisa McDougal sued their former physician, 

obstetrician/gynecologist, Charles Momah.  They alleged medical negligence, failure to 

obtain informed consent, and violation of the Washington Consumer Protection Act 
(CPA).1   Following a nine-day trial, the jury found medical negligence with respect to 

each plaintiff and awarded damages of approximately $2.2 million.  Two years before 

the trial in this case, Momah was convicted of several criminal charges, including rape 

and indecent liberties, based on the testimony of Burns and other former patients.  

Momah was incarcerated pursuant to those convictions at the time of the 2007 trial in 

this case.  Part of his video recorded deposition testimony from another civil case was 

presented to the jury.  The jury rejected the allegation of each plaintiff that Momah's 

twin  brother,  physician  Dennis Momah, participated in patient care and assaultive 

conduct while impersonating Charles Momah.  The jury also rejected the plaintiffs'

informed consent claims and found that Momah did not violate the CPA.

       Momah appeals the verdicts and award of damages.  He primarily challenges 

the evidence supporting the verdicts, claiming that the evidence against him was false,

unreliable,  and simply    insufficient to support the findings of liability.          He also 
challenges several of the court's rulings during the course of the trial.2

1 Chapter 19.86 RCW.
2 To the extent that some of the attachments appended to Momah's brief on appeal 
consist of evidence not presented at trial, we grant the respondents' motion to strike.  
And because the standards of RAP 9.11 have not been met, we deny Momah's motion 
to supplement the record on appeal with additional evidence.  Contrary to Momah's 
belief, none of the evidence he seeks to present negates the evidence supporting the 
jury's findings of medical negligence.   
                                               2 

No. 61272-7-I / 3

                                          ANALYSIS

       Pro se litigants are held to the same standard as attorneys and must comply with 
all procedural rules on appeal.3  Failure to do so may preclude appellate review.4  An 

appellant must provide "argument in support of the issues presented for review, 
together with citations to legal authority and references to relevant parts of the record."5  

Arguments that are not supported by reference to the record or citation to authority 
need not be considered.6

       Momah's appellate brief contains a 45-page statement of facts which is generally 

comprised of argument, rather than facts, and contains scores of allegations related to 

events that occurred outside of the context of this case.  Momah's factual recitation

utterly fails to provide a "fair statement of the facts and procedure relevant to the issues 
presented for review."7  RAP 10.3(a)(5) requires that "[r]eference to the record must be 

included for each factual statement."      Due to his extensive discussion of matters that 

are not in the record, most of Momah's factual assertions are unsupported by citations.  

In instances where Momah does cite to the record, many of his citations are imprecise 

or inaccurate. 

       Furthermore, Momah has not met his burden of providing a sufficient record to 

3 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).  
4 State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
5 RAP 10.3(a)(6).  
6 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
7 See RAP 10.3(a)(5).  
                                               3 

No. 61272-7-I / 4

review the issues raised on appeal.8  We review a jury verdict to determine whether 

substantial evidence in the record supports it.9  In this examination, we determine only 

whether the evidence could persuade a rational, fair-minded person of the truth of the 
disputed  issue.10   We do not review the credibility of witnesses or substitute our 

judgment for that of the jury.11  We review a trial court's evidentiary rulings for abuse of 

discretion.12  A court abuses its discretion if its ruling is manifestly unreasonable or 

discretion is exercised on untenable grounds or for untenable reasons.13  

       Momah  has not provided        a complete record of the trial proceedings. The 

testimony of several witnesses who testified on the plaintiffs' behalf is not included in 

the record on appeal, including the testimony of plaintiff Rule and the two medical 

expert witnesses presented by the plaintiffs.  And while Momah challenges several 

evidentiary rulings made by the trial court, he fails to provide portions of the record 

containing the parties'    arguments and the court's  rulings.  Without these critical 

portions of the record, we cannot evaluate whether the jury's verdicts are supported by 

substantial  evidence in the record or whether the trial court tenably exercised its 

discretion.  Because these omissions affect our ability to review the issues presented 
on appeal, they are fatal.14

8 RAP 9.2; In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990).
9 Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107-08, 864 P.2d 937 (1994).  
10 Winbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d 576 (2001).
11 Burnside, 123 Wn.2d at 108.  
12 City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004).  
13 Salas v. Hi -- Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010).
14 Bulzomi v. Dep't of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) 
(insufficient record on appeal precludes review); Olmsted v. Mulder, 72 Wn. App. 169, 
                                               4 

No. 61272-7-I / 5

       Even if we could overlook the procedural deficiencies in this appeal, Momah's

claims clearly lack merit.  Momah essentially argues that the testimony of each plaintiff 

was not credible because there were inconsistencies between the trial testimony and 

the patient medical records or prior statements.  But because of the incomplete record, 

we do not know the specific basis for the jury's findings of negligence and cannot 

assess  the materiality of any of the discrepancies.  Moreover, it appears that the 

plaintiffs were cross-examined regarding many of the issues Momah raises.  While 

Momah's argument reflects his disagreement with the jury's assessment of credibility, it 

does not undermine the sufficiency of the evidence supporting the verdicts.  

       With respect to plaintiff McDougal, Momah claims that the only basis for her 

malpractice claim was the consensual sexual relationship she and Momah engaged in

while she was his patient.  He contends that,  as a matter of law, sexual contact 

between a patient and physician does not amount to medical negligence.  But Momah 

cites no authority that supports his position.  At trial, the defense apparently argued 

that McDougal's claim should be dismissed because no Washington court decision has 

specifically held that consensual sexual conduct constitutes medical negligence.  The 

trial court denied the motion, and determined that McDougal's theory that Momah 

abused his position of trust by engaging in a sexual relationship with her and thereby 

violated the standard of care was not contrary to Washington law.  And although the 

183, 863 P.2d 1355 (1993) (failure to designate relevant portions of the record 
precludes review).

                                               5 

No. 61272-7-I / 6

expert witness testimony is not in the record, it appears that an expert testified that a 

physician violates the standard of care by having sexual relations with a patient due to 

the imbalance of power inherent in a physician-patient relationship.  This testimony is 
consistent with Washington law.15  

       Momah devotes a substantial portion of his brief to challenging the evidence that 

the plaintiffs were treated or assaulted by his brother, Dennis Momah.   Momah claims 

that these allegations were instigated and fabricated by the plaintiffs' attorney.  He also 

challenges the    testimony of a former employee           whose testimony supported the 

plaintiffs' allegations.  But because the jury rejected all claims involving impersonation, 

we fail to see the relevance of these arguments.          

       Momah contends he is entitled to set aside the judgment because his trial 

counsel rendered ineffective assistance by failing to appropriately consult with him and 

failing to adequately prepare for trial.  Nothing in the record suggests that Momah was 

dissatisfied with counsel at the time of trial.  And since this is a civil matter involving 
only private parties, ineffective assistance of counsel is not legal grounds for reversal.16

       Momah challenges the court's admission of an agreed order he entered into with 

the Medical Quality Assurance Commission (MQAC) in which Momah agreed to the 

15 See Loudon v. Mhyre, 110 Wn.2d 675, 679, 756 P.2d 138 (1988) (physician-patient 
relationship is a fiduciary relationship of the highest degree involving every element of 
trust, confidence and good faith).  

16 Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.1985).

                                               6 

No. 61272-7-I / 7

revocation of his license to practice medicine in Washington.   The version of the 

document admitted at trial was redacted and the only allegations included in the 

admitted version of the document were those related to plaintiff Rule.  The allegations 

pertaining to eighteen other patients were omitted.   With respect to Rule, Momah 

acknowledged the allegations that he performed "medically unnecessary laparoscopy 

surgeries" on her in 2003 and that he operated in an "uncertified office operating room 

without appropriate facilities or equipment."      He acknowledged that the procedure to 

terminate her ectopic pregnancy specifically put Rule in danger because the procedure 

carried a significant risk of bleeding and he was unable give blood if needed.

       Momah claims that this document should have been excluded because it was an 

out-of-court statement, highly prejudicial, and was "not supposed to be used in any 

other proceedings."    The report of proceedings containing the arguments of the parties 

with respect to admission of the exhibit and the court's ruling is not included in the 

record on review.  Not knowing the basis for the court's ruling, we are unable to assess 

whether the court reasonably exercised its discretion.  Nonetheless, it appears that the 
document was admissible as a non-hearsay admission of a party opponent.17              Contrary 

to Momah's claim, nothing in the document prohibited its admission in this civil 

proceeding.  And while the agreed order was undoubtedly  unfavorable,  as Momah 

acknowledges, he did not actually stipulate to the conduct recited, but only 
acknowledged the allegations for purposes of the MQAC proceedings.18

17 ER 801(d)(2). 
18 The order states:
                                               7 

No. 61272-7-I / 8

       Momah  also challenges the court's  admission of his conviction for second 
degree rape based on allegations made by plaintiff Burns.19          But again, the portion of 

the transcript where the court ruled that his conviction was admissible is not in the 

record before us.  Without knowing the basis for its ruling, we cannot say that the trial 

court abused its discretion.

       Throughout his brief, Momah raises claims based on the allegedly unethical 

conduct of  the  plaintiffs' trial counsel.  Momah argues that he should have been 

allowed to present evidence to the jury that counsel had been sanctioned by the trial 

court in another case.  But Momah fails to acknowledge or appreciate that the appellate 
court reversed the sanctions imposed in that case.20  More fundamentally, there was no 

motion for sanctions based on counsel's conduct in this case.  The validity of the 

judgment in this case rests upon the sufficiency of the evidence presented at trial.  

Momah fails to substantiate his claim that trial counsel's conduct in other lawsuits in 

any way calls into question the verdicts and judgment rendered in this case.

       Momah also claims the court erred by denying his motion to dismiss the claims 

of Burns and Rule because they failed to disclose the instant lawsuit in bankruptcy 

filings.  However, according to the record, this issue was resolved when both 

       Without admitting the allegations herein, and specifically denying any criminal 
       conduct, the Respondent acknowledges the following allegations and, for 
       purposes of this proceeding only, does not dispute them.  
19 The trial court excluded Momah's criminal convictions related to the other three 
individuals who were not parties to this civil lawsuit.
20 Saldivar v. Momah, 145 Wn. App. 365, 405, 407, 186 P.3d 1117 (2008), review 
denied, 165 Wn.2d 1049, 208 P.3d 555 (2009).
                                               8 

No. 61272-7-I / 9

bankruptcies were reopened and the trial court allowed the bankruptcy trustees  to 

substitute as plaintiffs in this case.  In light of this, Momah  provides no reasoned 
argument as to why dismissal was appropriate.21  We decline to consider this argument 

further.  

       Affirmed.

WE CONCUR:

21 Contrary to Momah's assertion, the trial court did not prohibit the defense from 
referring to the plaintiffs' bankruptcies.  Instead, it specifically ruled that the defense 
could inquire of Burns and Rule about any potentially untruthful disclosures made
during their bankruptcy proceedings.    
                                               9