Payne v. Paugh

Decision Date28 September 2015
Docket NumberNo. 71411–2–I.,71411–2–I.
Citation360 P.3d 39,190 Wash.App. 383
CourtWashington Court of Appeals
PartiesDorothy L. PAYNE, individually and as the personal representative of the Estate of Becky S. Anderson, deceased, Appellant, v. Donald R. PAUGH; Wenatchee Valley Medical Center, P.S.; Linda K. Schatz; Wenatchee Anesthesia Associates; Laser Engineering, Inc., a foreign corporation; Medtronic, Inc.; Medtronic Xomed, Inc.; and Unknown John Does, Respondents, Central Washington Health Services Association d/b/a Central Washington Hospital, a Washington Corporation; Nonparty Defendant.

Ralph James Brindley, Joel Dean Cunningham, David Merritt Beninger, J. Andrew Hoyal II, Deborah Lee Martin, Luvera Law Firm, Steven Richard Pruzan, Attorney at Law, Seattle, WA, Paul Nicholas Luvera Jr., Attorney at Law, Gig Harbor, WA, George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, for Appellant.

Stephania Camp Denton, Lane Powell PC, Seattle, WA, Dan Smulian, Greenberg Traurig, LLP, New York, NY, Brigid F. Cech Samole, Elliot H. Scherker, Greenberg Traurig, P.A., Miami, FL, Lori G. Cohen, Victoria D. Lockard, Evan Holden, Greenberg Traurig, LLP, Atlanta, GA, for Respondents.

William James Leedom, Jennifer Lynn Moore, Michael F. Madden, Bennett Bigelow & Leedom PS, D.K. Yoshida, Yoshida Law Firm PLLC, Tracy N. Grant, Attorney at Law, Aaron Paul Riensche, Ogden Murphy Wallace PLLC, Seattle, WA, for Other Parties.

Opinion

SCHINDLER, J.

¶ 1 Becky S. Anderson was seriously injured during elective throat surgery. Anderson filed a negligence lawsuit against otolaryngologist Dr. Donald Paugh and Wenatchee Valley Medical Center PS, anesthesiologist Dr. Linda Schatz and Wenatchee Anesthesia Associates, Central Washington Hospital, and medical device manufacturer Medtronic Inc. and Medtronic Xomed Inc. (Medtronic). Following a seven-week trial, the jury found Dr. Paugh and Wenatchee Valley Medical Center, Dr. Schatz and Wenatchee Anesthesia Associates, and nonparty Central Washington Hospital negligent and that the negligence was a proximate cause of the injury to Anderson. The jury found medical device manufacturer Medtronic was not negligent. The jury awarded Anderson $18 million in damages. The jury attributed 42.5 percent of the negligence to Dr. Paugh and Wenatchee Valley Medical Center, 52.5 percent to Dr. Schatz and Wenatchee Anesthesia Associates, and 5 percent to the hospital. The court entered a judgment on the jury verdict against Dr. Paugh and Wenatchee Valley Medical Center, and Dr. Schatz and Wenatchee Anesthesia Associates. Anderson appeals the jury verdict in favor of Medtronic. Anderson concedes a negligence standard applies to the design defect claim against medical device manufacturer Medtronic under Restatement (Second) of Tortssection 402A comment k (1965). Nonetheless, Anderson claims the court erred in refusing to give a proposed supplemental jury instruction that is used for a strict liability design defect claim to define the duty of a medical device manufacturer under Restatement (Second) of Tortssection 402A comment k. We disagree, and affirm the jury verdict.

FACTS
The Surgery

¶ 2 In January 2012, Becky S. Anderson went to see otolaryngologist Dr. Donald Paugh about [a] coughand some hoarseness.” Dr. Paugh diagnosed a benign vocal cord polypand recommended tracheal laser surgery. Anderson decided to proceed with the elective tracheal laser surgery. Dr. Paugh scheduled the surgery for February 3, 2012 at Central Washington Hospital.

¶ 3 Before the surgery began, the hospital operating room staff mistakenly told Dr. Paugh and anesthesiologist Dr. Linda Schatz that only the single-cuff “Laser–Shield II” endotracheal tubemanufactured by Medtronic was available.

¶ 4 The Laser–Shield II is designed for endotracheal intubationduring laser surgeries and has “a laser resistant overwrap on the main shaft.” However, the “Instructions for Use” state the inflatable cuff that seals the airway and prevents oxygen and other flammable gas from reaching the surgical field is not laser resistant. The Instructions for Use warn users that contacting the cuff with a laser “may cause deflation of the cuff and result in combustion and fire.” The instructions tell users to place wet cotton gauze around the cuff to protect from laser strike. To alert users to a rupture, the Laser–Shield II cuff-inflation valve is equipped with blue methylene dye that stains the cotton gauze if the cuff is punctured. The Instructions for Use warn of the risk of fire due to “elevated oxygen levels or other flammable gases” and recommend using a “30% oxygen / 70% helium, or 30% oxygen / 70% room air” combination.

¶ 5 Neither Dr. Paugh nor Dr. Schatz had ever used the Laser–Shield II. Dr. Paugh had used only a double-cuff endotracheal tubemanufactured by Mallinckrodt Inc. The double-cuff tube has a lower cuff that seals the airway to prevent oxygen from leaking out and an upper cuff that shields the lower cuff from damage from the laser.

¶ 6 Nonetheless, Dr. Paugh and Dr. Schatz decided to proceed with the surgery and use the Laser–Shield II. Neither Dr. Paugh nor Dr. Schatz read the Laser–Shield II Instructions for Use. Contrary to the Instructions for Use, Dr. Schatz administered 100 percent oxygen, not the recommended 30 percent. During the surgery, Dr. Paugh perforated the inflatable cuff of the tube with the laser causing oxygen to leak into the surgical site and ignite. The airway fire caused serious burns to Anderson's trachea and lungs.

The Lawsuit

¶ 7 Anderson filed a complaint against Central Washington Hospital, Dr. Paugh and Wenatchee Valley Medical Center, and Dr. Schatz and Wenatchee Anesthesia Associates alleging medical negligence, and alleging product liability against medical device manufacturer Medtronic Inc. and Medtronic Xomed Inc. (Medtronic). Anderson alleged Dr. Paugh and Dr. Schatz breached the standard of care resulting in the injuries to Anderson. Anderson alleged Medtronic was “liable under the Washington Products Liability Act R.C.W. Chapter 7.72 for defect in production or construction. In the amended complaint, Anderson alleged Medtronic was liable under the Washington product liability act, chapter 7.72 RCW.

Summary Judgment

¶ 8 Anderson filed a motion for partial summary judgment arguing there was no dispute Dr. Schatz was negligent in administering 100 percent oxygen. Anderson also, argued Dr. Schatz acted as an agent of the hospital. The court granted the motion in part, ruling Dr. Schatz and Wenatchee Anesthesia Associates were negligent as a matter of law.

¶ 9 Following discovery, Medtronic filed a motion for summary judgment dismissal of claims alleging design defect, failure to warn, and manufacturing or production defect. Medtronic argued the Laser–Shield II is a prescription medical device governed by the negligence standard under Restatement (Second) of Tortssection 402A comment k (1965), and there was no evidence of defective design. Medtronic argued that because the Laser–Shield II warnings “were adequate as a matter of law,” it was entitled to dismissal of the failure to warn claim. Medtronic also argued Anderson could not show that “any allegedly deficient warnings or instructions proximately caused her injuries.” Medtronic submitted the deposition testimony of Dr. Paugh and Dr. Schatz admitting they did not read the Laser–Shield II Instructions for Use before the surgery.

¶ 10 In response, Anderson did not dispute that the negligence standard under Restatement (Second) of Tortssection 402A comment k applied to the design defect claim. Relying on the Washington Pattern Jury Instruction 110.02.01, “Manufacturer's Duty—Design—Unavoidably Unsafe Products—Negligence—Comment K,” Anderson argued there were material issues of fact as to Medtronic's breach of the duty to use reasonable care to design a product that was reasonably safe and on proximate cause.16 Washington Practice: Washington Pattern Jury Instructions: Civil110.02.01, at 635 (6th ed. 2012) (WPI). Anderson also argued that because the information on the Laser–Shield II box was inadequate and deceptive, there were material issues of fact on failure to warn.

¶ 11 At the summary judgment hearing, Anderson's attorney confirmed that the comment k negligence standard under Restatement (Second) of Tortssection 402A applied to the design defect claim against Medtronic and withdrew any alleged claims for breach of warranty and construction or manufacturing defect.

¶ 12 The court granted in part and denied in part Medtronic's motion for summary judgment. The court granted Medtronic's motion to dismiss the failure to warn claim. The court denied the motion to dismiss the negligent design claim.

The Court hereby ORDERS that Medtronic, Inc. and Medtronic, Xomed, Inc.'s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN PART.
The Medtronic Defendants' Motion is GRANTED as to Plaintiff's claims for failure to warn or inadequate warnings. All such claims are hereby dismissed with prejudice and without fees or costs to any party.
Plaintiff has withdrawn her claims for breach of warranty and unsafe construction or manufacturing defect, to the extent such claims were stated in the Complaint.
....
The Medtronic Defendants' motion is DENIED and Plaintiff may proceed against the Medtronic Defendants as to her claim for negligent design.

¶ 13 Before trial, Central Washington Hospital settled with Anderson for $12 million. The court entered an agreed order dismissing the hospital but granted Anderson's motion to identify the hospital as a nonparty defendant at trial for purposes of allocating fault.

Trial

¶ 14 At the beginning of the seven-week jury trial and before opening statements, the court agreed to read a number of instructions on the law to the jury including the “Pre–Instruction” Anderson submitted on the negligent design claim, Medtronic's duty, and the standard of care that applies to the manufacturer of an unavoidably unsafe product under comment k, Restatement (Second) of...

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