Estate of Lapping v. Group Health Co-op. of Puget Sound, 16219-9-II

• Decision Date: 28 April 1995
• Docket Number: No. 16219-9-II,16219-9-II
• Citation: 892 P.2d 1116,77 Wn.App. 612
• Parties: The ESTATE OF Joyce Diane LAPPING, Appellant, v. GROUP HEALTH COOPERATIVE OF PUGET SOUND, a Washington corporation, and Daniel Dugaw, D.O., Respondents.
• Court: Washington Court of Appeals

Page 612

77 Wn.App. 612

892 P.2d 1116

The ESTATE OF Joyce Diane LAPPING, Appellant, v. GROUP HEALTH COOPERATIVE OF PUGET SOUND, a Washington

corporation, and Daniel Dugaw, D.O., Respondents.

No. 16219-9-II.

Court of Appeals of Washington,

Division 2.

April 28, 1995.

David W. Soukup, Levinson, Friedman, Vhugen, Seattle, for appellant.

Dinah C. Pomeroy, Rosenow, Johnson, Graffe, Seattle, for respondents.

MORGAN, Judge.

In this medical malpractice case, the personal representative of Joyce Lapping's estate appeals from a jury verdict in favor of Group Health. We reverse in part and affirm in part.

In the fall of 1987, Joyce Lapping was experiencing irregular menstruation. Thus, she sought the advice of her Group Health physician, Dr. Daniel Dugaw.

At that time, Lapping was 48 years old. She had a history of seizures, but had not had one for 9 years. She was taking dilantin prescribed by Dr. Dugaw, who had been her physician since 1981.

Concerned about cancer, Dr. Dugaw decided to perform an endometrial biopsy. The purpose of that procedure is to remove, for later examination in the laboratory, a tissue sample taken from the lining of the uterus. Dr. Dugaw performed a biopsy on October 23, 1987, but obtained insufficient tissue for laboratory analysis.

A second biopsy was scheduled for November 12, 1987. When Lapping arrived at the Group Health Clinic, she was placed in a treatment room. There, she met Beth Baker, the nurse assigned to assist Dr. Dugaw. Baker took her blood pressure, which was normal. Dr. Dugaw then came into the room and went over a consent form. He had gone over the same form on October 23, and "the previous consent form ... was pretty fresh in both our minds." ¹ Paragraph 4 stated in part, "I have been informed of certain risks and complications that can reasonably be anticipated", including "pain, bleeding, infection, perforation of uterus". Paragraph 5 stated in part, "I have been informed that there are significant risks such as severe loss of blood, infection and cardiac arrest that can lead to death or permanent or partial disability, which may be attendant to the performance of any procedure." Paragraph 6 stated in part, "I consent to the administration of anesthesia ...," and "I understand that all anesthetics involve risks of complications and ... in some cases may result in paralysis, cardiac arrest and/or brain death from both known and unknown causes." ² Dr. Dugaw did not tell Lapping that her seizure history would or would not affect the risks described in the consent form. Nor did he tell her that the biopsy could be performed in a hospital, with more precautions than were available in the clinic.

Lapping signed the consent form at approximately 10:20 a.m. ³ She was then positioned on the examination table, with Dr. Dugaw at her feet and Baker to Dr. Dugaw's right. A drape was placed across her midsection, so the upper part of her body was visible to Baker but not to Dr. Dugaw. No equipment was used to monitor breathing, blood pressure or pulse, and the nearest "crash cart" was in the room next door. ⁴ No one checked the level of dilantin in Lapping's bloodstream, although Dr. Dugaw thought it was probably too low to be effective. ⁵

Between 10:23 and 10:27 a.m., according to Dr. Dugaw's estimate, Lapping was injected with lidocaine. After waiting a short time for the drug to take effect, Dr. Dugaw said he was ready to start, and Lapping answered, "Okay." After probing the uterus to ascertain its size, Dr. Dugaw then started the biopsy itself.

The biopsy involved scraping tissue from a small area of the uterus, using a medical instrument called a curet. "After several passes with the curet, ... the patient had what appeared to be a seizure and jerking motions, and it was obvious that there was something that was going on." ⁶

The seizure began at approximately 10:30 a.m. and lasted 15 to 30 seconds. When it was over, Lapping had neither a pulse nor blood pressure. She also was not breathing, although she had "irregular gasping respirations" of a type "common in somebody who is in respiratory arrest". ⁷ Dr. Dugaw attempted cardiopulmonary resuscitation (CPR) while Baker "called a code".

Three doctors and several nurses responded. The crash cart was brought in from the next room, an endotracheal tube was inserted, a cardiac monitor was put in place, an IV was started, and efforts at CPR continued. The tube was inserted at 10:36 a.m., according to the Group Health chart.

Paramedics were dispatched at 10:32 and arrived at 10:41, according to their report. ⁸ They observed that Lapping's pupils were unequal and unresponsive, a condition caused by prolonged lack of oxygen to the brain. After attempting to resuscitate unsuccessfully, they took Lapping to St. Francis Hospital, where she was pronounced dead.

On March 16, 1990, Lapping's daughter, acting as the personal representative of Lapping's estate, sued Dr. Dugaw and Group Health. She alleged that the defendants "negligently performed and failed to perform required medical services and otherwise acted and failed to act in ways which constitute negligence". She also alleged that the defendants "failed to inform decedent of material risks and alternatives to the proposed course of treatment thereby causing decedent to consent to such treatment without being aware of material risks and alternatives". Thus, she asserted causes of action for negligent treatment and lack of informed consent.

A jury trial commenced on November 4, 1991. At the end of the evidence, the defendants moved to dismiss the cause of action for lack of informed consent, and the trial court granted the motion. A short time later, the jury was instructed to decide whether the defendants had been negligent in failing to (1) insure dilantin was at a therapeutic level before doing surgery, (2) monitor Lapping's blood pressure, respiration and heart function during surgery, and (3) provide an adequate supply of oxygen by means of timely intubation and CPR.

On November 19, 1991, the jury returned a special verdict form stating that the defendants had not been negligent. The trial court denied posttrial motions and entered judgment on the verdict.

Plaintiff now appeals, raising four issues. They concern (1) attorney misconduct, (2) informed consent, (3) jury instruction 13, and (4) the cross examination of a defense witness, Dr. Yuen.

I. ATTORNEY MISCONDUCT

Dr. Ted L. Rothstein, a board certified neurologist, was called as a witness for plaintiff on the afternoon of November 7. During cross examination, defense counsel asked, "Doctor, what's the nature of the investigation that's currently being done about you by the Medical Disciplinary Board of this State?" ⁹ Plaintiff's counsel immediately objected, and the court held a sidebar conference during which defense counsel said "she had no idea what the answer [to the question] was". ¹⁰ The jury was then sent out, and plaintiff's counsel argued, among other things, that "[w]hether Dr. Rothstein is being investigated ... or not, the answer would not be admissible". At some point, it was also discovered that there was no investigation pending. ¹¹ Stating that the question "was not an ethical question to be asked", and that the question "dar[ed] everybody involved to have a mistrial," ¹² the trial judge asked plaintiff's counsel if he wanted a mistrial. Plaintiff's counsel answered no, but a short time later asked if he could consider the problem overnight. The trial judge indicated he would grant a mistrial if one were desired, but he denied leave to delay overnight. Plaintiff's counsel declined a mistrial, and the court and the parties formulated a limiting instruction that was read to the jury upon its return. The instruction stated:

Ladies and gentlemen of the jury, I have talked to all counsel. There does not appear to be any evidentiary basis for the last question. It should not have been asked. And you are hereby directed to thoroughly disregard the question and any inferences that might be drawn from it. That is an order of the court, an order to strike that from any kind of consideration whatsoever.[ ¹³

After the jury returned a defense verdict, plaintiff moved for new trial based on defense counsel's misconduct. The trial court denied the motion, and plaintiff now assigns error to that ruling.

Defense counsel's question constituted egregious misconduct. There was no basis for asking it, ¹⁴ and "[i]t is axiomatic that counsel cannot ask questions of a witness that have no basis in fact and are merely intended to insinuate the existence of facts to a jury". Del Monte Banana Co. v. Chacon, 466 So.2d 1167, 1172 (Fla.Dist.Ct.App.1985). Moreover, as plaintiff correctly points out, there was no answer to the question that could possibly have been admissible under the rules of evidence. ¹⁵ The pendency of an investigation into an unknown and unspecified complaint simply had no tendency to prove or disprove a fact of consequence to the action. ER 401-02.

The question was patently prejudicial. The case was close, and the question impugned the character and credibility of a significant witness. Poole v. University of Chicago, 186 Ill.App.3d 554, 134 Ill.Dec. 400, 404, 542 N.E.2d 746, 750 (1989) (prejudice generated by evidence of pending disciplinary investigation), appeal denied, 128 Ill.2d 672, 139 Ill.Dec. 522, 548 N.E.2d 1078 (1989); Purvis v. Johnson, 430 S.W.2d 226, 231 (Tex.Civ.App.1968) (prejudice generated by hearsay letter impugning doctor's competence).

The issue is remedy. The defendants say plaintiff waived any right to a new trial when she declined the trial court's offer of a mistrial. See Nelson v. Martinson, 52 Wash.2d 684, 689, 328 P.2d 703 (1958); Casey v. Williams, 47 Wash.2d 255, 287 P.2d 343 (1955); Sun Life Assur. Co. v. Cushman, 22 Wash.2d 930, 945, 158 P.2d 101 (1945). Arguing to the contrary, the plaintiff says she was entitled to wait and ask for a mistrial after the...