Adams v. Richland Clinic, Inc., P.S.

• Citation: 681 P.2d 1305,37 Wn.App. 650
• Decision Date: 24 May 1984
• Docket Number: No. 5229-III-0,5229-III-0
• Parties: Harold ADAMS and Diana Adams, Appellants, v. RICHLAND CLINIC, INC., P.S., a Washington Corporation, Respondent.
• Court: Court of Appeals of Washington

Page 650

37 Wn.App. 650

681 P.2d 1305

Harold ADAMS and Diana Adams, Appellants, v. RICHLAND CLINIC, INC., P.S., a Washington Corporation, Respondent.

No. 5229-III-0.

Court of Appeals of Washington, Division 3,

Panel Two.

May 24, 1984.

Rehearing Denied July 25, 1984.

Robert T. Beaty, R.M. Holt, R.M. Holt, Inc., P.S., Issaquah, for appellants.

Orville B. Olson, Olson, Olson, Hevel & Vanderschoor, Pasco, for respondent.

THOMPSON, Judge.

Harold and Diana Adams appeal a decision granting the motion of Richland Clinic, Inc., for directed verdict in Mrs. Adams' medical malpractice action. ¹ Plaintiff's appeal addressed the dismissal of her negligent treatment and informed consent claims. We affirm the dismissal of the treatment claims, but reverse and remand for a new trial of the informed consent cause of action.

In 1977, Mrs. Adams read a magazine article promoting a surgical procedure for alleviating weight problems. She generally enjoyed good health, but had a chronic weight problem and had unsuccessfully tried several diet plans. Prompted by the magazine article, in July 1977, she contacted Dr. Heap at the Richland Clinic. Dr. Heap advised Mrs. Adams he did not do the procedure described in the magazine but performed a less risky and more successful surgery known as a gastric bypass which entailed stapling the stomach into two pouches to reduce food intake. He drew an explanatory diagram for her to assist in explaining the procedure.

Prior to meeting with Dr. Heap, Mrs. Adams had prepared a list of questions. The doctor answered some of these questions. For example, he explained obese people tend to have more problems with anesthetics. He explained generally the risks attendant to major surgery. His answers to other questions were less specific, commenting that some of her questions were very good questions. He did not explain specific risks attendant to the gastric bypass procedure. Mrs. Adams, who had never had psychiatric care, asked if she would need a psychiatric evaluation prior to the surgery. Dr. Heap responded he did not think it would be necessary. Finally, she was instructed she would have to return with her husband because Dr. Heap would not undertake such surgery without her husband's consent.

Later, Mrs. Adams, together with her husband, met with Dr. Heap to further discuss the procedure. Dr. Heap drew a second diagram and advised the bypass was a serious procedure with a 2 1/2 percent mortality and 3 to 4 percent morbidity rate. He discussed major risks associated with any surgery under general anesthesia, but made no mention of the possibility of ulcers or hernias as surgical complications. He did not discuss the risk the staples could pull apart, nor the necessity for dieting after surgery. Dr. Heap told the couple he had performed the surgery before, and in response to Mrs. Adams' question of what could be done if something went wrong during surgery or further down the line, Dr. Heap instructed he would "unstaple" (reverse the procedure).

Without referral to other specialists, Dr. Heap determined Mrs. Adams was a candidate for gastric bypass surgery and performed that procedure on September 9, 1977, in the Tri-Cities. A few days later, Mrs. Adams started vomiting bile. Dr. Heap observed by gastroscopy (tube placed down the throat into the stomach) a breakdown of the stomach stapleline. Neither Mr. nor Mrs. Adams was advised of the gastroscopy results. On the day the breakdown was discovered, Dr. Heap advised Mrs. Adams a second surgery was necessary, but she told him she did not want a second surgery. Rather, she pleaded with him to unstaple her stomach and to return her to her presurgery condition. He responded that "too many complications had arisen" to reverse the procedure. Prior to the second surgery, Mr. Adams testified he also talked with Dr. Heap and asked his opinion about reversing the surgery. Dr. Heap said, "he didn't know" and would have to operate to determine what was wrong. Finally, Mr. Adams told the doctor to do what he thought best and a second surgery was performed September 15, 1977. After the second surgery, Dr. Heap informed Mr. Adams he had discovered the stapleline had given way. He had restapled it, but had to cut out a portion of the stomach that had died. At this point, Dr. Heap said a reversal of the bypass was impossible.

Mrs. Adams did not respond to the second surgery, necessitating a third surgery on September 22, 1977, and a fourth and fifth before mid-October 1977. Mrs. Adams also developed pneumonia and experienced withdrawal symptoms from the morphine which had been administered for pain since the first surgery. On October 29, 1977, she was discharged from the hospital.

Dr. Heap followed Mrs. Adams postoperatively, prescribing Valium and Tylenol for her nerves and stomach discomfort. Intermittently she developed abscesses where tubes had been used to drain her stomach through an open wound. Late in 1978, she developed an incisional hernia. At about this time, Dr. Heap began treating the patient with a new ulcer medication for stomach discomfort. He did not instruct Mrs. Adams that the medication was used to treat ulcers. Mrs. Adams was surprised to learn from the doctor at this same time that she would need to continue dieting if she was to lose weight.

By mid-1980, Mrs. Adams still had an open stomach wound from the surgery. At this time, Dr. Heap suggested a brace to alleviate hernia discomfort and he stated, though he did not want to operate again, hernia surgery could be necessary in the future. Mrs. Adams last saw Dr. Heap in September 1980.

In 1981, another doctor diagnosed her hernia and the ulcer and hernia were surgically repaired at the University of Washington Hospital. Mrs. Adams has since complained of abdominal pain, for which doctors have been unable to associate an organic basis. Presently, she is receiving psychiatric care.

At trial, Mrs. Adams contended her surgeries were negligently performed and that bypass surgery should not be performed in the Tri-Cities. Dismissal of this claim is not specifically challenged on appeal. ²

Mrs. Adams' treatment case is based on the assertions that (1) Dr. Heap, prior to the first surgery, failed to properly ascertain whether she was a candidate for the assertedly experimental procedure by failing to refer her to other specialists, such as a psychiatrist; (2) Dr. Heap should have diagnosed and surgically treated Mrs. Adams' postsurgical ulcer years earlier, and that he should not have tried to treat her symptoms medically; (3) the incisional hernia which resulted from the five surgeries was not properly managed by Dr. Heap. ³

Mrs. Adams first assigns error to dismissal of these treatment claims, contending the court misapplied the "locality rule" rather than the "statewide rule" in determining whether plaintiff had established a recognized standard of care in the community. The plaintiff correctly states Washington long ago abandoned the "locality rule" which mandated reference to the standard of care in the same community or in the same or similar locality where the defendant practiced. Douglas v. Bussabarger, 73 Wash.2d 476, 489-90, 438 P.2d 829 (1968); Pederson v. Dumouchel, 72 Wash.2d 73, 77, 431 P.2d 973 (1967). Instead, in 1976, the geographic parameters to the applicable standard of care were codified in a statewide definition. Laws of 1975, 2d Ex.Sess., ch. 56, § 9, codified at RCW 7.70.040(1) (mandating a practitioner exercise that degree of skill expected in the profession "in the state of Washington").

While the trial court referenced "this community" in its oral ruling, a reading of the entire passage reflects a concern by the trial judge that the experts were testifying to mere personal opinion in a university setting as opposed to articulating the recognized standard of care for the profession in the state of Washington. Testimony reflecting only a personal opinion or testimony of experts that they would have followed a different course of treatment than that of the defendant is insufficient to establish a standard of care against which a jury must measure a defendant's performance, since the fact finder may not be given the choice of choosing between two standards. Hayes v. Hulswit, 73 Wash.2d 796, 800, 440 P.2d 849 (1968).

Accepting Dr. Heinbach's and Dr. Lennard's testimony as true, and giving that testimony all reasonable inferences, Moyer v. Clark, 75 Wash.2d 800, 803, 454 P.2d 374 (1969), we are unable to find plaintiff presented evidence of a statewide standard of care rather than a local standard or mere personal opinion in 1977. The experts acknowledged familiarity with Drs. Alden's and Mason's literature, and testified the University of Washington's procedures were consistent with this pioneer literature. However, they further stated their opinions were personal. The questions propounded were not in standard of care terminology; accepted practices in Washington were not identified either before or after the experts stated their opinions were personal. At no time did an expert express an opinion that a failure to conform to the Alden/Mason literature was conduct inconsistent with a recognized standard of care. In fact, Dr. Lennard testified that Dr. Heap's management with the treatment of the various complications violated no standard of care.

We therefore affirm dismissal of the treatment claims. Having determined no Washington standard of care was presented to the trial court, it is unnecessary to address plaintiff's further premise that the "reasonable prudence" standard and not the "average practitioner" rule should be applied on remand to evaluate these claims.

Mrs. Adams additionally assigns error to the dismissal of her informed consent claim, contending that expert testimony is unnecessary in a consent case except to establish what risks attend a surgical procedure.

Based upon the premise that a competent individual has a right to...