Backlund v. University of Washington

Decision Date08 April 1999
Docket NumberNo. 66096-4,66096-4
Citation137 Wn.2d 651,975 P.2d 950
CourtWashington Supreme Court
PartiesLarry G. BACKLUND and Constance R. Backlund, individually an as parents of Ashley Amber-Lyn Backlund, and Ashley Amber-Lyn Backlund, through the guardian of her estate, James A. Degel, Petitioners, v. UNIVERSITY OF WASHINGTON, and State of Washington, Respondents.

Daniel W, Ferm, Tacoma, Donovan Russell Flora, Seattle, for Petitioners.

Malcolm L. Edwards, Howard Goodfriend, Seattle, for Respondents.


We are asked to apply Washington's informed consent law for health care patients, RCW 7.70.050, in a case where the Backlunds allege Dr. Craig Jackson committed malpractice while he was employed by the University of Washington (University). They contend he was negligent in continuing to treat Ashley Backlund's jaundice at birth with phototherapy. They argue he should have abandoned phototherapy, a more conservative form of treatment for jaundice, or applied it in conjunction with a transfusion of Ashley's blood, a riskier procedure. A jury, however, exonerated Dr. Jackson and the University from any negligence in the decision to continue The University argues a cause of action for failure to obtain informed consent is unavailable to the Backlunds as a matter of law where the jury exonerated Dr. Jackson and the University from negligence. We disagree with the University's contention.

phototherapy instead of transfusing the baby. Now, the Backlunds complain Dr. Jackson and the University failed to provide them sufficient information upon which to make an informed health care choice, thus violating RCW 7.70.050, subjecting Dr. Jackson and the University to liability despite their exoneration from liability for negligence.

But because the Backlunds did not prove the elements of a prima facie case of breach of informed consent, in particular "[t]hat a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts" as required by RCW 7.70.050(1)(c), we affirm the trial court's judgment dismissing the Backlunds' complaint.


1. Did the jury's exoneration of a physician from liability for negligence forestall a plaintiff's claim for failure to obtain informed consent under RCW 7.70.050?

2. Does a plaintiff establish a prima facie case under RCW 7.70.050 if the plaintiff fails to prove a reasonably prudent patient under similar circumstances would not have consented to a treatment if informed of material facts regarding such treatment?


The Backlunds' daughter, Ashley, was born a week prematurely on December 31, 1987. She weighed six pounds, four ounces at birth. Ashley was transported to Children's Hospital Medical Center the next day when she began showing signs of respiratory distress. She was treated there by Dr. Craig Jackson, a neonatologist employed by the University of Washington.

Ashley suffered from hyperbilirubinemia, or jaundice, caused by elevated levels of bilirubin, a substance released into the bloodstream when red blood cells break down. Such jaundice is not uncommon among infants as approximately a third or more of all newborns at the intensive care unit at Children's Hospital have jaundice. Greatly elevated bilirubin levels, however, can result in permanent brain damage. When Ashley was admitted to Children's Hospital, her serum bilirubin level was 4.2 micrograms per deciliter. It gradually increased to as high as 22.0 mcg/dl on January 7, 1988, then decreased to 5.7 mcg/dl on January 18, 1988.

The type of jaundice Ashley experienced is generally treated with phototherapy, the exposure of the infant's skin to special lights. More serious cases are treated with a transfusion of all the blood in the infant's body, a treatment entailing greater risks including cardiac arrhythmia, bleeding, bacterial infection, and the development of air bubbles in the circulatory system. Dr. Jackson prescribed phototherapy for Ashley, but did not discuss transfusion with the Backlunds. The phototherapy proved unsuccessful, and Ashley suffered brain damage. The Backlunds allegedly were not informed of the risks associated with high bilirubin levels. They did not know Ashley's subsequent developmental problems were caused by the high bilirubin levels she suffered while at Children's Hospital until almost two years after her treatment there.

In 1992, the Backlunds commenced the present action against the University and the State of Washington for Dr. Jackson's alleged negligence and failure to obtain informed consent. A jury in the King County Superior Court exonerated the University and the State from negligence because Dr. Jackson did not breach the standard of care in deciding to treat Ashley with phototherapy, rather than a complete transfusion of her blood. The jury failed to reach a verdict on the informed consent claim. By agreement of the parties, this claim was then tried to the bench before the Honorable William Downing.

At trial, the parties presented conflicting expert testimony as to whether Ashley should have received a transfusion, essentially revisiting many of the issues already resolved by the jury in the negligence portion The University's experts testified Ashley's condition did not reach the point where her risk of brain damage was as great as her risk of death or serious bodily harm from a transfusion. They testified the risk of permanent brain damage from phototherapy was 1 in 10,000. The risk of death from transfusion was estimated between .3 and 1.0 percent and the risk of serious adverse consequences was estimated at 4 to 5 percent. Dr. Jackson testified Ashley's risk of serious harm or death from the transfusion outweighed any risk of brain damage. Dr. Jackson testified he did not discuss transfusion with the Backlunds because he did not believe Ashley's condition was sufficiently serious to warrant such a treatment, and because "bringing it up before that point is unnecessary and causes more stress and distress in the family than is required." Verbatim Report of Proceedings at 224.

of the case. The Backlunds' expert testified Ashley's risk factors placed her at higher risk of developing brain damage. They also testified a transfusion should have been performed when her bilirubin level reached anywhere from 17 to 22 mcg/dl, levels she exceeded from January 4 to January 9, 1988. They employed guidelines from a 1983 treatise which advocated transfusion when bilirubin levels reach 18 mcg/dl in full-term infants with risk factors. The Backlunds' experts concluded Ashley's risk of brain damage outweighed the risks associated with a transfusion.

The trial court ruled for the University on the informed consent issue in a memorandum opinion, 1 finding a transfusion was a "recognized possible alternative form of treatment" for Ashley and "Dr. Jackson was aware of the possibility of a need imminently arising to transfuse this patient in order to prevent the neurological consequences that could result from her condition of hyperbilirubinemia." Clerk's Papers at The trial court, however, ultimately ruled in favor of the University finding the Backlunds did not carry their burden to establish the third element of the cause of action for breach of informed consent, that "a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts." RCW 7.70.050(1)(c).

                740, 742.  The court found the possibility of a transfusion was a "material fact" of which the Backlunds were not aware.  The court further found "continuing phototherapy and not performing a transfusion proximately caused injury to the patient."   Clerk's Papers at 742

In its ruling, the trial court emphasized a jury found Dr. Jackson's treatment of Ashley was not negligent. It would follow, explained the trial court, that Dr. Jackson would appropriately express his preferred course of treatment, phototherapy, not exchange transfusion. The trial court then stated a reasonably prudent patient would, and should, accept his or her physician's recommended treatment when such treatment conforms with the standard of care:

Dr. Jackson's viewpoint and his care of Ashley Backlund have been found by the jury and are found again by this court to be in compliance with the standard of care. In the face of the recommendations he would be expected to make a patient's representative concerning the alternative to an exchange transfusion, it cannot be said that such person would, with reasonable prudence, overrule his advice.

Clerk's Papers at 745.

The Backlunds moved for reconsideration, arguing the trial court actually resolved the factual dispute concerning the risks and benefits of undertaking an exchange transfusion in favor of the University. The trial court denied the motion, but "clarified" its memorandum opinion "to reflect its view that Dr. Jackson's treatment proposed and administered was not merely non-negligent but was correct." Clerk's Papers at 788. The trial court adopted the University's categorization of the risks of the two procedures:

It had been my intention to give a more ringing endorsement to Dr. Jackson's view of the progression of treatment modes and his categorization of the risks and benefits along the way....

The court did not simply find that Dr. Jackson's point of view and his treatment were within the standard care, but the court intended to make affirmative findings that his view of the progression of treatment modes and his categorization of the risks and benefits along the way were, in fact, accurate and proper and appropriate to be conveyed to a reasonably prudent patient or patient's representative.

Clerk's Papers at 797-98.

The Court of Appeals affirmed the judgment in an unpublished opinion, sustaining the trial court's determination, under these facts, that a reasonably prudent patient would not have...

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