Brown v. Dahl

• Decision Date: 21 August 1985
• Docket Number: No. 6762-5-II,6762-5-II
• Citation: 41 Wn.App. 565,705 P.2d 781
• Parties: Lindell Luman BROWN and Edith Brown, husband and wife, Appellants, v. Arne DAHL, M.D. and Jane Doe Dahl, husband and wife, and the marital community composed thereof; and Susan Korte and John Doe Korte, wife and husband and the marital community composed thereof, and Olympic Anesthesia Services, Inc., P.S., a Washington corporation, Respondents.
• Court: Washington Court of Appeals

Page 565

41 Wn.App. 565

705 P.2d 781

Lindell Luman BROWN and Edith Brown, husband and wife, Appellants, v. Arne DAHL, M.D. and Jane Doe Dahl, husband and wife, and the

marital community composed thereof; and Susan Korte and

John Doe Korte, wife and husband and the marital community

composed thereof, and Olympic Anesthesia Services, Inc.,

P.S., a Washington corporation, Respondents.

No. 6762-5-II.

Court of Appeals of Washington,

Division 2.

Aug. 21, 1985.

As Amended on Denial of Reconsideration Nov. 14, 1985.

Stephen W. Fisher, Tuell Anderson & Fisher, Tacoma, for appellants.

Allan R. Billett, Todd M. Worswick, Billett, Comfort & Rosenow, Tacoma, for respondents.

PETRICH, Judge.

Lindell L. Brown and his wife, Edith, appeal from a jury verdict for the defendants in a medical malpractice case and the trial court's dismissal of their informed consent claim for relief. The issues on appeal are whether (1) the court erred by dismissing plaintiffs' informed consent claim for relief; (2) the court improperly instructed as to the standard of care for health care providers; (3) the court's instructions as a whole overemphasized defendants' theory of the case; and (4) the court erred by refusing to instruct on the doctrine of res ipsa loquitur. We reverse and remand.

On the afternoon of February 24, 1980, Mr. Brown entered Harrison Memorial Hospital in Bremerton for exploratory surgery to be performed the following day. When Mr. Brown checked into the hospital, he signed several admission forms, including one that indicated he was aware of risks associated with anesthesia and consented to anesthesia. After completing the forms, which took about 15 to 20 minutes, Mr. Brown was sent by the admissions secretary to consult with Dr. Dahl, one of the defendants, for a pre-anesthetic evaluation. While waiting to meet with Dr. Dahl, Mr. Brown completed a pre-anesthetic evaluation "checklist." Mr. and Mrs. Brown testified that during the ensuing consultation, Dr. Dahl told them that he recommended a general anesthetic procedure (sodium pentothal) for the surgery and would personally perform the proposed procedure. They also testified that although Dr. Dahl asked them whether they had any questions about the proposed anesthetic procedure, he did not disclose any of the risks associated with the proposed procedure nor any of the available alternative anesthetic procedures.

Mr. Brown was taken to the operating room the following morning where he was met by co-defendant Susan Korte, a nurse anesthetist. She testified that she explained to Mr. Brown that she was going to perform the general anesthetic procedure and that Mr. Brown voiced no complaints about her performing the procedure or to the absence of Dr. Dahl.

After completing standard pre-anesthetic preparations and selection of the anesthetic agents, Nurse Korte began to administer general anesthesia to Mr. Brown. As the anesthetic began to take effect, Mr. Brown's airway became partially blocked and he experienced difficulties in breathing. Nurse Korte attempted corrective measures that proved unsuccessful. She then called for help. The elapsed time between Nurse Korte's first discovery of Mr. Brown's breathing problems to when she first called for help was a hotly contested issue at trial. Within moments after Nurse Korte's call for help, several doctors arrived at the scene, including Dr. Dahl.

After several attempts, doctors were successful in establishing an airway for Mr. Brown. Shortly thereafter, however, Mr. Brown sustained a cardiac arrest. Plaintiffs presented evidence to establish that as a result of the cardiac arrest, Mr. Brown suffered significant mental and physical impairments.

Plaintiffs instituted this action alleging (1) violation of the informed consent doctrine, (2) negligence by Dr. Dahl in the pre-anesthetic evaluation of Mr. Brown and in allowing Nurse Korte to perform the anesthetic procedure and by being absent during the procedure after informing plaintiffs he would personally perform it, and (3) negligence by Nurse Korte in her administration of the anesthesia, attempts at corrective measures, and delay in calling for help.

At the close of plaintiffs' case, the court dismissed plaintiffs' informed consent cause of action and the negligence action against Dr. Dahl. The court found sufficient evidence of Nurse Korte's negligence to present this issue to the jury, and further instructed that Dr. Dahl would be responsible for Nurse Korte's negligence if the jury found that he had indeed promised to perform the anesthetic procedure personally. ¹ The jury returned a verdict in favor of defendants, and plaintiffs now appeal.

We first address whether the court erred by dismissing plaintiffs' informed consent cause of action. RCW 7.70.050 ² sets forth the elements plaintiffs are required to prove in order to establish a breach of the informed consent doctrine. Further, because they signed a consent to anesthesia form, plaintiffs have the burden of rebutting the presumption of having given their informed consent. RCW 7.70.060. ³

The doctrine of informed consent refers to the requirement that a physician, before obtaining the consent of his or her patient to treatment, inform the patient of the treatment's attendant risks. The doctrine is premised on the fundamental principle that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body." A necessary corollary to this principle is that the individual be given sufficient information to make an intelligent decision.

(Citations omitted). Smith v. Shannon, 100 Wash.2d 26, 29, 666 P.2d 351 (1983). The Shannon court re-emphasized that it is for the patient to evaluate the risks of treatment and that the physician's only role is to provide the patient with information as to what those risks are.

The patient is endowed with the right to know each hazard which the usual person would utilize in reaching his decision. When a reasonable person in the patient's position probably would attach significance to the specific risk in deciding on treatment, the risk is material and must be disclosed.

Smith v. Shannon, 100 Wash.2d at 31, 666 P.2d 351, quoting Miller v. Kennedy, 11 Wash.App. 272, 287, 522 P.2d 852 (1974), aff'd per curiam, 85 Wash.2d 151, 152, 530 P.2d 334 (1975). However,

[t]he doctrine does not place upon the physician a duty to explain all possible risks, but only those of a serious nature. The guide for disclosure is the test of materiality, which is an objective one, but incorporates the underlying concept of "patient sovereignty." That is, if the reasonable person in the patient's position would attach significance to a risk in deciding treatment, the risk is material. The duty to disclose similarly attaches to recognized possible alternative forms of treatment and to the anticipated results of the treatment proposed and administered.

(Citations and footnotes omitted.) Adams v. Richland Clinic., Inc., P.S., 37 Wash.App. 650, 656-57, 681 P.2d 1305 (1984). See Smith v. Shannon, supra.

While "[t]he testimony of medical experts is not necessary to establish the duty to disclose" (Shannon, 100 Wash.2d at 32, 666 P.2d 351, quoting Miller, 11 Wash.App. at 285, 522 P.2d 852), "Miller expressly recognizes that customary practice may be considered as evidence." Shannon, 100 Wash.2d at 35, 666 P.2d 351, citing Miller, 11 Wash.App. at 288 n. 10, 522 P.2d 852. Moreover, "expert testimony is thus necessary to prove materiality [of certain facts. RCW 7.70.050]. Specifically, expert testimony is thus necessary to prove the existence of a risk, its likelihood of occurrence, and the type of harm in question." Shannon, 100 Wash.2d at 34, 666 P.2d 351. Once materiality is established, however, "expert testimony is of secondary importance" and it is for the jury "to place themselves in the position of a patient and decide whether, under the circumstances, the patient should have been told." Shannon, 100 Wash.2d at 32, 666 P.2d 351, quoting Miller, 11 Wash.App. at 288-89, 522 P.2d 852.

The determination of materiality is a 2-step process. Initially, the scientific nature of the risk must be ascertained, i.e., the nature of the harm which may result and the probability of its occurrence. The trier of fact must then decide whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment.

(Citations Omitted. Italics ours.) Smith v. Shannon, 100 Wash.2d at 33, 666 P.2d 351.

Here, plaintiffs presented expert testimony to establish that blocked airways, respiratory problems, cardiac arrest, and brain damage are risks associated with general anesthesia. Expert testimony also established that the risk of a blocked airway leading to respiratory problems was a relatively common one. Expert testimony also established the existence of various alternatives to general anesthesia, including regional, local, and no anesthesia. While evidence of the risks and benefits associated with these various alternatives as compared to the risks and benefits associated with general anesthesia could have been more fully developed, see RCW 7.70.050(2) and (3)(d), some evidence of risks and benefits associated with the various alternatives was presented. ⁴ The evidence also established that Mr. Brown underwent successful regional anesthesia without any complications when eventually the exploratory surgery was performed. Moreover, there was expert testimony that Dr. Dahl did not elicit sufficient pre-anesthetic information from Mr. Brown to assess adequately his candidacy for general anesthesia or provide the anesthesiologist performing the anesthetic procedure with sufficient information to handle adequately the type of emergency experienced. Finally, both of plaintiffs' experts opined that Dr. Dahl violated the customary practice in regard to informed consent by his failure to apprise the Browns of the risks of...