Davies v. Multicare Health Sys.

• Decision Date: 12 July 2021
• Docket Number: No. 80854-1-I,80854-1-I
• Citation: 491 P.3d 207
• Court: Washington Court of Appeals
• Parties: Mari Yvonne DAVIES, Appellant, v. MULTICARE HEALTH SYSTEM, a Washington corporation d/b/a Good Samaritan Hospital, and Mt. Rainier Emergency Physicians, PLLC; Michael Hirsig, M.D., Respondents.

491 P.3d 207

Mari Yvonne DAVIES, Appellant,

v.MULTICARE HEALTH SYSTEM, a Washington corporation d/b/a Good Samaritan Hospital, and Mt. Rainier Emergency Physicians, PLLC; Michael Hirsig, M.D., Respondents.

No. 80854-1-I

Court of Appeals of Washington, Division 1.

FILED July 12, 2021

Michael Simon Wampold, Ann Heacox Rosato, Peterson Wampold Rosato Feldman Luna, 1501 4th Ave. Ste. 2800, Seattle, WA, 98101-3677, Ashton K. Dennis, Washington Law Center, 15 Oregon Ave. Ste. 210, Tacoma, WA, 98409-7464, for Appellant.

Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, Levi Larson, Larson Health Advocates, PLLC, 1700 7th Ave. Ste 2100, Seattle, WA, 98101-1360, Jeffrey Richard Street, Hodgkinson Street Mepham, LLC, 1620 Sw Taylor St. Ste. 350, Portland, OR, 97205-1883, Eric Allen Norman, Fain Anderson Et. Al., 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Chad William Esq. Beck, Reminger Co., LPA, 101 W Prospect Ave. Ste. 1400, Cleveland, OH, 44115-1074, for Respondents.

Eric Allen Norman, Fain Anderson Et. Al., 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Chad William Esq. Beck, Reminger Co., LPA, 101 W Prospect Ave. Ste. 1400, Cleveland, OH, 44115-1074, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Other Parties.

PUBLISHED OPINION

Mann, C.J. ¶1 In this medical malpractice action, Mari Davies appeals the trial court's order dismissing her informed consent claim on summary judgment. Davies also appeals the judgment entered on a jury verdict finding the defendants not negligent. Davies argues that the trial court erred by giving an exercise of judgment jury instruction, and preventing her expert neurosurgeon from testifying at trial regarding the standard of care for an emergency room physician. We reverse summary judgment dismissal of Davies's informed consent claim and remand for trial. We otherwise affirm.

FACTS

¶2 On August 23, 2017, Davies was involved in a single-car rollover crash. She had no memory of the accident. Paramedics extracted Davies from the vehicle, placed her on a backboard and in a cervical collar, and transported her by ambulance to Good Samaritan Hospital in Puyallup. Davies reported pain in her neck, back, left shoulder, and tingling in her left arm. She also had preexisting high blood pressure

, pneumonia, kidney stones, and diabetes.

¶3 Dr. Michael Hirsig, the attending physician at the Good Samaritan emergency room, saw Davies upon arrival. Dr. Hirsig conducted a physical exam and ordered laboratory tests, an electrocardiogram

(EKG), and computerized tomography (CT) scans of her head, cervical spine, abdomen, and pelvis. Dr. Scott Henneman, the radiologist who interpreted the CT scans, noted fractures of Davies's cervical spine at the C3 level. At Dr. Henneman's recommendation, Dr. Hirsig contacted Dr. William Morris, a neurosurgeon who often consults by telephone with other physicians in the MultiCare Health System. After reviewing the images, Dr. Morris told Dr. Hirsig that the fractures appeared stable and did not require surgery. Neither Dr. Henneman nor Dr. Morris identified a fracture through the transverse foramen, which would increase the risk of injury to the vertebral artery. Dr. Morris recommended that Davies be placed in a cervical collar for 8 weeks, with a follow-up CT scan to check for healing and alignment. Dr. Morris's progress notes indicate that he was under the impression Davies would be transferred to Tacoma General Hospital for observation by the trauma team.

¶4 Dr. Hirsig initially informed Davies and her family that she had sustained a neck fracture and would likely be transferred to the trauma unit at Tacoma General Hospital. However, after the consultation with Dr. Morris, Dr. Hirsig advised that Davies did not need hospitalization or surgery and could be discharged with a hard cervical collar, with follow-up on an outpatient basis. Dr. Hirsig testified that he asked the family whether they were comfortable taking her home, and they said yes.¹ Dr. Hirsig prescribed pain medication, nausea medication, a muscle relaxant, and a different antibiotic for her pneumonia

, and sent Davies home without further treatment or testing.

¶5 The following day, Davies's daughter took Davies to her primary care physician, Dr. Andrew Larsen, for a follow up visit. Davies's vital signs were unstable and she had severe neck pain made worse by coughing. Dr. Larsen arranged for Davies to be immediately transported to Providence St. Peter hospital for direct admission. While awaiting transport, Davies suffered a stroke

in Dr. Larsen's office. Her stroke was later determined to have been caused by a vertebral artery dissection sustained when her neck fractured during the accident. Davies was hospitalized for approximately three weeks and now resides at an assisted living facility.

¶6 On May 31, 2018, Davies filed suit against MultiCare alleging (1) medical negligence, (2) failure to obtain informed consent, and (3) corporate negligence. Davies alleged that MultiCare and its employees or agents breached the standard of care by failing to admit or transfer her for observation and treatment or by failing to order additional imaging, such as a CT angiography

(CTA) scan, to check for vertebral artery dissection prior to discharge. Dr. Hirsig was allowed to intervene on September 14, 2018. On February 13, 2019, Davies filed an amended complaint and added Dr. Hirsig's employer, Mt. Rainier Emergency Physicians PLLC, as a defendant.

¶7 On cross-motions for partial summary judgment, the trial court dismissed Davies's informed consent claim, and the case proceeded to trial on the negligence claims.

¶8 At trial, the jury heard expert testimony regarding whether Dr. Hirsig breached the standard of care of an emergency medicine physician. Dr. Hirsig testified that he considered and rejected a diagnosis of vertebral artery dissection

and that his care of Davies met the standard of care. Dr. Raymond Moreno, an emergency medicine physician who practices in Portland, Oregon, testified that Dr. Hirsig "absolutely met the standard of care" by performing a broad workup exam, identifying Davies's neck fracture, and consulting with Dr. Morris prior to making a disposition decision. Dr. Moreno further testified that the standard of care in Washington and Oregon does not require a CTA scan for every C3 fracture.

¶9 Davies's expert Dr. Carrie Tibbles, an emergency physician at Beth Israel Deaconess Medical Center in Boston, testified that her hospital routinely obtains a scan of the vertebral arteries for patients with neck fractures and that when an emergency room physician identifies vertebral artery dissection

as a differential diagnosis, the standard of care requires a CTA scan. She further testified that it was not safe for Davies to go home that day.

¶10 Davies also sought to call Dr. Clara Harraher, a neurosurgeon who practices in California, to testify that Dr. Morris breached the standard of care for a neurosurgeon and that Dr. Hirsig breached the standard of care for an emergency room physician. At trial, following the defendants’ foundational objection, the trial court ruled that Dr. Harraher could testify to a neurosurgeon's standard of care but not an emergency medicine doctor's standard of care.

¶11 The jury also heard expert testimony regarding whether Dr. Morris breached the standard of care for a neurosurgeon in his consultation with Dr. Hirsig. Dr. Morris described his practice of consulting with other MultiCare physicians regarding neurological issues, and testified that he met the standard of care. Neurologists Dr. David Lundin and Dr. Jeffrey Johnson testified that Dr. Morris's consultation met the standard of care and that not all C3 fractures require vascular imaging

.

¶12 Dr. Harraher testified that Dr. Morris's consultation with Dr. Hirsig did not meet the standard of care for a neurosurgeon. She testified that the standard of care required a CTA in this case given the nature of Davies's injuries and the risk of vertebral artery injury.

¶13 Over Davies's objection, the court gave the following "exercise of judgment" jury instruction:

A physician is not liable for selecting one or two or more alternative diagnoses, if, in arriving at the judgment to make the particular diagnosis, the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.

¶14 The jury returned a special verdict finding Dr. Hirsig and MultiCare not negligent, and therefore did not reach the issues of proximate cause or damages. The trial court entered judgment against Davies. Davies appealed.

ANALYSIS

A. Informed Consent

¶15 Davies first argues that the trial court erred in dismissing her informed consent claim on summary judgment.² This court reviews summary judgment orders de novo. Seybold v. Neu, 105 Wash. App. 666, 675, 19 P.3d 1068 (2001). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All evidence and reasonable inferences are construed in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wash.2d 358, 368, 357 P.3d 1080 (2015).

¶16 "Informed consent and medical negligence are distinct claims that apply in different situations. While there is some overlap, they are two different theories of recovery with independent rationales." Anaya Gomez v. Sauerwein, 180 Wash.2d 610, 617, 331 P.3d 19 (2014). "Informed consent allows a patient to recover damages from a physician even though the medical diagnosis or treatment was not negligent." Backlund v. Univ. of Wash., 137 Wash.2d 651, 659, 975 P.2d 950 (1999). To prove failure to obtain informed consent, a plaintiff must show:

(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;

(b) That the patient consented to the

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