Davies v. Multicare Health Sys.

• Decision Date: 02 June 2022
• Docket Number: 100079-1
• Citation: 510 P.3d 346
• Parties: Mari Yvonne DAVIES, Respondent, v. MULTICARE HEALTH SYSTEM, a Washington corporation d/b/a Good Samaritan Hospital, and Mt. Rainier Emergency Physicians, PLLC; Michael Hirsig, M.D., Petitioners.
• Court: Washington Supreme Court

510 P.3d 346

Mari Yvonne DAVIES, Respondent,

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

NO. 100079-1

Supreme Court of Washington, EN BANC.

Filed: June 2, 2022

Eric Allen Norman, Fain Anderson, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Chad William 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, 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, for Petitioners.

Michael Simon Wampold, Ann Heacox Rosato, Leonard J. Feldman, Peterson Wampold Rosato Feldman Luna, 1001 4th Ave. Ste. 4131, Seattle, WA, 98154-1155, Ashton K. Dennis, Washington Law Center, 15 Oregon Ave. Ste. 210, Tacoma, WA, 98409-7464, for Respondent.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Amici Curiae.

GORDON McCLOUD, J.

¶1 This case addresses the difference between two claims that arose from the same accident and that were based on the same medical care: a medical malpractice claim and a failure to secure informed consent claim. We adhere to our prior decisions holding that these are two separate claims and that in general, a patient cannot bring an informed consent claim where, as here, the physician ruled out the undiagnosed condition entirely.

FACTUAL BACKGROUND

¶2 On August 23, 2017, Mari Davies was in a single-car rollover accident. Clerk's Papers (CP) at 52. Emergency responders transported her to the emergency room (E.R.) at Good Samaritan Hospital in Puyallup. Id. at 53. When Davies arrived at the E.R. she had hypertension, high blood pressure, left shoulder pain, neck pain, chest pain, abdominal pain, a headache, and some tingling in her left arm. Id. at 53-54. She also had preexisting kidney stones, diverticulosis, pneumonia, and diabetes. Id. at 54-55.

¶3 Dr. Michael Hirsig evaluated her as soon as she arrived in the E.R. Id. at 55. Dr. Hirsig ordered computerized tomography (CT) scans of her head, cervical spine, abdomen, chest, and pelvis. Id . He also ordered an electrocardiogram and X-rays, among other laboratory tests and blood work. Id. at 55, 73.

¶4 Davies’ CT scan showed a cervical spine fracture at the C3 level. Id. at 55-56. Dr. Hirsig therefore consulted by phone with Dr. William Morris, the on-call neurosurgeon for Good Samaritan Hospital. Id. at 55. Dr. Morris reviewed the images and noted Davies’ C3 fracture; he determined that it did not require surgery. Id. at 55, 59. Dr. Morris recommended a cervical collar for eight weeks with a follow-up CT scan to check for healing and alignment. Id. at 59.¹

¶5 Dr. Hirsig diagnosed Davies with a stable cervical spine fracture. Id. at 56, 72. He then placed Davies in an Aspen collar and had her "ambulate" around the room to make sure she could be discharged. Id. at 55, 177. He determined that she had no "neurological symptoms." Id. at 177. He gave her Percocet (for pain), Zofran (for nausea), and Flexeril (a muscle relaxant) and told her to schedule a follow-up with Dr. Morris and her primary care provider, Dr. Andrew Larsen. Id. at 55, 72, 178. He then discharged her to the care of her family. Id. at 55, 178.

¶6 Davies visited her primary care provider, Dr. Larsen, the next day. Id. at 84. While in his office, Davies exhibited stroke symptoms. She was immediately transported to the E.R. at Providence St. Peter Hospital. She had, indeed, suffered a stroke. Id. at 89. Davies now has brain damage and lives in an assisted living facility. Id. at 63, 67-68. ¶7 Davies’ stroke was caused by a vertebral artery dissection (VAD) that occurred at the time of the accident.² Id. at 89-90. A VAD is typically detected by a computed tomography angiography (CTA) scan. Id. at 129. A CTA scan involves injecting the patient with a contrast dye that lights up in a CT scanner to detect any artery dissections. 5 Verbatim Tr. of Proceedings (VTP) (Oct. 3, 2019) at 762-63. It is undisputed that Dr. Hirsig did not order a CTA scan for Davies while she was in the E.R. CP at 551.

PROCEDURAL HISTORY

I. The trial court dismissed the informed consent claim on summary judgment; the jury found for the health care provider defendants on Davies’ negligence claim at trial

¶8 On May 31, 2018, Davies filed suit against MultiCare Health System, the parent corporation of Good Samaritan Hospital, alleging (1) medical negligence, (2) failure to obtain informed consent, and (3) corporate negligence. Id. at 1-4. Davies later amended her complaint to add defendant Mt. Rainier Emergency Physicians, the employer that procures Dr. Hirsig's independent contractor services. Id. at 18, 61. Dr. Hirsig also intervened as a defendant. Id. at 799.

¶9 On cross motions for partial summary judgment, the trial court dismissed Davies’ informed consent claim.³ Id. at 22-32, 33-44, 110-23, 590-92.

¶10 The trial court based its decision on the following undisputed evidence. Davies’ experts testified (at deposition) that because Davies was in a rollover collision and had fractures at the C3 level of her neck, she was at risk of a VAD. Id. at 142, 145. Davies’ experts also testified that if Davies had undergone a CTA, it would have revealed her VAD and she would have received treatment that likely would have prevented the stroke. Id. at 145, 147-48, 198. Additionally, Davies’ experts testified that a VAD is "commonly found" when there is a cervical spine fracture, so it is standard to perform a CTA scan if there is a C3 fracture. Id. at 143, 145. Once a VAD is detected, a medication regimen of Plavix, heparin, or aspirin should have been started to prevent a subsequent stroke. Id. at 145.

¶11 Dr. Hirsig testified (via deposition) that he considered the possibility of a VAD but that Davies’ symptoms and presentation led him to rule it out:

Q What would be the signs or symptoms that would cause you to order a CTA?

A Well, I mean, in this—in Ms. Davies’ case, she had—she would have had signs and symptoms consistent with, you know, vertebral artery dissection. Or if I was concerned about that on my clinical evaluation, then I would have ordered it. She had nothing that led me to believe or suspect that she had a dissection.

Q Did you consider a vertebral artery injury in your differential diagnosis for this—

A Yeah.

Q For Ms. Davies? You did?

A Yeah. Absolutely. I mean, I considered all types of injuries. I mean, she could have had a vertebral artery dissection. She could have had a head bleed. She could have had a pneumothorax, rib fractures, hip fractures. So, yeah, I had to consider all of that.

Q Did you ultimately exclude vertebral artery injury?

A You know, in my judgment, I mean, my—in my judgment, at that time, her clinical picture did not lead me to suspect that she had a dissection. She had no signs or symptoms of it.

Q What would you be looking for? What would be the signs and symptoms you would be looking for of a vertebral artery injury?

A Like we talked about, usually you will see a little bit of vertigo. They will have maybe some nystagmus. They'll have a Horner's syndrome. They will have inability to stand, loss of balance. They can have blurred vision, facial pain, ear pain. They can have swelling in the throat or in the neck.

Q Okay. And if you had suspected vertebral artery dissection, or vertebral artery injury, is there—would you have ordered a CTA or an MRI, or what would you have done?

A It all depends. In Mrs. Davies’ case, I didn't suspect that she had a dissection, so I didn't order anything else.

Id. at 512. The trial court apparently found no material factual dispute related to the informed consent claim and dismissed it as unsupported by the law. Id. at 590-91.

¶12 Davies’ medical negligence claims proceeded to trial. The jury found that none of the health care provider defendants were negligent. 15 VTP (Oct. 23, 2019) at 3074; CP at 823. The trial court entered judgment against Davies. CP at 826-32.

II. The Court of Appeals reversed the trial court's summary judgment dismissal of the informed consent claim

¶13 Davies appealed the trial court's order dismissing her informed consent claim.⁴ The Court of Appeals reversed the dismissal of that claim and remanded. Davies v. MultiCare Health Sys. , 18 Wash. App. 2d 377, 381, 491 P.3d 207 (2021).

¶14 The Court of Appeals opined that Davies had presented evidence at summary judgment showing that "had she undergone a CTA, her vertebral artery dissection would have been diagnosed and a different treatment regimen other than sending her home in a neck brace would have been initiated, preventing her subsequent stroke." Id . at 390. The court explained that "Davies was never advised of the risk of a vertebral artery dissection or the availability of a CTA scan to look for the injury which would have led to a different treatment." Id. at 391. It also explained that the doctors had diagnostic procedures available to test Davies for a vertebral artery dissection. Id. at 392. It then concluded that these facts were sufficient to support an informed consent claim. Id. at 391-92. It therefore reversed the trial court's dismissal of that claim. Id. at 392.

¶15 We accepted review of whether the informed consent claim was properly dismissed at summary judgment. Davies v. MultiCare Health Sys. , 198 Wash.2d 1026, 498 P.3d 958 (2021).

ANALYSIS

¶16 Motions for summary judgment are reviewed de novo, and this court engages in the same inquiry as the trial court. DeWater v. State , 130 Wash.2d 128, 133, 921 P.2d 1059 (1996). We will "consider only evidence and issues called to the attention of the trial court." RAP 9.12. Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a...