Dormaier v. Columbia Basin Anesthesia, P.L.L.C. (In re Estate of Dormaier), s. 30864–2–III, 30864–1–III.

• Citation: 313 P.3d 431
• Decision Date: 14 November 2013
• Docket Number: Nos. 30864–2–III, 30864–1–III.,s. 30864–2–III, 30864–1–III.
• Court: Court of Appeals of Washington
• Parties: In re the ESTATE of Ruth M. DORMAIER, Deceased, by and through Lourence C. DORMAIER, Personal Representative; and Lourence C. Dormaier, individually, and as the Beneficiary of his wife's Estate, Respondents, v. COLUMBIA BASIN ANESTHESIA, P.L.L.C., A Professional Limited Liability Company; Robert Misasi, C.R.N.A., and Jane Doe Misasi, individually, and as husband and wife; Grant County Hospital District # 1, d/b/a Samaritan Healthcare, a/k/a Samaritan Hospital, a Washington non-profit organization, Appellants.

313 P.3d 431

In re the ESTATE of Ruth M. DORMAIER, Deceased, by and through Lourence C. DORMAIER, Personal Representative; and Lourence C. Dormaier, individually, and as the Beneficiary of his wife's Estate, Respondents,

v.COLUMBIA BASIN ANESTHESIA, P.L.L.C., A Professional Limited Liability Company; Robert Misasi, C.R.N.A., and Jane Doe Misasi, individually, and as husband and wife; Grant County Hospital District # 1, d/b/a Samaritan Healthcare, a/k/a Samaritan Hospital, a Washington non-profit organization, Appellants.

Nos. 30864–2–III, 30864–1–III.

Court of Appeals of Washington, Division 3.

Nov. 14, 2013.

Brian T. Rekofke, Leslie Richard Weatherhead, Geana Mae Van Dessel, Lee & Hayes, PLLC, Spokane, WA, Mary H. Spillane, Williams Kastner & Gibbs, Seattle, WA, Megan Murphy, Thorner Kennedy Gano, Yakima, WA, for Appellants.

Mark Douglas Kamitomo, The Markam Group Inc PS, Jess Gregory Casey, Casey Law Offices PS, Spokane, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, for Respondents.

BROWN, J.

¶ 1 Appellants Robert Misasi, CRNA; his employer, Columbia Basin Anesthesia PLLC (collectively Mr. Misasi); and the hospital where he worked, Grant County Hospital District No. 1 (Samaritan Hospital), appeal a verdict for respondents Lourence C. Dormaier and the estate of Ruth M. Dormaier on their wrongful death claim based on medical negligence. Appellants contend the trial court erred in:

(1) instructing the jury on a medical patient's lost chance of survival;

(2) ruling res judicata precluded them from allocating fault to the physicians;

(3) denying their motion for judgment as a matter of law;

(4) denying their request for entry of judgment in their favor upon the special verdict; and

(5) denying their request for a judgment award limited to the estate's damages or alternatively, 70 percent of both respondents' damages.

We reject all of appellants' contentions, and affirm.

FACTS

¶ 2 On September 15, 2007, Mrs. Dormaier, age 79, fractured her elbow in a fall. At Samaritan Hospital in Moses Lake, she received emergency care and discharge instructions to follow up at Wenatchee Valley Medical Center. Orthopedist Daniel W. Canfield, MD scheduled her for surgery to commence on September 20, 2007 and ordered a preoperative evaluation. Internist K. Craig Hart, MD determined she was fit for surgery as of September 18, 2007. The next day, Dr. Canfield visited her and noted she had chest and hip pain, shortness of breath, and low blood oxygen saturation. He ordered chest x-rays, which showed either patchy infiltrate ¹ or atelectasis² in the lower lobe of her left lung, and hip x-rays, which later showed no fractures. He conferred with Dr. Hart, who concluded her chest x-rays probably showed atelectasis resulting from her splinted breathing.³ The physicians decided to attempt surgery before her condition deteriorated further.

¶ 3 Around 10:00 a.m. on September 20, 2007, Mrs. Dormaier checked in for surgery at Samaritan Hospital. Mr. Misasi served as her nurse anesthetist. She had wheezy breathing, shortness of breath, low blood oxygen saturation, and excruciating pain. He ordered oxygen, a drug to open her airways, and a drug to alleviate her pain. Then, after examining her and conferring with Drs. Canfieldand Hart, Mr. Misasi anesthetized Mrs. Dormaier for surgery at 12:10 p.m. Mrs. Dormaier suffered a terminal cardiac arrest during surgery, around 3:00 p.m. An autopsy revealed a large blood clot caused her death when, within seconds, it detached from her hip veins, migrated through her heart, and blocked her lung arteries; as a prelude, many smaller blood clots had been lodging in her lung arteries in the hours or days leading up to her death. In medical terms, a pelvic deep venous thrombosis initially released many smaller emboli, which caused survivable pulmonary embolisms, but finally released a large embolus, which caused a fatal pulmonary embolism.⁴

¶ 4 In April 2009, respondents sued Dr. Canfield, Dr. Hart, and Wenatchee Valley Medical Center (collectively Drs. Canfield and Hart) as well as Mr. Misasi and Samaritan Hospital. The complaint alleged Mrs. Dormaier “died as a proximate result of the negligence of the Defendants” and “sustained injuries and damages and died due to the negligence of Defendants.” Clerk's Papers (CP) at 9. Stating medical negligence and wrongful death claims, the complaint specified Mr. Misasi's decision to anesthetize Mrs. Dormaier instead of refer her for proper care “was a proximate cause of the injury and death to [her].” CP at 10. The estate alleged its wrongful death damages included “pain and suffering, anxiety, emotional distress and humiliation that [Mrs. Dormaier] may have endured prior to her death”; “disabilities, loss of enjoyment of life, cost of medical, hospital, and funeral expenses”; “loss of love, affection and companionship to the beneficiaries”; and “any future economic losses in support and care of [Mr. Dormaier].” CP at 13. Mr. Dormaier alleged his wrongful death damages included “[e]motional damages,” “[p]ast and future economic damages,” “[l]oss of support,” “[l]oss of care,” “[l]oss of services,” “[l]oss of society,” and “[l]oss of consortium.” CP at 12. The complaint prayed for judgment compensating these damages and other “general and special damages as may be proven by the Plaintiff at the time of trial.” CP at 13–14.

¶ 5 Mr. Misasi and Samaritan Hospital each pleaded nonparty fault as an affirmative defense in their answers, but Drs. Canfield and Hart moved successfully for summary judgment dismissal of respondents' claims against them. No party opposed the motion. Consistent with their non-opposition, appellants' trial briefs introduced their case theory that Drs. Canfield and Hart were not negligent and, because Mr. Misasi relied on them and acted jointly with them as part of a team, he was equally not negligent.

¶ 6 Through motions in limine 1 and 14, respondents sought to prohibit appellants from allocating fault to Drs. Canfield and Hart. Appellants mainly responded by asking the trial court to defer ruling on the motions, stating an immediate ruling was unnecessary because they did not intend to allocate fault to Drs. Canfield and Hart and would instead advance their previously declared case theory. The trial court eventually granted both motions.

¶ 7 At trial, respondents elicited expert testimony from Erik R. Swenson, MD, Steven Hattamer, MD, Jeffrey McBride Reynolds, MD, and Lloyd Halpern, MD. Dr. Swenson partly testified,

Q. Doctor, looking at this case and taking into account all of the records that you reviewed, do you have an opinion as to whether or not had Mrs. Dormaier been properly diagnosed with pulmonary embolus and treated with anticoagulation, whether she would have survived?

A. It's been my experience over the entire time of my career that if we can diagnose this, we have a good chance once beginning therapy to take a mortality rate of possibly 70 to 80 percent and bring it down into the ten to 20 percent rate.

....

Q. So based upon your earlier testimony, Doctor, if you factor out cardiopulmonary function people and the terminal illness people, my understanding is that the percentageof people that survive from this treatment is approximately 90 percent?

A. Right. When you strip away the people who have very, very bad chronic medical conditions which lead them to have no reserve or people with cancers and other much more rare conditions that are life-threatening.

Q. And in your opinion, would Mrs. Dormaier, if appropriately treated, have had a 90 percent chance of survival?

A. I believe so.

Report of Proceedings (RP) at 258–60.

¶ 8 The parties revisited motions in limine 1 and 14 several times throughout trial. Appellants consistently reiterated they would not allocate fault to Drs. Canfield and Hart. Respondents requested the trial court instruct the jury not to consider whether Drs. Canfield and Hart were negligent. The trial court eventually decided to give the instruction. Mr. Misasi objected, arguing the instruction was unnecessary. The instruction reads,

In this case, there is no issue for you to consider regarding the negligence, if any, of Daniel Canfield, MD or of Kenneth Hart, MD. You must not speculate regarding any such negligence, or the absence thereof, and must resolve the claims of the parties in this case based upon the evidence admitted, without regard to whether or not Dr. Canfield or Dr. Hart were negligent. You may consider the evidence regarding the conduct of Dr. Canfield and Dr. Hart, along with all other evidence in the case, in determining whether or not Mr. Misasi complied with the applicable standard of care.

CP at 266; RP at 1433–34.

¶ 9 After respondents rested their case, appellants moved unsuccessfully for judgment as a matter of law, arguing the expert testimony did not prove factual cause. After the close of evidence, respondents requested the trial court instruct the jury on a medical patient's lost chance of survival. Respondents argued they did not have to plead a lost chance of survival as a cause of action because it was merely an element of damages in their wrongful death claim based on medical negligence.

¶ 10 The trial court ruled by e-mail, “In the context of this evidence, a loss of chance instruction is appropriate.” CP at 233. The court partly reasoned, “When viewed as an element of damages, ... it was not necessary to plead loss of chance as a cause of action, and ... the parties addressed the [lost chance] issue (if under other terminology) on both sides of the case.” CP at 233. Later, the court orally adhered to this e-mail, explaining the lost chance doctrine applies where the chance lost is less than or equal to 50 percent but traditional tort principles apply where the chance lost is greater than 50 percent.

¶ 11 The lost chance instruction reads,

If you find that Defendant Robert Masasi [sic] failed to comply with the applicable standard of care and was...