Driggs v. Howlett

Decision Date08 March 2016
Docket NumberNo. 32381–1–III.,32381–1–III.
Citation193 Wash.App. 875,371 P.3d 61
CourtWashington Court of Appeals
PartiesJoshua DRIGGS, a single man, Appellant, v. Andrew T.G. HOWLETT, M.D. and Jane Doe Howlett, and their marital community, Providence Physician Services Co. aka Providence Orthopedic Specialties, a Washington Corporation, Respondents.

Marshall Casey, Jess Gregory Casey, Casey Law Offices PS, James Richard Sweetser, Attorney at Law, Spokane, WA, for Appellant.

James B. King, Evans, Craven & Lackie, P.S., Spokane, WA, for Defendant.

James B. King, Christopher Joseph Kerley, Evans, Craven & Lackie, P.S., Spokane, WA, for Respondents.

FEARING, KORSMO, and SIDDOWAY, JJ.

FEARING, J.

¶ 1 This appeal primarily asks us to address conditions precedent to a medical expert rendering opinions during a medical malpractice trial. The trial court excluded opinions of plaintiff Joshua Driggs' foremost medical expert because the physician did not commit, when asked, to base opinions on reasonable medical probability, because he testified to a national standard of care, because he conceded in cross-examination that his opinions were personal, and because he did not provide a percentage for the increased risk of a fracture resulting from the lack of fixation for an allograft. We agree with Driggs that the trial court committed harmful error, and we remand for a new trial.

FACTS

¶ 2 Joshua Driggs sues Providence Physician Services and its employee, Dr. Andrew Howlett. We refer to the respondents collectively as Providence Physician Services or Providence.

¶ 3 Appellant Joshua Driggs asserts errors during the course of trial. Therefore, we briefly outline the facts in this section of the opinion and later provide extended details of the facts when reviewing trial rulings. Joshua Driggs limits his suit for medical malpractice to claims of negligence by two employees of Providence Physician Services, Orthopedist Andrew Howlett and Physician's Assistant Brandi DeSaveur, during 2009. The story of Driggs' medical care begins earlier.

¶ 4 In 2004, health care professionals diagnosed fifteen-year-old Joshua Driggs with osteosarcoma above the ankle in his right distal tibia. Osteosarcoma is a common form of bone cancer in children. Instead of amputating the leg, Dr. Ernest Conrad removed the cancerous fragment of the bone and inserted an allograft, or bone segment from a cadaver. Dr. Conrad attached the allograft to the remaining tibia by screwing a metal plate to the tibia and allograft. The plate supports the allograft because the cadaver bone lacks the strength of a living bone. The metal plate is called fixation or hardware and serves as a support for the allograft. In this suit, Joshua Driggs and his experts promote the need of fixation to an allograft.

¶ 5 The cadaver bone inserted into Joshua Driggs' tibia extended six and a one-half centimeters, which equates to three and one-half to four inches. Driggs' surgeon, Dr. Ernest Conrad, would not remove the metal plate from a patient's allograft without substituting another plate or other form of fixation unless the graft is “very small” and has vigorous growth around it. Conrad defines “very small” in this context as “four or five centimeters or smaller.” Clerk's Papers (CP) at 1552.

¶ 6 Although properly aligned initially, Driggs' allograft later twisted and required additional surgery. In January 2006, Dr. Andrew Howlett, of Providence Physician Services, assumed care of Joshua Driggs' right leg. In January 2006, Dr. Howlett performed an ankle fusion and osteotomy on Driggs to correct malalignment in the leg, improve mechanics in the foot, and decrease arthritic pain. In November 2006, Dr. Howlett performed another surgery to alleviate pain in the ankle caused by two screws.

¶ 7 In January 2008, Joshua Driggs' right ankle pain returned. Dr. Andrew Howlett discussed with Driggs another surgery to remove the plate inserted by Ernest Conrad and replace it with an intramedullary rod. A rod may substitute for a plate in supporting the allograft. According to Howlett, he discussed with Driggs, before the surgery, the possibility of not replacing the plate with a rod, because of deleterious effects of a rod. An intramedullary rod runs through the inside of the bone, and the rod's installation requires destruction of existing allograft and live bone.

¶ 8 During a March 6, 2009 surgery, Dr. Andrew Howlett removed the plate and screws from Joshua Driggs' cadaver bone. Dr. Howlett did not replace the plate with an intramedullary rod. Driggs claims Dr. Howlett violated the standard of care by failing to install fixation and breached his right to informed consent by failing to explain the risk to him of the omission of fixation.

¶ 9 After the March 2009 surgery, Joshua Driggs underwent physical therapy, but continued to suffer pain and swelling. In May, while crossing his yard, Driggs experienced a shooting pain in his right leg.

¶ 10 On May 27, 2009, Joshua Driggs visited Dr. Howlett's office at Providence Physician Services and met with Physician's Assistant (PA) Brandi DeSaveur. Driggs reported the increased pain and swelling to DeSaveur. PA DeSaveur X rayed the tibia and diagnosed a possible sprain. DeSaveur failed to note a subtle fracture. Driggs contends that DeSaveur violated the standard of care by failing to identify the fracture and Andrew Howlett violated the standard of care by failing to properly supervise Brandi DeSaveur. Driggs posits that his condition worsened as the result of the failure to promptly diagnose the fracture. On May 27, DeSaveur instructed Driggs to discontinue physical therapy for one week.

¶ 11 On June 7, 2009, Joshua Driggs visited a hospital emergency room due to pain in his right leg. He received a shot and a prescription for pain medication. On June 8, Driggs returned to Dr. Andrew Howlett's office. During the appointment, Howlett X rayed Driggs' tibia and noticed the bone fracture.

¶ 12 On June 11, 2009, Dr. Andrew Howlett performed another surgery and inserted a tibial intramedullary rod into Joshua Driggs' right lower leg. Despite the rod, the cadaver bone failed to fuse with Driggs' live bone.

¶ 13 On December 11, 2009, Dr. Howlett, during another surgery, placed a rod with intermittent screws through the entire tibia. The December 2009 surgery necessarily destroyed Driggs' subtalar joint in his ankle. The surgery also caused equinas, a condition by which Driggs' toes touch the floor but his heel rests two and one-half inches above the floor. Driggs thereafter walked on his right toes.

¶ 14 In July 2010, Dr. Brian Padrta performed an operation to remove two remaining screws and correct the equinas. Nevertheless, as of March 25, 2013, Driggs continued to suffer from severe equinas, numbness in his right foot, and a limp.

PROCEDURE

¶ 15 On January 17, 2012, Joshua Driggs sued Dr. Andrew Howlett and his employer, Providence Physician Services. Driggs asserted professional negligence and lack of informed consent. The complaint alleged:

2.8 On May 27, 2009, JOSHUA DRIGGS returned to DR. HOWLETT'S office with onset of right ankle pain and swelling. X-rays were taken and read as negative for fracture.
2.9 On June 7, 2009, JOSHUA DRIGGS went due [sic] to Sacred Heart Medical Center due to extreme pain in his right lower extremity. Images obtained showed an insufficiency fracture.
....
2.12 JOSHUA DRIGGS suffered an insufficiency fracture in his right lower extremity as a result of DR. HOWLETT'S failure to install an intramedullary rod or other stabilization when he removed JOSHUA DRIGGS' medial compression plate on March 9, 2009.
....
3.6 The Defendants, ANDREW T.G. HOWLETT, M.D. and JOHN DOE, breached their duties owed to JOSHUA DRIGGS by failing to inform JOSHUA DRIGGS of the relative material risks of removing the stabilization hardware in his allogra[ft] and not replacing it.
3.7 Defendants PROVIDENCE PHYSICIAN SERVICES CO. was independently negligent and negligent by and through the acts and/or omissions of defendant Dr. ANDREW T.G. HOWLETT, M.D. in their capacities as employees, agents, principals, partners, shareholders, corporate officers, directors and/or members of defendants PROVIDENCE PHYSICIAN SERVICES CO.

CP at 10–11, 13–14. The complaint did not specifically identify Physician's Assistant Brandi DeSaveur as a negligent actor. In their answer to the complaint, Dr. Andrew Howlett and Providence Physician Services admitted that Providence employed Dr. Howlett, Howlett acted within the scope of his employment when treating Driggs, and Providence was vicariously liable for any negligence committed by Howlett.

¶ 16 Both parties engaged expert medical witnesses. Joshua Driggs hired two witnesses, Drs. Steven Graboff and Lawrence Menendez. Providence engaged five experts, but only Drs. James Bruckner and Brian Padrta testified at trial.

¶ 17 On May 3 and September 20, 2013, Joshua Driggs deposed Dr. Andrew Howlett. Driggs' counsel addressed, with Howlett, Brandi DeSaveur's failure to diagnose the tibia fracture on May 27, 2009. A portion of the September deposition of Dr. Howlett follows:

Q. And did Brandi DeSaveur have an occasion to interpret an x-ray that was taken, I believe, on May 27th, 2009?
A. If that would be the day that she was in clinic, I—that would—more than likely, that was the day that she got an x-ray.
Q. And she did not recognize the start of a fracture in the x-ray, correct?
A. It was a very subtle finding at that time. Correct.
Q. It's something that you recognized immediately when you reviewed the x-ray, correct?
A. I don't remember the exact time when I reviewed the x-ray and what I stated to her at that time.
Q. You were the one, when you reviewed the x-ray, that determined that the fracture had been missed, correct?
MR. KING: Object to the form as to the word “missed,” but you may go ahead and respond.
A. I recognized the fracture upon reviewing the x-rays.
Q. (BY MR. SWEETSER) Do you agree that
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