Estate of Eikum v. Joseph

Decision Date22 September 2016
Docket Number32934-8-III
CourtWashington Court of Appeals
PartiesESTATE OF JOAN R. EIKUM By and through its Personal Representative, JOHN J. EIKUM, and JOAN R. EIKUM, By and through her Personal Representative, Appellants, v. SAMUEL JOSEPH, D.O., SPOKANE RESPIRATORY CONSULTANTS, Respondents.



The estate of Joan Eikum (Estate) appeals from an adverse jury verdict in its medical malpractice action against Dr. Samuel Joseph. Concluding that the trial court correctly refused to instruct the jury on an informed consent theory and that the Estate has not shown any prejudicial error, we affirm.


Upon the retirement of her primary physician, Dr. Joseph treated Ms. Eikum for the last four years of her life. She already suffered from diabetes when referred to Dr. Joseph. In October 2008, Dr. Joseph detected a bruit in Ms. Eikum's carotid artery.[2] A bruit is a sound caused by turbulence of the blood as it moves through the body. When heard in the neck, it can signify a narrowing of the carotid artery (carotid stenosis), but it can also signify narrowing of the aortic valve in the heart (aortic stenosis). Sound from the valve can be heard in the neck because the sound transmits through the artery. When aortic stenosis is heard directly from the heart it is more properly called a murmur.

Dr Joseph sent Ms. Eikum for a carotid duplex examination. It revealed no evidence of stenosis (narrowing) of the carotid artery. The absence of carotid stenosis made aortic stenosis more likely. However, Dr. Joseph did not share any of this information with Ms. Eikum.

Around Thanksgiving 2008, Ms. Eikum fell while at home. Later that year, she passed out on a bed, laying back for five or six seconds and then coming up out of it. Around Christmas, Ms Eikum slumped to the floor in the kitchen without reason, and then came up again. In January, she sprawled backwards while sitting on the toilet, coming back almost immediately. After this last incident, Ms. Eikum went to the emergency room.

The records of that visit indicated she suffered from syncope the temporary loss of consciousness. There she underwent an electrocardiogram (EKG), a test that shows the rate of the heart, including whether there is interference with either the left or right ventricle. The EKG indicated tachycardia which is an abnormally rapid heart rate. Following the emergency room visit, Ms. Eikum saw Dr. Joseph on January 21, 2009. Dr. Joseph was aware of the syncopal episodes, but did not know the cause of them. He ordered further pulmonary function tests, and also requested a Holter monitor.[3] His notes also indicated he planned to request a cardiology evaluation of Ms. Eikum.

Ms. Eikum saw Dr. Joseph again in March 2009 to obtain clearance for knee surgery. She desired to have her right knee replaced to eliminate some knee pain. She met with Dr. Joseph and he cleared her for surgery. However, Dr. Joseph did not indicate any heart-related concerns to Ms. Eikum, nor did he share that he did not know what was causing the syncope, or that he had considered ordering a cardiology consultation. He also did not discuss with her the possibility of getting an echocardiogram. An echocardiogram is a low-cost, non-invasive test that gives doctors a picture of how the heart valves are functioning and the condition of the heart muscle. With it, a doctor can assess the existence and severity of heart problems.

Dr. Joseph cleared Ms. Eikum for the elective knee surgery and she underwent the procedure in early April. The knee surgery exacerbated a pre-existing heart condition. This caused a heart attack 36 hours after the surgery, which in turn required emergency bypass surgery. Her "cascade to death" began with the heart attack, which came when she was at risk while recovering from the knee surgery. The heart attack likely was caused when a small clot (or several of them) blocked an already narrowed blood vessel. Report of Proceedings (RP) at 823-824. She died later that month.

John Eikum, on behalf of his wife's estate, sued Dr. Joseph on theories of negligence and lack of informed consent. The case ultimately proceeded to jury trial.

The estate called several doctors to testify at trial, including standard-of-care witness Dr. Leslie Stricke. During defense cross-examination of Dr. Stricke, counsel brought up the revised cardiac risk index. It considers a patient's risk of cardiac complications from noncardiac surgery. Dr. Stricke indicated familiarity with the index. Counsel then brought forward a copy of "Harrison's text on internal medicine, " which contained tables involving the index. After Dr. Stricke conceded that Harrison's is a "well-recognized treatise that physicians and internists use and rely on, " counsel provided Dr. Stricke with a three-page excerpt of the book, including the cover page, title page, and page 50, which contained the tables in question. The excerpt contained the "revised cardiac risk index clinical markers, " which counsel used to cross-examine the doctor. During the cross-examination, the full Harrison's text was present in the courtroom.[4] After counsel finished his cross-examination, Ms. Eikum's attorney was given an opportunity to look at the book in more detail, and used other portions of the book in redirect examination.

The cardiac risk index continued to be an issue at trial; both sides brought up the risk index with Ms. Eikum's next witness. Part way through defense cross-examination of this witness, Ms. Eikum's counsel requested to use the Harrison's text again. The book was no longer in the building and counsel asked Dr. Joseph's attorney to produce it. The trial court refused to order him to produce it unless he was going to use it again. At no point were additional excerpts of the book read into evidence with this witness. Instead, the cardiac risk index was discussed generally.

The cardiac risk index came up again with a defense expert, Dr. Darrel Potyk. This witness discussed the risk index generally, how it was created and how it evolved. He also discussed what the index indicates with regard to risk of a patient for surgery. The Estate did not raise a hearsay objection during Dr. Potyk's testimony.[5]

After the plaintiff was done calling witnesses, Dr. Joseph moved for a judgment as a matter of law on the informed consent claim.[6] The court granted the motion, stating that "a provider cannot be liable for informed consent claims arising from the ruled out diagnosis" and that there had been "no testimony that Dr. Joseph knew of the heart condition and failed to inform her of the possible treatments." RP at 1126-1127.

Ms. Eikum requested, but the court declined to give, a series of five additional jury instructions. The two primary instructions were proposed instructions 10 and 14. The first proposed a "reasonable prudence" standard as an alternative basis for finding liability, while the second addressed the obligation to discuss conditions with a patient. Clerk's Papers (CP) at 28-32. Instead, the court gave the general health care negligence instruction:

A health care professional owes to the patient a duty to comply with the standard of care for one of the profession or class to which he or she belongs.
A physician who holds himself out as a specialist in internal medicine/pulmonary medicine has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent internal medicine/pulmonary medicine in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.
The degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent. However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.

CP at 138.

The Estate urged the jury to find that Dr. Joseph had violated the standard of care by failing to diagnose Ms. Eikum's heart condition and by failing to communicate with her. The doctor, in turn, told the jury that her symptoms were not indicative of heart disease. The jury sided with Dr. Joseph, concluding by a 10 to 2 vote that he was not negligent.

Judgment was entered on the verdict. The Estate then timely appealed to this court.


The Estate presents three issues for consideration that we address in the following order. First, the Estate believes the trial court erred in dismissing the informed consent claim. Second, it contends the court erred in permitting the defense to reference a learned treatise. Finally, the Estate argues the court erred in not giving its requested instructions.

Informed Consent Claim

The Estate contends the court erred in dismissing its informed consent claim, arguing that the failure to diagnose the heart problem prevented Ms. Eikum from giving her informed consent to the elective knee surgery. Assuming, without deciding that the informed consent doctrine was available to the Estate in this "one off circumstance, the trial court correctly determined that the evidence did not support the claim.

Well settled standards govern review of this issue. Appellate courts apply de novo review to a trial court decision to grant or deny a motion for judgment as a matter of law. Alejandre v. Bull, 159 Wn.2d 674, 681, 153 P.3d 864 (2007). Judgment as a matter of law is appropriate when viewing the evidence in favor of the nonmoving party, there is substantial evidence to support a verdict for that party. Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). "Substantial evidence" is evidence...

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