Estate of Hensley v. Cmty. Health Ass'n of Spokane
| Decision Date | 11 April 2017 |
| Docket Number | No. 32652-7-III,32652-7-III |
| Court | Washington Court of Appeals |
| Parties | ESTATE OF LORRAINE P. HENSLEY, By and through its Personal Representative, JESSICA WILSON and LORRAINE HENSLEY, by and through her Personal Representative, Appellants, v. COMMUNITY HEALTH ASSOCIATION OF SPOKANE (CHAS); PROVIDENCE HOLY FAMILY HOSPITAL; SPOKANE EAR, NOSE AND THROAT CLINIC P.S., and MICHAEL CRUZ, M.D., Respondents. |
SIDDOWAY, J. — The estate of Lorraine Hensley appeals several adverse rulings before, during and following a four-week medical malpractice trial that ended with defense verdicts in favor of three of the defendants and a hung jury as to the fourth. Three defendants cross appeal trial court rulings.
We affirm all of the challenged rulings and remand for trial of the as yet unresolved claim.
Beginning on January 2, 2009, Lorraine Hensley, then 52 years old, sought medical care from Community Health Association of Spokane (CHAS) for a recurrence of sinus infection and dental problems CHAS had treated over a couple of years. She was diagnosed this time with sinusitis—sinus inflammation—likely related to an abscessed molar. The CHAS providers' initial recommendation was to use a steroid spray to decrease swelling and use nasal rinses. On January 9, after Ms. Hensley complained of increasing pain, an odorous discharge, and swelling in the area of her right eye, Ms. Hensley was prescribed oral antibiotics, prednisone to reduce inflammation, and was referred for a CT1 scan.
The CT scan revealed that the root of the abscessed molar was impinging into Ms. Hensley's lower maxillary sinus. Since the tooth was the source of the infection, CHAS providers gave Ms. Hensley a copy of the CT scan and told to see her dentist. In the weeks that followed, CHAS providers prescribed a different antibiotic and pain medication.
Ms. Hensley saw her dentist on January 27, her dentist agreed that the molar needed to be removed, and an appointment was made to have it pulled on February 3.
On February 1, Ms. Hensley went to the emergency room of Providence Holy Family Hospital (Holy Family) complaining of continuing sinus pain, swelling and a headache. She was seen by John Hunter, a certified physician assistant, who reviewed the January 9 CT scan; obtained and reviewed another CT scan of her brain; prescribed a different antibiotic and some pain medication; and referred her to see an ear, nose and throat specialist the next day.
On February 2, Ms. Hensley was examined at the Spokane Ear, Nose, and Throat Clinic (the ENT clinic) by Michael Cruz, M.D. She told him her abscessed molar was scheduled to be removed the next day. Dr. Cruz performed an endoscopic exam, took a culture for testing, prescribed prednisone for inflammation, a painkiller, and recommended a decongestant.
On the late evening of February 3, 2009, Ms. Hensley returned to the Holy Family emergency room, complaining of worsening pain, and was seen by Dr. Christopher Tullis, an emergency room physician. She told him about her tooth removal earlier in the day. After taking her history and performing a physical examination, he administered intravenous antibiotics and pain medication (Dilaudid) before discharging her in the early morning hours of February 4.
On February 6, 2009, Ms. Hensley died. The cause of death, identified at autopsy, was brain herniation resulting from cerebral meningitis. A small hole was found in the back wall of Ms. Hensley's frontal sinus bone that was too small for the medical examiner to measure and an abnormal 4-millimeter hole was found in her dura (one of the meninges, the membranes that surround the brain). The two holes proved to be the pathway through which infection had reached the brain, causing Ms. Hensley's death.
In 2012, Ms. Hensley's estate brought this action against CHAS, Holy Family, the ENT clinic and Dr. Cruz, alleging medical negligence and lack of informed consent. The estate contended that the January 9 CT scan revealed Ms. Hensley was at high risk for intracranial complications. It asserted that the standard of care required admitting Ms. Hensley to a hospital for continuous intravenous antibiotics, surgical intervention, and further testing. The estate also asserted lack of informed consent to the less aggressive treatment provided by the defendants.
Pretrial summary judgment motions and counter motions were all denied. The matter proceeded to trial in May 2014. During trial, the court denied several motions for judgment as a matter of law, including defense motions to dismiss the medical negligence claims for failure to establish a breach of the standard of care to the required degree of medical certainty, and for failing to establish that the independent contractors who treated Ms. Hensley in Holy Family's emergency room were the hospital's agents. In arriving atfinal jury instructions, the trial court agreed with the defense that there was insufficient evidence to submit the estate's lack of informed consent claim to the jury.
Defense verdicts were returned in favor of CHAS, the ENT clinic, and Dr. Cruz. Although the jury found that providers at CHAS violated the standard of care, it found that the violation was not the proximate cause of Ms. Hensley's death. The jury found no violation of the standard of care by Dr. Cruz or the ENT clinic.
The jury was unable to reach a verdict on the estate's claim against Holy Family, and the court declared a mistrial as to the hospital.
In June 2014, the estate filed a motion for a new trial based on the court's refusal to instruct the jury on informed consent and on alleged juror misconduct. It supported its allegation of juror misconduct with the declaration of one of the jurors, who asserted that two other jurors "shut[ ] down" jurors who spoke in favor of the estate, exhibited bias in favor of medical providers, made pejorative statements about the estate's attorney, discounted the court's instructions on causation, and offered evidence of their own experiences with medical treatment. Clerk's Papers (CP) at 937. The trial court denied the motion and entered judgment on the jury verdicts.
The estate appeals and three of the defendants cross appeal, presenting a total of six issues. A more detailed procedural history is provided in analyzing the respective issues.
The following errors are assigned:
By the estate:
By Holy Family:
By the ENT clinic and Dr. Cruz:
¦ Both join Holy Family in contending the trial court erred in denying defense motions for judgment as a matter of law that the estate failed to present evidence sufficient to create a jury issue of a violation of the applicable standard of care.
We address the issues in the order stated.
A. We will not consider the estate's assignment of error to the trial court's order denying its motions for summary judgment because following trial, the challenge to the sufficiency of evidence must be to the trial evidence Within a few months after the estate's complaint was filed, the defendants moved for summary judgment on the basis that the estate had not demonstrated a prima facie case. The estate responded with a counter motion for summary judgment, an accompanying declaration of Dr. Steven Kmucha alleging violations of the standard of care and lack of informed consent on the part of all defendants, and argument that a right to point to deficiencies in the other side's evidence "works both ways." CP at 28.
The defendants challenged the sufficiency of Dr. Kmucha's declaration to raise a genuine issue of material fact, arguing that as an otolaryngologist,2 he could not testify to the standard of care of the emergency medical care providers contracted by Holy Family or the family practitioners at CHAS, and that he failed to provide evidence as to the standard of care in the State of Washington.3
CHAS responded with only a conclusory declaration from its family practitioner denying that he violated the standard of care. Holy Family, reporting difficulty obtaining declarations from Mr. Hunter and Dr. Tullis, submitted only declarations from theirattorney, who claimed to have been told by both clients that they denied having violated the standard of care. According to CHAS and Holy Family, the asserted deficiencies in Dr. Kmucha's declaration reduced their concern about the estate's counter motion.
The ENT clinic and Dr. Cruz, whose standard of care Dr. Kmucha was more clearly qualified to address, submitted a detailed opposition declaration from Dr. Cruz. The estate does not contend it was entitled to summary judgment against them.
On June 22, the trial court heard argument of both sides' motions. It orally denied the estate's counter motion on two grounds. As to CHAS and Holy Family, it found a question of fact whether Dr. Kmucha, as an otolaryngologist, could testify to the standard of care of the family practice and emergency medical care providers. As to all defendants, it found Dr. Kmucha's declaration to be statutorily deficient because he asserted that the standard of care in Washington was the national standard but without explaining his basis for that assertion. Denial of the estate's counter motion was reduced to a written order.4
The estate's...
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