Gomez v. Mark F. Sauerwein, M.D., & the Yakima Valley Farm Worker's Clinic, Corp.

• Decision Date: 11 December 2012
• Docket Number: No. 30098–6–III.,30098–6–III.
• Citation: 289 P.3d 755
• Parties: Rodolfo Anaya GOMEZ, As Personal Representative of the Estate of Christina Palma Anaya, Appellant, v. Mark F. SAUERWEIN, M.D., and The Yakima Valley Farm Worker's Clinic, A Washington Corporation, Respondents.
• Court: Washington Court of Appeals

289 P.3d 755

Rodolfo Anaya GOMEZ, As Personal Representative of the Estate of Christina Palma Anaya, Appellant,

v.Mark F. SAUERWEIN, M.D., and The Yakima Valley FarmWorker's Clinic, A Washington Corporation, Respondents.

No. 30098–6–III.

Court of Appeals of Washington, Division 3.

Dec. 11, 2012.

Richard Raymond Johnson, Delorie Johnson PLLC, Yakima, WA, for Appellant.

David A. Thorner, Megan Murphy, Thorner Kennedy & Gano PS, Yakima, WA, for Respondents.

SIDDOWAY, A.C.J.

¶ 1 Thirty-two-year-old Christina Palma Anaya died of fungal sepsis.Her estate appeals the trial court's dismissal of its claim that Mark Sauerwein, M.D., failed to obtain Ms. Anaya's informed consent to the doctor's decision to await a final blood test before acting on a preliminary test, identifying yeast in her blood, which the doctor concluded must be in error.The estate's alternative claim of medical negligence, asserting misdiagnosis by Dr. Sauerwein, was rejected by a jury.

¶ 2 At the heart of the parties' disagreement is whether the decision in Gates v. Jensen,92 Wash.2d 246, 595 P.2d 919(1979) represents a continuing exception to the statement in Backlund v. University of Washington,137 Wash.2d 651, 975 P.2d 950(1999) that when a doctor misdiagnoses a patient's condition, the patient can bring only an action for medical negligence, not one for failure to secure informed consent.We hold that it does not.Gates must be regarded at this point as having been abrogated or limited to its facts by the five-member concurring opinion in Keogan v. Holy Family Hospital,95 Wash.2d 306, 622 P.2d 1246(1980) or overturned, sub silentio, by later decisions of the Supreme Court.We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 3Christina Anaya was diagnosed with type two diabetes when she was 19 or 20 years old and by 2006, at age 32, had been a long-standing patient of the Yakima Valley Farm Worker's Clinic.Her blood sugar was poorly controlled, leaving her immunocompromised.Kyle Heisey, M.D., a physician employee of the defendant clinic, was her primary physician.

¶ 4 On Sunday, August 20, 2006, Ms. Anaya traveled to the emergency department of Toppenish Community Hospital, complaining of symptoms consistent with a urinary tract infection (UTI).She was admitted to the hospital, a urine culture was taken, and blood was drawn and forwarded to a laboratory for routine testing.She was discharged from the hospital the next day with a diagnosis of UTI, after the urine culture showed she was growing Gram-negative rods.The culture was verified to be the bacterial organism Klebsiella pneumoniae on August 22.Ms. Anaya returned to the hospital on Wednesday, August 23, because she was not feeling well and could not empty her bladder.She was evaluated and treated, but not admitted to the hospital.Dr. Sauerwein was not involved in any of these events.

¶ 5 On Thursday, August 24, a microbiologist in the laboratory at the Yakima Regional Medical Center, to whom Ms. Anaya's August 20 blood culture had been sent for analysis, telephoned the Farm Worker's Clinic and told Sarah Gott, a registered nurse, that a preliminary report indicated that Ms. Anaya's blood culture was positive for yeast.The culture had not grown out to a point where the strain could be determined.Ms. Gott relayed what she had been told to Dr. Sauerwein, a family practitioner, who was covering for Dr. Heisey.

¶ 6 Dr. Sauerwein was puzzled by what was conceded by all of the experts to be a rare test result.He consulted with Dr. John Moran, who was board certified in internal medicine and had treated Ms. Anaya in the hospital the prior weekend.Dr. Sauerwein would later testify that he regularly consulted with Dr. Moran about patients, that he trusted him, and that he knew that Dr. Moran had seen Ms. Anaya only days before, which Dr. Sauerwein characterized as “a big advantage.”Report of Proceedings (RP)(June 10, 2011)at 78.Together, they arrived at a plan to find out how Ms. Anaya was doing and, if she was ill, to take further action.If she was not ill, they agreed that they would wait, because in that event, it was probable that the yeast was a contaminant.The consultation and agreed course of action were reflected in Dr. Sauerwein's clinic note.

¶ 7 Dr. Sauerwein directed Ms. Gott to contact Ms. Anaya to determine how she was doing.Mary Sifuentes, a licensed practical nurse at the clinic, called Ms. Anaya, who told the nurse that she had returned to the emergency room the prior night, emergency department personnel had catheterized and emptied her bladder, and she felt much better after that.She was continuing to be treated for a bacterial infection.

¶ 8 Based on that information, Dr. Sauerwein did not take further immediate action on the blood test result, although upon being told that Ms. Anaya's next scheduled follow-up appointment at the clinic was on September 5, he responded, “have her come in next week please, 9/5 is too far out.”Ex. 7.Ms. Anaya was contacted and rescheduled to return to the clinic on the following Wednesday, August 30.There was no evidence that Dr. Sauerwein or anyone else at the clinic informed Ms. Anaya of the results of the microbiology test.

¶ 9 It turned out that the blood test was not contaminated; Ms. Anaya did have a fungal infection.It took six days, until Saturday, August 26, for the fungus to grow out and be identified as Candida glabrata.No report of that final finding was received by the clinic.

¶ 10 On August 29, Ms. Anaya's husband, Rodolfo Anaya–Gomez, who was working in Alaska but had learned of his wife's persisting illness, returned to Washington to see to her care.He drove her to Yakima Memorial Hospital on the day he arrived home.Upon being admitted, her urine tested positive for yeast—something it had not done when she was admitted to the Toppenish hospital nine days earlier.Approximately 24 hours after her admission to Yakima Memorial, a consulting nephrologist learned of her fungal infection with Candida, although the strain was not yet identified.He began treating Ms. Anaya with fluconazol, an antifungal medication, but one that does not eliminate Candida glabrata from the blood stream.It was not until a day later, when Ms. Anaya was seen by an infectious disease specialist who learned that her blood culture had grown Candida glabrata, that the fluconazol was discontinued and she began receiving amphotericin B intravenously.

¶ 11 Ms. Anaya felt better the next day and was transferred out of the intensive care unit (ICU), but only temporarily.The fungus had invaded her internal organs and she had developed fungal sepsis.Despite her return to the ICU and aggressive treatment, she eventually fell into a vegetative state, was transferred to a nursing home in Toppenish, and died on November 17, 2006.The cause of death was fungal sepsis.

¶ 12 Mr. Anaya–Gomez, as personal representative of Ms. Anaya's estate, brought suit against Dr. Sauerwein and the clinic for medical negligence, alleging that the doctor had “deviated from the accepted standard of care in the community” in his “evaluation and/or non-treatment” of Ms. Anaya.Clerk's Papers(CP)at 7.

¶ 13 Three weeks before trial, the estate submitted a notice of trial amendment, adding a claim for failure to obtain informed consent.The defendants objected to the amendment as untimely and because, they argued, an informed consent theory was inapplicable, given the facts of the case.A few days before trial, the court heard defense arguments against permitting the amendment and for an order in limine excluding evidence supporting the informed consent theory.The court entered an order denying the defense motion to exclude evidence in support of the theory “at this time.”CPat 296.

¶ 14 At the close of the estate's case, the defendants renewed their objection to the informed consent claim and moved the court to dismiss it as a matter of law.The court granted the motion.It later denied the estate's request for reconsideration.

¶ 15 In support of its medical negligence claim, the estate presented expert testimony that the standard of care required that Dr. Sauerwein contact Ms. Anaya upon receipt of the preliminary report, tell her that her blood culture had tested positive for yeast, and advise her to return to the emergency room for evaluation and to have a new blood culture taken and tested.

¶ 16 Defense experts disagreed, testifying that yeast infections in the blood are so rare that the appropriate standard of care was to contact the patient to determine her clinical condition and, if she was feeling better, to await the final report before administering treatment.The infectious disease expert for the defense also testified that amphotericin B is the only antifungal medication effective against Candida glabrata, is itself toxic, and is especially damaging to the kidneys.He testified that even an infectious disease specialist would not ordinarily put a patient on the drug without having a final identification of Candida glabrata as the infectious organism.

¶ 17 At the conclusion of the trial on the medical negligence claim, the jury returned a defense verdict.The estate's motions for reconsideration, judgment notwithstanding the verdict(JNOV), and/or for new trial were denied.The estate timely appealed.

ANALYSIS

I

¶ 18 Dr. Sauerwein presents two threshold arguments that the estate has failed to comply with rules of appellate procedure and we should, for that reason, refuse to entertain its arguments.

[1]¶ 19He argues, first, that the estate makes arguments not identified in its notice of appeal.A notice of appeal must “designate the decision or part of decision which the party wants reviewed.”RAP 5.3(a)(3).However, we review an order or ruling not designated in the notice if it “prejudicially affects the decision designated in the notice” and “is made [ ] before the appellate court accepts review.”RAP 2.4(b).An order “prejudicially affects” the decision designated in the...