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

Decision Date19 June 2014
Docket NumberNo. 88307–6.,88307–6.
Citation180 Wash.2d 610,331 P.3d 19
CourtWashington Supreme Court
PartiesRodolfo Anaya GOMEZ, as Personal Representative of the Estate of Christina Palma Anaya, Petitioner, v. Mark F. SAUERWEIN, M.D., and the Yakima Valley Farm Workers Clinic, a Washington Corporation, Respondents.


Richard Raymond Johnson, Johnson & Johnson Law Firm, PLLC, Yakima, Ian S. Birk, Keller Rohrback, LLP, Benjamin Blystad Gould, Keller Rohrback LLP, Isaac Ruiz, Harry Williams IV, Keller Rohrback LLP, Seattle, Counsel for Petitioners.

Pamela A. Okano, Reed McClure, Seattle, David A. Thorner, Thorner Kennedy & Gano PS, Megan Murphy, Thorner Kennedy Gano, Yakima, Marilee C. Erickson, Reed McClure, Seattle, Counsel for Respondents.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, Matthew William Daley, Witherspoon, Kelley, Davenport & Toole, Ryan Marshall Beaudoin, Witherspoon Kelley Davenport & Toole PS, Spokane, Elizabeth Kennedy Morrison, Lorber, Greenfield & Polito, LLP, Seattle, amicus counsel for Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, George M Ahrend, Ahrend Albrecht PLLC, Ephrata, David P. Gardner, Winston & Cashatt, Spokane, amicus counsel for Washington State Association for Justice Foundation.

Gregory Mann Miller, Carney Badley Spellman PS, Justin Price Wade, Carney Badley Spellman, Seattle, amicus counsel for Washington State Medical Association.


¶ 1 This case asks whether Washington's informed consent statute, RCW 7.70.050, applies when a health care provider misdiagnoses the patient's condition. We must decide whether the legislature intended to provide recovery to plaintiffs who allege both negligence and informed consent violations based on the same set of facts.

¶ 2 We hold that when a health care provider rules out a particular diagnosis based on the patient's clinical condition—including test results, medical history, presentation upon physical examination, and any other circumstances surrounding the patient's condition that are available to the provider—the provider may not be liable for informed consent claims arising from the ruled out diagnosis under RCW 7.70.050. We affirm the Court of Appeals.

Facts and Procedural History

¶ 3 Christina Palma Anaya (Mrs. Anaya) suffered from uncontrolled diabetes, leaving her immunocompromised and susceptible to serious infections. On August 20, 2006, Mrs. Anaya went to the Toppenish Community Hospital complaining of urinary tract infection (UTI) symptoms. Urine and blood samples were taken and sent to the laboratory at Yakima Regional Medical Center for analysis. She went home the next day. On August 23, Mrs. Anaya returned to the Toppenish emergency room still feeling ill from UTI symptoms and could not empty her bladder. After her bladder was drained, she felt better so was sent home. On August 24, the lab preliminarily determined that one of Mrs. Anaya's blood cultures was positive for yeast. Following protocol, the lab called Mrs. Anaya's primary care facility, the Yakima Valley Farm Workers Clinic (Clinic), where Dr. Sauerwein was covering for Mrs. Anaya's usual primary care provider.

¶ 4 Dr. Sauerwein was concerned about the test result. He conferred with Dr. Moran, one of Mrs. Anaya's treating physicians at Toppenish on August 20 and 21. Dr. Moran, an internal medicine specialist, suggested contacting Mrs. Anaya to obtain a fuller clinical picture of Mrs. Anaya's condition. Due to the serious nature of a blood infection, the two physicians decided that if Mrs. Anaya was feeling ill, she should come in immediately for treatment. If Mrs. Anaya was feeling better, they determined that it was more likely that the test result was a false positive, a common occurrence in microbiology labs. 1 A nurse from the Clinic called Mrs. Anaya, who said she had been feeling much better since her second visit to Toppenish. Dr. Sauerwein used the complete clinical picture available to him to conclude that the lab result was a false positive resulting from contamination but had the nurse contact Mrs. Anaya to move her next appointment up to the following week. Dr. Sauerwein did not tell Mrs. Anaya about the test result.

¶ 5 On August 26, the lab positively identified candida glabrata as the yeast in Mrs. Anaya's blood. An infection of glabrata in the blood is serious and can even be deadly. Lab microbiologists entered this information into Mrs. Anaya's medical record but did not notify Dr. Sauerwein, the Clinic, or anyone else about the positive test result.

¶ 6 Before Mrs. Anaya's next visit to the Clinic occurred, her condition worsened. On August 29, Mrs. Anaya went to Yakima Memorial Hospital. There she was prescribed a general antifungal called fluconazol. Fluconazol is effective against most strains of yeast, but it is ineffective against glabrata. When the hospital positively identified glabrata, they discontinued using fluconazol and started using amphotericin B. While amphotericin B is effective against glabrata, it is highly toxic to the kidneys. Given the compromised state of Mrs. Anaya's kidneys from her diabetes, a health care provider would not normally prescribe amphotericin B until positively identifying glabrata.

¶ 7 Unfortunately, the amphotericin B treatment came too late to stop the glabrata infection from spreading to the internal organs. Mrs. Anaya died at age 32 on November 17, 2006, of cardiac arrest, deprivation of oxygen to the brain, and fungal sepsis; all stemming from type II diabetes mellitus.

¶ 8 Mr. Anaya Gomez (Mr. Anaya), as personal representative of Mrs. Anaya's estate, brought an action in Yakima County Superior Court against Dr. Sauerwein and the Clinic for malpractice. Three weeks before the jury trial, the estate moved to add a claim for failure to obtain informed consent. The trial judge took the motion under advisement. At the close of Mr. Anaya's case, the defense moved for judgment as a matter of law on the informed consent claim.

¶ 9 The judge granted the motion and dismissed the informed consent claim, concluding that Backlund v. University of Washington, 137 Wash.2d 651, 975 P.2d 950 (1999), precluded an informed consent claim in misdiagnosis cases. The defense then presented its case in chief, and the jury found that Dr. Sauerwein did not breach any duty owed to Mrs. Anaya. Finding that Dr. Sauerwein did not deviate from the standard of care, the jury did not reach the issues of proximate cause or damages.

¶ 10 On appeal, the Court of Appeals Division Three affirmed the trial court, holding that this case was indistinguishable from Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919 (1979), but that Gates was either overruled sub silentio by Backlund or abrogated or limited to its facts by Keogan v. Holy Family Hospital, 95 Wash.2d 306, 312–14, 622 P.2d 1246 (1980). Anaya Gomez v. Sauerwein, 172 Wash.App. 370, 385 289 P.3d 755 (2012). The case was appealed to this court for discretionary review, which was accepted. Anaya Gomez v. Sauerwein, 177 Wash.2d 1008, 302 P.3d 180 (2013).


¶ 11 1. Whether Mr. Anaya could bring an informed consent claim based on the same facts giving rise to a medical negligence claim for misdiagnosis.

¶ 12 2. Whether any reasonable finder of fact could, on the facts in this case taken in a light most favorable to Mr. Anaya, conclude that Dr. Sauerwein's failure to obtain informed consent proximately caused Mrs. Anaya's death.


¶ 13 This court reviews de novo a granted motion for judgment as a matter of law. Davis v. Microsoft Corp., 149 Wash.2d 521, 530–31, 70 P.3d 126 (2003). The court will view the evidence in a light most favorable to Mr. Anaya, drawing all reasonable inferences in his favor. Sing v. John L. Scott, Inc., 134 Wash.2d 24, 29, 948 P.2d 816 (1997). Judgment as a matter of law will be sustained if no rational, unbiased person could return a verdict in the nonmoving party's favor. Davis, 149 Wash.2d at 531, 70 P.3d 126.

A. Mr. Anaya Cannot Bring an Informed Consent Claim Based on the Same Facts That Gave Rise to His Misdiagnosis Malpractice Claim

¶ 14 Informed consent and medical negligence are distinct claims that apply in different situations. While there is some overlap, they are two different theories of recovery with independent rationales. In determining which theory of recovery is available, the issue is whether this is a case of misdiagnosis subject only to negligence or if the facts also support an informed consent claim.

a. Informed consent and medical negligence are separate theories of recovery

¶ 15 Modernly cognizable claims for failure to provide informed consent have been part of the law for nearly a century. Keogan, 95 Wash.2d at 312–14, 622 P.2d 1246 (discussing the history of the doctrine of informed consent). The legislature codified the common law elements of an informed consent claim in RCW 7.70.050. Stewart–Graves v. Vaughn, 162 Wash.2d 115, 125, 170 P.3d 1151 (2007) (citing Final B. Rep. on Substitute H.B. 1470, at 23, 44th Leg., 1st Ex.Sess. (Wash.1976)). The legislature intended to adopt the elements as they appeared in Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), aff'd,85 Wash.2d 151, 530 P.2d 334 (1975) with minor changes to one element not relevant here. Stewart–Graves, 162 Wash.2d at 122–23, 170 P.3d 1151.

¶ 16 In certain circumstances, this court has held that the right to informed consent can include the process of diagnosis. Gates, 92 Wash.2d at 250–51, 595 P.2d 919 (“Important decisions must frequently be made in many nontreatment situations in which medical care is given, including procedures leading to a diagnosis, as in this case.”). But Gates was decided on facts that predated codification of informed consent in RCW 7.70.050. The statute clearly uses the word “treatment,” demonstrating the intent to limit informed consent claims to treatment situations.

¶ 17 The doctrine of informed consent has been distinguished from malpractice...

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