Gustav v. Seattle Urological Associates

• Decision Date: 13 April 1998
• Docket Number: 41399-6-I,Nos. 39005-8-,s. 39005-8-
• Citation: 90 Wn.App. 785,954 P.2d 319
• Court: Washington Court of Appeals
• Parties: Robert J. GUSTAV and Letty Gustav, husband and wife, Appellants. v. SEATTLE UROLOGICAL ASSOCIATES, a partnership or joint venture; James E. Gottesman, M.D., P.S., a professional service corporation; James E. Gottesman and Jane Doe Gottesman, husband and wife; Joel P. Lilly, M.D., P.S., a professional service corporation; Joel P. Lilly and Jane Doe Lilly, husband and wife; Wayne D. Weissman, M.D., P.S., a professional service corporation; Wayne D. Weissman and Jane Doe Weissman, husband and wife; James P. Gasparich, M.D., P.S., a professional service corporation; and James P. Gasparich and Jane Doe Gasparich, husband and wife, Respondents.

Page 785

90 Wn.App. 785

954 P.2d 319

Robert J. GUSTAV and Letty Gustav, husband and wife, Appellants. v. SEATTLE UROLOGICAL ASSOCIATES, a partnership or joint venture; James E. Gottesman, M.D., P.S., a professional service corporation; James E. Gottesman and Jane Doe Gottesman, husband and wife; Joel P. Lilly, M.D., P.S., a professional service corporation; Joel P. Lilly and Jane Doe Lilly, husband and wife; Wayne D. Weissman, M.D., P.S a professional service corporation; Wayne D. Weissman and Jane Doe Weissman, husband and wife; James P. Gasparich M.D., P.S., a professional service corporation; and James P. Gasparich and Jane Doe Gasparich, husband and wife, Respondents.

Nos. 39005-8-I, 41399-6-I.

Court of Appeals of Washington Division 1.

April 13, 1998.

David Balint, Jeffrey Mirsepasy, Gary Taylor, Seattle, for Appellants.

Thomas Fain, Margaret Sundberg, Mary Spillane, Seattle, for Respondents.

AGID, Judge.

Robert J. Gustav, a 75-year-old man suffering from incurable metastasized prostate cancer, filed this action for medical malpractice against Dr. James Gottesman and his partner, Dr. Joel Lilly, alleging that Dr. Gottesman negligently failed to diagnose his cancer until April 1994 after another doctor in California did a bone scan that revealed the presence of cancer in his spine, ribs and scapula. Gustav appeals the trial court's summary dismissal of his informed consent claim. Because Gustav stated a claim for negligence, not informed consent, the trial court properly granted summary judgment and we affirm.

FACTS

Gustav first saw Dr. Gottesman on June 22, 1987, for a suspicious nodule in his prostate and an elevated PSA. ¹ He reported a history of prostatitis and a January 1987 PSA level of 20.3. Although another doctor recommended a biopsy in September 1985, the one Dr. Gottesman performed was Gustav's first. The pathology report reflected some abnormality in the cells lining the prostate consistent with a history of prostatitis but did not reveal the presence of any malignancy or cancer. Two of the four samples obtained during the biopsy were of marginal diagnostic value, but Dr. Gottesman was satisfied with the result, especially when the PSA report he ordered reflected a slight drop to 20.1.

Dr. Gottesman continued to examine Gustav for prostate cancer over the next six years. During that time, Gustav's PSA level was tested over 20 times by Dr. Gottesman and sometimes by other physicians that Gustav was also seeing, i.e., about three times a year. A high PSA level is not specific to cancer; men with a normal PSA may have cancer, and other conditions such as prostatitis can cause a high PSA. ² But Dr. Gottesman began using PSA testing when it became available to learn what he could from it. At the time, PSA testing was generally regarded as a good measurement of the effectiveness of cancer treatment, but its use to detect cancer was still controversial. The FDA did not certify PSA testing for cancer screening until August 1994, several months after Gustav's cancer was diagnosed. Although the various PSA tests Dr. Gottesman ordered between 1987 and 1994 reflected elevated PSA levels, Dr. Gottesman believed these were caused by Gustav's long history of prostatitis.

In 1991, Dr. Gottesman noted some changes in the appearance of the prostate and arranged for his partner, Dr. Lilly, to biopsy the areas he felt were suspicious. Dr. Lilly had to stop before biopsying all the areas he had planned to cover because Gustav was in pain from the procedure. But he was able to biopsy the suspicious areas in the left base and left mid-gland. The biopsy was negative, and Dr. Gottesman concluded that it was not necessary to rebiopsy. Over the course of the next two years, Gustav continued to experience urologic symptoms and elevated PSA levels which Dr. Gottesman believed were caused either by his chronic prostatitis or by an episode of bacterial infection. In June 1993, Gustav's PSA level rose to 31.2, but it had dropped again to 23.1 by December 1993. Because that pattern was consistent with what Dr. Gottesman had observed throughout the time he had been treating Gustav, he continued to believe it did not indicate he had cancer.

The last time Dr. Gottesman saw Gustav before his cancer was detected, he reported that pain in his right groin from twisting a muscle playing golf was improving with physical therapy. Because cancer-related pain would not have responded to physical therapy, Dr. Gottesman again did not attribute it to cancer. Dr. Gottesman also did not regard either a February 27.3 PSA test result Gustav reported from California or the fact that Gustav's flow tended to decrease after he ate salty food as cause for concern. In his clinical judgment, both were consistent with Gustav's long history of prostatitis, and he did not consider a biopsy at that time.

On April 6, 1994, Gustav called Dr. Gottesman from California and reported he had undergone a bone scan which revealed the presence of metastatic cancer in his bones. When Dr. Gottesman examined Gustav in Seattle on April 11, his PSA level was 57.6. A biopsy revealed the presence of cancer in the left base and mid-gland and a lesser amount of cancer in the left apex, the areas that had previously appeared suspicious to Dr. Gottesman. When the pathology report came back, Dr. Gottesman met with Gustav and his family. He told them there was prostate cancer and that he had been mistaken in regarding Gustav's 20-year history of prostatitis as the sole cause of his elevated PSA levels.

In December 1994, Gustav filed this action against Dr. Gottesman and Dr. Lilly. In February 1996, Gustav moved for partial summary judgment on his claims for negligence and informed consent. Drs. Gottesman and Lilly cross-moved for summary judgment on the ground that Gustav's informed consent claim was subsumed in his negligent failure to diagnose claim. On April 18, 1996, the trial judge granted the doctors' motion and dismissed the informed consent claim.

Trial began on May 20, 1996. On June 6, the jury returned its verdict for Drs. Gottesman and Lilly. Gustav moved for a new trial. The trial court denied the motion and entered judgment on the verdict. Gustav appealed.

DISCUSSION

Informed Consent Claim

Gustav contends that the trial court erred when it dismissed his informed consent claim on summary judgment. In reviewing a summary judgment order, we engage in the same inquiry as the trial court. Summary judgment should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ³

Summary judgment was proper here because, as a matter of law, Gustav's allegations involved negligence prior to treatment, not informed consent concerning a treatment the doctor proposed to use. These are two distinct causes of action. Allegations supporting one normally will not support the other. Both Gustav's negligence claims and his informed consent claim were based on Dr. Gottesman's failure to diagnose his prostate cancer. Gustav alleged that Dr. Gottesman was negligent in "[f]ailing to order diagnostic tests as frequently as appropriate" and "[f]ailing to order completion of the 1991 biopsy for the four areas of the prostate gland not tested by giving the appropriate anesthesia to the plaintiff." His informed consent claim similarly alleged that Drs. Gottesman and Lilly "failed to fully inform [him] of the appropriate frequency of diagnostic testing, the dangers involved in not testing more frequently, and the consequences of not completing the 1991 biopsy." ⁴ Nothing in these allegations relates to a failure to warn of potential consequences of treating Gustav's cancer, a condition he could not have treated because he failed to diagnose it.

While a physician has a duty to disclose an abnormality in the patient's body which may indicate risk or danger, ⁵ a physician's failure to diagnose a condition is a matter of medical negligence, not a violation of the duty to inform. ⁶ The duty to disclose does not arise until the physician becomes aware of the condition by diagnosing it. ⁷ Informed consent and medical negligence are alternate methods of imposing liability. ⁸ Whether Drs. Gottesman and Lilly misjudged "the appropriate frequency of diagnostic testing, the dangers involved in not testing more frequently, and the consequences of not completing the 1991 biopsy," i.e., whether they negligently failed to diagnose Gustav's cancer, are issues that implicate negligence in diagnosis falling below the standard of care, not informed consent about the risks of treating the diagnosed condition. ⁹

This is true even of Dr. Gottesman's failure to inform Gustav that he was not initially aware of the different assays used to report PSA test results. Despite that difference, Gustav was still aware that his PSA levels were elevated, that they tended to go up and down, and that they were gradually increasing. The overall pattern was apparent from the test results even as reported by Dr. Gottesman. ¹⁰ The problem was that Dr. Gottesman misdiagnosed the reason for that pattern. He believed that Gustav's chronic prostatitis or a bacterial infection caused it, not cancer. ¹¹ Even after he learned of the need to convert the PSA test results, Dr. Gottesman maintained the same conviction about the reason for the PSA levels. The question whether Dr. Gottesman should have known of the difference between the two assays earlier and whether he unreasonably failed to recognize the significance of the pattern he observed raised the question of negligence and the applicable standard of care, not informed consent. If Dr. Gottesman never became aware of the condition and should have, he was negligent. But there was no allegation that he failed to disclose a material fact related to treating that condition. To hold otherwise would be to merge two distinct and logically separate causes of action. The trial court properly...