Haskins v. Multicare Health Sys., No. 44655–3–II.

CourtCourt of Appeals of Washington
Writing for the CourtJOHANSON, C.J.
Citation186 Wash.App. 11,347 P.3d 460
PartiesLonnita HASKINS, Appellant/Cross–Respondent, v. MULTICARE HEALTH SYSTEM, a Washington corporation d/b/a Tacoma General Hospital, Respondent/Cross–Appellant, Tacoma Radiological Associates, P.S., a Washington corporation; and Unknown “John Does” and “John Doe Clinics,” Defendants.
Docket NumberNo. 44655–3–II.
Decision Date16 December 2014

186 Wash.App. 11
347 P.3d 460

Lonnita HASKINS, Appellant/Cross–Respondent
v.
MULTICARE HEALTH SYSTEM, a Washington corporation d/b/a Tacoma General Hospital, Respondent/Cross–Appellant
Tacoma Radiological Associates, P.S., a Washington corporation; and Unknown “John Does” and “John Doe Clinics,” Defendants.

No. 44655–3–II.

Court of Appeals of Washington, Division 2.

Dec. 16, 2014.
Publication Ordered March 3, 2015.

Amended on Denial of Reconsideration March 3, 2015.


347 P.3d 460

Joel Dean Cunningham, Luvera Law Firm, J. Andrew Hoyal II, Luvera Barnett Brindley Beninger et al, Seattle, WA, James L. Holman, Holman Law, PLLC, Tacoma, WA, for Appellant/Cross–Respondent.

Rebecca Sue Ringer, Amber L. Pearce, Floyd Pflueger & Ringer PS, Seattle, WA, for Respondent/Cross–Appellant.

JOHANSON, C.J.

186 Wash.App. 12

¶ 1 Lonnita Haskins appeals the trial court's judgment entered in Multicare Health System d/b/a Tacoma General Hospital's (Multicare) favor. She argues that (1) she was entitled to a jury instruction on res ipsa loquitur, (2) the trial court erred when it permitted Multicare to present evidence of collateral source payments, and (3) the trial court improperly instructed the jury about the burden of proof during voir dire and erred when it permitted Multicare's closing argument that the jurors could choose a burden of proof for themselves.

¶ 2 We hold that it was reversible error to fail to give Haskins's proposed res ipsa loquitur instruction and that it was not error to permit Multicare to present evidence of past collateral source payments. Accordingly, we vacate the judgment in Multicare's favor, remand for a new trial, and do not reach Haskins's voir dire and closing argument issues.

¶ 3 On cross appeal, Multicare argues that the trial court erred when it excluded Multicare's designated ER 615

186 Wash.App. 13

in-court representative and when it declined to give Multicare's proposed jury instruction regarding

347 P.3d 461

the tax consequences of personal injury awards.

¶ 4 We hold that the trial court abused its discretion when it denied Multicare's request to designate an employee who is also a fact witness in the case as its in-court representative under ER 615, but it was not an abuse of discretion to decline to give Multicare's proposed jury instruction on the tax consequences of personal injury awards.

FACTS

I. Haskins's Surgery

¶ 5 In 2007, Haskins was diagnosed with cervical cancer. After radiation treatments, Haskins had an Indiana pouch surgery in order to correct incontinence.

¶ 6 In March 2009, Dr. Bahman Saffari performed the surgery. Indiana pouch surgery involves removing portions of the large and small intestines and using them to create a new “urinary reservoir.” 1 Report of Proceedings (RP) (Jan. 16, 2013) at 24. The patient's kidneys are essentially detached from the bladder and reconnected to the new Indiana pouch reservoir, bypassing the bladder. Indiana pouch surgery also involves the insertion of two stents to help drain urine into bags so that urine output is monitored during recovery and pressure is relieved on the pouch while it heals. Dr. Saffari also inserted a Malecot tube that allows hospital staff to flush the pouch.

¶ 7 Dr. Saffari thought that Haskins's surgery was successful and that there was an 80 to 90 percent chance that the new Indiana pouch would function as her bladder for the remainder of her life. However, during her recovery, Haskins experienced complications. At 4:00 pm on March 11, Haskins was recovering in the hospital and Nurse Shaleeni Fortner assessed Haskins and verified that her stents were secure.

186 Wash.App. 14

¶ 8 At 9:59 pm , certified nurse assistant Ashley Barker emptied the urine bags. Barker was trained on how to handle lines and drains and knew that the stents attached to the urine bags should not be pulled. She denied that she would ever hang the urine bags over the bedside. She claimed she did not notice whether Haskins's stents had been pulled out because the blankets of her bed were covering the tubes. But Haskins's urine output was good.

¶ 9 At 11:00 pm , Haskins noticed that her stents were not putting out any urine. After Nurse Fortner and the charge nurse, Nurse Debbie Dick, made a complete assessment, they found that there had not been any urine output but that nothing appeared to be out of place and that there were not “any problems at the stent.” 4 RP (Jan. 17, 2013) at 280–81.

¶ 10 At 11:45 pm , Nurse Rebecca Sumey noticed that Haskins's urine output was still low based on when Barker had last emptied the bags at 9:59 pm . Nurse Sumey was the first person to notice that Haskins's stents had become dislodged and testified that they had been pulled out about 14 inches. Nurse Sumey's entry in the records that night stated that the stents had been pulled out 50 to 60 centimeters. Haskins told Nurse Sumey that she thought the stents became dislodged when Barker hung the urine bags over the side of the bed.

¶ 11 The next morning, Dr. Saffari discussed Haskins's stents and urine output with her and she told him that she thought Barker had hung the urine bags over the side of the bed. However, at trial, Haskins did not remember anything that happened on March 11 and did not remember seeing the bags hanging over the side of her bed. Because the stents became dislodged, Haskins. experienced acute renal failure. Although she made a complete recovery, because of the stent complications, Haskins required an additional procedure and additional recovery time to correct the problem with her stents and to avoid permanent kidney damage.

186 Wash.App. 15

II. The Trial

¶ 12 In a motion in limine, Haskins argued that evidence of collateral source payments should not be admitted because RCW 7.70.080 is unconstitutional. The trial court admitted evidence of past compensation but excluded evidence of future collateral source payments.

¶ 13 Multicare designated Barker as its in-court representative pursuant to ER 615. Haskins moved in limine to exclude Barker

347 P.3d 462

because she was a “critical witness.” 1 RP (Jan. 14, 2013) at 3. The court agreed and granted Haskins's motion because Barker was a factual witness.

¶ 14 Haskins offered expert testimony from two witnesses, Dr. Oliver Dorigo, the chief gynecologic oncologist at Stanford University, and Karen Huisinga, a nurse practitioner. Both testified that the most likely explanation for her stents becoming dislodged 10 to 14 inches was hospital negligence. Nurse Huisinga also testified that hanging urine bags over the side of the bed falls below the standard of care for nurses and that, in her opinion, Haskins's injury probably happened when Barker hung the bags over the' bedside.

¶ 15 Haskins also called Dr. Saffari, Nurses Former, Barker, Sumey, and Katherine Bechtold1 as fact witnesses and to establish the appropriate standards of care in nursing. Haskins also testified.

¶ 16 Multicare also offered testimony from two experts: Cheyenne Haines, a nurse with experience caring for recovering surgery patients, and Dr. Karny Jacoby, a urologist who testified that she prefers not to perform Indiana pouch surgeries. Dr. Jacoby also provided an expert opinion that “[t]ubes fall out all the time” and that it often happens when patients roll around in bed or if patients are confused and pull them out themselves. 2 RP (Jan. 24, 2013) at 25.

186 Wash.App. 16

¶ 17 Multicare proposed a jury instruction stating that personal injury awards are not taxable. The instruction stated, “Any award to plaintiff will not be subject to federal income tax, and therefore you should not add or subtract for such taxes in fixing the amount of any award.” Clerk's Papers (CP) at 163. The trial court refused to give the instruction because “it would conflict with the no insurance instruction.” 5 RP (Jan. 29, 2013) at 184.

¶ 18 Haskins proposed the standard 6 Washington Practice: Washington Pattern Jury Instructions: Civil 22.01, at 255 (6th ed.2012) (WPI) instruction on res ipsa loquitur. She claimed that she was entitled to the instruction based on expert testimony and recent case law. Multicare argued that Haskins did not show that “she wasn't the sole cause” of her injury and that res ipsa loquitur should only be applied “sparingly.” 5 RP (Jan. 29, 2013) at 147. The trial court declined to give Haskins's proposed instruction.

¶ 19 The jury found in Multicare's favor and the trial court entered judgment accordingly. Haskins appeals from that judgment.

ANALYSIS

The Collateral Source Doctrine in Medical Malpractice Cases and the Constitutionality of RCW 7.70.080

¶ 20 Haskins argues that RCW 7.70.080, permitting parties to present evidence of past collateral source payments in medical malpractice cases, is unconstitutional because it violates separation of powers principles and, therefore, the trial court erred when it...

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