Mohr v. Grantham

Decision Date13 October 2011
Docket NumberNo. 84712–6.,84712–6.
Citation262 P.3d 490,172 Wash.2d 844
PartiesLinda J. MOHR and Charles L. Mohr, her husband, Appellants,v.Dale C. GRANTHAM, M.D., and Jane Doe Grantham, and their marital community; Brian J. Dawson, M.D., and Jane Doe Dawson, and their marital community; Brooks Watson II, M.D., and Jane Doe Watson, and their marital community; Kadlec Medical Center, a Washington corporation; and Northwest Emergency Physicians, Inc., a Washington corporation, Respondents.
CourtWashington Supreme Court

OPINION TEXT STARTS HERE

Cheryl Rani Guttenbe Adamson, Attorney at Law, Kennewick, WA, for Appellants.Christopher Holmes Anderson, Fain Anderson VanDerhoef PLLC, Mary H. Spillane, Williams Kastner & Gibbs, Donna Maria Moniz, Johnson Graffe Keay Moniz & Wick LLP, Seattle, WA, Jerome R. Aiken, Attorney at Law, Yakima, WA, for Respondents.Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Moses Lake, WA, amicus counsel for of Washington State Association for Justice Foundation.OWENS, J.

[172 Wash.2d 846] ¶ 1 Linda Mohr suffered a trauma-induced stroke and is now permanently disabled. She and her husband, Charles, claim that negligent treatment by her health care providers diminished her chances of avoiding or greatly minimizing her disability. In other words, they claim that negligence caused Mrs. Mohr a loss of the chance of a better outcome. In Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 611, 614, 664 P.2d 474 (1983) (Dore, J., lead opinion), this court recognized the lost chance doctrine in a survival action when the plaintiff died following the alleged failure of his doctor to timely diagnose his lung cancer. This case compels consideration of whether, in the medical malpractice context, there is a cause of action for a lost chance, even when the ultimate result is some serious harm short of death. We hold that there is such a cause of action and, accordingly, reverse the order of summary judgment.

FACTS

¶ 2 In Richland, Washington, on the afternoon of August 31, 2004, Mrs. Mohr suffered a hypoglycemic event that caused her to run her car into a utility pole at approximately 45 m.p.h. She was taken by ambulance to the emergency room at Kadlec Medical Center (KMC). Having visible lacerations on her face from the car accident, Mrs. Mohr was given a neurological assessment upon arrival, at around 4:00 p.m., and a computerized tomography (CT) scan of her brain about an hour later. These tests were overseen or authorized by Dr. Dale Grantham, who was charged with Mrs. Mohr's care at KMC on August 31. The results were normal.

¶ 3 Following those neurological tests, however, Mrs. Mohr reported and was observed to have neurological symptoms, including being wobbly on her feet and having severe pain after being administered pain medication.1 Dr. Grantham informed one of Mrs. Mohr's physician sons, Dr. Brandt Mohr, by phone that he would carry out another neurological assessment before discharging her. He did not. Instead, he prescribed a narcotic, Darvocet, and sent Mrs. Mohr home with her husband. At that point, Mrs. Mohr could not walk herself to or from the car and had to be carried to bed by her husband when they arrived home. The Mohrs were not given discharge instructions that included specific information about head injuries.

¶ 4 Mrs. Mohr was again transported to KMC by ambulance just after 7:00 a.m. on September 1, 2004, because her husband was concerned that she remained very lethargic through the night. Dr. Brian Dawson was the attending emergency room physician that morning. By around 9:30 a.m., Mrs. Mohr was diagnosed as having a stroke. Specifically, she was first found to have an “evolving infarct ... in the right middle cerebral artery territory,” Clerk's Papers (CP) at 119, which relates to a cause of a stroke.2 A magnetic resonance imaging (MRI) examination, performed shortly after 9:30 a.m., confirmed that Mrs. Mohr was in fact having a stroke.3 However, Dr. Dawson did not provide any anticoagulant or antithrombotic treatment or therapy. Around 11:30 a.m. Mrs. Mohr was transferred to the intermediate care unit, under the care of Dr. Brooks Watson.

¶ 5 Before the transfer, Mrs. Mohr's two physician sons had arrived at KMC to be by her side. They tried to get both Dr. Dawson and then, after her transfer, Dr. Watson to order a CT angiogram. A CT angiogram was not done until 2:30 p.m., after the Mohr sons had Dr. Watson repeatedly paged. Then, although the results were available at 3:27 p.m., Dr. Watson was not located or informed until 4:50 p.m. that the CT angiogram showed a dissected carotid artery. He still did not order anyone to administer anticoagulant therapy, antiplatelet agents, or any other treatment. Dr. Watson had prescribed aspirin around 2:00 p.m. but did not order its immediate administration.

¶ 6 Mrs. Mohr's sons finally arranged a transfer and transport to Harborview Medical Center. Dr. Watson signed the transfer form as a formality. Only shortly before her transport at 6:00 p.m. on September 1, 2004, was Mrs. Mohr finally given aspirin, though it had to be administered in suppository form because, by then, she could no longer swallow.

¶ 7 Mrs. Mohr is now permanently brain damaged; a quarter to a third of her brain tissue was destroyed. In particular, the portions of her brain that were damaged are involved with motor control, sensation, and spatial reasoning.

¶ 8 Mrs. Mohr and her husband filed suit, claiming that Mrs. Mohr received negligent treatment, far below the recognized standard of care. They argue that the doctors' negligence substantially diminished her chance of recovery and that, with nonnegligent care, her disability could have been lessened or altogether avoided. The Mohrs' claim relies, at least in part, on a medical malpractice cause of action for the loss of a chance. In support of their claim, the Mohrs presented the family's testimony, including her two sons who are doctors, and the testimony of two other doctors, Kyra Becker and A. Basil Harris. The testimony included expert opinions that the treatment Mrs. Mohr received violated standards of care and that, had Mrs. Mohr received nonnegligent treatment at various points between August 31 and September 1, 2004, she would have had a 50 to 60 percent chance of a better outcome. The better outcome would have been no disability or, at least, significantly less disability.

¶ 9 On April 16, 2009, the Benton County Superior Court granted summary judgment for the defendants on the basis that the Mohrs did not show “but for” causation and the hesitancy of the court to expand Herskovits to the facts of this case. The Mohrs appealed, and the Court of Appeals certified the case for our review.

ISSUES

¶ 10 1. In the medical malpractice context, is there a cause of action for a lost chance of a better outcome?

¶ 11 2. Did the trial court properly grant summary judgment for all defendants under CR 56(c)?

ANALYSIS
1. Lost Chance of a Better Outcome

¶ 12 The medical malpractice statute requires the same elements of proof as traditional tort elements of proof: duty, breach, injury, and proximate cause. RCW 7.70.040. Whether there is a cause of action for a lost chance of a better outcome in the medical malpractice context is a question of law, which we review de novo. Berger v. Sonneland, 144 Wash.2d 91, 103, 26 P.3d 257 (2001). The standard formulation for proving proximate causation 4 in tort cases requires, “first, a showing that the breach of duty was a cause in fact of the injury, and, second, a showing that as a matter of law liability should attach.” Harbeson v. Parke–Davis, Inc., 98 Wash.2d 460, 475–76, 656 P.2d 483 (1983). In a medical malpractice case, for example, a plaintiff would traditionally seek to prove “cause in fact” by showing “that he or she would not have been injured but for the health care provider's failure to use reasonable care.” Hill v. Sacred Heart Med. Ctr., 143 Wash.App. 438, 448, 177 P.3d 1152 (2008) (citing McLaughlin v. Cooke, 112 Wash.2d 829, 837, 774 P.2d 1171 (1989)). However, as the plurality noted in Herskovits, [t]he word ‘cause’ has a notoriously elusive meaning (as the writings on legal causation all agree).” 99 Wash.2d at 635 n. 1, 664 P.2d 474 (Pearson, J., plurality opinion). For this reason, and in service of underlying tort principles, this court and others have recognized some limited exceptions to the strict tort formula, including recognition of lost chance claims. See, e.g., id. at 619, 664 P.2d 474 (Dore, J., lead opinion), 634–35 (Pearson, J., plurality opinion).

¶ 13 Herskovits involved a survival action following an allegedly negligent failure to diagnose lung cancer. Over the course of a year, Leslie Herskovits repeatedly sought treatment for persistent chest pains and a cough, for which he was prescribed only cough medicine. Id. at 611, 664 P.2d 474 (Dore, J., lead opinion). When he finally sought another medical opinion, Herskovits was diagnosed with lung cancer within three weeks. Id. His diagnosing physician testified that the delay in diagnosis likely diminished Herskovits's chance of long-term survival from 39 percent to 25 percent. Id. at 612, 664 P.2d 474. Less than two years after his diagnosis, then 60 years old, Herskovits died. Id. at 611, 664 P.2d 474. The trial court dismissed the case on summary judgment on the basis that Herskovits's estate, which brought suit, failed to establish a prima facie case of proximate cause: it could not show that but for his doctor's negligence he would have survived because he probably would have died from lung cancer even if the diagnosis had been made earlier.” Id. Though divided by different reasoning, this court reversed the trial court, finding that Herskovits's lost chance was actionable.

¶ 14 The lead opinion, signed by two justices, and the concurring opinion, which garnered a plurality, agreed on the fundamental bases...

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