Murphy v. Med. Oncology Assocs.
| Docket Number | 37545-5-III |
| Decision Date | 29 June 2023 |
| Parties | DAVID W. MURPHY, as Personal Representative for the Estate of KATHLEEN J. MURPHY, Appellant, v. MEDICAL ONCOLOGY ASSOCIATES, P.S., a Washington corporation; ARVIND CHAUDHRY, M.D., Ph.D.; RAJEEV RAJENDRA, M.D.; BRUCE CUTTER, M.D.; PROVIDENCE HEALTH & SERVICES, a Washington corporation, d/b/a PROVIDENCE HOLY FAMILY HOSPITAL; HEATHER HOPPE, Pharm.D.; and ERIN WHITE, Pharm.D., Respondents. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
In this medical malpractice action that resulted in a defense verdict below, David Murphy, as the personal representative of the estate of his mother, sued some of the doctors who treated her in her final illness. He contends it was error for the trial court not to strike, sua sponte, at least two prospective jurors for cause and not to exclude, sua sponte defense evidence that he contends violated the dead man's statute or evidence rules. He also appeals the denial of his motion for a new trial on an informed consent claim.
He fails to demonstrate actual bias on the part of any juror and assuming without agreeing that defense witnesses provided inadmissible testimony, error was not preserved. We affirm.
Medical treatment
In late May 2015, Kathleen Murphy was admitted to Holy Family Hospital in Spokane for a worsening of unwellness she had experienced since being hospitalized in the beginning of 2015 for exacerbation of chronic obstructive pulmonary disease (COPD). COPD is a "lung disease of the airways where there is a certain obstructive pattern on how people are able to exhale or inhale." Rep. of Proc. (RP) at 395. It is often caused by long term smoking. Kathleen's[1] treatment providers were aware she was a half-a-pack per day smoker.
Soon after her admission, a tissue biopsy revealed that Kathleen had Hodgkin's lymphoma. Hodgkin's lymphoma is a cancer that primarily affects the lymph nodes and other lymphoid tissue in the body.
On June 2, Kathleen established care with Dr. Arvind Chaudhry, an oncologist with Medical Oncology Associates, P.S. Dr Chaudhry would later testify that Kathleen had an unusual presentation of Hodgkin's disease. For one thing, the disease is rare in someone who is 65 years old. In addition, Kathleen had nodules in her lungs and liver in addition to enlarged lymph nodes; if it was Hodgkin's disease, that meant it had progressed to other organs. Believing it might be a different type of lymphoma, Dr. Chaudhry deferred a treatment decision pending a report on the pathology. The pathology confirmed that Kathleen had Hodgkin's lymphoma.
On June 4, Kathleen met with Dr. Rajeev Rajendra, one of Dr Chaudhry's colleagues, because Dr. Chaudhry was unavailable. Present during this meeting were Kathleen's son, Michael, and her daughter, Susan. According to medical records, the meeting lasted 35 to 40 minutes and included discussion of treatment objectives.
Dr. Rajendra ordered a pulmonary function test to measure lung health, information needed to determine whether Kathleen could take a drug called bleomycin. Bleomycin is one drug within a chemotherapy regimen called "ABVD." ABVD is named for its four drug components: adriamycin, bleomycin, velban, and dacarbazine. In Dr. Chaudhry's opinion, ABVD was the best available avenue for the treatment and cure of Hodgkin's disease and gave Kathleen the best shot at curing her cancer. The standard treatment with the ABVD regimen is a cycle every four weeks, with drug infusions on day 1 and day 15 of each cycle. Chemotherapy is most efficacious if the patient is able to stay on schedule with the recommended dosage.
Dr. Chaudhry reviewed Dr. Rajendra's notes before seeing Kathleen the following day, June 5. The medical record of Dr. Chaudhry's visit with Kathleen that morning states, in part, "Dr[.] Raj has discussed chemo options." Ex. D102, at 226. It continues, Id. at 226-27. Dr. Chaudhry recognized that Kathleen "did not have too much time to wait for all the testing and results." RP at 404. Nevertheless, he wished to have received all of the informative pathology before beginning chemotherapy.
On the morning of June 6, Dr. Chaudhry met again with Kathleen. He recommended ABVD "in-house," meaning in the hospital. RP at 273. His note of the visit adds: "Discussed risks and benefits." Ex. D102 at 220. Kathleen also received printed information about chemotherapy guidelines and drugs. The first administration of ABVD occurred that day.
Kathleen's white blood cell count dropped following the first administration, a condition called "neutropenia." RP at 274. As a result, the second administration of ABVD was postponed, and Dr. Chaudhry decided to reduce the dosage of adriamycin. Kathleen was discharged from the hospital to a nursing facility on June 22.
Kathleen received her delayed second administration of ABVD at the doctors' clinic, on July 2. Medical records of her meeting with a nurse practitioner on that date state, Ex. D101, at 16. Consent paperwork signed by Kathleen at that time listed the chemotherapy drugs and their side effects.
Kathleen had an infection following this second chemotherapy and was readmitted to Holy Family Hospital on July 12. A CT[2] scan showed a mild pulmonary edema at her lung bases. She was discharged on July 15. She agreed to go forward with her third administration of ABVD and received it on July 16.
Sometime after, Kathleen was sent to Valley Hospital after showing low white blood cell counts once more. On July 30, Dr. Chaudhry decided to delay the next administration of ABVD and to reduce the dosage of adriamycin to prevent further episodes of neutropenia. At that point, Dr. Chaudhry had determined to cease providing care to Kathleen as soon as she could be seen by another physician.[3]
On August 13, Dr. Bruce Cutter, another oncologist with Medical Oncology Associates, assumed Kathleen's care and she received her fourth administration of ABVD. An entry in the medical record states that Dr. Cutter, Kathleen, and Susan "had a good talk and all wish to continue care here." Ex. D101, at 10. Dr. Cutter's notes "emphasized plan is to cure her" and recorded that "[w]e need to be aggressive to do so." Id. At a follow-up later that week, Kathleen reported feeling unwell and displayed some shortness of breath with exertion. Dr. Cutter conducted a physical exam and noted no baseline respiratory issues. He attributed her symptoms to her ongoing anemia. Before her next visit, Kathleen received a transfusion of two units of red blood cells.
At her next visit, on August 27, Kathleen presented with diffuse "crackles" in her lower lung bases. Lung crackles, or crepitations, are detectable by stethoscope and often sound like "Velcro opening up." RP at 450.[4] They can be an early indication of bleomycin toxicity, but may be caused by many ailments, including Hodgkin's lymphoma in the lungs. This was the first time Dr. Cutter heard lung crackles in Kathleen. Although Dr. Cutter had growing concerns about the dose delays and modifications affecting Kathleen's chemotherapy, he decided to hold off treatment until the next week, as a start, to do diagnostic testing. A few days later, Kathleen visited the emergency room where complaints of lightheadedness and dizziness were treated.
On September 10, the lung crackles were still present. Given a concern about bleomycin toxicity but the continued goal to aggressively pursue a cure, Kathleen received a fifth administration of chemotherapy consisting of only ADV. The next day, Dr. Cutter treated Kathleen with Neulasta, which causes bone marrow to produce more white blood cells.
On September 13, Kathleen went to the hospital by ambulance with significant shortness of breath. She was admitted to the intensive care unit (ICU) and placed on a ventilator. The treating physicians diagnosed Kathleen with acute respiratory distress syndrome (ARDS).
Kathleen died on September 24. Her treating physician in the ICU described the cause of death as ARDS, recording it in her medical record as acute cardiopulmonary failure secondary to pneumonia with underlying COPD and Hodgkin's disease.
David Murphy thereafter brought suit against a number of medical providers and practices, but by the time of trial he had dismissed claims against all but Medical Oncology Associates Dr. Chaudhry and Dr. Cutter. He asserted claims for medical malpractice under chapter 7.70 RCW and negligence, personal injury claims that survived Kathleen's death under RCW 4.20.060. On behalf of Kathleen's children, he asserted a claim of wrongful death under RCW 4.20.010 and .020.
In pretrial motions in limine, Mr. Murphy asked the court to preclude Drs. Chaudhry and Cutter from testifying to transactions with and statements made by Kathleen, which he argued were inadmissible under Washington's dead man's statute, RCW 5.60.030.[5] He acknowledged that testimony by third parties is not excluded by the statute; only parties in interest are precluded from testifying on their own behalf.
The defendants responded that the dead man's statute applies only to actions brought on behalf of the decedent's estate, and because Mr. Murphy also asserted a wrongful death claim for the benefit of Kathleen's children, the statute, by its terms, did not apply.
After hearing argument, the court observed that the parties appeared to agree that the dead man's statute applied to Kathleen's claims that survived her death, but not to the wrongful death claim on behalf...
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