Paetsch v. Spokane Dermatology Clinic, P.S.

• Decision Date: 12 March 2015
• Docket Number: No. 89866–9.,89866–9.
• Citation: 182 Wash.2d 842,348 P.3d 389
• Parties: Phyllis PAETSCH, Petitioner, v. SPOKANE DERMATOLOGY CLINIC, P.S., as a Washington Corporation; and William P. Werschler, M.D., individually, Respondents.
• Court: Washington Supreme Court

182 Wash.2d 842

348 P.3d 389

Phyllis PAETSCH, Petitioner

v.SPOKANE DERMATOLOGY CLINIC, P.S., as a Washington Corporation; and William P. Werschler, M.D., individually, Respondents.

No. 89866–9.

Supreme Court of Washington, En Banc.

March 12, 2015.

Mary Elizabeth Schultz, Mary Schultz Law PS, Spangle, WA, for Petitioner.

William Fredrick Etter, Ronald Anthony Van Wert, Etter McMahon Lamberson Van Wert & Oresk, Spokane, WA, Mary H. Spillane, Fain Anderson, et al, Seattle, WA, for Respondents.

George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, Bryan Harnetiaux, WA State Ass'n for Justice Foundation, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.

Opinion

WIGGINS, J.

¶ 1 The plaintiff in this medical malpractice case asks us to decide that a physician-patient relationship is formed when a patient enters into a written contract with a clinic and that written contract names a specific physician as the patient's doctor. We do not reach this issue because the jury instructions allowed the plaintiff to argue her theory of the case and the jury found that the defendant was not negligent.

¶ 2 Several novel issues lurk in the question brought by the plaintiff, including questions about the liability of a physician for actions undertaken by a certified physician's assistant and whether the plaintiff in a medical malpractice action must prove a physician-patient relationship in order to prevail in a medical malpractice suit under chapter 7.70 RCW.¹ We do not opine on these issues because they were not raised by the parties and are not presented here.²

FACTS

I. Factual history

¶ 3 Plaintiff Phyllis Paetsch was referred to Spokane Dermatology Clinic for Botox injections to smooth facial wrinkles. Paetsch had never heard of the clinic, had never been there before, and was not aware of the staff or medical reputation of the clinic. She made an appointment for treatment and was told that her appointment would be with Dan Rhoads.

¶ 4 Spokane Dermatology Clinic is a professional services company owned solely by Dr. William Werschler. The clinic also employed Dr. Scott Smith as a dermatologist and three certified physician's assistants (PA–Cs):³ Julia Bowan, Frank McCann, and Dan Rhoads. The clinic's business card listed each individual by name and title.

¶ 5 Paetsch arrived at the clinic for treatment on February 26, 2007. She was presented with a medical history form and a patient profile form. This paperwork stated that her doctor was “Wm. Philip Werschler, M.D.” and asserted that “Dr. Werschler and/or Dan Rhoads” had informed her of the risks of the procedure. Paetsch completed and signed the forms, was escorted to her appointment room, and was told that “the doctor” would be in soon.

¶ 6 Shortly thereafter, a man in scrubs entered and introduced himself as “Dan.” Rhoads injected Paetsch with both Botox

and Restylane. He injected Restylane into Paetsch's forehead, not knowing that the federal Food and Drug Administration did not approve the use of Restylane in the forehead as it increased the risk of necrosis.⁴ Pleased and excited by her appearance, Paetsch left the clinic.

¶ 7 Later that evening, Paetsch developed a headache. This headache continued throughout the next several days. In addition, she noticed bruising and swelling on her forehead. Three days after the procedure, Paetsch's eye swelled up until nearly closed. She called Rhoads, who told her to ice it. Four days after surgery, her eyes remained swollen shut and her forehead was covered in a green sheen. She contacted Rhoads multiple times and twice visited him at the clinic as her symptoms worsened. Rhoads misdiagnosed her condition as an infection and prescribed antibiotics and anti-inflammatories to control it. These treatments were ineffective, and Paetsch's condition continued to deteriorate.

¶ 8 Paetsch sought treatment from her primary care provider, the Christ Clinic, on March 9, 2007. The clinic properly diagnosed the condition as necrosis caused by the use of Restylane in the forehead; the Restylane had expanded throughout the forehead, cutting off the only flow of blood to the skin. This diagnosis was too late to treat the condition, and the provider could only scrape the dead tissue from Paetsch's face. The necrosis resulted in deep, permanent scarring to Paetsch's forehead.

¶ 9 Rhoads never consulted with a doctor during his treatment of Paetsch. While Dr. Werschler owned the clinic and was listed as the plaintiff's doctor on her patient profile form, he was not present at the clinic while Paetsch was a patient of the clinic. Dr. Werschler never saw Paetsch, never advised Rhoads on her treatment or on her condition, and never spoke with her.

II. Trial and appellate proceedings

¶ 10 Paetsch filed suit under RCW 7.70.030(1), .030(3), and .050 against Spokane Dermatology Clinic and against Dr. Werschler personally for the failure to obtain her informed consent to treatment and for medical malpractice by Dr. Werschler and Dan Rhoads. Dr. Werschler moved for summary judgment of dismissal. He argued that he did not owe Paetsch any duty because she was a patient of Spokane Dermatology Clinic (and thus not his patient) and that he was not PA–C Rhoads' supervising physician. The court denied the motion for summary judgment but clarified that the only cause of action against Dr. Werschler was whether he established a physician-patient relationship with Paetsch and whether he was thus directly negligent for failing to intervene and provide follow-on care to Paetsch after her complications arose. Paetsch does not challenge this summary judgment ruling on appeal.

¶ 11 During the trial, Paetsch presented evidence that Dr. Werschler presented himself as her doctor through the use of consent forms, that he owed her a duty of care, and that he breached that duty. Paetsch also presented evidence that as a PA–C, Rhoads was an agent of the physician and that Dr. Werschler's failure to adequately supervise Rhoads breached the standard of care. Dr. Werschler presented expert testimony that the standard of care was not breached and that Dr. Smith, not Dr. Werschler, was the supervising physician responsible for the actions of PA–C Rhoads.

¶ 12 After the close of evidence, the trial court granted Dr. Werschler's motion for judgment as a matter of law under CR 50, dismissing Dr. Werschler from personal liability on the ground that no jury could find that he breached a duty to Paetsch under the evidence. Following this motion, Spokane Dermatology Clinic was the only remaining named defendant.

¶ 13 Despite dismissing Dr. Werschler personally, the court instructed the jury that the clinic could be held liable for Dr. Werschler's medical negligence, as he was an employee of Spokane Dermatology Clinic. The jury was never told that Dr. Werschler was dismissed as a defendant, and the majority of the jury instructions remained unchanged. These instructions specifically framed the duty owed by Dr. Werschler as a duty owed to “patients.” No exception was taken to the court's framing of this duty.

¶ 14 The jury returned a verdict in favor of defendants, and the Court of Appeals affirmed. Paetsch v. Spokane Dermatology Clinic, PS, noted at 178 Wash.App. 1032, 2013 WL 6843951 (2013). We granted review. Paetsch v. Spokane Dermatology Clinic PS, 180 Wash.2d 1020 (2014).

ANALYSIS

I. Standard of review

¶ 15 We review judgments as a matter of law de novo. Faust v. Albertson, 167 Wash.2d 531, 539 n. 2, 222 P.3d 1208 (2009). Judgment as a matter of law is appropriate only when no competent and substantial evidence exists to support a verdict. Guijosa v. Wal–Mart Stores, Inc., 144 Wash.2d 907, 915, 32 P.3d 250 (2001). We construe all facts and reasonable inferences in favor of the nonmoving party. Yakima Fruit & Cold Storage Co. v. Cent. Heating & Plumbing Co., 81 Wash.2d 528, 530, 503 P.2d 108 (1972). A judgment as a matter of law requires the court to conclude, “as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party.” Indus. Indem. Co. of Nw. v. Kallevig, 114 Wash.2d 907, 915–16, 792 P.2d 520 (1990). The existence of a physician's duty of care is a question of law that we review de novo. Khung Thi Lam v. Global Med. Sys., Inc., 127 Wash.App. 657, 664, 111 P.3d 1258 (2005).

¶ 16 Legal errors in jury instructions are reviewed de novo, but an “erroneous instruction is reversible error only if it prejudices a party.” Anfinson v. FedEx Ground Package Sys., Inc., 174 Wash.2d 851, 860, 281 P.3d 289 (2012). “Prejudice is presumed if the instruction contains a clear misstatement of law; prejudice must be demonstrated if the instruction is merely misleading.” Id. The party challenging an instruction bears the burden of establishing prejudice. Griffin v. W. RS, Inc., 143 Wash.2d 81, 91, 18 P.3d 558 (2001). The presumption of prejudice from a misstatement of law can be overcome only on a showing that the error was harmless. See id. at 91–92, 18 P.3d 558.

II. The jury finding that Dr. Werschler was not negligent renders harmless any potential error in the trial court's conclusion that there was no physician-patient relationship as a matter of law

¶ 17 Washington has a substantial interest in ensuring the quality of its physicians, maintaining a quality of care for its patients, and protecting health care providers from frivolous claims. Lam, 127 Wash.App. at 668, 111 P.3d 1258. To balance those aims, we recognize an evolving common law doctrine of the duties owed by physicians and have a robust statutory scheme that carefully controls the practice of medicine by health care providers, physicians, and physician's assistants and defines liability for medical malpractice. See id. at 664, 111 P.3d 1258 ; see also ch. 18.100 RCW (establishment of professional services corporations); RCW 18.71A.050 (supervising physician and physician assistant responsible for any practice of medicine...