Ruffer v. St. Frances Cabrini Hosp. of Seattle

• Decision Date: 16 January 1990
• Docket Number: No. 22962-1-I,22962-1-I
• Citation: 784 P.2d 1288,56 Wn.App. 625
• Parties: Lois J. RUFFER, a single woman, Appellant, v. ST. FRANCES CABRINI HOSPITAL OF SEATTLE, Defendant, and K. Peter Kretschmer, M.D. and Jane Doe Kretschmer, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 625

56 Wn.App. 625

784 P.2d 1288

Lois J. RUFFER, a single woman, Appellant, v. ST. FRANCES CABRINI HOSPITAL OF SEATTLE, Defendant and K. Peter Kretschmer, M.D. and Jane Doe Kretschmer husband and wife, Respondents.

No. 22962-1-I.

Court of Appeals of Washington Division 1.

Jan. 16, 1990.

Reconsideration Denied Feb. 14, 1990.

Nathan James, Redmond, for appellant.

Dinah Pomeroy, Judith Constans, Seattle, for respondents.

COLEMAN, Chief Judge.

Lois Ruffer appeals from an order granting defendant's motion for summary judgment dismissing her medical malpractice claim of failure to obtain proper informed consent. Ruffer contends that the trial court erred in (1) granting summary judgment in light of the defendant's admissions, and (2) accepting the defendant's testimony regarding the probabilities of risk. We affirm.

This is a medical malpractice action in which the plaintiff, Lois Ruffer, claims that the defendant, Dr. K. Peter Kretschmer, failed to obtain her informed consent prior to performing a diagnostic sigmoidoscopy (inspection of the interior of the sigmoid colon) and biopsy of the colon lining by not telling her that perforation of the bowel was a risk of the operation.

On July 11, 1982, Ruffer was admitted to St. Frances Cabrini Hospital presenting abdominal complaints. On July 14, 1982, at the request of Ruffer's treating physician, Dr. Kretschmer performed a rectal sigmoidoscopy during which a small sample of tissue was taken from the lining of Ruffer's colon in an effort to prove or disprove the presence of pseudomembranous colitis, a disease affecting the mucous membrane of the colon. Approximately 5 hours after the sigmoidoscopy, Ruffer complained of abdominal pain. Dr. Kretschmer examined Ruffer and ordered abdominal X-rays which showed a perforation where the bowel was weakened by the biopsy. Ruffer was then taken to surgery where Dr. Kretschmer repaired the perforation and installed a colostomy.

Ruffer alleged that Dr. Kretschmer failed to obtain proper informed consent prior to the performance of the sigmoidoscopy and biopsy by not telling her that perforation of the bowel was a risk of the procedure. Ruffer states that she would have chosen either an alternative or no sigmoidoscopy if she had known that the procedure involved the risk of perforation of the colon. Dr. Kretschmer admits that he did not tell Ruffer of the risk of perforation. Dr. Kretschmer reasoned that because perforation was such an unlikely possibility, he did not think of it as a risk to disclose. Moreover, Dr. Kretschmer asserts that Ruffer's consent was complete and fully informed, stating that everything he did and did not do in his care and treatment of Ruffer was as a reasonable and prudent physician would have done at that time, both in the information he gave and in the performance of his treatment.

On March 23, 1988, Dr. Kretschmer moved for the summary dismissal of Ruffer's claim. The motion was granted and this appeal followed.

We first consider whether the trial court erred in granting summary judgment. In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Escalante v. Sentry Ins. Co., 49 Wash.App. 375, 743 P.2d 832 (1987), review denied, 109 Wash.2d 1025 (1988); Hostetler v. Ward, 41 Wash.App. 343, 704 P.2d 1193 (1985), review denied, 106 Wash.2d 1004 (1986). Summary judgment is proper only when the pleadings, depositions, and admissions in the record, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences are considered most favorably to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). The moving party must meet this burden by setting out its version of the facts and alleging there is no genuine issue as to the facts offered. Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 916, 757 P.2d 507 (1988). "While generally a question of fact is properly left to the trier of fact, when reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law." Trane Co. v. Brown-Johnston, Inc., 48 Wash.App. 511, 513-14, 739 P.2d 737 (1987). Once there has been an initial showing of the absence of any genuine issue of material fact, the party opposing summary judgment must respond with more than conclusory allegations, speculative statements, or argumentative assertions of the existence of unresolved factual issues. Trane, at 513-14, 739 P.2d 737.

Upon submission by the moving party of adequate affidavits, the nonmoving party must bring forward specific facts that sufficiently rebut the moving party's contentions and reveal that a genuine issue as to material facts exists. Halvorsen v. Ferguson, 46 Wash.App. 708, 721, 735 P.2d 675 (1986), review denied, 108 Wash.2d 1008 (1987). A material fact, within the context of summary judgment, is one upon which "the outcome of the litigation depends in whole or in part". Zobrist v. Culp, 18 Wash.App. 622, 637, 570 P.2d 147 (1977). The alleged material facts in question before the trial court and on appeal are the risk of colon perforation incident to sigmoidoscopy and collaterally, the admitted failure of respondent to inform appellant of that risk.

Respondent contends that because the probability of colon perforation occurring during the course of a properly performed sigmoidoscopy is so remote, the risk was not material and thus he was under no obligation to disclose the risk to appellant. Respondent quantified the risk of perforation as 1 in 20,000 to 50,000. ¹ These numbers are not disputed by appellant. Appellant does not present medical testimony, by expert or otherwise, offering a second opinion quantifying the risk. Rather, appellant asserts that the existence of the risk as admitted and quantified by respondent establishes both causation and the existence of an undisclosed material fact, thereby forming the basis of her informed consent claim. Appellant maintains that this and other admitted facts entitled her to have a trier of fact determine whether or not the failure to disclose the risk of perforation results in respondent's liability. Appellant's contention is without merit.

The doctrine of informed consent is codified in Washington under RCW 7.70.050(1), (2), and (3).

(1) The following shall be necessary elements of proof that injury resulted from health care in a civil negligence case or arbitration involving the issue of the alleged breach of the duty to secure an informed consent by a patient or his representatives against a health care provider:

(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;

(b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts;

(c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts;

(d) That the treatment in question proximately caused injury to the patient.

(2) Under the provisions of this section a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment.

(3) Material facts under the provisions of this section which must be established by expert testimony shall be either:

(a) The nature and character of the treatment proposed and administered;

(b) The anticipated results of the treatment proposed and administered; (c) The recognized possible alternative forms of treatment; or

(d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment.

The burden rests upon the plaintiff to prove that the health care provider failed to inform her of material information, i.e., potential risks, in connection with the contemplated treatment. The necessary elements of proof in an informed consent action are: (1) the existence of a material fact relating to treatment unknown to the patient; (2) failure by the health care provider to disclose such material fact; (3) that had the material fact been disclosed, the patient would have chosen a different course; and (4) the treatment resulted in injury. RCW 7.70.050(1). If the plaintiff establishes each of the foregoing elements, the burden then shifts to the defendant to prove a defense justifying the failure to impart that material information. Miller v. Kennedy, 11 Wash.App. 272, 284, 522 P.2d 852 (1974), aff'd, 85 Wash.2d 151, 530 P.2d 334 (1975).

The Miller court established that it is within the province of the patient to evaluate the risks of treatment and the function of the health care provider to furnish the patient with information as to what those risks are. However, the doctrine does not impose an obligation upon the health care provider to disclose all possible risks, rather only those of a serious nature. ² Smith v. Shannon, 100 Wash.2d 26, 31, 666 P.2d 351 (1983); Zebarth v. Swedish Hosp. Med. Ctr., 81 Wash.2d 12, 25, 499 P.2d 1 (1972); Adams v. Richland Clinic, 37 Wash.App. 650, 656, 681 P.2d 1305 (1984). The working rule for disclosure of a given risk is the test of materiality. Shannon, 100 Wash.2d at 31, 666 P.2d 351.

The determination of materiality is a two-step process. The first step is to ascertain the scientific nature of the risk and the likelihood of its occurrence. Shannon, at 33, 666 P.2d 351; Adams, 37 Wash.App. at 657-58, 681 P.2d 1305. This determination necessitates "some" expert testimony as such facts are generally not describable without medical training. Adams, at 658, 681 P.2d 1305. Only a physician or...