Stewart-Graves v. Vaughn

Decision Date08 November 2007
Docket NumberNo. 78383-7.,78383-7.
PartiesLiam STEWART-GRAVES, a minor; and Nichole Stewart-Graves, as guardian ad litem, and Nichole Stewart-Graves and Todd Graves, individually, Appellants, v. Katherine F. VAUGHN, M.D.; The Vancouver Clinic, Inc., P.S.; and southwest Washington Medical Center, Respondents.
CourtWashington Supreme Court

Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, WA, Anne Elizabeth Melley, Attorney at Law, Issaquah, WA, Paul Lloyd Henderson, Horenstein & Drew PLLC, Vancouver, WA, for Appellants.

Scott T. Schauermann, Hoffman Hart & Wagner LLP, Portland, OR, Mary H. Spillane, William Kastner & Gibbs, Elizabeth Ann Leedom, Bennett Bigelow Leedom PS, Seattle, WA, for Respondents.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, for Amicus Curiae (Washington State Trial Lawyers).


¶ 1 This medical malpractice case involves an infant who received 24 minutes of continuous resuscitative medical treatment after being born without a heart beat. The infant survived but suffers severe and permanent disabilities. Nichole Stewart-Graves and Todd Graves, individually, and as guardians for their son, Liam Stewart-Graves (plaintiffs), filed suit against Dr. Katherine Vaughn, her employer, the Vancouver Clinic, and Southwest Washington Medical Center (defendants), claiming professional negligence and failure to obtain informed consent. The trial court granted defendants' summary judgment motion, ruling that a health care provider may not be held liable to an infant and/or an infant's parents based on lack of informed consent and negligence arising from failing to discontinue neonatal resuscitation efforts. We affirm.


¶ 2 On March 2, 2004, Nichole Stewart-Graves, who was then 35 weeks pregnant, went to the Southwest Washington Medical Center after experiencing mild labor contractions throughout the morning. Her pregnancy had been uncomplicated and an initial examination revealed a reassuring fetal heart rate. But a few hours after her arrival, a fetal monitor indicated a precipitous drop in the fetal heart rate. The attending physician obtained Stewart-Graves' verbal consent to perform an emergency caesarean section. Hospital staff notified Dr. Vaughn, the on-call physician for the hospital's neonatal resuscitation unit, that she was needed at the hospital. Meanwhile, Stewart-Graves was taken to an operating room while her husband waited in a postoperative birthing center room.

¶ 3 Liam was delivered at 5:48 p.m. without a heart rate or spontaneous respiration, and with an Apgar1 score of zero. The operating physician discovered that Stewart-Graves had suffered a placental abruption. A code team immediately began resuscitation efforts. At 5:52 p.m., Dr. Vaughn arrived and took charge of the resuscitation. Every two minutes a member of the code team checked for a heart beat, finding none until 24 minutes after birth, at which time Liam's heart began to beat spontaneously. Liam was transported to the neonatal intensive care unit of another hospital. He survived but suffers from severe cerebral palsy, mental retardation, a seizure disorder, microcephaly, respiratory distress requiring frequent suctioning, and he must be fed through a feeding tube. It is undisputed that Liam's condition is permanent and requires continuous, extensive, and tremendously costly medical care.

¶ 4 During the resuscitation, Nichole was unconscious from general anesthesia. Todd waited in the postoperative birthing room. Dr. Vaughn did not attempt to communicate with Todd during the 20 minutes she was resuscitating Liam. But a nurse went between the operating room and the birthing room every few minutes to update him on the course of events.

¶ 5 Nichole and Todd brought an action individually and on behalf of Liam against Dr. Vaughn, her employer, the Vancouver Clinic, and the Southwest Washington Medical Center, alleging the defendants were liable under theories of informed consent and negligence for denying them the opportunity to decide whether resuscitation should continue beyond 10 minutes and for failing to discontinue resuscitation efforts when it was no longer reasonably possible for Liam to survive without severe brain damage and other debilitating injuries. Liam made the same allegations as his parents regarding lack of informed consent and negligence for continuing the resuscitation.2

¶ 6 The defendants moved for summary judgment. In an affidavit, Dr. Vaughn stated that Liam's condition at birth was "a recognized health care emergency" and that "[i]f resuscitation would have been paused or delayed at any point, Liam Stewart-Graves would not have survived." Clerk's Papers (CP) at 78. She also stated that she had to focus on the resuscitation, which required immediate action, and that "there was no time to obtain informed consent given the emergent nature of the situation." CP at 79.

¶ 7 In response to the summary judgment motion, the plaintiffs submitted an affidavit by neonatologist Dr. Carl J. Bodenstein. He opined that Liam's health care providers violated applicable standards of care by failing to adequately resuscitate him, by failing to obtain informed consent to continue resuscitation efforts after 10 minutes, and by failing to discontinue resuscitation efforts after 15 minutes. He did not dispute Dr. Vaughn's statement that a pause or delay would have resulted in Liam's death. But in his view, continuing Liam's resuscitation for 24 minutes violated the standard of care because it was "well beyond the point that the medical literature indicates that severe disability would be unavoidable if the infant survived at all." CP at 200; CP at 195. According to Dr. Bodenstein, the standard of care "required Dr. Vaughn to involve Mr. Graves in the decision whether or not to continue resuscitative efforts inasmuch as he and his wife would be responsible to care for their severely brain damaged child assuming Liam survived as he did in this case." CP at 202.

¶ 8 In Dr. Bodenstein's view, the failure to obtain informed consent cannot be excused on the grounds of an emergency because "the emergent circumstances of the resuscitation ceased after 10 minutes" without a spontaneous heart rate. CP at 203. He further stated that the standard of care "required Dr. Vaughn and the hospital code team to discontinue resuscitative efforts after 15 minutes of asystole [no heart rate]." Id. In support, he referred to a 1991 study appearing in a peer-reviewed journal, in which 55 of 56 infants with Apgar scores of zero at 10 minutes after birth died, and the surviving infant was severely impaired.

¶ 9 The plaintiffs also submitted a declaration by Todd Graves, stating that he would have asked the code team to cease resuscitation efforts after 10 minutes if he had been informed that Liam would likely not survive or would survive with severe disability. Nichole likewise declared that if she had known of the likelihood that Liam would survive with severe disabilities, she would have wanted her husband to direct the code team to cease resuscitation efforts.

¶ 10 The trial court granted summary judgment in favor of the defendants, agreeing that they were not liable to Liam or his parents for failing to obtain consent before continuing resuscitation beyond the point when it was highly probable that Liam would suffer severe disabilities if he survived. The plaintiffs then sought direct review of the trial court's summary judgment order, which this court granted.

Informed Consent Claims

¶ 11 Under the doctrine of informed consent, a health care provider has a fiduciary duty to disclose relevant facts about the patient's condition and the proposed course of treatment so that the patient may exercise the right to make an informed health care decision. Miller v. Kennedy, 11 Wash.App. 272, 282, 522 P.2d 852 (1974), aff'd, 85 Wash.2d 151, 530 P.2d 334 (1975). A health care provider may be liable to an injured patient for breaching this duty even if the treatment otherwise meets the standard of care. RCW 7.70.050; Keogan v. Holy Family Hosp., 95 Wash.2d 306, 313, 622 P.2d 1246 (1980). The doctrine of informed consent is based on "the individual's right to ultimately control what happens to his body." Id. at 313-14, 622 P.2d 1246. This court first recognized the doctrine in ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1 (1972). The legislature subsequently codified the prima facie elements of an informed consent claim in RCW 7.70.050. LAWS OF 1975-76, 2d Ex.Sess., ch. 56, § 10; Edwin Rauzi, Informed Consent in Washington: Expanded Scope of Material Facts That the Physician Must Disclose to His Patient, 55 WASH. L.REV. 655 (1980).

¶ 12 There are certain exceptions to the duty of disclosure. It is generally recognized that in emergency situations where immediate action is necessary for the protection of life, consent will be implied when it is impractical to obtain actual consent from a patient or the patient's authorized representative. See generally W.E. Shipley, Annotation, Liability of Physician or Surgeon for Extending Operation or Treatment Beyond That Expressly Authorized, 56 A.L.R.2d 695 (1957) (surveying cases). The emergency exception has deep roots in the common law. See Schloendorff v. Soc'y of N.Y. Hosp., 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914) ("Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained") (emphasis added) (citation omitted), overruled, in part, on other grounds by Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957); RESTATEMENT (SECOND) OF TORTS § 892D (1979) (a person is privileged to act without consent in order to prevent harm to another when an emergency makes it infeasible to...

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