Thomas v. Wilfac, Inc.

• Decision Date: 02 April 1992
• Docket Number: No. 10503-2-III,10503-2-III
• Court: Washington Court of Appeals
• Parties: Ann M. THOMAS, a single woman, Appellant, John Paul Thomas and Angelic Thomas, individual and as a marital community, Plaintiffs, v. WILFAC, INC., a Washington Corporation; American Cyanamid, a foreign corporation; Cheminova, a Danish corporation; Trans Chemic, a foreign corporation; and Hopkins Agricultural Chemical Inc., a foreign corporation; Falls Chemical, Inc., a foreign corporation and its successor Vertac Chemical Corporation, a foreign corporation; Northwest Emergency Physicians, Inc., a Washington corporation d/b/a Kadlec Emergency Medical Center; and Does I, II, III, and IV, Defendants, Kadlec Medical Center Foundation, Inc., a Washington corporation; Kadlec Medical Center, a Washington corporation; Dr. Thomas Plumley and Jane Doe Plumley, husband and wife, Respondents.

Page 255

65 Wn.App. 255

828 P.2d 597

Ann M. THOMAS, a single woman, Appellant, John Paul Thomas and Angelic Thomas, individual and as a marital community, Plaintiffs, v. WILFAC, INC., a Washington Corporation; American Cyanamid,

a foreign corporation; Cheminova, a Danish corporation;

Trans Chemic, a foreign corporation; and Hopkins

Agricultural Chemical Inc., a foreign corporation; Falls

Chemical, Inc., a foreign corporation and its successor

Vertac Chemical Corporation, a foreign corporation;

Northwest Emergency Physicians, Inc., a Washington

corporation d/b/a Kadlec Emergency Medical Center; and Does

I, II, III, and IV, Defendants,

Kadlec Medical Center Foundation, Inc., a Washington

corporation; Kadlec Medical Center, a Washington

corporation; Dr. Thomas Plumley and

Jane Doe Plumley, husband and

wife, Respondents.

No. 10503-2-III.

Court of Appeals of Washington,

Division 3, Panel Four.

April 2, 1992.

Publication Ordered April 21, 1992.

Marcia M. Meade, Dawson & Meade, Spokane, for appellant.

Dennis L. Fluegge, Jerome R. Aiken, and Meyer, Fluegge & Tenney, Yakima; Dan W. Keefe, Christopher J. Kerley, and Keefe, King & Bowman, Spokane, for respondents.

SWEENEY, Judge.

Ann M. Thomas brought this action against Dr. Thomas Plumley and Kadlec Emergency Medical Center (Kadlec) alleging medical negligence, lack of informed consent and violation of the Consumer Protection Act (CPA). Prior to trial, the court granted summary judgment in favor of Kadlec and Dr. Plumley on the CPA claim. A jury returned a defense verdict on the medical negligence and lack of informed consent claims. Ms. Thomas moved for judgment notwithstanding the verdict. The court denied the motion. We affirm.

Factual Background

During the summer of 1982, Ms. Thomas worked for a wheat farmer. In late July, her duties included the application of 4 percent Malathion powder to harvested wheat. Malathion is a pesticide used to control insects. Ms. Thomas' last contact with the pesticide was between noon and 2 p.m. on July 30. Following that exposure, she complained of flu-like symptoms, including shortness of breath, congestion and dizziness. Angelic Thomas, her mother, took her to Kadlec Emergency Medical Center, a walk-in emergency treatment facility in Kennewick operated by Kadlec Medical Center, at about 4 p.m. the following day. Mrs. Thomas knew of Kadlec from an advertising brochure she received in the mail. In the brochure, Kadlec advertised that its emergency treatment center was staffed by physicians specializing in emergency medicine.

At Kadlec, Ms. Thomas told a nurse she had been working with Malathion. Dr. Plumley examined Ms. Thomas. Dr. Plumley was a resident in radiology with experience in emergency room medicine. He ruled out pesticide poisoning and diagnosed asthma. He treated Ms. Thomas and instructed her to either return or see her family physician if she did not improve.

Two days later, Ms. Thomas consulted Dr. Ralph DeBit, her family physician. He diagnosed Malathion poisoning and admitted her to Kennewick General Hospital. There, an internal medicine specialist, Dr. John Intravartolo, examined her and concluded she suffered from asthma. He treated her and she improved.

Ms. Thomas brought this action against Kadlec and Dr. Plumley alleging medical malpractice, lack of informed consent and violation of the CPA. By general verdict, the jury found in favor of Dr. Plumley and Kadlec. Ms. Thomas' motion for a judgment notwithstanding the verdict was denied. This appeal followed.

Issues Presented

Ms. Thomas contends the court erred when it (1) denied her motion for judgment notwithstanding the verdict on the issues of informed consent and negligence; (2) instructed the jury on a physician's liability for error in judgment; (3) refused to admit evidence on her CPA claim and withdrew an exhibit (advertisement for the emergency center) from the jury's consideration; (4) restricted her cross examination of Dr. Plumley; and (5) dismissed her CPA claim on summary judgment.

Informed Consent

Ms. Thomas argues the trial court erred in refusing to rule, as a matter of law, that Dr. Plumley failed to secure an informed consent prior to treatment. The court submitted the issue of informed consent to the jury. Specifically, she asserts Dr. Plumley failed: (1) to inform her he did not believe she had Malathion poisoning; (2) to call the poison control center; (3) to give her an antidote for Malathion poisoning; (4) to inform her of the short time frame for administration of the antidote; (5) to inform her of the future risk of developing organophosphate-induced delayed neurotoxicity; and (6) to tell her he was not an emergency medicine specialist.

A trial court should only grant a motion for judgment notwithstanding the verdict if it concludes, as a matter of law, there is no evidence or reasonable inference to support a verdict in favor of a nonmoving party. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 132, 769 P.2d 298 (1989); Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275 (1980); CR 50. A trial court must accept the truth of the nonmoving party's evidence and must view all reasonable inferences in the light most favorable to the nonmoving party. Douglas v. Freeman, 117 Wash.2d 242, 247, 814 P.2d 1160 (1991). When competent evidence or reasonable inferences exist upon which reasonable minds might reach conclusions consistent with the verdict, the question is for the jury. Lockwood v. AC & S, Inc., 109 Wash.2d 235, 243, 744 P.2d 605 (1987); Grader v. Lynnwood, 53 Wash.App. 431, 437, 767 P.2d 952, review denied, 113 Wash.2d 1001, 777 P.2d 1050, cert. denied, 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d 193 (1989). In reviewing a trial court's decision to deny a motion for a judgment notwithstanding the verdict, the reviewing court applies the same standard as the trial court. Industrial Indem. Co. of the Northwest, Inc. v. Kallevig, 114 Wash.2d 907, 915, 792 P.2d 520 (1990).

A physician has a duty to disclose the risks of proposed treatment before obtaining a patient's consent for treatment. Smith v. Shannon, 100 Wash.2d 26, 29, 666 P.2d 351 (1983); Burnet v. Spokane Ambulance, 54 Wash.App. 162, 168, 772 P.2d 1027, review denied, 113 Wash.2d 1005, 777 P.2d 1050 (1989); Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), aff'd, 85 Wash.2d 151, 530 P.2d 334 (1975). A physician does not have a duty to explain all risks, only those of a material nature. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wash.2d 12, 25, 499 P.2d 1, 52 A.L.R.3d 1067 (1972); Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 630, 784 P.2d 1288, review denied, 114 Wash.2d 1023, 792 P.2d 535 (1990); RCW 7.70.050(2). The question of materiality is for the trier of fact. Adams v. Richland Clinic, Inc., 37 Wash.App. 650, 658, 681 P.2d 1305 (1984).

Here, the court did not err in denying Ms. Thomas' motion for judgment notwithstanding the verdict on the issue of informed consent. Dr. Plumley diagnosed Ms. Thomas as suffering from asthma, not Malathion poisoning. He did not treat her for Malathion poisoning. Therefore, he did not have a duty to inform her of the time frame for administering an antidote or her future risk of developing organophosphate- induced delayed neurotoxicity. A finding that Dr. Plumley did not breach his duty of care inheres in the jury's verdict.

Failure to diagnose a condition is a matter of medical negligence, not a violation of the duty to inform a patient. Bays v. St. Luke's Hosp., 63 Wash.App. 876, 881, 825 P.2d 319 (1992). Informed consent and medical negligence are alternate theories of liability. Burnet, 54 Wash.App. at 169, 772 P.2d 1027. Here, it is undisputed Dr. Plumley did not diagnose Malathion poisoning. Ms. Thomas has not established that Dr. Plumley failed to inform her of a material fact relating to treatment. We reject Ms. Thomas' assertion that Dr. Plumley was required to inform her of his medical qualifications. RCW 7.70.050(1) requires disclosure of material facts relating to treatment, not disclosure of a physician's qualifications.

The court properly denied Ms. Thomas' motion for judgment notwithstanding the verdict on the issue of informed consent.

Negligence

Ms. Thomas asserts Dr. Plumley was negligent in not calling the poison control center after Ms. Thomas advised him she may have been poisoned. She also alleges he was negligent in not ordering a blood test for Malathion poisoning.

Negligence is generally a question of fact for the jury and should be decided as an issue of law by the court only in rare cases. Rhoades v. DeRosier, 14 Wash.App. 946, 948-49, 546 P.2d 930 (1976). Appellate review is limited to whether the evidence presented was sufficient to sustain the jury's verdict. Industrial Indem. Co. of the Northwest, Inc. v. Kallevig, supra 114 Wash.2d at 916, 792 P.2d 520.

We find substantial evidence in this record to support the verdict. Dr. Plumley asked Ms. Thomas about her work with Malathion. He asked about her symptoms and particularly those which might suggest organophosphate poisoning. She did not have those symptoms. Dr. Plumley ordered a chest x-ray and physically examined Ms. Thomas. He concluded she suffered from asthma. Although Dr. DeBit admitted Ms Thomas to the hospital for Malathion poisoning, he agreed asthma was a possible diagnosis. Dr. Intravartolo assumed responsibility for Ms. Thomas' care following her admission to the hospital. He concluded she was suffering from asthma. Three experts in emergency room medicine testified that Dr. Plumley's treatment of Ms. Thomas was within the standard of care for emergency room physicians in the state of Washington. There was sufficient evidence presented for the jury to conclude Ms. Thomas suffered from asthma. The court did not err in denying Ms. Thomas' motion for a judgment notwithstanding the verdict on the issue of negligence.

Evidentiary Rulings

Ms. Thomas argues it was error for the court to withdraw...