Young v. Group Health Co-op. of Puget Sound

• Decision Date: 08 May 1975
• Docket Number: No. 43474,43474
• Citation: 85 Wn.2d 332,534 P.2d 1349
• Parties: Kenneth YOUNG et al., Petitioners, v. GROUP HEALTH COOPERATIVE OF PUGET SOUND et al., Respondents.
• Court: Washington Supreme Court

Page 332

85 Wn.2d 332

534 P.2d 1349

Kenneth YOUNG et al., Petitioners, v.GROUP HEALTH COOPERATIVE OF PUGET SOUND et al., Respondents.

No. 43474.

Supreme Court of Washington, En Banc.

May 8, 1975.

Rehearing Denied June 17, 1975.

Schroeter, Jackson, Goldmark & Bender, John Goldmark, Paul W. Whelan, Seattle, for petitioners.

Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Seattle, for respondents.

HUNTER, Associate Justice.

The plaintiffs(petitioners), Kenneth Young and Christopher Young, as a marital community, and Christopher Young as guardian ad litem for her son, Dylan Young, seek review of a decision by the Court of Appeals which affirmed a judgment entered on a jury verdict in favor of the defendants(respondents), Group Health Cooperative of Puget Sound (hereinafter referred to as Group Health), and Doctor Alfred J. Magar, in a medical malpractice suit.

At 2 a.m., on January 30, 1970, Christopher Young was admitted into the Group Health Hospital in anticipation of the birth of her first child.At that time she was experiencing normal labor.At 7 a.m., a nurse reported to Dr. Kenneth Malan, the obstetrician in charge of the labor facilities, that the baby was in a breech position--coming feet first as opposed to the normal head first position.X rays were ordered and Mr. Young was informed that there was ample room in Mrs. Young's pelvis for a vaginal delivery.Dr. Malan did not inform the Youngs that the baby's head was severely bent backwards toward the spine, a factor which complicates vaginal delivery and poses a risk to the fetus.The record is in dispute as to whether Dr. Malan actually detected this condition.Dr. Malan testified that he could not specifically remember perceiving the position of the fetus's head, yet, relying on his normal practice, the doctor was confident that he had.

At 8 a.m., Dr. Alfred J. Magar, also an employee of Group Health, and Mrs. Young's chosen obstetrician, came on duty and consulted with Dr. Malan.While neither Dr. Malan nor Dr. Magar could remember discussing the hyperextension of the baby's head from 'exact memory,' both stated they were sure that the position of the neck was analyzed.However, at no time was this condition ever made known to the parents.

At 8:50 a.m., Dr. Magar, acting without Dr. Malan, delivered Dylan Young in a vaginal delivery, not by Caesarean section, which, according to the plaintiffs' expert witnesses, would have been proper under the circumstances.Within several months of the birth, it was discovered that Dylan was a partial quadriplegic, with virtually no movement or feeling below the shoulders.

The plaintiffs sued Group Health as principal for its agents, Dr. Malan and Dr. Magar, and Dr. Magar individually, for malpractice, claiming that Dylan's injuries were caused by the negligence of either (1) the failure of Dr. Malan to discover Dylan's condition, or (2) Dr. Malan's failure to inform the Youngs of the condition in order to obtain their consent to a vaginal delivery instead of a Caesarean section, or (3) if Dr. Malan did discover the condition, his failure to inform Dr. Magar of it, or (4) if Dr. Magar had been informed of the condition, his failure to use special birth techniques and to inform the Youngs of the risks inherent in a vaginal delivery and alternate methods available under the circumstances.The jury returned a verdict in favor of the defendants, from which the plaintiffs bring this appeal.

The plaintiffs' first assignment of error goes to the trial court's exclusion of certain statements made by Dr. Malan during the taking of his deposition, which pertained to the issue of informed consent.At trial, the plaintiffs' counsel questioned Dr. Malan as to whether or not the Youngs were 'entitled . . . to be informed of the additional risks created by the position (of the baby's head) shown in the x ray' in order for them to give an informed consent to a vaginal delivery.An objection was made on the grounds that the question as asked called for a legal conclusion.The objection was sustained and the question was rephrased in terms of whether the various facts 'should have been comunicated to the parents' in light of his medical opinion.Dr. Malan responded unequivocably in the negative.Plaintiffs' counsel then attempted to impeach the witness by offering the following excerpt from Dr. Malan's testimony contained in his deposition:

Q.Now my question is, were not Mr. and Mrs. Young entitled to have these facts(Dylan's condition and the risks they posed to a vaginal birth) presented to them and be consulted on what was to be done.A.Yes, of course.Now you said were they entitled to, of course they were Entitled to know what procedure was planned but we do not feel they should nor do we expect them to make a medical decision.

(Italics ours.)The italicized portion of the above was added by Dr. Malan subsequent to the taking of the deposition.The defendants objected to the introduction of the statement on the same basis as before, and again the court sustained the objection.The defendants contend that this was proper, arguing that a witness cannot be impeached with a prior inconsistent opinion.Under the facts of this case, we disagree.

In upholding the judgment of the trial court, the Court of Appeals relied on Webb v. Seattle, 22 Wash.2d 596, 157 P.2d 312(1945).A close reading of the case lends support to the plaintiffs' position, not the defendants'.In Webb we held that a witness who testifies at trial as to facts cannot be impeached by showing a prior inconsistent expression of opinion.However, this rule is clearly inapplicable to an expert witness who gives Opinion evidence at trial, having previously expressed an inconsistent opinion.Under these circumstances, 'all courts will permit impeachment by showing a previous expression by the witness of an inconsistent opinion.'E. Cleary, McCormick's Handbook of the Law of Evidence§ 35, at 69 (2d ed. 1972).See alsoThe People ex rel. Department of Public Works v. Murata, 161 Cal.App.2d 369, 326 P.2d 947(1958);Rosenfeld v. Johnson, 161 So.2d 703(Fla.App., 1964).Furthermore, we do not believe that the question, as phrased at the deposition, called for a legal conclusion.Under our opinion in ZeBarth v. Swedish Hosp. Medical Center, 81 Wash.2d 12, 499 P.2d 1(1972), expert medical testimony was required to establish the proper standard of disclosure within the medical profession.¹Therefore, the words 'entitled to know' must be considered within this context.The theory of informed consent is based on the patient's right to know and, when the extent of this right can only be determined through expert medical testimony, the difference between asking a physician what the patient 'should know' as opposed to what the patient is 'entitled to know' is only a matter of semantics.It is clear, when comparing Dr. Malan's statements in his deposition to his statements at trial, that he interpreted both forms of the question as calling for a medical opinion.On both occasions Dr. Malan's answer covered the same subject matter and involved the same medical considerations, differing only as to his final conclusion.Therefore, we conclude that the question called for a medical opinion from an expert witness fully qualified to render it.

One final ground exists for permitting the use of the deposition for impeachment purposes.If the question did call for a legal opinion, the objection went to the form of the question, and therefore, was waived by failure to object to the taking of the deposition.CR32(d)(3)(B).

We hold the trial court erred in refusing to allow the plaintiffs to impeach Dr. Malan by introducing his prior inconsistent opinion.The prejudicial effect of this error cannot be minimized, and therefore warrants the reversal of the Court of Appeals' decision and the judgment of the trial court.Under ZeBarth medical opinions are not only required but, in fact, they go to the heart of the issue of informed consent.Dr. Malan's prior opinion was totally inconsistent with his opinion as expressed to the jury, and its introduction would have substantially discredited him, a key witness, especially in light of the fact that he was permitted to testify at length as to his opinion during the trial.

The plaintiffs' second assignment of error goes to the trial court's refusal to admit Dr. Malan's statement against Group Health as an admission against interest.The plaintiffs argue that Dr. Malan was the managing agent for Group Health, and therefore was impowered to speak for his principal.While we have been hesitant to allow the opinions of agents to serve as admissions in a suit brought against the principal, we feel that under the facts of this case it would have been proper.

The opinion rule was intended to facilitate more definite answers from witnesses on the stand.'In its modern form it is a rule of preference for the more concrete answers, if the witness can give them, rather than a rule of exclusion.'E. Cleary, McCormick's Handbook of the Law of Evidence§ 264, at 632 (2d ed. 1972).We must not lose sight of the fact that admissions are made out of court without thought to the specific form in which the statement is made.'Accordingly, the prevailing view is that admissions in the form of opinions are competent.'E. Cleary, McCormick's Handbook of the Law of Evidence§ 264, at 632 (2d ed.(1972);4 Wigmore, Evidence § 1053(3)(Chadbourn rev. 1972).Once one accepts the basis for permitting admissions of a party, which are in the form of opinions to be introduced into evidence, there exists no convincing reason for not doing the same with admissions made by authorized speaking...