Gomez v. Sauerwein

González, J.

¶39 (concurring in result only) — I agree with the majority that the trial judge properly declined to instruct the jury on informed consent because the evidence presented at trial did not support a finding of proximate cause. I write separately to stress that a health care provider may be liable for both a negligence claim and an informed consent claim arising from the same set of facts. While the majority purports to agree with this view, it also suggests that RCW 7.70.050 does not permit a patient to bring an informed consent claim when a provider makes a misdiagnosis and, in proceeding to treat the misdiagnosed ailment, does not disclose a material fact relating to treatment or nontreatment.14 Compare majority at 613, 617, 618, 620, 623, with majority at 626. Because nothing in chapter 7.70 RCW suggests the legislature intended such a dichotomy, I concur in result only.

¶40 Under Washington law, a patient claiming failure to secure informed consent must establish:

(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;
*628(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.

RCW 7.70.050(1). A material fact is one to which “a reasonably prudent person in the position of the patient or his or her representative would attach significance.” RCW 7.70-.050(2). To bring a negligence claim for failure to follow the standard of care a plaintiff must show that:

(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such failure was a proximate cause of the injury complained of.

RCW 7.70.040. These statutes do not conflict. Nor are they inconsistent with the overarching goals of chapter 7.70 RCW: to police the health care practice, foster patient autonomy, and have a patient-centric view when imposing liability on health care providers. See, e.g., Adair v. Weinberg, 79 Wn. App. 197, 203, 901 P.2d 340 (1995) (noting that “both the medical profession and society play a role in establishing what is expected of a medical provider”); Burnet v. Spokane Ambulance, 54 Wn. App. 162, 168, 772 P.2d 1027 (1989) (“Informed consent focuses on the patient’s right to know his bodily condition and to decide what should be done.”).

¶41 Our informed consent laws allow a patient to recover damages from a health care provider who fails to obtain informed consent whether or not the medical diagnosis and/or treatment was negligent. RCW 7.70.050; Backlund v. Univ. of Wash., 137 Wn.2d 651, 659, 975 P.2d 950 (1999). *629The majority states that Backlund controls here. Majority at 621. I agree. As Backlund observes, “Negligence and informed consent are alternative methods of imposing liability on a health care practitioner.” 137 Wn.2d at 659. The opinion goes on to say that

[a] physician who misdiagnoses the patient’s condition, and is therefore unaware of an appropriate category of treatments or treatment alternatives, may properly be subject to a negligence action where such misdiagnosis breaches the standard of care, but may not be subject to an action based on failure to secure informed consent.

Id. at 661. Unfortunately, taken out of context, this language seems to have led some commentators to believe a plaintiff can bring only a negligence or informed consent claim. See majority at 619. This is not the case. If it were, we would not have analyzed whether the Backlunds had made a prima facie informed consent claim because, as a matter of law, they would have had no cause of action anyway. 137 Wn.2d at 663-69. Instead, we specifically rejected the provider’s argument that “a cause of action for failure to obtain informed consent is unavailable to the Backlunds as a matter of law where the jury exonerated Dr. Jackson and the University from negligence.” Id. at 653-54.

¶42 Backlund sets out a set of facts that would not support both a negligence claim and an informed consent claim: a health care provider misdiagnoses a headache as a transitory problem, resulting in a failure to detect a brain tumor. We stated accordingly that it would be “anomalous to hold the physician culpable under RCW 7.70.050 for failing to secure the patient’s informed consent for treatment for the undetected tumor.” Id. at 661 n.2. This is certainly true. But Backlund did not address the potential claim the patient would have if the provider had also failed to secure informed consent before treating the transitory headache and an injury resulted. Under such a scenario, the facts support claims that the provider was both negligent and failed to secure informed consent and is potentially liable *630on either theory. Though a plaintiff in such a case may not be permitted to recover on both claims so as to avoid double damages, this does not mean these two theories of recovery are mutually exclusive. Providers must secure informed consent regardless of whether diagnosis rose to the proper standard of care.

¶43 Also, I respectfully disagree with the majority’s characterization of the plaintiff’s arguments. See, e.g., majority at 620. There is nothing startling or ridiculous about bringing both a negligence claim and an informed consent claim. Nor is it inappropriate to analogize Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), to the case at bar. The majority believes that Mr. Rodolpho Anaya Gomez’s (Mr. Anaya) case is easily distinguishable from Gates because “there was nothing else that Dr. Sauerwein could have done,” and because of Gates’ unique facts “it is unlikely we will ever see such a case again.” Majority at 622, 626. The record shows that no matter what Dr. Sauerwein did, Mrs. Christina Palma Anaya’s outcome would not have changed,15 but that fact speaks solely to the issue of proximate cause: it does not limit Mr. Anaya to a claim of negligence. Both here and in Gates, the providers received information material to the treatment of their patients that they did not disclose and, in both cases, easy additional steps should have been taken by the providers. For Ms. Gates, it was pupil dilation, for Mrs. Anaya, reculturing.

¶44 Here, similar to Backlund, the provider did not believe his patient’s positive blood test required treatment because he believed it to be a false positive. But such a *631misdiagnosis does not automatically preclude an informed consent claim. That said, the trial court here, in accord with Backlund, properly refused Mr. Anaya’s motion for an informed consent instruction because there was not sufficient evidence to support a prima facie case of breach of informed consent. Backlund, 137 Wn.2d at 654.

¶45 Nonetheless, I take this occasion to reject a distortion of the “Backlund rule” — that a plaintiff cannot bring both an informed consent and a negligence claim. Instead, I reaffirm the Backlund rule — that negligence and informed consent are merely alternative methods of imposing liability. While it may be rare that the same set of facts will support both claims, we should not foreclose the possibility that a single course of events or treatment could give rise to both. Concerns about double damages may be well taken, but I am certain that our trial courts are capable of crafting judgments that avoid such windfalls.

¶46 With these observations, I respectfully concur.

Fairhurst, Stephens, and Wiggins, JJ., concur with González, J.

Nontreatment is a form of treatment. See RCW 7.70.060; Backlund v. Univ. of Wash., 137 Wn.2d 651, 661 n.2, 975 P.2d 950 (1999) (citing Brown v. Dahl, 41 Wn. App. 565, 570, 705 P.2d 781 (1985)).

At trial, the experts agreed that even if Dr. Sauerwein had ordered treatment immediately after receiving the positive blood test it would not have prevented Mrs. Anaya’s death because the standard treatment would have been completely ineffective against the specific strain of yeast in her blood. Tr. of Proceedings (TP) (June 10, 2011) at 42-43. However, it was undisputed that there were steps Dr. Sauerwein could have taken: “[the standard of care required t]wo things; one re-culture the blood and two begin on medication that specifically is known to combat fungus infections.” TP (June 7, 2011) at 86-88.