(dissenting) — After correctly identifying the legal principles applicable in this case, the majority then unaccountably departs from appellate review and steps into the role of trial court and becomes trier of fact. The majority decides that the facts do not support plaintiffs’ claim. Unfortunately, the majority’s decision to act as trial judge is improper. First, this court’s role is not that of a finder of fact. Second, the majority’s “findings of fact” are incomplete and one-sided. Adding the appellate errors on to the trial court errors compounds the miscarriage of justice which occurred in this case—the trial court applied *671the wrong legal standard and refused to enter findings of fact, and now this court inappropriately and wrongly determines the facts. Plaintiffs are entitled to more.
Here, the trial court refused to enter findings of fact despite the University of Washington’s request to do so. CR 52 requires formal written findings on all disputed facts. “[Findings must be made on all material issues in order to inform the appellate court as to ‘what questions were decided by the trial court, and the manner in which they were decided ....’” Federal Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 422, 886 P.2d 172 (1994) (quoting Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631 (1979)) (additional citations and quotation marks omitted). In the face of the trial court’s omission, the majority “finds” its own facts in order to decide whether plaintiffs have made a sufficient case of informed consent. The majority justifies its approach by acknowledging that the trial court’s memorandum decision is “lacking in some key respects” but concludes that it is sufficient “along with the record” to decide this case. Majority at 656 n.1.
The correct course, in the absence of findings, is not for this court to search the record and make its own findings, but to direct that factual determinations be made by the trier of fact. See Federal Signal, 125 Wn.2d at 423, 445.
Moreover, the majority’s resort in part to the trial court’s written memorandum is particularly disturbing because the trial court not only failed to make formal findings as required, but applied the wrong legal standard. It cannot be said with confidence that the trial court’s erroneous view of the law did not affect its view of the evidence. Indeed, the contrary seems more likely. The trial court incorrectly applied the “reasonably prudent person” standard to mean that a reasonably prudent person would, and should, accept his or her physician’s recommended treatment when that treatment conforms to the standard of care. Clerk’s Papers (CP) at 745. This view is wrong because it conflicts with the principle of patient sovereignty upon which the informed consent doctrine is based. The *672question is not what the physician thinks is best or what the physician thinks should be revealed. The trial court’s reasoning is also wrong because compliance with the standard of care for treatment actually given has nothing to do with the question of whether a reasonably prudent person would not have consented to treatment if informed of undisclosed material facts. RCW 7.70.050(l)(c). As the majority recognizes, it is improper to inject a negligence requirement into the informed consent cause of action.
Following plaintiffs’ motion for reconsideration, the trial court sought to clarify its decision. Its statements reveal, however, its continued reliance on incorrect principles. The trial court confirmed its view that the standard of care was not only satisfied but that the doctor’s actions and assessments of the risks were correct and appropriate to be conveyed to a reasonably prudent patient. CP at 797-98. The trial court’s decision was based upon the improper premise that a reasonable patient would necessarily choose a course of action because a physician recommends it.
It is, however, the patient’s decision, not the physician’s. “There is no room for paternalism or for overprotectiveness.” Miller v. Kennedy, 11 Wn. App. 272, 286, 522 P.2d 852 (1974), aff’d, 85 Wn.2d 151, 530 P.2d 334 (1975). Moreover, even if a doctor’s assessment of a particular risk is accurate, that does not mean that a reasonably prudent patient would not choose alternate treatment despite the risk. See Archer v. Galbraith, 18 Wn. App. 369, 378, 567 P.2d 1155 (1977).
Thus, whatever “facts” are to be gleaned or inferred from the trial court’s memorandum, they have been determined with the wrong standard in mind. The majority says, though, that “[t]he trial judge as fact finder below accepted the quantifications of [the] risks as defined by the defendant.” Majority at 669 n.5. Given the trial court’s propensity to give weight to the treating physician’s assessments and recommendations in light of the wrong legal standard it embraced, this court should not simply accept the trial court’s endorsement of the treating physician’s assessment. *673Yet that is what the majority does. Majority at 669 n.5 (citing Dr. Jackson’s testimony as to a seriously ill patient’s risk of death from exchange transfusions).
The proper resolution is for this matter to be retried under the right legal principles. The majority reasons, however, that retrial is not required because the facts which it finds show that plaintiffs could not possibly prevail— that plaintiffs’ have not made out a prima facie case. This is so, the majority says, because no reasonably prudent patient would “prefer a treatment with a 1 in 100 chance of death of their baby to the more conservative course of treatment within the standard of care that hears a 1 in 10,000 chance of permanent brain damage.” Majority at 669.
The majority’s reduction of this case to a pair of statistics comprising a very small part of the expert testimony provided is troubling. First, there is no principled basis for saying this comparison of a single pair of ratios can account for the choice parents face when their newborn infant is in medical distress like Ashley was. Further, the Backhands’ experts testified that Ashley’s risk factors placed her at a higher risk of developing bilirubin encephalopathy. These factors included respiratory distress syndrome, severe respiratory acidosis, low pH, elevated carbon dioxide tension in the bloodstream, hypertension, prematurity, and low Apgar scores. Experts also testified Ashley’s condition on the sixth day showed a neurological change, indicated by evidence the baby was posturing in her lower extremities and lacked a Moro reflex and grasp. The Backhands’ experts testified that a transfusion should have been performed when Ashley’s bilirubin level reached anywhere from 17 to 22 mcg/dl, levels she exceeded from January 4 to January 9, 1988. Guidelines in the then current 1983 Troug and Hodsen treatise, “Critical Care of the Newborn” advocated an exchange transfusion to prevent encephalopathy when bilirubin levels reached 18 mcg/dl in full-term infants with respiratory distress or hypoxia. Verbatim Report of Proceedings at 93. The risk of. death from *674exchange transfusion was estimated between .3 and 1.0 percent and the risk of morbidity was estimated at 4 to 5 percent. The Backlunds’ experts concluded that Ashley’s risk of encephalopathy outweighed the risks associated with an exchange transfusion.
There was, of course, controverting testimony. However, in the face of this evidence it cannot be fairly said that plaintiffs have failed to produce evidence sufficient to have their informed consent claim tried under the proper legal standards.7
Finally, the majority’s decision in this case prompts the question: Of what use is the statutory cause of action for lack of informed consent if it cannot he maintained in this case? The cause of action based upon lack of informed consent is intended to assure that patients have the right to make decisions about their medical treatment. Absolutely essential to that right is the requirement that the patient be given the information necessary to make informed decisions. Plaintiffs’ infant daughter Ashley suffered brain damage after being given phototherapy treatment for jaundice. Other treatments were available, but Ashley’s parents were never advised of alternatives. Contrary to the majority’s limited view of the evidence offered, plaintiffs presented sufficient evidence from which a trier of fact could conclude that reasonably prudent people in their position would have selected the alternative treatment. Plaintiffs are entitled to a trial on their informed consent claim under correct legal standards.
Patient sovereignty and disclosure of material information by treating physicians are hollow ideals if this court simply sanctions the trial court’s view that doctor knows best. There is abundant evidence in this case from which a trier of fact could determine that material information was not disclosed and that a reasonably prudent patient or patient’s representative in the same circumstances—here *675reasonably prudent parents faced with an agonizing decision about their infant daughter—would have opted for an exchange transfusion rather than phototherapy. This case should be remanded for trial. This court should not put itself in the position of finder of fact.
Although the majority states the correct legal standards to be applied in this case, I dissent because the majority’s view that this court should search the record for evidence to support “the ultimate determination of the trier of fact on alternative grounds” is nothing short of a usurpation of the trial court’s role as trier of fact. Majority at 670 n.6.
Alexander and Sanders, JJ., concur with Madsen, J.
Indeed, trial of the Backlunds’ informed consent claim resulted in a hung jury before it was resolved by the trial court, indicating sufficent evidence existed on each element of the cause of action.