The Court of Appeals of the State of Washington (“Washington Appellate Court”) held in its published opinion filed on July 12, 2021: “Viewed in the light most favorable to Davies, as we must, her experts agree that had she undergone a CTA, she would have been diagnosed with a vertebral artery dissection, which then would have been treated, preventing her from having a stroke the next day. Davies was never advised of the risk of a vertebral artery dissection or the availability of a CTA scan to look for the injury which would have led to a different treatment … there were diagnostic and treating procedures available to the treating doctors … the determining factor is whether the process of diagnosis presents an informed decision for the patient to make about his or her care … Here, there was. Summary judgment dismissal of Davies’s informed consent claim was erroneous.”
The plaintiff alleged in her Washington medical malpractice case that the defendants failed to order additional imaging, such as a CT angiography (CTA) scan, to check for vertebral artery dissection prior to her discharge from the hospital following her emergency treatment after her a single-vehicle accident during which she suffered a fractured neck. The plaintiff alleged that the failure to diagnose her vertebral artery dissection led to her suffering a stroke.
To prove failure to obtain informed consent, a plaintiff must show:
(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;
(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.
Washington’s informed consent statute is generally based on the policy judgment that patients have the right to make decisions about their own medical treatment. A necessary corollary to this principle is that the individual be given sufficient information to make an intelligent decision. The concept of patient decisionmaking regarding treatment has sometimes been described as ‘patient sovereignty.’ It is for the patient to evaluate the risks of treatment and that the only role to be played by the physician is to provide the patient with information as to what those risks are.
Exercise Of Judgment Jury Instruction
In Washington, an exercise of judgment instruction is justified when (1) there is evidence that the physician exercised reasonable care and skill consistent with the applicable standard of care in formulating his or her judgment and (2) there is evidence that the physician made a choice among multiple alternative diagnoses (or courses of treatment). Specifically, a court should give the instruction only when the physician presents sufficient evidence that they made a choice between two or more alternative, “reasonable [and] medically acceptable” treatment plans or diagnoses. The court should not give the instruction “simply if a physician is practicing medicine at the time.” There is an exception to the instruction’s use: A court should not give the exercise of judgment instruction in cases focusing on the inadequate skills of the physician.
In the case it was deciding, the Washington Appellate Court stated: “Neurosurgeon Dr. Morris, also testified that in consulting with Dr. Hirsig, he reviewed Ms. Davies’s CT images and specifically looked for a fracture of the transverse foramen in the C3 area because the risk of injury to the vertebral artery is higher with such a fracture. Dr. Morris observed no sign of a fracture to the transverse foramen. And finally defense experts testified that both physicians met the standard of care in deciding not to order a CTA scan. Consistent with the standard set out in Fergen, the testimony supported that Dr. Hirsig and Dr. Morris, considered the possibility of a diagnosis of vertebral arterial dissection and made a choice not to pursue further … We conclude that based on the standard approved in Fergen and the testimony
presented, the trial court did not abuse its discretion in giving the exercise of judgment instruction.”
Source Davies v. Multicare Health System, No. 80854-1-I, Division One.
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