On October 6, 2014, the Court of Appeals of the State of Washington (“Appeals Court”) issued its unpublished opinion in a Washington State medical malpractice case where the jury had found in favor of the Defendants. The losing plaintiffs had challenged some of the trial judge’s rulings in the case, including the failure to grant certain pretrial motions in limine, the refusal to give certain jury instructions, and the dismissal of the plaintiffs’ informed consent claim because it was duplicative of the negligence claim.
The Alleged Underlying Facts
When the Connecticut plaintiff was in Seattle, Washington with her husband and adult children, preparing to embark on a family cruise to Alaska, she tripped and fell on a sidewalk near a hotel. She suffered serious injuries to her chin and jaw because she was unable to brace herself with her hands as she fell.
She was brought by ambulance to a local hospital where a CT scan showed multiple fractures to her jaw. The defendant otolaryngologist, who was head of the otolaryngology head and neck surgery department of the defendant hospital, advised the woman that she needed surgery and discussed the treatment plan with the woman, after which she signed a consent form (which she alleged that she did not understand), according to the surgeon’s testimony. The surgery was performed two days after the woman fell, and she returned to her home in Connecticut two days later.
The woman had follow-up care in Connecticut; she complied with most, but not all, of the recommended treatment.
The woman and her husband filed a lawsuit against the City of Seattle and the hotel where she fell, which was subsequently settled. The woman then filed a Washington medical malpractice case against the defendant surgeon and others, alleging that her surgery left her with an “open bite.” Among her malpractice claims were allegations that there was lack of informed consent, there was negligent failure to appropriately evaluate, intervene, and timely treat her, and that she suffered the loss of a chance of a better outcome. She sought damages for severe and permanent injury, pain and suffering, emotional distress, treatment expenses, lost income, loss of services and loss of the enjoyment of life.
Before the trial, the plaintiffs filed a motion in limine seeking to preclude reference to the woman’s history of prior falls and evidence of the prior claims against Seattle and the hotel arising from her fall. The trial court denied the motion, which the Appeals Court affirmed, because the injuries the woman sustained to her face as a result of prior falls were relevant to the issues of causation and damages for the injuries she claimed in the present case, and the defense was arguing that non-parties were at fault, which the defense withdrew late in the trial.
The plaintiffs also argued on appeal that the trial judge’s refusal to give her requested jury instruction regarding the defendant surgeon holding himself out to be a specialist in maxillofacial surgery was error, which the Appeals Court held was the proper ruling because the defendant surgeon only held himself out as an otolaryngology head and neck surgeon.
With regard to the trial judge’s refusal to give the jury the plaintiffs’ proposed loss of chance of a better outcome instruction, the Appeals Court held that the testimony in the case did not support giving the instruction.
As to the plaintiffs’ informed consent count, the Appeals Court stated that the plaintiffs’ allegations did not support both a negligence claim and an informed consent claim because the essence of the medical negligence claim was that the defendant surgeon failed to meet the relevant standard of care by failing to recognize and perform an alleged preferred alternative procedure (ORIF), and the plaintiffs’ informed consent claim was based on the same facts (that the defendant surgeon failed to recognize and discuss with the patient the risks and benefits of the alleged preferred alternative).
The Appeals Court therefore affirmed the jury’s verdict in favor of the Defendants.
Source Elaine and Calvin Vinick, husband and wife, and their marital community, Appellants v. State of Washington, d/b/a Harborview Medical Center; and Mark Eliot Whipple, M.D., and Jane Doe Whipple, husband and wife, and their marital community, Respondents, No. 70353-6-1, Division One.
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