Richard Fortman v. Proliance Surgeons, Inc., P.s. D/b/a .. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RICHARD FORTMAN, ) No. 79864-2-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
PROLIANCE SURGEONS, INC., P.S. )
d/b/a PROLIANCE ORTHOPEDIC )
ASSOCIATES, )
)
Appellant. )
)
HAZELRIGG, J. — Richard Fortman brought a medical negligence claim
against Proliance Surgeons, Inc. after developing a chronic infection in his ankle
when recovering from surgery. Proliance seeks reversal of an order granting
partial summary judgment on its affirmative defense of contributory negligence and
vacation of the jury’s verdict finding that Proliance’s negligence led to Fortman’s
injury. Because Proliance did not present evidence that Fortman’s actions
between the date of surgery and the date of Proliance’s negligent act contributed
to the development of a chronic infection, we affirm the grant of partial summary
judgment. We also affirm the court’s denial of a motion for a new trial because
there was evidence to support the jury’s finding that Fortman was not negligent
and the trial court was in the best position to assess any prejudicial impact of
counsel’s conduct.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 79864-2-I/2
FACTS
On June 24, 2015, Richard Fortman fell and fractured his ankle. When he
tried to stand, the bone broke through the skin. Fortman was taken by ambulance
to Valley Medical Center. Dr. Niket Shrivastava, a board-certified orthopedic
surgeon and employee of Proliance Orthopedic Associates (Proliance), was on call
for orthopedic trauma in the emergency department. Shrivastava diagnosed a
grade three open fracture of the left fibula, involving a fractured bone and
laceration of the skin greater than 10 centimeters in length with visible
contamination from the environment. He performed surgery that day to realign the
bone, secure the bones with screws, repair a torn ligament, and irrigate and
debride the wound to clean out dirt and other contaminants.
On July 1, 2015, Fortman was discharged from the hospital to Hallmark
Manor, a skilled nursing and rehabilitation facility. He was scheduled to begin
physical therapy and instructed to bear no weight on his left ankle. Chad Moloney,
a physician assistant and employee of Proliance, examined Fortman five days later
and found no signs of infection. Fortman saw Shrivastava on July 17, 2015 and
reported that he had accidentally fallen and “landed with some force on his left
foot” three days before. Shrivastava noted mild redness around the wound but did
not observe drainage. He prescribed a two-week course of an antibiotic, Bactrim,
because he was concerned that the wound was showing early signs of infection
and wanted to prevent the infection from progressing deeper into the bone.
On July 20, 2015, Fortman had another follow up appointment with
Moloney. Fortman reported drainage from the wound and fevers, chills, and flulike
-2-
No. 79864-2-I/3
symptoms, indicating a worsening infection. He was admitted to the hospital and
given intravenous (IV) antibiotics with a plan to perform another irrigation and
debridement procedure the next day in an effort to control the bacterial load.
Shrivastava performed the procedure to clean out the wound and collected
samples for analysis. The cultured samples showed a large amount of MSSA.1
Fortman was to remain on the IV antibiotics until he was discharged and then
resume Bactrim for one month in an effort to suppress the infection. He was
discharged to Hallmark Manor on July 27, 2015.
Fortman returned for a follow up appointment with Shrivastava on August
5, 2015. He reported that he had been putting some weight on his ankle during
physical therapy activities despite being instructed to be non-weight bearing on his
left ankle. On August 20, 2015, he again saw Shrivastava for a follow up, at which
point Shrivastava discovered that Fortman had not been receiving Bactrim for the
previous 20 days. The Bactrim was immediately restarted. One week later,
Fortman saw Dr. Michael Hori, an infectious disease specialist, who noted that the
infection was “clearly worse than it was in the hospital, with increased drain[age]
and swelling.” Fortman’s condition fluctuated over the next several months, during
which he underwent removal of the hardware in his ankle, additional irrigation and
debridement procedures, and several courses of antibiotics. He was ultimately
diagnosed with a chronic bone-deep infection that would require lifetime
suppressive antibiotics.
1 Methicillin-sensitive Staphylococcus Aureus.
-3-
No. 79864-2-I/4
Fortman brought suit against Proliance, Moloney, and Shrivastava, alleging
that the defendants’ negligence resulted in his development of chronic
osteomyelitis and permanent disability. The parties stipulated to the dismissal of
Moloney and Shrivastava. In its answer, Proliance admitted that the lapse in the
Bactrim prescription in August 2015 was due to Moloney’s negligence and that
Proliance was vicariously liable for Moloney’s actions. However, Proliance denied
that any negligence was a proximate cause of Fortman’s injuries and asserted the
affirmative defenses of contributory negligence/comparative fault and failure to
mitigate damages. Fortman moved for partial summary judgment against
Proliance regarding its affirmative defenses. The court granted the motion in part
“as to the affirmative defense of contributory negligence/comparative fault as to
conduct preceding 7/27/15. Plaintiff’s motion is denied as to conduct in failure to
mitigate after 7/27/15.”
After trial, the jury found that Proliance was negligent and that its negligence
was a proximate cause of Fortman’s injury. The jury also found that Fortman was
not negligent after July 27, 2015. The court entered a judgment against Proliance
for $1,500,000. Proliance moved for a new trial, arguing that the verdict was not
supported by substantial evidence and that Fortman’s counsel committed
deliberate and repeated misconduct. The court denied the motion. Proliance
appealed from the judgment and the order denying a new trial.
-4-
No. 79864-2-I/5
ANALYSIS
I. Summary Judgment
Proliance first argues that the trial court erred in granting partial summary
judgment to Fortman on Proliance’s affirmative defense of contributory negligence.
Specifically, Proliance argues that it should have been permitted to assert a
contributory negligence defense based on Fortman’s negligent conduct between
June 24, 2015 and July 27, 2015.
A. Waiver
Fortman contends that Proliance has waived this issue by proposing a jury
instruction stating that the jury could not attribute contributory negligence to
Fortman’s conduct preceding Proliance’s admitted negligence, by failing to raise
the issue in its motion for a new trial, and by failing to appeal from the summary
judgment order. An appellate court may refuse to review a claim of error that was
not raised in the trial court. RAP 2.5(a). We will review a trial court order or ruling
not designated in the notice of appeal, including an appealable order, if the order
prejudicially affects the decision designated in the notice. RAP 2.4(b).
First, as Proliance points out, Fortman proposed the jury instruction stating
that the court had already concluded that there was no contributory negligence on
Fortman’s part before July 27, 2015. Both parties and the court suggested
modifications to the language of the instruction. As Proliance also points out,
Fortman cites no authority that a party waives any objection to a partial summary
judgment order by failing to object to an instruction given in accordance with that
order.
-5-
No. 79864-2-I/6
Proliance is also correct that the cases cited by Fortman in support of his
argument that this issue was waived when not raised in the motion for new trial
concern issues never raised before the trial court. See Koboski v. Cobb, 161
Wash. 574, 577, 297 P. 771 (1931) (claim that trial judge erred in visiting the scene
of the accident waived when raised for the first time on appeal); Olson v. City of
Seattle, 54 Wn.2d 387, 387–88, 341 P.2d 153 (1959) (claim that court commented
on the evidence waived when never brought to the attention of the trial court);
Wilson v. Overlake Hosp. Med. Ctr., Inc., 77 Wn. App. 909, 914, 895 P.2d 16(1995) (claim that court erred in permitting evidence waived when appellant did not
object to evidence at trial and “made only vague and conclusory objections” in
motion for new trial). Unlike these cases, the trial court considered and decided
the issue of the scope of Proliance’s affirmative defenses. Fortman cites no
authority for the proposition that a party must challenge a court’s partial summary
judgment ruling in a motion for new trial to preserve the issue for appeal.
Finally, Proliance designated the judgment for the plaintiff and the order
denying the motion for a new trial in its notice of appeal. Although Fortman argues
that the order could not have prejudicially affected the judgment because the court
did not entirely dismiss the contributory negligence defense, the court did not allow
Proliance to assert that Fortman was contributorily negligent between June 24,
2015 and July 27, 2015. Because the partial summary judgment order restricted
the scope of Proliance’s affirmative defenses, it could have prejudicially affected
the final judgment. Appeal from the final judgment is sufficient to bring the partial
-6-
No. 79864-2-I/7
summary judgment order up for review. Proliance has not waived review of the
partial summary judgment order.
B. Partial Summary Judgment
This court reviews a trial court’s grant of partial summary judgment de novo.
Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 637, 389 P.3d 498(2017). We view all facts and reasonable inferences in the light most favorable to
the nonmoving party. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164,
273 P.3d 965 (2012). Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law. CR 56(c). When reviewing a summary judgment order, we consider only the
evidence and issues called to the attention of the trial court. RAP 9.12.
To prevail on his medical negligence claim, Fortman had the burden to
prove that Proliance failed to follow the accepted standard of care and that this
failure was “a proximate cause of the injury complained of.” RCW 7.70.040. “In
an action based on fault seeking to recover damages for injury or death to person
or harm to property, any contributory fault chargeable to the claimant diminishes
proportionately the amount awarded as compensatory damages for an injury
attributable to the claimant’s contributory fault, but does not bar recovery.” RCW
4.22.005. To determine a plaintiff’s contributory negligence, “‘the inquiry is
whether or not he exercised that reasonable care for his own safety which a
reasonable man would have used under the existing facts and circumstances, and,
if not, was his conduct a legally contributing cause of his injury.’” Dunnington, 187
Wn.2d at 637–38 (quoting Rosendahl v. Lesourd Methodist Church, 68 Wn.2d 180,
-7-
No. 79864-2-I/8
182, 412 P.2d 109 (1966)). The question of negligence or comparative negligence
is generally one for the jury “‘unless the facts are such that all reasonable persons
must draw the same conclusion from them, in which event the question is one of
law for the courts.’” Id. at 638 (quoting Hough v. Ballard, 108 Wn. App. 272, 279,
31 P.3d 6 (2001)).
In Dunnington v. Virginia Mason Medical Center, the plaintiff alleged that
his treating physician was negligent in his diagnosis, which deprived him of a 40
percent chance that his cancer would not recur had proper diagnosis and treatment
occurred. Id. at 632–33. The defendant asserted an affirmative defense of
contributory negligence based on the plaintiff’s delay in returning for follow up care
and his decision to pursue conservative treatment options and seek a second
opinion rather than undergo the recommended excision and biopsy. Id. The trial
court granted the plaintiff’s motion to bar the affirmative defense. Id. at 633. The
Washington Supreme Court found that the contributory negligence defense was
not barred as a matter of law because, looking at the facts in the light most
favorable to the defendant, there was an issue of fact as to whether the treating
physician would have again recommended an excision if the plaintiff had returned
promptly for follow up care. Id. at 639.
Proliance analogizes this case to Dunnington, arguing that it produced
evidence that Fortman’s negligent failure to follow medical advice between June
24, 2015 and July 27, 2015 contributed to his ultimate injury of chronic
osteomyelitis. Fortman contends that “the trial court ruled only that the defendant
takes his plaintiff as he finds him,” referring to the principle commonly referred to
-8-
No. 79864-2-I/9
as the “eggshell plaintiff” doctrine. See Reeder v. Sears, Roebuck & Co., 41
Wn.2d 550, 556, 250 P.2d 518 (1952) (“[I]f by reason of delicate condition of health
the consequences of a negligent injury are more serious still, for those
consequences the defendant is liable, although they are aggravated by imperfect
bodily conditions.”) (quoting Jordan v. City of Seattle, 30 Wash. 298, 302, 70 P.
743 (1902)). Proliance does not dispute this principle, but rather, argues that
Fortman’s acts against medical advice between the date he began treatment and
the date of the negligent prescription aggravated his osteomyelitis.
This issue appears to turn on the nature of the “injury complained of” by
Fortman. See RCW 7.70.040. Proliance produced evidence that, during the
relevant period, Fortman continued to use nicotine, failed to keep his blood sugar
within healthy range, and bore weight on his injured ankle contrary to medical
advice, all of which increased his risk of infection. If Fortman had alleged that his
injury was the development of any infection, this evidence would likely have been
sufficient to sustain an affirmative defense of contributory negligence for his acts
during treatment. However, Fortman’s complaint shows that the injury he
complains of is not the initial infection but the development of chronic osteomyelitis
in his left ankle and resulting permanent disability. Proliance does not point to
evidence showing that Fortman’s acts in the period between June 24, 2015 and
July 27, 2015 contributed to the escalation of the initial infection to a chronic
condition. We affirm the order granting partial summary judgment.
-9-
No. 79864-2-I/10
II. Motion for New Trial
Proliance also argues that the trial court erred in denying its motion for a
new trial. We review a trial court’s decision on a motion for a new trial for an abuse
of discretion unless the decision is based on an error of law. Teter v. Deck, 174
Wn.2d 207, 215, 274 P.3d 336 (2012). A much stronger showing of abuse of
discretion is required to set aside an order granting a new trial than one denying a
new trial. Id. A court abuses its discretion when its decision is based on untenable
reasons or untenable grounds. Hollins v. Zbaraschuk, 200 Wn. App. 578, 582–83,
402 P.3d 907 (2017).
Proliance first argues that the jury’s verdict finding that Fortman was not
negligent was not justified by any evidence or reasonable inference from the
evidence. A trial court may vacate the jury’s verdict and grant a new trial if “there
is no evidence or reasonable inference from the evidence to justify the verdict.”
CR 59(a)(7). A court abuses its discretion if it denies a motion for a new trial when
the verdict is contrary to the evidence viewed in the light most favorable to the
nonmoving party. Meinhart v. Anaya, 1 Wn. App. 2d 59, 66, 403 P.3d (2017).
Viewing the evidence in the light most favorable to Fortman, there was
evidence that Fortman acted with reasonable care after July 27, 2015 and did not
contribute to the development of the initial infection into chronic osteomyelitis.
Fortman testified that his doctors had not directed him to stop using nicotine, that
any weight-bearing on his left ankle was accidental, and that his diabetes was
under control. We affirm the court’s denial of a new trial on this ground.
- 10 -
No. 79864-2-I/11
Proliance also argues that the flagrant misconduct of Fortman’s counsel
throughout the trial deprived Proliance of a fair trial. A trial court may grant a new
trial when misconduct of the prevailing party materially affects the substantial rights
of the losing party. CR 59(a)(2); Teter, 174 Wn.2d at 220–21. “The trial court is
‘in the best position’ to gauge the prejudicial impact of counsels’ conduct on the
jury,” and the appellate court should not substitute its own judgment in evaluating
the scope and effect of that misconduct. Clark v. Teng, 195 Wn. App. 482, 492,
380 P.3d 73 (2016) (quoting Taylor v. Cessna Aircraft Co., 39 Wn. App. 828, 832,
696 P.2d 28 (1985)).
Here, Proliance alleges that repeated violations of the rules of evidence and
the court’s rulings on the motions in limine. The trial court sustained many of
Proliance’s objections and gave curative instructions to the jury. The trial court
was in the best position to assess any prejudicial effect of these actions and
objections on the jury. We affirm the court’s denial of a new trial on this ground.
Affirmed.
WE CONCUR:
- 11 -