Mari Davies, V. Multicare Health System

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARI YVONNE DAVIES,
No. 80854-1-I
Appellant,
DIVISION ONE
v.
MULTICARE HEALTH SYSTEM, a PUBLISHED OPINION
Washington corporation d/b/a GOOD
SAMARITAN HOSPITAL, and MT.
RAINIER EMERGENCY
PHYSICIANS, PLLC; MICHAEL
HIRSIG, M.D.,
Respondents.
MANN, C.J. — In this medical malpractice action, Mari Davies appeals the trial
court’s order dismissing her informed consent claim on summary judgment. Davies also
appeals the judgment entered on a jury verdict finding the defendants not negligent.
Davies argues that the trial court erred by giving an exercise of judgment jury
instruction, and preventing her expert neurosurgeon from testifying at trial regarding the
standard of care for an emergency room physician. We reverse summary judgment
dismissal of Davies’s informed consent claim and remand for trial. We otherwise affirm.
FACTS
On August 23, 2017, Davies was involved in a single-car rollover crash. She had
no memory of the accident. Paramedics extracted Davies from the vehicle, placed her
No. 80854-1-I/2
on a backboard and in a cervical collar, and transported her by ambulance to Good
Samaritan Hospital in Puyallup. Davies reported pain in her neck, back, left shoulder,
and tingling in her left arm. She also had preexisting high blood pressure, pneumonia,
kidney stones, and diabetes.
Dr. Michael Hirsig, the attending physician at the Good Samaritan emergency
room, saw Davies upon arrival. Dr. Hirsig conducted a physical exam and ordered
laboratory tests, an electrocardiogram (EKG), and computerized tomography (CT)
scans of her head, cervical spine, abdomen, and pelvis. Dr. Scott Henneman, the
radiologist who interpreted the CT scans, noted fractures of Davies’s cervical spine at
the C3 level. At Dr. Henneman’s recommendation, Dr. Hirsig contacted Dr. William
Morris, a neurosurgeon who often consults by telephone with other physicians in the
MultiCare Health System. After reviewing the images, Dr. Morris told Dr. Hirsig that the
fractures appeared stable and did not require surgery. Neither Dr. Henneman nor Dr.
Morris identified a fracture through the transverse foramen, which would increase the
risk of injury to the vertebral artery. Dr. Morris recommended that Davies be placed in a
cervical collar for 8 weeks, with a follow-up CT scan to check for healing and alignment.
Dr. Morris’s progress notes indicate that he was under the impression Davies would be
transferred to Tacoma General Hospital for observation by the trauma team.
Dr. Hirsig initially informed Davies and her family that she had sustained a neck
fracture and would likely be transferred to the trauma unit at Tacoma General Hospital.
However, after the consultation with Dr. Morris, Dr. Hirsig advised that Davies did not
need hospitalization or surgery and could be discharged with a hard cervical collar, with
follow-up on an outpatient basis. Dr. Hirsig testified that he asked the family whether
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they were comfortable taking her home, and they said yes. 1 Dr. Hirsig prescribed pain
medication, nausea medication, a muscle relaxant, and a different antibiotic for her
pneumonia, and sent Davies home without further treatment or testing.
The following day, Davies’s daughter took Davies to her primary care physician,
Dr. Andrew Larsen, for a follow up visit. Davies’s vital signs were unstable and she had
severe neck pain made worse by coughing. Dr. Larsen arranged for Davies to be
immediately transported to Providence St. Peter hospital for direct admission. While
awaiting transport, Davies suffered a stroke in Dr. Larsen’s office. Her stroke was later
determined to have been caused by a vertebral artery dissection sustained when her
neck fractured during the accident. Davies was hospitalized for approximately three
weeks and now resides at an assisted living facility.
On May 31, 2018, Davies filed suit against MultiCare alleging (1) medical
negligence, (2) failure to obtain informed consent, and (3) corporate negligence.
Davies alleged that MultiCare and its employees or agents breached the standard of
care by failing to admit or transfer her for observation and treatment or by failing to
order additional imaging, such as a CT angiography (CTA) scan, to check for vertebral
artery dissection prior to discharge. Dr. Hirsig was allowed to intervene on September
14, 2018. On February 13, 2019, Davies filed an amended complaint and added Dr.
Hirsig’s employer, Mt. Rainier Emergency Physicians PLLC, as a defendant.
On cross-motions for partial summary judgment, the trial court dismissed
Davies’s informed consent claim, and the case proceeded to trial on the negligence
claims.
1Davies’s daughter Melissa Brononske disputed Dr. Hirsig’s testimony that the family agreed with
the discharge decision.
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At trial, the jury heard expert testimony regarding whether Dr. Hirsig breached
the standard of care of an emergency medicine physician. Dr. Hirsig testified that he
considered and rejected a diagnosis of vertebral artery dissection and that his care of
Davies met the standard of care. Dr. Raymond Moreno, an emergency medicine
physician who practices in Portland, Oregon, testified that Dr. Hirsig “absolutely met the
standard of care” by performing a broad workup exam, identifying Davies’s neck
fracture, and consulting with Dr. Morris prior to making a disposition decision. Dr.
Moreno further testified that the standard of care in Washington and Oregon does not
require a CTA scan for every C3 fracture.
Davies’s expert Dr. Carrie Tibbles, an emergency physician at Beth Israel
Deaconess Medical Center in Boston, testified that her hospital routinely obtains a scan
of the vertebral arteries for patients with neck fractures and that when an emergency
room physician identifies vertebral artery dissection as a differential diagnosis, the
standard of care requires a CTA scan. She further testified that it was not safe for
Davies to go home that day.
Davies also sought to call Dr. Clara Harraher, a neurosurgeon who practices in
California, to testify that Dr. Morris breached the standard of care for a neurosurgeon
and that Dr. Hirsig breached the standard of care for an emergency room physician.
At trial, following the defendants’ foundational objection, the trial court ruled that Dr.
Harraher could testify to a neurosurgeon’s standard of care but not an emergency
medicine doctor’s standard of care.
The jury also heard expert testimony regarding whether Dr. Morris breached the
standard of care for a neurosurgeon in his consultation with Dr. Hirsig. Dr. Morris
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No. 80854-1-I/5
described his practice of consulting with other MultiCare physicians regarding
neurological issues, and testified that he met the standard of care. Neurologists Dr.
David Lundin and Dr. Jeffrey Johnson testified that Dr. Morris’s consultation met the
standard of care and that not all C3 fractures require vascular imaging.
Dr. Harraher testified that Dr. Morris’s consultation with Dr. Hirsig did not meet
the standard of care for a neurosurgeon. She testified that the standard of care
required a CTA in this case given the nature of Davies’s injuries and the risk of vertebral
artery injury.
Over Davies’s objection, the court gave the following “exercise of judgment” jury
instruction:
A physician is not liable for selecting one or two or more alternative
diagnoses, if, in arriving at the judgment to make the particular diagnosis,
the physician exercised reasonable care and skill within the standard of
care the physician was obliged to follow.
The jury returned a special verdict finding Dr. Hirsig and MultiCare not negligent,
and therefore did not reach the issues of proximate cause or damages. The trial court
entered judgment against Davies. Davies appealed.
ANALYSIS
A. Informed Consent
Davies first argues that the trial court erred in dismissing her informed consent
claim on summary judgment. 2 This court reviews summary judgment orders de novo.
Seybold v. Neu, 105 Wn. App. 666, 675, 19 P.3d 1068 (2001). Summary judgment is
appropriate if there are no genuine issues of material fact and the moving party is
2 In her opening brief, Davies expressly states that her corporate negligence claim against
MultiCare and vicarious liability claim against Mt. Rainier were not at issue in this appeal. The claims are
therefore abandoned.
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entitled to judgment as a matter of law. CR 56(c). All evidence and reasonable
inferences are construed in the light most favorable to the nonmoving party. Keck v.
Collins, 184 Wn.2d 358, 368, 357 P.3d 1080 (2015).
“Informed consent and medical negligence are distinct claims that apply in
different situations. While there is some overlap, they are two different theories of
recovery with independent rationales.” Anaya Gomez v. Sauerwein, 180 Wn.2d 610,
617, 331 P.3d 19 (2014). “Informed consent allows a patient to recover damages from
a physician even though the medical diagnosis or treatment was not negligent.”
Backlund v. Univ. of Wash., 137 Wn.2d 651, 659, 975 P.2d 950 (1999). 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.
RCW 7.70.050(1).
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.” Backlund, 137 Wn.2d at 663. “A necessary corollary to this principle is that
the individual be given sufficient information to make an intelligent decision.” Smith v.
Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983). “The concept of patient
decisionmaking regarding treatment has sometimes been described as ‘patient
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sovereignty.’” Backlund, 137 Wn.2d at 663 (quoting Archer v. Galbraith, 18 Wn. App.
369, 377 n.2, 567 P.2d 1155 (1977)). “[I]t 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.” Smith, 100 Wn.2d at 30.
In Gates v. Jensen, 92 Wn.2d 246, 250, 595 P.2d 919 (1979), a case decided
prior to the adoption of RCW 7.70.050(1), our Supreme Court addressed whether the
doctrine of informed consent requires a physician to inform a patient of a bodily
abnormality and diagnostic procedures that were available to determine the significance
of the abnormality. In Gates, the plaintiff complained of difficulty in focusing, blurring,
and gaps in vision. Gates consulted an ophthalmologist, Dr. Hargiss, who took eye
pressure readings that indicated her eye pressure was in the borderline area for
glaucoma. Dr. Hargiss did not conduct further tests and informed Gates that he had
checked for glaucoma but found everything all right. Dr. Hargiss did not inform Gates
that the high pressure put her at risk for glaucoma, nor that he had available two
additional simple, inexpensive, and risk free diagnostic tests for glaucoma. 3 Gates, 92
Wn.2d at 247-48.
At trial, Gates requested jury instructions on the doctrine of informed consent,
which the trial court denied. The Supreme Court reversed, explaining:
Important decisions must frequently be made in many non-treatment
situations in which medical care is given, including procedures leading to a
diagnosis, as in this case. These decisions must all be taken with the full
knowledge and participation of the patient. The physician's duty is to tell
the patient what he or she needs to know in order to make them. The
existence of an abnormal condition in one's body, the presence of a high
risk of disease, and the existence of alternative diagnostic procedures to
3 The first was to use standard drops for dilating the pupils to obtain a better view of the optic
nerve. The second was to have Gates take a “visual field examination” to determine if she had suffered
any loss in vision. Gates, 92 Wn.2d at 248.
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No. 80854-1-I/8
conclusively determine the presence or absence of that disease are all
facts which a patient must know in order to make an informed decision on
the course which future medical care will take.
Gates, 92 Wn.2d at 250-51.
At the other end of the spectrum, our Supreme Court has also held that a claim
for misdiagnosis does not support a claim for informed consent where the treating
physician is unaware of alternative diagnoses. Backlund, 137 Wn.2d at 661. In
Backlund, the defendant physician diagnosed a newborn infant with jaundice and chose
to treat the condition with phototherapy rather than a blood transfusion. 137 Wn.2d at
662. The phototherapy treatment was not successful and the infant suffered brain
damage and died. The infant’s parents brought medical malpractice and informed
consent claims against the treating physician and the University of Washington. A jury
exonerated the treating physician and University from negligence for continuing to treat
with phototherapy rather than a transfusion. Backlund, 137 Wn.2d at 653. The trial
court found that the possibility of a transfusion was a “material fact” of which the
Backlunds were not aware and thus supported their claim for lack of informed consent.
The court concluded, however, that the Backlunds failed to prove that a reasonably
prudent person would have consented to the treatment even if informed.
On appeal, the University argued that the Backlunds’ claim for lack of informed
consent failed as a matter of law because the jury had exonerated the physician from
liability for negligence. Our Supreme Court first recognized that negligence and
informed consent are “alternative methods of imposing liability on a health care
practitioner.” And that “[i]nformed consent allows a patient to recover damages from a
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No. 80854-1-I/9
physician even though the medical diagnosis or treatment was not negligent.”
Backlund, 137 Wn.2d at 659. The court explained further:
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.
Backlund, 137 Wn.2d at 661.
The Supreme Court disagreed with the University’s position that the Backlunds’
informed consent claim failed as a matter of law. The court concluded that even though
the jury found no negligence, because there were no facts suggesting that the treating
physician was unaware of the transfusion alternative, the “trier of fact might still have
found he did not sufficiently inform the patient of risks and alternatives in accordance
with RCW 7.70.050.” Backlund, 137 Wn.2d at 662. The Supreme Court agreed with
the trial court, however, that the Backlunds failed to demonstrate that a reasonably
prudent person would have consented to the treatment even if informed. Backlund,
137 Wn.2d at 668.
More recently, in Anaya Gomez, our Supreme Court again discussed the
interplay between informed consent claims and negligence claims based on
misdiagnosis. 180 Wn.2d at 613. In Anaya Gomez, the physician did not alert a
diabetic patient to preliminary blood test results indicating that she had a yeast infection,
having concluded that it was a false positive because the patient indicated that she was
feeling better. 180 Wn.2d at 613-14. A later test confirmed the presence of a severe
yeast infection. Anaya Gomez, 180 Wn.2d at 615. After the patient died, her personal
representative brought claims for negligence and informed consent. The trial court
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dismissed the informed consent claim on summary judgment, and the Supreme Court
affirmed.
The Supreme Court began by setting forth the issue before it: “[i]n determining
which theory of recovery is available, the issue is whether this is a case of misdiagnosis
subject only to negligence or if the facts also support an informed consent claim.”
Anaya Gomez, 180 Wn.2d at 617. The court explained that it was significant in Gates
that the ophthalmologist had “two additional diagnostic tests for glaucoma which are
simple, inexpensive, and risk free.” Anaya Gomez, 180 Wn.2d at 621 (quoting Gates,
92 Wn.2d at 248). Consequently, the “choice the ophthalmologist could have put to
Mrs. Gates was whether to do the additional testing in light of her borderline test result.
Given the small cost and effort of those tests, the decision was relatively easy.” Anaya
Gomez, 180 Wn.2d at 621.
The court distinguished the situation before it from the situation in Gates,
determining that “[t]his case is different from Gates because there was nothing else that
Dr. Sauerwein could have done. Informing a patient about a likely erroneous lab result
gives the health care provider nothing to “‘put to the patient in the way of an intelligent
and informed choice.’” Anaya Gomez, 180 Wn.2d at 622 (quoting Keogan v. Holy
Family Hospital, 95 Wn.2d 306, 330, 622 P.2d 1246 (1980) (Hicks, J., concurring in
part, dissenting in part)). Because Gates did not apply, the court applied the “Backlund
rule” and affirmed the trial court’s dismissal of the informed consent claim as a matter of
law. Anaya Gomez, 180 Wn.2d at 623.
Important here, the court confirmed that Gates has not been overruled. Anaya
Gomez, 180 Wn.2d at 623. The court explained:
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Backlund and Keogan state the general rule of when a plaintiff can make
an informed consent claim. The Gates court allowed the informed consent
claim based on a unique set of facts that are distinguishable from this
case. Under Gates, there may be instances where the duty to inform
arises during the diagnostic process, but this case does not present such
facts. The determining factor is whether the process of diagnosis presents
an informed decision for the patient to make about his or her care. Dr.
Sauerwein’s knowledge of the test result provided no treatment choice for
Mrs. Anaya to make.
Anaya Gomez, 180 Wn.2d at 623.
Here, like Gates, and unlike Anaya Gomez, Davies presented evidence at
summary judgment supporting that once she was correctly diagnosed with a cervical
fracture, there were additional tests available as part of her initial diagnoses—namely a
CT angiography (CTA) scan—to check for vertebral artery dissection prior to discharge.
Davies’s medical experts testified that vertebral artery injury is a “common” and “well
known” occurrence following cervical spine fractures. As Davies’s expert Dr. Harraher
testified in deposition:
Q. Doctor, if I understand you correctly, the reason that there is a
whole body of literature on the fact that you should screen for
vertebral artery injury when you have a cervical spine fracture is
because those are commonly found?
A. Yes.
Q. They are commonly found together and commonly missed; right?
A. Correct.
Davies’s expert Dr. Becker similarly testified:
Q. What’s the basis of the opinion that this fracture should have
prompted imaging of her cervical arterial vessels?
A. It’s well-known in the trauma literature that the mechanism of injury
that leads to a cervical fracture is one that can also lead to a
cervical arterial dissection, and there are criteria that have been
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No. 80854-1-I/12
created that suggest that if someone has such a fracture that they
should have cervical arterial imaging.
Davies further presented evidence at summary judgment that had she undergone
a CTA, her vertebral artery dissection would have been diagnosed and a different
treatment regimen other than sending her home in a neck brace would have been
initiated, preventing her subsequent stroke. Dr. Becker explained:
Q. And then what do you believe that the treatment of either aspirin,
Plavix, or heparin would have prevented, if anything?
A. I believe that it would have prevented her subsequent stroke.
Q. And what’s the basis of the opinion that aspirin, Plavix, or heparin
would have prevented her stroke?
A. If you look at all the studies that have been done of antithrombotic
therapy in arterial dissections, they are all highly effective with very
few patients ever going on to have a recurrent event, or an event if
it was a dissection that was picked up kind of prophylactically.
Davies’s medical expert, Dr. Tibbles, agreed:
Q. Okay, as far as causation opinions go in this case, you offered
causation testimony that had Doctor Hirsig and Doctor Morris
somehow through that process admitted her to trauma service, then
she would not have suffered a stroke? Did I understand your
causation opinion?
A. I believe more likely than not if she had received proper
comprehensive care from a trauma team, including a neurosurgeon
and the proper evaluation of her condition, that more likely than not
they would have done the right thing and worked up the cervical
spine fracture in the proper way, which would have included
evaluation of the vessels.
Had the vessels been evaluated, the dissection seen, the
potential—there’s a window there to treat the stroke—treat the
potential complications of stroke and therefore prevent the stroke.
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
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No. 80854-1-I/13
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. Like Gates, and unlike Anaya Gomez, there were diagnostic and treating
procedures available to the treating doctors. As the Supreme Court recognized in
Anaya Gomez, “the determining factor is whether the process of diagnosis presents an
informed decision for the patient to make about his or her care.” 180 Wn.2d at 623.
Here, there was. Summary judgment dismissal of Davies’s informed consent claim was
erroneous.
B. Jury Instruction
Davies argues next that the trial court erred by giving an exercise of judgment
instruction to the jury because the instruction is appropriate only where there is
evidence that the physician makes a choice between alternative diagnoses. Davies
contends that the trial record is devoid of evidence to support the jury’s determination
that Dr. Hirsig and MultiCare made such a choice. We disagree.
We review a decision on whether to give an exercise of judgment instruction for
abuse of discretion. Fergen v. Sestero, 174 Wn. App. 393, 396, 298 P.2d 782 (2013),
aff’d, 182 Wn.2d 794, 803, 346 P.3d 708 (2015). This is a fact specific inquiry. Fergen,
182 Wn.2d at 803. Jury instructions are generally sufficient if they: (1) are supported by
the evidence; (2) allow each party to argue its theory of the case; and (3) properly
inform the trier of fact of the applicable law when all the instructions are read together.
Fergen, 182 Wn.2d at 803.
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Our Supreme Court considered use of the exercise of judgment instruction most
recently in Fergen. Fergen involved a consolidated appeal from two medical
malpractice trials in which the trial court gave an exercise of judgment instruction and
the jury returned a verdict for the defendants. In the first case, Fergen, Paul Fergen
presented to the physician with a lump on his ankle. After performing a physical
examination and taking an x-ray of the ankle, the physician diagnosed the lump as a
benign cyst and referred him to an orthopedic office without conducting further testing.
Fergen, 182 Wn.2d at 799. In doing so, the physician chose to forgo an ultrasound on
Fergen’s ankle, which may have found the rare form of cancer that began in Fergen’s
ankle and resulted in his death. Fergen, 182 Wn.2d at 799-800.
In the second case, Appukuttan v. Overlake Medical Center, Anil Appukuttan
injured his leg during a soccer game. He visited the emergency room five times due to
increasing pain in his leg. Multiple physicians examined him, but none measured the
pressure in his leg to rule out compartment syndrome, instead believing his symptoms
indicated a different diagnosis. Fergen, 182 Wn.2d at 801. Appukuttan
“suffered permanent foot drop injury as a result of the failure to diagnose and treat his
compartment syndrome.” Fergen, 182 Wn.2d at 801.
In a split 5-4 decision, the majority first concluded that the instruction was
supported under Washington law. The court also rejected an invitation to overrule
precedent and abandon use of the instruction as unnecessary. Fergen, 182 Wn.2d at
803-05, 809-11. 4 Turning to the merits, the court held that for Fergen, the physician
4 The dissent concluded that the exercise of judgment law was rooted in the discredited “error of
judgment” instruction and not supported by Washington law; that the instruction is confusing, unfair, and
inconsistent with the modern practice of giving neutral instructions; and that the instruction should be
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“had a choice between referring Fergen to a specialist or not . . . ordering an X ray or
not[, and] ordering follow up testing or not.” Fergen, 182 Wn.2d at 808. For
Appukuttan, the court concluded that the physicians decided that the pressure test “was
unnecessary because their physical examination did not indicate that compartment
syndrome was the diagnosis.” Fergen, 182 Wn.2d at 809.
In reaching its holding, the Supreme Court explained:
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).
Fergen, 182 Wn.2d at 806. As this court recently summarized:
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.” The Fergen Court also recognized 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.
Needham v. Dreyer, 11 Wn. App. 2d 479, 488-89, 454 P.3d 136, review denied, 195
Wn.2d 1017, 461 P.3d 1201 (2020) (quoting Fergen, 182 Wn.2d at 708).
Applying the Fergen standard to the testimony at trial, we conclude that the
exercise of judgment instruction in this case was proper. Dr. Hirsig testified that he
considered the possibility that Davies could have a vertebral artery dissection in making
his differential diagnosis. After consulting with Dr. Henneman, the neuroradiologist that
reviewed Davies’s CT scan, he learned that she had a C3 fracture of her cervical spine,
disapproved of. Fergen, 182 Wn.2d at 812-26 (Stephens, J., dissenting). While the dissent in Fergen is
compelling, we are bound by the majority opinion.
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but Dr. Henneman did not identify a fracture of the transverse foramen. Such a fracture
would have heightened Dr. Hirsig’s awareness that there could be an injury to the
vertebral artery. Consequently, Dr. Hirsig chose not to request a CTA to test for
vertebral artery dissection because he believed the likelihood she did not have one
outweighed the likelihood she did not. He summarized:
with my assessment of the patient, with her physical findings and with her
exam and with all the information I had, and in speaking to the
neuroradiologist as well as the neurosurgeon [Dr. Morris], the
consensus—I felt like that [vertebral arterial dissection] was not something
I needed to further assess.
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.
Davies argues that this court’s recent opinion in Needham compels reversal.
Needham is distinguishable. In Needham, the plaintiff visited his primary care doctor
complaining of breathing problems and gastrointestinal issues. 11 Wn. App. 2d at 481.
The physician treated him for his preexisting HIV and diarrhea, but did not address his
breathing problems. Needham, 11 Wn. App. at 481. Several days later he was found
unconscious in cold weather, resulting in frostbite that required amputation. Needham,
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11 Wn. App. 2d at 481. The plaintiff sued his physician and the clinic alleging medical
negligence as the cause of his injuries. Needham, 11 Wn. App. 2d at 481-82. Over his
objection, the trial court gave an exercise of judgment instruction and the jury entered a
verdict for the defense. Needham, 11 Wn. App. 2d at 486. This court, applying Fergen,
held that the exercise of judgment instruction was improper because there was no
evidence that the physician actually made a choice in diagnosing or treating his
breathing problems. But here, unlike Needham, there was evidence that the physicians
considered and actively chose among alternative diagnoses and treatment plans.
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.
C. Expert Witness
Davies argues finally that the trial court abused its discretion by preventing Dr.
Harraher, a neurosurgeon, from testifying regarding the standard of care for Dr. Hirsig,
an emergency room physician. We agree, but conclude the error was harmless.
We review the decision to exclude an expert witness’s testimony for abuse of
discretion. Driggs v. Howlett, 193 Wn. App. 875, 896, 371 P.3d 61 (2016). Discretion is
abused if it is exercised on untenable grounds or for untenable reasons. Morrin v.
Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007).
“[E]xpert testimony will generally be necessary to establish the standard of care
and proximate cause required in medical malpractice cases.” Berger v. Sonneland, 144
Wn.2d 91, 111, 26 P.3d 257 (2001). The plaintiff must show that the health care
provider “failed to exercise that degree of care, skill, and learning expected of a
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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.” RCW 7.70.040(1).
Only experts who practice in the same field or have expertise in the relevant
specialty may establish the standard of care. McKee v. Am. Home Prods., Corp., 113
Wn.2d 701, 706, 782 P.2d 1045 (1989). “The scope of the expert's knowledge, not his
or her professional title, should govern ‘the threshold question of admissibility of expert
medical testimony in a malpractice case.’” Hill v. Sacred Heart Med. Ctr., 143 Wn. App.
438, 447, 177 P.3d 1152 (2008) (quoting Pon Kwock Eng v. Klein, 127 Wn. App. 171,
172, 110 P.3d 844 (2005)). “A physician with a medical degree is qualified to express
an opinion on any sort of medical question, including questions in areas in which the
physician is not a specialist, so long as the physician has sufficient expertise to
demonstrate familiarity with the procedure or medical problem at issue in the medical
malpractice action.” Hill, 143 Wn. App. at 447 (quoting Morton v. McFall, 128 Wn. App.
245, 253, 115 P.3d 1023 (2005)). When experts are from a different school of
medicine, the testimony should be allowed “(1) where the methods of treatment in the
defendant’s school and the school of the witness are the same, (2) where the method of
treatment in the defendant’s school and the school of the witness should be the same,
or (3) the testimony of a witness is based on knowledge of the defendant’s own school.”
Leaverton v. Cascade Surgical Partners, P.L.L.C., 160 Wn. App. 512, 519, 248 P.3d
136 (2011).
We conclude that Dr. Harraher had sufficient expertise in the procedures and
medical problem at issue to testify regarding the standard of care in Davies’s case. Dr.
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Harraher completed a cerebrovascular fellowship at Stanford, including work regarding
the vertebral artery. She testified that she has substantial emergency room experience,
including the care and treatment of patients with neck fractures and the decision to
order a CTA scan. Similarly, in Eng, this court held that an infectious disease doctor
was qualified to testify regarding a neurosurgeon’s failure to diagnose meningitis, where
the expert’s knowledge of the medical problem was uncontested and the defendant’s
method and failure to properly diagnose was not particularized to his neurological
specialty.
However, even if the trial court erred in excluding this testimony, reversal is not
required because the error was harmless. The test for harmless error is whether there
is a reasonable probability that the error materially affected the outcome of the trial.
Frantom v. State, 12 Wn. App. 2d 953, 959, 460 P.3d 1100 (2020). “A factor to
consider when determining harmless error is whether excluded evidence involved
cumulative evidence.” Driggs, 193 Wn. App. at 903.
As an offer of proof, counsel for Davies stated that Dr. Harraher would have
testified that Dr. Hirsig should not have discharged Davies due to the mechanism of her
injury and the other clinical problems that she was having. But Davies’s emergency
medicine expert, Dr. Tibbles, testified extensively as to her opinion that Davies was not
safe to go home and should not have been discharged. Because the excluded
testimony was cumulative, reversal is not required.
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We reverse summary judgment dismissal of Davies’s informed consent claim and
remand for trial. We otherwise affirm.
WE CONCUR:
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