Opinion
No. 25690-1-III.
January 3, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-2-07010-2, Salvatore F. Cozza, J., entered October 27, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
This is a medical malpractice case. The plaintiff suffered ongoing foot pain and disability from a damaged nerve following foot surgery. He claimed that the negligent administration of the anesthetic caused his problems. The essential questions before us are whether the plaintiff has made a sufficient showing that the defendants violated the standard of care during this foot surgery and whether the defendants failed to inform the patient of specific material risks to the foot surgery, including the risks associated with the administration of the anesthetic. We conclude that the plaintiff's showing on each of these necessary elements is inadequate, and we affirm the summary dismissal of the complaint.
FACTS
Robert Brewer saw Dr. Nicholas Tanner for treatment of chronic left heel pain. Dr. Tanner is a podiatrist. He discussed the use of orthotics as well as surgery with Mr. Brewer. Mr. Brewer decided to have surgery.
Mr. Brewer signed two informed consent forms, one for the surgery and one for the administration of an anesthetic. The authorizations set out general warnings about the types of injuries and complications that could result from the surgery and anesthetic, like infection, prolonged swelling, scar or inflamed scar, numbness, and tingling.
Shawn Brow is a certified registered nurse anesthetist. She inserted a "regional ankle block" anesthetic by syringe. Then Dr. Tanner operated on Mr. Brewer to alleviate chronic left heel pain. Dr. Tanner reported that Mr. Brewer tolerated the surgery well. And he reported no complications.
Ms. Brow described the normal procedure she uses when giving this local anesthesia. Ms. Brow meets each patient on the day of the surgery. She discusses the surgery, the method/technique of anesthesia, and the "potential complications the patient may experience as a result of the administration of anesthesia." Clerk's Papers (CP) at 382. These complications include "trauma to nerves by insertion of the needle, development of neuritis, development of a neuroma, and potential damage to the nerves as a result of an allergic or toxic reaction to the anesthetic medication." Id. She then obtains the patient's consent.
The patient is conscious during the sedation. This allows a patient to communicate with Ms. Brow and tell her if a nerve has been touched when inserting the anesthetic by needle.
Mr. Brewer left the operating room in good medical condition but reported a lot of soreness on the side of the ankle several days after the surgery. Dr. Tanner noted that "it appears as though the seral nerve has been traumatized from the injection." Id. at 615. "The attempt now is to give it time to resolve . . . time will decrease the sensitivity of the nerve." Id. at 615-16. Dr. Tanner later noted that "[w]e are in the constant chronic mode. It may take a whole year before full recovery is achieved." Id. at 621. Mr. Brewer's pain and dysfunction continued.
Mr. Brewer sued Dr. Tanner and Ms. Brow for damages based on negligence and their failure to fully inform him of the risks associated with the administration of the anesthetic and the surgery. Mr. Brewer said that before surgery he was not informed that as a result of submitting to the anesthetic or surgery, he could experience the need for additional corrective surgery or experience permanent injury to a nerve. Mr. Brewer said that he would not have undergone the surgery had he understood the significance of these potential risks.
Mr. Brewer hired Dr. Robert Bathurst to be his expert witness. Dr. Bathurst is a medical doctor board eligible in anesthesiology and board certified in emergency room medicine. Dr. Tanner and Ms. Brow moved for summary judgment.
Dr. Bathurst offered several opinions in support of Mr. Brewer's causes of action. He said the informed consents were below the standard of care because they did not provide sufficient detail regarding particular risks associated with this anesthesia including permanent nerve injury. And he said that the injury to Mr. Brewer would not have occurred had Ms. Brow exercised reasonable care when injecting the anesthetic.
Dr. Tanner and Ms. Brow responded that Mr. Brewer was fully informed of the nature of the procedure and the associated risks. And Dr. Bathurst's opinions did not support a claim of negligent treatment because he agreed that Mr. Brewer's injury might have resulted even with competent medical care. The trial judge agreed with the defendants and summarily dismissed the complaint.
DISCUSSION
Mr. Brewer contends that the declarations of his expert, Dr. Bathurst, were sufficient to generate genuine issues of material fact on two essential questions. The first is whether Ms. Brow's injection was negligently done and caused Mr. Brewer's problems. And the second is whether Mr. Brewer was adequately informed of the potential risks of the injection of the anesthetic. Standard of Review
Summary judgment is appropriate only if there is no genuine issue of material fact. CR 56(c); DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 140, 960 P.2d 919 (1998). We consider the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Seybold v. Nev, 105 Wn. App. 666, 676, 19 P.3d 1068 (2001). Our review is, of course, de novo. Id. at 675. Standard of Care
The plaintiff in a medical negligence case must show the standard of care by expert testimony: "[T]o defeat summary judgment in almost all medical negligence cases, the plaintiffs must produce competent medical expert testimony establishing that the injury was proximately caused by a failure to comply with the applicable standard of care." Id. at 676; RCW 7.70.040. That means that the plaintiff must show that: "[t]he health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances." RCW 7.70.040(1). And the expert testimony must be based upon the facts of the case and not speculation. Seybold, 105 Wn. App. at 677.
Here is what Dr. Bathurst stated:
Q. . . . In this case what is it you're stating that Shawn Brow did that injured the nerve?
A. Well, I'm saying that during this procedure something happened to that nerve and it was either from the tourniquet or it was from a laceration of the nerve or it was from, you know, a hematoma that may have occurred in the nerve.
. . . .
Q. . . . Of those three things you just mentioned, what of those three things occurs as a result of the violation of the standard of care?
A. . . . It is my opinion that one of three things happened. He either got damaged from the local anesthetic, i.e., in compression of the nerve. He got a laceration of the nerve. He got a hematoma in the nerve. The sheath was cut. Oh, did I say a tourniquet injury?
CP at 337.
Dr. Bathurst agreed that a person can act within the standard of care and still cause a nerve injury due to compression of the tourniquet. Also, a hematoma could be caused by a practitioner acting within the standard of care.
So we are left then with only speculation over whether the mechanism of Mr. Brewer's injury was the result of medical negligence or simply the unfortunate sequela of the competent administration of the anesthetic here. That speculation is not enough to support a claim of medical negligence. Seybold, 105 Wn. App. at 677.
Dr. Bathurst's testimony does not then support the necessary genuine issue of material fact on the violation of the standard of care Mr. Brewer received at the hands of the nurse anesthetist, Ms. Brow. RCW 7.70.040(1); Seybold, 105 Wn. App. at 677. Dr. Bathurst was, moreover, not aware of the standard of care in Washington nor was he aware of the background, knowledge, and/or training of the health care providers involved in this case. Nor was he aware of the procedure or the length of the instruments Ms. Brow used.
In sum, his testimony does not create a genuine issue of material fact regarding the failure to exercise the degree of care of a reasonable health care provider in the state of Washington acting in the same or similar circumstances. CP at 337-42; DeYoung, 136 Wn.2d at 140; RCW 7.70.040(1).
Proximal Relationship between Treatment and Injury
Mr. Brewer must also show that his injury was proximately caused by any failure to comply with the applicable standard of care. Seybold, 105 Wn. App. at 676. We have already passed on the question of standard of care and need not then address the question of proximate cause. We do nonetheless address it as an alternative ground for affirming the court's summary dismissal. Id. at 676-77.
Dr. Bathurst did not know the proximate cause of the injury here. He instead listed a number of possible mechanisms that may have caused this injury. He stated that the injury in this case could be due to "either compression injury through injection, a tourniquet injury, hematoma or a laceration of the nerve sheath as a result of the injection." CP at 344.
This is not the necessary expert testimony that the injury was proximately caused by the failure to comply with the applicable standard of care. Seybold, 105 Wn. App. at 677. The showing must amount to more than the possibility of or the speculation on the mechanism of injury. Id.
Informed Consent
Mr. Brewer also contends that he was not fully informed of the risks and hazards attendant with the surgery and, specifically, the administration of the anesthetic.
A health care provider must inform a patient of the potential risks of any procedure and obtain the patient's consent to perform the procedure before proceeding. Adams v. Richland Clinic, Inc., P.S., 37 Wn. App. 650, 656, 681 P.2d 1305 (1984); Smith v. Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983). But the health care provider need only inform the patient of potential serious risks, not every possible risk. Adams, 37 Wn. App. at 656; Smith, 100 Wn.2d at 30-31. The test is an amalgamation of materiality and patient sovereignty. Adams, 37 Wn. App. at 656. The idea is that if a "reasonable person in the patient's position would attach significance to a risk in deciding treatment, the risk is material." Id. at 656-57.
So whether the risk is material is a two-step process: "The first prong is to define the existence and nature of the risk and the likelihood of its occurrence." Id. at 657-58. Some expert testimony is required to demonstrate this aspect of materiality since such facts are generally not describable without medical knowledge or training. Id. at 658. The second prong is "whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment, is strictly an issue for the trier of fact." Id.
Here, Dr. Bathurst said that the consent form did not meet the standard of care. But a claim of inadequate information to consent does not implicate the standard of care:
[T]he plaintiff . . . shall . . . prove . . . the defendant . . . failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, . . . but in no event shall the provisions of this section apply to an action based on the failure to obtain the informed consent of a patient.
Mr. Brewer contends that he satisfied the burden of proof by expert testimony identifying the existence of a material risk, its likelihood of occurring, and the nature of harm which may result from such a risk. Yet, Dr. Bathurst identified nerve injury in this type of surgery as only "common" in 5 percent of those experiencing surgical complications. And he testified:
A. . . . You know, I think nerve injury was not included in this. I think bleeding was not included in this. Infection was.
Q. Is a nerve injury a common complication?
A. Probably not.
Q. Then why does it need to be included in the informed consent?
A. Well, first of all, patients are becoming more and more informed. I don't know whether you are aware, but I see patients who come in sometimes and know more about their disease than I do in the ER because they have got some strange syndrome that, you know, they have had a chance to look up on the Internet.
But I think that, you know, nerve injury would be considered a common — when I say "common," it is — we're talking about if — let's just say 5 percent of people have some kind of complication.
CP at 347.
The health care provider need only disclose the "recognized serious possible risks." Former RCW 7.70.060(1)(d) (1975) (now RCW 7.70.060(1)(a)(iv)). The risk of this injury was low even according to Mr. Brewer's expert, Dr. Bathurst:
Q. Is a nerve injury a common complication?
A. Probably not.
CP at 347.
Dr. Bathurst states that it is not a common complication and only 5 percent of people may have some sort of complication. Yet, it is unclear if "some sort" includes nerve injury or all complications in general. This risk here is not, then, a material risk. Adams, 37 Wn. App. at 656-57. Dr. Tanner had never "heard of any other case in which such an outcome was reported." CP at 285.
The trial court then properly dismissed the informed consent claim. RCW 7.70.060; Adams, 37 Wn. App. at 656; Smith, 100 Wn.2d at 31. The doctrine of informed consent does not place a legal duty upon the health care provider to explain all possible risks, but only those of a serious kind. Adams, 37 Wn. App. at 656; Smith, 100 Wn.2d at 30-31.
We affirm the summary dismissal of the complaint.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, C.J.
WE CONCUR:
Schultheis, J.
Brown, J.