Opinion
No. 59448-6-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-2-22378-8, Bruce W. Hilyer, J., entered March 2, 2007.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, C.J., and Cox, J.
Generally, all relevant evidence is admissible except as limited by constitution, statute, or other evidentiary rule. In a medical malpractice suit, a physician or a physician's assistant may testify as to their professional conduct that is repeatedly and consistently performed when treating persons with similar symptoms so long as relevant, though subject to a trial court's broad discretion. Here, the trial court did not abuse its discretion in excluding certain evidence offered as habit evidence by defendant medical professionals because the conduct did not meet the standard for habit evidence. Moreover, even if we were to find the exclusion of the evidence erroneous, such exclusion was harmless. Thus, the trial court is affirmed.
See ER 401.
FACTS
Two-year-old Evan Smith was brought to the emergency room at Valley Medical Center on March 21, 2001. Evan was reported to have had a recent high fever of up to 104.8 degrees prior to arriving at the hospital, was exhibiting cold-like symptoms and was purportedly irritable and lethargic.
Evan was examined by Jeffrey Goon, a licensed physician's assistant. Goon consulted with and was supervised by Dr. Lawrence Kadeg in the diagnosis and treatment of Evan. A chest x-ray was ordered but no other tests, such as a white blood cell count, were ever performed on the two-year-old at Valley Medical Center. Kadeg examined Evan's chest xray but did not personally examine the child at any point. Evan was misdiagnosed by Goon and Kadeg as having pneumonia. In fact, Evan was suffering from bacteremia, a bacterial infection in his blood stream, which turned into pneumococcal meningitis over the next two days and ultimately resulted in severe permanent bilateral hearing loss. The Smiths' theory of the case was that if other tests had been performed on Evan while at Valley Medical Center's emergency room per the standard of care, Goon and Kadeg would likely have detected Evan's bacteremia.
In September 2002, Evan's parents, Nancy and Kieo Smith (Smiths), filed a medical malpractice action against Kadeg, Goon, and Associated Emergency Physicians, Inc., P.S. (collectively, Kadeg) alleging Kadeg failed to provide the accepted standard of care in treating the child and that his injuries were the direct result of that failure.
Kieo Smith withdrew as a co-plaintiff prior to the commencement of trial.
Chapter 7.70 RCW governs all civil actions for injuries resulting from health care provided. RCW 7.70.030 provides:
No award shall be made in any action or arbitration for damages for injury occurring as the result of health care which is provided after June 25, 1976, unless the plaintiff establishes one or more of the following propositions:
(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;
(2) That a health care provider promised the patient or his representative that the injury suffered would not occur;
(3) That injury resulted from health care to which the patient or his representative did not consent. Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by a preponderance of the evidence.
After an eleven day bench trial involving numerous expert witnesses, the trial court entered final judgment in favor of the Smiths. The trial court found Kadeg:
[N]egligent when they failed to follow the standard of care for an ill appearing infant of 3-36 months with a history of fever of 104.8 F to investigate or treat Evan for suspected bacteremia and (1) failed to give Evan Smith the parenteral antibiotic Ceftriaxone; or (2) order a white blood cell count, which would have shown an elevated [white blood cell count] and then injected Ceftriaxone. Further, the defendants breached the standard of care when they mistakenly diagnosed pneumonia and took no other steps to investigate or treat Evan for the risk of bacteremia. If Evan Smith had been given an injection of Cetriaxone at the [Valley Medical Center] on the morning of March 21, 2001, he more likely than not would not have gone on to develop meningitis, bilateral hearing loss, with its associated disabling effects. As a result, the negligence and professional malpractice of Dr. Kadeg and Mr. Goon was a proximate cause of Evan Smith's [injuries].
Judgment totaling approximately $2.9 million for Nancy Smith both individually and as Guardian Ad Litem was entered in January 2007. The trial court denied Kadeg's motion for reconsideration and/or a new trial. Kadeg timely appeals.
ANALYSIS
On appeal, Kadeg contends the trial court erred in excluding certain testimony regarding their professional conduct under ER 406. ER 406 provides:
Alternatively, Kadeg contends the excluded evidence should have been admitted as opinion evidence under ER 702.
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Under ER 406 relevant evidence is admissible to prove behavior in conformity with that habit on a particular occasion. Washington courts have found a broad range of conduct to rise to the level of habit. Courts consider the regularity of the behavior and the surrounding circumstances in determining whether particular conduct rises to the level of habit as it is "`the notion of the invariable regularity that gives habit evidence its probative force.'" In Meyers v. Meyers, the Supreme Court found testimony offered by a defendant about her standard business practices admissible, even though such behavior required some degree of conscious action as opposed to being a nearly involuntary or automatic response to given stimuli. Meyers involved a public notary who was permitted to testify it was her professional habit to always ask for identification before notarizing a document. Moreover, the Meyers court held the exclusion of such testimony to be reversible error.
ER 406; see Meyers v. Meyers, 81 Wn.2d 533, 503 P.2d 59 (1972).
State v. Thompson, 73 Wn. App. 654, 659 n. 4, 870 P.2d 1022 (1994) (quoting comment to ER 406); see also State v. Young, 48 Wn. App. 406, 739 P.2d 1170 (1989) (citing Breimon v. General Motors Corp., 8 Wn. App. 747, 752-54, 509 P.2d 398 (1973)).
Meyers, 81 Wn.2d 533.
Meyers, 81 Wn.2d at 538-39; see also Heigis v. Cepeda, 71 Wn. App. 626, 862 P.2d 12 (1993) (upholding evidence from insurance claims adjuster that it was her habit to advise claimants in double-claim situations that she represented an adverse party even though the adjuster had no memory of the particular transaction in dispute); State v. Maule, 35 Wn. App. 287, 667 P.2d 96 (1983) (upholding admission of testimony from a child abuse expert regarding her usual interviewing habits offered to prove that her interviews with victims in the case conformed to her usual professional practices).
However, not all behavior claimed as regular and consistent in similar circumstances has been held admissible as habit evidence under ER 406. For example, in Washington State Physicians Insurance Exchange Association v. Fisons Corporation the Supreme Court upheld the exclusion of a drug company sales representative's testimony regarding his typical business related conversations with physicians because such conduct did not rise to the level of habit. The Supreme Court defined habitual behavior in Fisons as "semiautomatic, almost involuntary and invariabl[y] specific responses to fairly specific stimuli."
122 Wn.2d 299, 858 P.2d 1054 (1993).
Fisons Corp., 122 Wn.2d at 325 (internal quotations and citations omitted).
Here, the excluded testimony does not meet the definition of habit evidence. The trial court has broad discretion in making its evidentiary rulings and we find it did not abuse this discretion, particular in light of our Supreme Court's most recent pronouncements on habit evidence found in Fisons.
Fisons Corp., 122 Wn.2d 299.
Neither the physician's assistant (Goon) nor the supervising doctor at the hospital (Dr. Kadeg) could recall treating Evan more than four years prior to trial. Both sought to testify as to their normal professional conduct, or, alleged habits, when treating a young child exhibiting symptoms like those of Evan's when he was brought into Valley Medical Center's emergency room. Further, Goon sought to testify as to what he meant, or what was his habitual behavior, with regard to his use of certain words he recorded in Evan's medical chart, especially the word "alert." This is the testimony Kadeg contends was the most critical evidence excluded from consideration at trial.
We note that Kadeg's testimony may have been admissible as relevant even if not admissible as habit evidence. Kadeg, however, did not object at trial nor appeal the evidence's exclusion on such a basis. Moreover, even if the proffered testimony's exclusion was error, its exclusion was harmless. Here, the testimony proffered was cumulative and unlikely to have a material impact on the result of the trial. Kadeg's own experts were allowed to testify as to what Evan's presenting condition at the hospital was based on their interpretation of his medical chart, including the word alert. Moreover, there is no evidence that the supervising physician, Dr. Kadeg, relied on Goon's unique but regular consistent use of certain words found in Evan's chart in the diagnosis and treatment of Evan.
Pursuant to ER 402, "[a]ll relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state." Evidence is relevant if it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401; see also Channel v. Mills, 77 Wn. App. 268, 890 P.2d 535 (1995).
State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
For the above reasons, we affirm.
We Concur.