Opinion
No. 26838-8-II c/w 27051-0-II
Filed: December 31, 2002 UNPUBLISHED OPINIONS
Appeal from Superior Court of Clark County, No: 97-2-00995-6 Judgment or order under review Date filed: 12/06/2000
Counsel for Appellant(s), Howard Mark Goodfriend, Attorney at Law, 701 5th Ave Ste 7170, Seattle, WA 98104-7044.
Catherine Wright Smith, Attorney at Law, 701 5th Ave Ste 7170, Seattle, WA 98104-7044.
Jeffrey B. Wihtol, Attorney at Law, 2121 S.W. Broadway Ste 150, Portland, OR 97201-3103.
Counsel for Respondent(s), Mary H. Spillane, Attorney at Law, 4100 Two Union Sq, 601 Union St, Seattle, WA 98101-2341.
Jeffrey Richard Street, Attorney at Law, 1000 S.W. Broadway Ste 2000, Portland, OR 97205-3072.
Counsel for Respondent/Cross-Appellant, Ruth Casby Rocker, Hoffman Hart Wagner, 1000 S.W. Broadway Ste 2000, Portland, OR 97205-3072.
Jeffrey Richard Street, Attorney at Law, 1000 S.W. Broadway Ste 2000, Portland, OR 97205-3072.
Gordon L. Welborn, Attorney at Law, 755 S.W. 7th St. Ste B, Redmond, OR 97756-2708.
The Bottemillers sued the otolaryngologist who operated on their six-year-old child and the orthodontist who referred her to the otolaryngologist, alleging against both defendants medical negligence and breach of informed consent. We hold that the trial court committed prejudicial error when it relied on the collateral source rule to exclude evidence about the Bottemillers' health insurance and further erred in giving an incorrect "different course of treatment" instruction to the jury. Consequently, we reverse the judgment in favor of the otolaryngologist on the informed consent claim. But we affirm the judgment in favor of the orthodontist, holding that because he did not participate in or control the surgery, he cannot be liable as a matter of law for breach of the duty of informed consent or for medical negligence.
FACTS
Tammy Bottemiller (Bottemiller) brought her six-year-old daughter Meghan to Gentle Dental for a routine examination and teeth cleaning. Concerned that Meghan's permanent teeth appeared crowded, the dentist who performed the examination suggested that they see Dr. Robert Gorder, an orthodontist at Gentle Dental.
Gorder examined Meghan and then suggested that she see an ear, nose, and throat doctor (otolaryngologist) for evaluation of her tonsils, adenoids, and airway. He gave Bottemiller the business card of Dr. Kelvin Lindgren, an otolaryngologist. Gorder's chart notes mentioned that Meghan had a tongue thrust and anterior open bite. The notes stated: "Tonsils adenoids out?" and "referred to Dr. K. Lindgren for eval of tonsil/adnoids." 9 Report of Proceedings (RP) at 1813; Exhibit 8.
A tongue thrust occurs when a person's tongue pushes forward during swallowing.
According to Gorder, he did not discuss future orthodontic work with Bottemiller. Bottemiller testified at trial that Gorder said it would be futile to provide Meghan with orthodontic treatment unless her tonsils were removed.
Two days later, Bottemiller took Meghan to see Lindgren, explaining that Gorder believed that Meghan needed to have her tonsils removed for orthodontic reasons. Lindgren examined Meghan's tonsils, stated that they did not look especially large, and said that he would "have to see where Dr. Gorder was coming from." 9 RP at 1225. Bottemiller left the office with the understanding that Lindgren would speak with Gorder and that she would call Lindgren in three to four days.
Gorder noted that Meghan's tonsils were 3+ in size.
Lindgren noted in Meghan's medical chart that she suffered from "ear infection, two months two years" and that she had been "mouth breathing nearly constantly." 14 RP at 2595. At trial, he claimed that he received this information from Bottemiller. But Bottemiller testified that she did not tell Lindgren about Meghan's medical history or that Meghan had been suffering from recent ear infections.
Lindgren also wrote: "question mark, need for adenoidectomy, talk to Dr. Gorder." 14 RP at 2590. At trial, Lindgren testified that he wanted to speak with Gorder about possible developmental or ongoing problems related to orthodontia, but neither doctor could recall their conversation. Lindgren believed that they agreed that Meghan's tonsils should be removed.
Lindgren later wrote to Gorder that Meghan "had recurrent episodes of otitis media [ear infections] occurring on a bi-monthly basis for the past two years with less frequent sore throats." Exhibit 8. He also stated, "I feel that this patient is a candidate for a tonsillectomy and adenoidectomy for two reasons: the recurrent ear infections and the airway obstruction which would increase her chances of orthodontic success." Exhibit 8.
When Bottemiller contacted Lindgren several days later, he recommended the surgery. The parties disagreed as to whether Lindgren discussed alternatives to surgery or provided medical reasons, other than future orthodontic work, for surgery. Bottemiller testified that she believed that Lindgren was going to perform the tonsillectomy for orthodontic reasons.
Lindgren's office contacted the Bottemillers' health insurance company for precertification for a tonsillectomy and adenoidectomy. The intake form created by the insurance company described Lindgren's diagnosis as chronic tonsillitis with symptoms of mouth breathing, "chronic inf[ection] every 2 mo[nths] x 2 y[ea]r any antibiotic." Exhibit 16. It did not mention any orthodontic concerns. The insurance company approved the surgery.
On March 31, 1995, Lindgren removed Meghan's tonsils in what appeared to be a normal surgery. But a few nights later, Meghan began vomiting blood and collapsed. The paramedics could not stop the bleeding, and Meghan went into hypovolemic shock — her body stopped functioning because of the significantly low amount of blood in her body. She then went into cardiac/respiratory arrest and sustained brain damage as a result of oxygen deprivation. Meghan now requires round-the-clock care and is unable to talk, eat, or clothe herself. She has very little voluntary movement, is fed through a feeding pump, and must wear a plastic "clamshell" from her shoulders to her pelvis to counteract scoliosis caused by muscle spasms. 5 RP at 1042.
The Bottemiller family sued Lindgren for medical negligence, arguing at trial that he lacked sufficient medical reasons to recommend or perform Meghan's surgery. They also alleged at trial that he breached the duty of informed consent by (1) recommending a tonsillectomy for purely orthodontic reasons, without informing the Bottemillers that there was no medical reason for the surgery; and (2) failing to tell them that they could reevaluate the situation in a few months as an alternative to surgery.
The family also sued Gorder for (1) medical negligence, claiming at trial that he improperly recommended surgery for purely orthodontic reasons; and (2) breach of the duty of informed consent, claiming at trial that he failed to explain the risks and benefits of the surgery, the alternatives to surgery, and the controversy among orthodontists regarding the orthodontic benefit of tonsillectomies.
The Bottemillers also sued Gentle Dental Service Corporation, dba Gentle Dental; Tse, Saiget, Watanabe McClure, Inc., P.S., dba Gentle Dental; and InterDent, Inc., dba Gentle Dental, alleging that they were jointly and severally liable for their damages. The court dismissed the action against InterDent post-trial and entered judgment in favor of Gorder, Gentle Dental Service Corporation, and Tse, Saiget, Watanabe McClure, Inc.
The jury found for Lindgren on the informed consent claim and for Gorder on both claims, but was unable to reach a verdict on the medical negligence claim against Lindgren. The Bottemillers appeal, assigning error to evidentiary rulings, jury instructions, the post-trial denial of discovery of an agreement between Lindgren and his insurer, and the trial court's denial of their motion for a new trial and its refusal to recuse itself following the mistrial. In addition, they ask this court to remand the matter to a different trial court judge following appeal if we reverse and remand. Gorder cross-appeals, contending that even if there was reversible error at trial, he was entitled to a directed verdict on the informed consent claim.
The Bottemillers alleged that the trial court engaged in ex parte contacts but they did not provide this court with any analysis to support their assignments of error regarding recusal or the motion for a new trial. Thus, we do not consider these issues. RAP 10.3(a)(5); Saldin Sec., Inc. v. Snohomish County, 134 Wn.2d 288, 297-98 n. 4, 949 P.2d 370 (1998).
DISCUSSION I. Evidentiary Rulings A. The Bottemillers' Health Care Insurance
The Bottemillers assign error to the trial court's exclusion of evidence about their health insurance policy with PACC HealthPlan (PACC).
They sought to introduce evidence that PACC would not pay for tonsillectomies performed solely for orthodontic purposes.
The Bottemillers offered and the court refused Exhibit 17, PACC's guidelines, and Exhibits 15, 16, and 18, documents that referenced Lindgren's diagnosis of tonsillitis. The Bottemillers contend that the court's rulings prevented them from impeaching Lindgren's and Gorder's testimony and from offering evidence of Lindgren's financial incentive to make inconsistent chart notes and to misstate Meghan's medical history.
Exhibit 16 is a handwritten intake form created by PACC when Lindgren's office phoned in a precertification request for Meghan's surgery. Exhibit 15, a precertification inquiry, is essentially a typed version of the intake form. Exhibit 17 is PACC's guidelines for approving tonsilloadenoidectomies. Exhibit 18 is PACC's approval form for Meghan's surgery.
Lindgren responds that the trial court properly excluded this evidence based on the collateral source rule and because it was speculative and prejudicial. He also argues that the Bottemillers failed to lay a proper foundation for the evidence and, further, that any error in excluding it could not have affected the verdict as to the informed consent claim. Gorder similarly contends that this ruling did not affect the jury's verdict in his favor and that there is no evidence that he knew of the precertification process or of Lindgren's alleged falsification of Meghan's medical history.
Lindgren moved in limine to exclude evidence about the precertification code that PACC assigned to Meghan's surgery, asserting that it was irrelevant, prejudicial, and collateral to the issues in the case. The trial court granted Lindgren's motion as to Exhibit 17, PACC's guidelines, and as to documents that Lindgren "had no control in creating and no opportunity to respond to[.]" 3 Clerk's Papers (CP) at 356. But the court reserved ruling on documents that Lindgren had control in creating, received, or "had an opportunity to respond to," requiring the Bottemillers to lay a proper foundation at trial. 3 CP at 356.
In his motion, Lindgren stated that his office assigned the following diagnosis codes to Meghan's condition: 474.1 (hypertrophic tonsils or adenoids) and 474.10 (hypertrophic tonsils and adenoids). He also stated that the PACC intake form (Exhibit 16) inexplicably contained 474.0, a diagnostic code for chronic tonsillitis, and PACC's approval of surgery notice (Exhibit 18) also contained the 474.0 code.
The Bottemillers did not oppose exclusion of Exhibit 17, the PACC guidelines, in their response to the motion. But they included it in their offers of proof at trial.
At trial, the Bottemillers sought to impeach Lindgren with evidence of his financial interest in falsifying Meghan's medical history by introducing evidence that PACC required a showing of medical necessity before it would pay for a tonsillectomy. To support this evidence, they made five separate offers of proof.
In offers of proof 1, 3, and 4, the Bottemillers called three otolaryngologists. They testified that in 1995, it was common knowledge among Washington surgeons that insurance companies required medical necessity for coverage, that insurance companies would not pay for services if medical records did not contain adequate indications of medical necessity, and that insurance companies would occasionally request medical records to verify medical necessity before and after precertification.
A former PACC vice president testified in offer of proof 2 that under PACC's guidelines (Exhibit 17), PACC would not approve tonsillectomies or adenoidectomies for future orthodontic benefit because this was not considered medically necessary. The PACC vice president also testified that PACC relied on information provided by doctors and their staff when creating telephonic precertification intake forms, such as Exhibit 16.
In offer of proof 5, the Bottemillers called Lindgren. He testified as follows:
Q: And in general, if a procedure is not medically necessary, whether it's for cosmetic or any other reason, if it's not medically necessary, it won't be covered under a policy of health insurance; is that your experience?
A: Correct.
14 RP at 2668.
Lindgren objected to all evidence regarding PACC's coverage of the medical procedure at issue. He argued lack of foundation, lack of relevance, unfair prejudice, collateral source, and speculation.
The trial court excluded the evidence on grounds that it was speculative and prejudicial, and raised collateral source rule concerns. The Bottemillers continued to move to admit this evidence throughout the trial, later arguing that subsequently admitted evidence mentioned insurance and therefore their proffered evidence was not prejudicial. The trial court denied their later motions without further elaboration.
The trial court stated:
[W]hen we are talking financial reimbursement or earnings, benefit, or we're talking misstatements, misdiagnosis or whatever. The concern is, is that I want to keep the financial away from the trier of fact. . . . My concern as it relates to collateral source is the health insurance, period. 3 RP at 609.
We review an order excluding evidence for an abuse of discretion, i.e. is the ruling manifestly unreasonable or based on untenable grounds. Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992). The trial court may exclude evidence if the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence substantially outweigh its probative value. Hizey, 119 Wn.2d at 268; ER 403.
The premise of the collateral source rule is that injured parties should be able to recover compensatory damages from tortfeasors without regard to payments received from other sources. Johnson v. Weyerhaeuser Co., 134 Wn.2d 795, 798, 953 P.2d 800 (1998).
Because of the danger that the jury might use evidence of the plaintiff's receipt of insurance proceeds for an improper purpose, such evidence is generally inadmissible at trial. Cox v. Spangler, 141 Wn.2d 431, 440, 5 P.3d 1265, 22 P.3d 791 (2000) (receipt of industrial insurance benefits properly excluded because its alleged relevance outweighed by prejudicial effect).
The collateral source rule, however, does not prevent the admission of evidence merely because it involves insurance. Here, evidence that Meghan had insurance coverage would have been detrimental to the Bottemillers' case if offered to show the availability of collateral benefits. But the Bottemillers did not offer this evidence to harm their own case; rather they sought to prove Lindgren had a financial interest in falsifying Meghan's medical condition so as to make her eligible for coverage. Because the collateral source rule did not apply to these facts, it did not support the exclusion of evidence about Meghan's health insurance coverage.
Nor do we see a basis to exclude the evidence as speculative. At trial, Lindgren argued that there was no evidence that he knew of PACC's guidelines or procedures. But the PACC vice president in her offer of proof explained that intake forms (Exhibit 16) are produced using information from the doctors' offices and that PACC provides its guidelines (Exhibit 17) and policy regarding medical record requests to the doctors' offices. Further, three otolaryngologists testified that it was common knowledge among Washington surgeons at the time of Meghan's precertification that insurance companies required a showing of medical necessity. This evidence was sufficient to support an inference that Lindgren was aware of PACC's coverage limitations. Thus, the proffered evidence was not speculative.
Further, the evidence about PACC's coverage limitations was highly probative of the Bottemillers' theory of why Lindgren's chart notes did not coincide with what Bottemiller said she told him about Meghan's medical history. We fail to see how the fact that a patient has insurance coverage for a medical condition would inflame the jury or cause it to decide the case on an improper basis. Evidence of Lindgren's alleged financial motive to falsely chart Meghan's health history was highly relevant to the Bottemillers' claim that Lindgren did not have an adequate reason for recommending the surgery and that he did not obtain their informed consent. Thus, the probative value of this evidence outweighed any possible prejudice it presented and the trial court erred in excluding it.
Because the error in excluding the evidence clearly prejudiced the Bottemillers' ability to present their theory as to informed consent, we must reverse the judgment in favor of Lindgren on that claim.
As we explain in our discussion below regarding Gorder's cross-appeal, Gorder, as a referring physician, did not have a duty with regard to the informed consent claim. Thus, the error in excluding the health insurance evidence does not require reversal of the judgment in his favor.
Nor does this error support reversal of the judgment in favor of Gorder on the medical negligence claim, which was premised on an improper course of treatment theory. Because Gorder, as a referring physician, did not select or control Meghan's course of treatment, the Bottemillers have failed to prove either that he had a duty to select the proper course of treatment or that his conduct was the proximate cause of Meghan's injuries. And evidence that Lindgren may have provided false information to obtain insurance coverage for Meghan does not prove that Gorder negligently selected an inappropriate course of treatment for her. Thus, we also affirm the judgment for Gorder on the medical negligence claim.
B. Therapy Services Provided By the Public School
The Bottemillers challenge the trial court's admission of evidence about Meghan's receipt of possible future free therapy services at her school. They contend this is improper collateral source evidence.
The Bottemillers presented evidence about Meghan's past and current receipt of free therapy services. The defense then introduced evidence that such services were potentially available to Meghan throughout high school. After their objection was overruled, the Bottemillers then presented additional evidence showing that continued funding for these services was uncertain.
In actions for injuries resulting from health care, RCW 7.70.080 replaces the common law collateral source rule. Mahler v. Szucs, 135 Wn.2d 398, 412 n. 4, 957 P.2d 632, 966 P.2d 305 (1998). RCW 7.70.080 states in pertinent part:
The Bottemillers argue that under Cox v. Spangler, 141 Wn.2d 431, 5 P.3d 1265, 22 P.2d 791 (2000), the collateral source rule controls the admission of the therapy benefits evidence. But Cox is inapplicable because it involves industrial insurance benefits.
Any party may present evidence to the trier of fact that the patient has already been compensated for the injury complained of from any source except the assets of the patient, his representative, or his immediate family, or insurance purchased with such assets. . . . Compensation . . . shall mean payment of money or other property to or on behalf of the patient, rendering of services to the patient free of charge to the patient, or indemnification of expenses incurred by or on behalf of the patient.
The statute's goal is to prevent overcompensating plaintiffs by allowing evidence of third party compensation to the plaintiff for injuries caused by defendants, thereby limiting unnecessary costs on society and higher insurance premiums. Adcox v. Children's Orthopedic Hosp. Med. Ctr., 123 Wn.2d 15, 40, 864 P.2d 921 (1993) (error to not allow jury to hear evidence offered by defendant hospital of collateral resources that may have been available to mitigate damages, such as school district programs).
Under RCW 7.70.080, Meghan's receipt of free therapy benefits since her return to school in 1995 was admissible. But there is no statutory basis to introduce evidence about potential collateral resources that might be available to mitigate damages in the future. Thus, on remand, the trial court should exclude this evidence unless the defense provides alternative authority.
II. Jury Instructions
The Bottemillers assign error to the trial court's "no guarantee" instruction 16, "after acquired evidence" instruction 17, and "different course of treatment" instruction 18. Br. of App. at 26. They excepted to each of these instructions at trial. The Bottemillers argue that these instructions undermined their ability to argue their theory of the case, contradicted the court's proper instructions, and unfairly commented on the evidence.
We review jury instructions to determine whether they (1) allow parties to argue their theories of the case; (2) do not mislead the jury; and (3) when read as a whole, properly inform the jury of the applicable law. Hue v. Farmboy Spray Co, Inc., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). .
We review errors of law in jury instructions de novo; an instruction's erroneous statement of the applicable law is reversible error if it prejudices a party. Hue, 127 Wn.2d at 92.
A. "No Guarantee" Instruction
Instruction 16, based on Washington Pattern Instruction 105.07, states:
A physician does not guarantee a good medical result. A poor medical result is not, in itself, evidence of any wrongdoing by the physician.
4 CP at 503.
The Bottemillers excepted to instruction 16 at trial, contending that (1) whether there was a guarantee was not at issue; (2) the instruction was unnecessary, potentially misleading, and confusing; and (3) wrongdoing was not at issue. In addition, for the first time on appeal, they maintain that the instruction erroneously used the word "wrongdoing," rather than "negligence." Br. of App. at 32. We do not consider the latter claim because the Bottemillers did not raise it at trial. See Christensen v. Munsen, 123 Wn.2d 234, 248, 867 P.2d 626 (1994). We do note, however, that the Washington Supreme Court approved an instruction containing language nearly identical to that used in instruction 16. See Watson v. Hockett, 107 Wn.2d 158, 164, 727 P.2d 669 (1986) (instruction uses the word "doctor" instead of "physician").
The Washington Supreme Court Committee on Jury Instructions made two clarifying amendments to WPI 105.07, changing "in itself" to "by itself" and "wrongdoing" to "negligence." It now reads: "A poor medical result is not, by itself, evidence of negligence. A [fill in type of health care provider] does not guarantee the results of his or her care and treatment." 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.07 (3d ed. 1994).
The Bottemillers contend that the evidence did not support giving this instruction because they were not claiming injury based on a surgical error in performing the tonsillectomy. Thus, they argue, an instruction about a "no guarantee/poor result" was inappropriate. Br. of App. at 33.
Whether to give a "no guarantee/poor result" instruction is within the trial court's discretion. Christensen, 123 Wn.2d at 248. This instruction is "particularly appropriate where the jury has heard evidence or argument from which it might reach an improper conclusion that doctors guarantee good results or can be found negligent merely because of a bad result." Watson, 107 Wn.2d at 164.
This instruction properly advised the jury not to base its decision on the surgery result and it followed proper standard of care instructions. See Christensen, 123 Wn.2d at 248 (not error to give "no guarantee" instruction if used to supplement a proper standard of care instruction).
Because the evidence in this case was susceptible of a misunderstanding by the jury, the trial court did not abuse its discretion in giving instruction 16 to clarify the law.
B. "After Acquired Knowledge" Instruction
The Bottemillers excepted to instruction 17 at trial as being argumentative, a comment on the evidence, misleading, and an incorrect statement of the law. They also argued that the instruction's use of the term "ordinary care" was misleading and not applicable because the proper standard of care is that of a reasonable, prudent, and competent health care provider. 15 RP at 2786.
Instruction 17 stated:
A physician is not to be judged in the light of any after acquired knowledge in relation to the case, and the question of whether or not reasonable care and skill was exercised as defined in these instructions is to be determined by reference to what is known in relation to the case at the time of treatment or examination, and must be determined by reference to the pertinent facts then in existence of which were known or in the existence or with ordinary care should have been known.
4 CP at 504.
For the first time on appeal, the Bottemillers maintain that this instruction was improper because its negative phrasing, "a physician is not to be judged . . .," could have encouraged the jury to refuse to link Meghan's injuries with the defendants' earlier breach of the standard of care. Because the Bottemillers did not object below to the negative language of the instruction, we will not consider this claim. See Christensen, 123 Wn.2d at 247.
The Bottemillers also argue that the instruction incorrectly referred to "ordinary care" rather than to "the exercise of reasonably prudent care," contending that this misstated the applicable standard for the defendants' conduct. Br. of App. at 34-35.
Instructions 8, 12, and 13 instructed the jury on the applicable standard of care and provided adequate guidance. Thus, looking at the instructions as a whole, this instruction was not misleading and did not prevent the Bottemillers from arguing their theory of the case. Consequently, the trial court did not err in giving it.
C. "Different Course of Treatment" Instruction
The Bottemillers excepted to instruction 18 at trial, stating that (1) it was a misstatement of the law; (2) there was no need to instruct on this issue because the experts were not allowed to discuss during trial the course of action that they would have followed; and (3) a disagreement between experts could establish negligence, and thus, the instruction essentially directed a verdict for defendants. They argue on appeal that instruction 18 prevented the jury from finding a breach of the standard of care based on substantial expert evidence because it stated that expert disagreement did not establish negligence.
Instruction 18 stated:
The testimony of other physicians in the same school of practice that they would have followed a different course of treatment than that followed by the defendant, or a disagreement of doctors of equal skill and learning in the same field of practice as to what the treatment should have been, does not in itself establish negligence.
4 CP at 505.
Expert testimony regarding a different course of treatment and a disagreement among experts regarding appropriate treatment may or may not establish negligence. Ketchum v. Overlake Hosp. Med. Ctr., 60 Wn. App. 406, 412-13, 804 P.2d 1283 (1991) (quoting Denesia v. St. Elizabeth Cmty. Health Ctr., 235 Neb. 151, 167, 454 N.W.2d 294 (1990)). In Ketchum, the appellate court reversed a verdict for the defendant hospital finding that the giving of an instruction similar to instruction 18 was prejudicial error; the instruction provided in pertinent part:
The testimony of other health care providers that they would have followed a different course of treatment, or disagreement between health care providers as to what the treatment should have been, is not enough to establish negligence.
Ketchum, 60 Wn. App. at 409.
The Ketchum Court found that the instruction was not a complete or neutral statement of the applicable law and that it came close to commenting on the evidence because it implied that such testimony could never establish negligence. 60 Wn. App. at 412. Similarly, instruction 18 misstates the law by incorrectly suggesting that contradictory expert testimony cannot establish negligence and, thus, it was error to give it. See Ketchum, 60 Wn. App. at 412-13.
III. Jury Issues
The Bottemillers contend that the trial court violated their right to a fair trial when, as we explain below, it questioned the presiding juror ex parte during deliberations regarding the jury's progress. They also argue that their right to a fair trial was violated when the trial court allegedly failed to give the reconstituted jury an express and unambiguous instruction to disregard prior deliberations under CR 47(b).
Because, as we discuss below, Gorder is not liable as a matter of law, and further because these issues are not likely to reoccur on remand, we do not address them.
IV. Post-Trial Discovery of Lindgren's Agreement with His Insurer
Following the mistrial on the medical negligence claim and unsuccessful post-trial mediation, the Bottemillers moved to compel disclosure of an agreement between Lindgren and his malpractice insurer and disclosure of a letter addressed to the court explaining the resolution of ambiguities contained in the agreement. The mediator had disclosed to the Bottemillers' counsel that Lindgren had reached an agreement with his insurer regarding his bankruptcy, his assignment of bad faith, and other terms. The letter discussed the agreement and identified persons whose names appeared in it.
The court ordered Lindgren to submit a copy of the agreement for in camera review, but then denied the Bottemillers' disclosure motion as to the agreement; it did, however, order Lindgren to produce the letter. Citing CR 26(b)(2)(ii), the Bottemillers contend that the trial court erred when it refused to order disclosure of the agreement because it affects the amount that Lindgren's insurer will pay in the event of an excess judgment.
CR 26(b)(2), which governs discovery of insurance agreements, states:
A party may obtain discovery and production of: . . . (ii) any documents affecting coverage (such as denying coverage, extending coverage, or reserving rights) from or on behalf of such person to the covered person or the covered person's representative.
We review a trial court's denial of a motion to compel discovery for an abuse of discretion. Hertog v. City of Seattle, 88 Wn. App. 41, 47, 943 P.2d 1153 (1997). Our review of the agreement between Lindgren and his insurer reveals that it does not contain information affecting Lindgren's medical malpractice coverage within the meaning of CR 26(b)(2)(ii). Rather, it focuses on the resolution of unrelated issues. Thus, the trial court did not abuse its discretion when it denied the Bottemillers' motion to compel.
V. Gorder's Motion for Judgment as a Matter of Law
Gorder cross-appeals, arguing that the trial court erred when it denied his motion for a directed verdict on the informed consent claim. He argues that he did not perform the treatment that forms the basis of the Bottemillers' suit and, thus, the requirements of RCW 7.70.050, the informed consent statute, do not apply to him. Gorder also contends that the Bottemillers are attempting to impose a new obligation upon health care providers who refer patients to specialists for further evaluation.
Although Gorder uses the term "directed verdict" in his brief, we refer to his motion as a motion for judgment as a matter of law. See Litho Color, Inc. v. Pac. Employers Ins. Co., 98 Wn. App. 286, 298 n. 1, 991 P.2d 638 (1999) (effective September 17, 1993, motions for a directed verdict were renamed "motions for judgment as a matter of law").
A. Standard of Review
CR 50(a)(1) governs motions for judgment as a matter of law and states in pertinent part:
If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim, counterclaim, cross claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue.
We review a trial court's denial of a motion for a judgment as a matter of law by applying the same standard as the trial court. Hizey, 119 Wn.2d at 271-72 (quoting Industrial Indem. Co. of the Northwest, Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990)). A trial court should grant such a motion only when it is clear that the evidence and reasonable inferences, viewed in the light most favorable to the nonmoving party, are insufficient to sustain a verdict for the nonmoving party. Hizey, 119 Wn.2d at 271-72 (quoting Kallevig, 114 Wn.2d at 915-16).
B. Informed Consent
A patient may recover for a doctor's failure to provide informed consent even if the medical diagnosis or treatment was not negligent. Backlund v. Univ. of Washington, 137 Wn.2d 651, 663, 975 P.2d 950 (1999).
The basis for such a claim is that patients have the right to make decisions about their medical treatment. Backlund, 137 Wn.2d at 663.
To prove that a health care provider breached the duty to secure informed consent, a plaintiff must show that: (1) the health care provider failed to inform the patient of a material fact relating to the treatment; (2) the patient consented to treatment without being aware of or fully informed of such material fact; (3) a reasonably prudent person under similar circumstances would not have consented to the treatment if informed of such material fact; and (4) the treatment in question proximately caused injury to the patient. RCW 7.70.050. Gorder contends that because he did not perform the treatment in question, the tonsillectomy and adenoidectomy, he did not have an obligation to obtain the Bottemillers' informed consent. He further contends that Lindgren, the treating physician, had this duty.
The Bottemillers contend that the statute does apply to Gorder because he made a diagnosis and recommended treatment for Meghan's tongue thrust and open bite by referring her to Lindgren for a tonsillectomy. They also assert that Gorder provided Lindgren with orthodontic reasons for performing the tonsillectomy when Lindgren contacted him.
Before obtaining patient consent for treatment, physicians must inform patients of the risks of treatment. Smith v. Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983). The duty to disclose does not arise until a physician becomes aware of the condition by diagnosing it. Gustav v. Seattle Urological Assoc., 90 Wn. App. 785, 790, 954 P.2d 319 (1998).
Health care providers do not have equal informed consent obligations. Alexander v. Gonser, 42 Wn. App. 234, 238, 711 P.2d 347 (1985) (patient's privately retained physician, not hospital, had duty to inform patient of test results). And the majority of jurisdictions that have addressed whether referring physicians have a duty to obtain a patient's informed consent have concluded that they do not. See Logan v. Greenwich Hosp. Assoc., 191 Conn. 282, 465 A.2d 294, 306 (1983) (referring physician had no obligation to inform patient of alternative procedures); Stovall v. Harms, 214 Kan. 835, 522 P.2d 353, 359 (1974) (in the absence of unusual circumstances a general practitioner who referred a patient to a psychiatric specialist had no duty to advise patient of risks and dangers incident to psychiatric treatment); Davis v. St. Charles Gen. Hosp., 598 So.2d 1244, 1246 (La.Ct.App. 4 Cir. 1992) (only the medical professional actually performing the procedure, not the referring physician, must provide informed consent); Herrara v. Atlantic City Surgical Group, 277 N.J. Super. 260, 649 A.2d 637, 641 (1994) (treating physician, not referring physician, had duty to explain options and risks involved in course of treatment); Shaw v. Kirschbaum, 439 Pa. Super. 24, 653 A.2d 12, 17 (1994) (referring physician has no duty to provide information to patient to aid patient in giving informed consent to surgeon); Johnson v. Whitehurst, 652 S.W.2d 441, 445 (Tex. 1st Dist. 1983) (doctor who did not participate in surgery had no duty to inform appellant of possible risks and complications).
Where courts have imposed a duty on referring physicians to obtain a patient's informed consent, the referring physician has retained a degree of participation and control in that treatment. See O'Neal v. Hammer, 87 Haw. 183, 953 P.2d 561, 567 (1998) (vacating directed verdict for orthodontist on informed consent claim when orthodontist retained degree of participation by way of control, consultation, and otherwise); Prooth v. Wallsh, 432 N.Y.S.2d 663, 665 (N.Y.Sup.Ct. 1980) (physician who refers patient to another physician and retains a degree of participation, by way of control, consultation or otherwise, has responsibility to properly advise patient with respect to the treatment to be performed by the referred physician); but see Nisenholtz v. Mt. Sinai Hosp., 483 N.Y.S.2d 568, 573 (N.Y.Sup.Ct. 1984) (referring physician should be held liable to obtain informed consent only when ordering a procedure or participating in the treatment or procedure).
Here, even under the minority rule, there is insufficient evidence that Gorder recommended, participated in, or controlled Meghan's tonsillectomy and adenoidectomy. Viewing the evidence in the light most favorable to the Bottemillers, Gorder noted Meghan's enlarged tonsils during her appointment, stated that he would not perform orthodontic work until her tonsils were removed, and referred her to Lindgren for evaluation of her tonsils. Gorder later discussed with Lindgren the potential for further orthodontic procedures or deformities as a result of mouth breathing.
There is no evidence that Gorder had a particular plan for Meghan's future orthodontic treatment, that he diagnosed tonsillitis, that he prescribed or scheduled surgery, or that he recommended surgery to the Bottemillers. Gorder's practice was to refer patients to otolaryngologists for evaluation, leaving the decision about whether to proceed with surgery to the otolaryngologists because they are experts in tonsils and adenoids. Further, Lindgren testified that he ordered the surgery based upon his professional judgment and would not have performed it merely because an orthodontist requested it.
Lindgren testified:
I decided to recommend the surgery on my own, with information from Dr. Gorder. . . . I'm not going to have somebody tell me when I — when I do surgery. 14 RP at 2601.
If they [patients] come in on their own or whether they're sent, I have to use my own acumen to decide whether or not they've got a problem that needs medical or surgical treatment. 13 RP at 2523.
Because Gorder did not participate in or control Meghan's surgery, he did not have a duty to inform the Bottemillers that experts disagreed as to the orthodontic benefit of tonsillectomies and adenoidectomies or of alternatives to surgery. Thus, Gorder was entitled to judgment as a matter of law on the informed consent claim.
VI. Remand to a Different Trial Court Judge
Finally, the Bottemillers request that we assign this case to a different trial court judge on remand. They contend that the trial court engaged in ex parte contacts when it spoke with the presiding juror and when it considered Lindgren's letter and related agreement with his insurer, arguing that these contacts raise significant issues of impartiality and violated Canon 3(A)(4) of the Code of Judicial Conduct.
CJC Canon 3(A)(4) states in pertinent part: "Judges should . . . except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." The comment to this canon states that the "proscription against communications concerning a proceeding includes communications from lawyers[.]" Canon 3(A)(4) cmt. Canon 3(A)(4) also prohibits a judge from personally investigating a case. See Sherman v. State, 128 Wn.2d 164, 205, 905 P.2d 355 (1995) (trial judge violated Canon 3(A)(4) when, as part of a review of resident's termination from state anesthesiology residency program, he directed extern to contact physicians charged with monitoring residents' chemical dependency for information about the monitoring process). Further, CJC Canon 3(D)(1) provides that judges should disqualify themselves in proceedings where a reasonable person might reasonably question their impartiality. See Sherman, 128 Wn.2d at 205-06. To evaluate this, we apply an objective test assuming that "a reasonable person knows and understands all the relevant facts." Sherman, 128 Wn.2d at 206 (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).
In this case, the judge spoke privately with the presiding juror on the third day of deliberations after one of the jurors fell ill and was dismissed. At the request of Lindgren's counsel, the judge asked the presiding juror whether the jurors had reached agreement on questions one, three, and five. The presiding juror disclosed the vote on questions one and three and informed the court that the jury was still working on question five. The trial court then told the presiding juror that the jury would have to start with "Question Number 1 one more time . . . they'll have to start with 1, 2, 3, 4, and proceed on." 16 RP at 2987.
The trial court initially denied this request, stating:
. . . I have a concern about bringing Mr. Roseberry in and asking Mr. Roseberry as relates to the current vote, considering that I believe that the jury has to begin anew. So I will deny that request. 16 RP at 2978.
When the trial court later asked the Bottemillers' counsel whether he objected to polling Roseberry, counsel said that he did object.
The other allegedly questionable contact was the judge's reading of Lindgren's letter and agreement with his insurer. But the letter merely identified persons whose names appeared in the agreement and summarized the effect of the various documents comprising the agreement.
Neither of these contacts appear to violate Canon 3(A)(4). There is no allegation that the trial judge personally investigated anything related to this case or otherwise behaved in a way that raised questions as to his impartiality. Although it would have been preferable to handle the communications with the presiding juror in the presence of the entire panel, this communication was on the record, was part of the court's management of the case, and did not interfere with the judge's impartiality. Thus, we do not find it necessary to assign this case to a different judge on remand.
In sum, the trial court erred in admitting evidence of future school therapy benefits and in giving an improper "different course of treatment" instruction. And the trial court committed reversible error with respect to the informed consent claim against Lindgren by excluding evidence of the Bottemillers' medical insurance.
Accordingly, we reverse and remand for a new trial against Lindgren on the informed consent claim. We grant Gorder's cross appeal, finding that he was entitled to judgment as a matter of law on the informed consent claim, and we affirm judgment for Gorder on the medical negligence claim. . .
We also find no trial court error in denying the Bottemillers' motion to compel. Finally, as we find no evidence of trial court bias, we decline to remand this case to a different trial court judge.
Accordingly, we affirm in part and reverse in part.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT C.J., and BRIDGEWATER, J., concur.