Appeal from Superior Court of King County. Docket No: 92-2-28260-7. Date filed: 09/20/94.
Authored by Faye C. Kennedy. Concurring: Susan R. Agid, Ann L. Ellington.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Michael Corbett contends that the trial court erred in ordering summary judgment dismissing his claim of failure to obtain informed consent because he presented sufficient expert testimony to submit his claim to the jury. We agree, and reverse the court's order granting summary judgment to Virginia Mason Clinic. However, we reject Corbett's claim that he was entitled to summary judgment with respect to his claim of failure to obtain informed consent, and affirm the court's denial of Corbett's cross-motion for summary judgment. Corbett also contends that the trial court erred in denying his motion for judgment N.O.V. because the expert testimony presented at trial established that Ms. Treciokas violated the standard of care. We disagree, and affirm the trial court's denial of Corbett's motion for judgment N.O.V. Virginia Mason's request for an award of attorney fees under RAP 18.9(a) is denied.
On September 19, 1990, Michael Corbett went to Virginia Mason Clinic for a physical capacity evaluation (PCE). Corbett's PCE was conducted by Ona Treciokas, a physical therapist employed by Virginia Mason. As part of the intake procedure, Ms. Treciokas took Corbett's medical history.
Corbett informed her that he was a heavy smoker and that his cholesterol level was over 316. Ms. Treciokas took Corbett's blood pressure, which was 138 over 112, but did not inform him of the blood pressure reading.
During the course of the PCE, Ms. Treciokas recorded Corbett's complaints of left leg numbness and left hip pain onto a computerized summary report. Although Corbett testified that he also complained of tingling in his fingers, shortness of breath, light-headedness, and dizziness, none of these complaints appeared in Ms. Treciokas's report.
When the first half of Corbett's PCE concluded at 11:45 a.m., he was released for lunch, and walked to a nearby restaurant. After finishing his lunch, Corbett walked back to Virginia Mason and sat outside the clinic for five to ten minutes. While he was waiting for the PCE to resume, Corbett suffered a heart attack. He was taken to the emergency room at Virginia Mason and treated, and later underwent bypass surgery.
On December 4, 1992, Corbett filed a complaint against Virginia Mason, alleging that Ms. Treciokas negligently failed to obtain informed consent and negligently administered the PCE, proximately causing Corbett's heart attack. During discovery, Corbett disclosed the identity of numerous potential witnesses. In an attempt to narrow the scope of discovery, Virginia Mason brought a motion to limit the number of expert witnesses.
In response, Corbett listed his intended expert witnesses, specifying their fields of expertise. On March 5, 1994, Judge Steven Scott granted Virginia Mason's motion, essentially limiting Corbett to one expert witness on each disputed issue of the case. Of particular relevance to this appeal, the court ruled:
(2) Cardiac nurse Mr. Roderick is plaintiff's sole expert on informed consent and will be allowed to testify. Defendant may add a rebuttal witness on the informed consent issue. Mr. Roderick will also be allowed to testify regarding the pain of a heart attack. (3) Each party may call only one therapist on the issue of the standard of care.
David Roderick, Corbett's sole expert on informed consent, was deposed on April 20, 1994. During his deposition, Mr. Roderick indicated that he intended to testify as to the issue of informed consent, but that he held no opinion regarding the material risks of an ERGOS PCE. *fn1 Following Mr. Roderick's deposition, Corbett moved the court to reconsider its order limiting the number of experts. On May 3, 1994, Judge Scott denied Corbett's motion, noting that:
In his "Surreply to Defendant's Brief in Opposition to Plaintiff's Motion for Reconsideration" he states that "the court chose . . . Roderick . . ." as his informed consent expert and says, for the first time to this Judge that he would like to use Theodore Becker instead, setting forth, again for the first time, his reasons. The court only specified in its April 5, 1994 order what plaintiff's counsel represented at the time. Plaintiff's request to change his expert is not properly presented in a motion for reconsideration. If plaintiff wants to change from Roderick to Becker he may seek leave to do so by a separate motion. This court expresses no view on the merits other than to note that such a request appears to be rather late in the day.
Clerk's Papers at 99. Corbett's subsequent motion to change his expert on informed consent was denied by Judge Bates on June 1, 1994. Corbett does not appeal these rulings.
On May 17, 1994, Virginia Mason moved for summary judgment on the informed consent claim, contending that Corbett failed to provide the requisite expert testimony establishing that there was a material risk of the PCE of which Corbett was not informed. In response, Corbett filed a cross-motion for summary judgment on June 6, 1994. In support of his cross-motion, Corbett presented Mr. Roderick's declaration, which stated in pertinent part:
3. On the basis of my review of the above stated items it is my opinion the blood pressure reading of Mr. Corbett was abnormal and would require some action on the part of any responsible health care provider. I contend Ms. Treciokas had a duty to inform the patient of the abnormal reading and inform him to proceed with the ERGOS test would be a health risk. Or if Ms. Treciokas did not feel comfortable informing Mr. Corbett of the abnormality she should have 1) monitored Mr. Corbett closely and 2) contacted the physician to examine Mr. Corbett, prior to the test commencing.
4. Anyone with any level of experience in health care i.e., physical therapist, LPN, and nurses aide one would know that the reading of Mr. Corbett was abnormal and some action should be taken.
In fact anybody who has ever taken a blood pressure reading would know that Mr. Corbett's reading was abnormal and take some action.
However, it is my opinion, based on the length of time Ms. Treciokas had been a physical therapist should have known Mr. Corbett's blood pressure reading was a danger to him and would put him at high risk of a stroke or heart attack ...