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Flyte v. Summit View Clinic

Court of Appeals of Washington, Division 2

September 9, 2014

Kenneth Flyte, as Personal Representative and on Behalf of a Minor, Appellant ,
Summit View Clinic, Respondent

Page 567

Appeal from Pierce County Superior Court. Docket No: 11-2-05556-1. Judge signing: Honorable Garold E Johnson. Judgment or order under review. Date filed: 09/14/2012.

Lincoln C. Beauregard and Julie A. Kays (of Connelly Law Offices ); and Ashton K. Dennis (of Washington Law Center PLLC ), for appellant.

Elizabeth A. Leedom (of Bennett Bigelow Leedom PS ); and Mary H. Spillane (of Williams Kastner & Gibbs ), for respondent.

Authored by Thomas R Bjorgen. Concurring: Bradley A. Maxa, J. Robin Hunt.


Page 568

Bjorgen, A.C.J.

[183 Wn.App. 562] ¶ 1 Kenneth Flyte sued Summit View Clinic (Clinic) following the death of his wife, Kathryn, and their infant daughter, Abbigail.[1] Kathryn had visited the Clinic while feeling ill during pregnancy and died shortly after from the H1N1[2] influenza virus. Abbigail, delivered by caesarean section while Kathryn lay comatose, died some months later. Kenneth based his claim primarily on the fact that the clinic staff did not inform Kathryn about H1N1 or offer her Tamiflu, a drug often effective in treating the illness. A jury found by special verdict that the Clinic and its staff were not negligent and did not fail to provide informed consent, and the trial court denied Kenneth's subsequent CR 59 motion for a new trial.

¶ 2 Kenneth appeals, arguing that the trial court erred in denying the CR 59 motion because it improperly (1) admitted evidence of Kenneth's prior settlement with a different party, (2) instructed the jury concerning the prior settlement, (3) considered a juror's declaration concerning deliberations, and (4) instructed the jury as to the duty of informed consent. Because the trial court erred in admitting evidence of and instructing the jury about the prior settlement, and because its instruction on informed consent misstated the law, we reverse.


¶ 3 Kathryn began feeling ill on the evening of June 23, 2009, and visited the Clinic the morning of June 26. She was seven months pregnant. In the preceding months, the [183 Wn.App. 563] Clinic had received public health alerts from various authorities about a global pandemic of " swine flu," a potentially fatal illness caused by the H1N1 influenza virus. Although many of Kathryn's symptoms were consistent with influenza and the public health alerts recommended treating pregnant women prophylactically with a drug known as " Tamiflu," the clinic staff did not inform Kathryn about the pandemic or the available treatment. Ex. 5; Verbatim Report of Proceedings (VRP) (July 30, 2012) at 116-20, 129.

¶ 4 Kathryn's condition progressively deteriorated, and she received treatment from a number of different providers, including St. Joseph's Medical Center, part of the Franciscan Health System. Abbigail was delivered by caesarean section on June

Page 569

30, after Kathryn had been placed in a medically induced coma. Kathryn died on August 11, 2009, and Abbigail died on February 21, 2010.

¶ 5 Kenneth sued the Clinic personally, as representative of the estates of Kathryn and Abbigail, and as guardian of his son, Jacob, alleging (1) medical negligence for failing to test for H1N1 or administer Tamiflu prophylactically and (2) breach of the duty of informed consent for failing to inform Kathryn about the pandemic and the available treatment. During discovery, the Clinic learned that Kenneth had already settled with Franciscan for $3.5 million. The Clinic moved in limine for a ruling that evidence of the Franciscan settlement was admissible, requesting an instruction that the jury could use the evidence for the purpose of considering only whether Kenneth had already been fully compensated for his injuries. The trial court granted the motion.

¶ 6 During voir dire, a venire member disclosed that she worked in management at Franciscan. Kenneth sought to question the venire member about the settlement, but the Clinic objected and the court did not allow the question. Kenneth did not challenge the individual for cause, and she ultimately served on the jury as foreperson.

[183 Wn.App. 564] ¶ 7 At trial, the physician who saw Kathryn the day she visited the Clinic, William Marsh, M.D., testified that " influenza wasn't something I had been concerned about clinically [because] I'd ruled that out." VRP (July 30, 2012) at 85. Marsh admitted, however, that he had no recollection of the events independent of the notes he had made shortly after the exam. The notes reflect that Marsh's " assessment" after the visit was that Kathryn had an upper respiratory infection. Ex. 14; VRP (July 26, 2012) at 53. Marsh testified that the " assessment" that appears on the exam notes, which he also called a " working diagnosis," represents " what I think the most likely diagnosis is for the reason they came in." VRP (July 26, 2012) at 47, 52. Marsh's notes also contain the following caveat: " Chills and sweats[:] not sure where com[ ]ing from[. E]xam normal[.] If gets worse to go to ER." Ex. 14.

¶ 8 At the close of the trial, over Kenneth's objection, the trial court instructed the jury that " [a] physician has no duty to disclose treatments for a condition that may indicate a risk to the patient's health until the physician diagnoses that condition." Clerk's Papers (CP) at 159. Also over Kenneth's objection, the court gave the Clinic's proposed limiting instruction concerning Kenneth's settlement with Franciscan. Both parties' counsel discussed the Franciscan settlement in opening statements and closing arguments, and the Clinic cross-examined Kenneth concerning it. The jury found by special verdict that the Clinic was not negligent and did not fail to provide informed consent.

¶ 9 Kenneth moved for a new trial under CR 59, based largely on the trial court's admission of the Franciscan settlement evidence and the challenged jury instructions. After considering argument from the parties and a declaration submitted by the jury foreperson, the court denied the motion. Kenneth appeals.


¶ 10 Kenneth argues that the trial court erred in denying his motion for a new trial for three reasons: (1) it erroneously [183 Wn.App. 565] admitted evidence of Kenneth's settlement with Franciscan and issued an improper limiting instruction to the jury regarding that settlement, (2) it erred in considering declarations from jurors concerning the deliberations in ruling on the motion for a new trial, and (3) the jury instruction concerning informed consent misstated the law, effectively preventing Kenneth from arguing his theory of the case. Concluding that the trial court erred by admitting evidence of and instructing the jury concerning the Franciscan settlement and by incorrectly instructing the jury on the law of informed consent, we reverse. Resolving the appeal on these grounds, we decline to address Kenneth's remaining claims of error.

I. Standard of Review

¶ 11 Under CR 59(a) the court may vacate a verdict and grant a new trial for any one of the nine reasons listed in the rule, as long as it materially affects the substantial

Page 570

rights of a party. Among the nine reasons listed in CR 59(a) are:

(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial;
... .
(8) Error in law occurring at the trial and objected to at the time by the party making the application; or
(9) That substantial justice has not been done.

¶ 12 We generally will not reverse an order denying a motion for new trial absent abuse of discretion by the trial court. See Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000) ( ALCOA ). However, when, as here, the denial of a new trial is challenged based on an error of law, we review the denial de novo. See Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768, 818 P.2d 1337 (1991); CR 59(a).

[183 Wn.App. 566] ¶ 13 We also review jury instructions for errors of law de novo. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). Instructions are sufficient " 'when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.'" Anfinson, 174 Wn.2d at 860 (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). The absence of any of these elements establishes error in the instruction. Anfinson, 174 Wn.2d at 860. An erroneous instruction requires reversal, however, only if it prejudices a party. Anfinson, 174 Wn.2d at 860. If the instruction contains a clear misstatement of law, the reviewing court must presume prejudice, while the appellant must demonstrate prejudice if the instruction is merely misleading. Anfinson, 174 Wn.2d at 860.

II. Admission of Evidence of the Settlement with Franciscan

¶ 14 The trial court admitted evidence concerning Kenneth's settlement with Franciscan based on an opinion in which Division One of our court interpreted RCW 7.70.080 to allow such evidence. Diaz v. State, 161 Wn.App. 500, 251 P.3d 249 (2011), aff'd on other grounds, 175 Wn.2d 457, 285 P.3d 873 (2012). On review, our Supreme Court held such evidence inadmissible in an opinion issued in Diaz six days after the trial court denied Kenneth's motion for a new trial. Diaz, 175 Wn.2d 457. Thus, the parties do not dispute that the trial court erred in admitting the evidence and giving the accompanying instruction. The Clinic instead argues that the error did not prejudice Kenneth as a matter of law because the jury did not find negligence.

¶ 15 Kenneth makes two independent arguments regarding prejudice: (1) the settlement evidence was inherently prejudicial, particularly because a management-level employee of Franciscan served on the jury as foreperson and (2) the trial court's limiting instruction effectively commented [183 Wn.App. 567] on the evidence by suggesting that Kenneth may have already received sufficient compensation for the death of his wife and daughter. The Clinic counters that (1) Kenneth has waived any claim concerning the Franciscan employee by not challenging the juror for cause or making an adequate record of the reasons for a potential challenge and (2) the erroneous admission of settlement evidence could not have prejudiced Kenneth because the trial court instructed the jury to consider only the evidence as to the amount of compensation, and the jury, having found no negligence, did not reach the issue of damages. We hold that the limiting instruction did not cure the prejudice we must presume ...

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