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Dunnington v. Virginia Mason Medical Center

Supreme Court of Washington, En Banc

February 2, 2017


          JOHNSON, J.

         This case involves a medical malpractice action for a lost chance of a better outcome. The parties jointly sought direct discretionary review under RAP 2.3(b)(4), challenging two pretrial rulings. Two questions of law are before us: (1) whether a court should use a "but for" or "substantial factor" standard of causation in loss of chance cases and (2) whether evidence relating to a contributory negligence defense should be excluded based on the plaintiffs failure to follow his doctor's instructions. The trial court decided that the but for standard applies and the contributory negligence defense was not appropriate in this case. We affirm in part and reverse in part.

         Facts and Procedural History

         On September 1, 2011, David Dunnington saw his primary care provider, Dr. William Kirshner, reporting that he had a lesion on the plantar surface of his left foot that arose after a puncture wound. Dr. Kirshner arranged an appointment with Dr. Alvin Ngan, a podiatrist at Virginia Mason Medical Center. Dr. Ngan saw Dunnington the same day and diagnosed the lesion as a pyogenic granuloma-a benign lesion.

         Dr. Ngan recommended two courses of possible treatment: it could be surgically excised or conservatively treated with cryotherapy. Dunnington chose the conservative treatment. Dr. Ngan administered the treatment and instructed Dunnington to return in 10 days. When Dunnington returned on September 15, 2011, the lesion appeared recalcitrant. Dr. Ngan once again informed Dunnington of his options, which included surgical excision and biopsy. Dr. Ngan favored surgical excision, but Dunnington chose conservative treatment. Dr. Ngan instructed Dunnington to return in 10 days, but he did not. On December 16, 2011, Dunnington contacted Dr. Ngan, complaining of continued soreness, and requested an MRI that was performed on December 26, 2011. When Dunnington returned to the clinic the following day to discuss the results of his MRI, Dr. Ngan noticed the lesion was enlarged from the previous visit and he recommended surgical excisional biopsy. Dr. Ngan did not suspect cancer. Dunnington deferred making a decision because he wanted to discuss the issue with his family. Dunnington then saw Dr. Ryan Bierman, seeking a second opinion regarding the surgical excision. Dr. Bierman also diagnosed the lesion as a benign, trauma-induced pyogenic granuloma. They discussed all options, including surgical excision and biopsy, but Dunnington chose conservative treatment once more. On January 31, 2012, Dunnington consulted a dermatologist, Dr. Arlo Miller, who performed a punch biopsy. This resulted in a positive finding of melanoma. On February 16, 2012, Dunnington underwent surgical excision and the cancer was removed. However, the melanoma recurred. Dunnington went through chemotherapy and radiation treatment, which proved unsuccessful, and the cancer recurred. Dunnington's left leg ultimately had to be partially amputated. He now appears to be cancer free.

         Dunnington brought a medical negligence action against Virginia Mason alleging that Dr. Ngan was negligent in Dunnington's diagnosis, which deprived him of a 40 percent chance that the melanoma would not recur had a proper diagnosis and treatment occurred. The defendant, Virginia Mason, asserted an affirmative defense of contributory negligence based on Dunnington's delay in returning for follow up care and his decision to seek a second opinion rather than undergo the recommended excision and biopsy. Dunnington moved to strike the affirmative defense or for partial summary judgment. Based on declarations, the court granted the motion, which the parties treat as a grant of partial summary judgment. Virginia Mason's motion for reconsideration was denied. The trial court also granted Dunnington's motion for a loss of chance jury instruction, but denied his request for a substantial factor test instruction. Instead, the court determined that a but for causation standard is the appropriate legal standard. The parties jointly sought discretionary review of Dunnington's challenge to the loss of chance and substantial factor jury instruction and Virginia Mason's challenge to the trial court's dismissal of the contributory negligence defense.



         We first recognized the lost chance of a better outcome cause of action in Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 664 P.2d 474 (1983) (plurality opinion). Although a majority in that case recognized the cause of action, several opinions were authored and no opinion garnered five votes: the lead opinion by Justice Dore collected one supporting vote and a concurring opinion by Justice Pearson collected three votes. Although both of these opinions recognized the cause of action, they differed on its characterization. Most recently, in Mohr v. Grantham, 172 Wn.2d 844, 262 P.3d 490 (2011), we revisited this issue and expressly adopted Justice Pearson's analysis. Mohr contains a detailed and comprehensive discussion of the cause of action, the principles underlying the doctrine, and how the cause of action fits in our traditional and general tort principles of medical malpractice, including duty, breach, injury, and proximate cause. Mohr, 172 Wn.2d at 850-57.

         In Mohr, the plaintiff suffered a trauma-induced stroke and was permanently disabled. At the hospital, Mrs. Mohr suffered neurological symptoms but the physician failed to immediately treat her. Expert opinion established that she would have had a 50-60 percent chance of a better outcome with nonnegligent treatment. There, we adopted the characterization and analysis of the cause of action from the Herskovits concurrence and continued by noting,

A plaintiff making such a claim must prove duty, breach, and that there was an injury in the form of a loss of a chance caused by the breach of duty. To prove causation, a plaintiff would then rely on established tort causation doctrines permitted by law and the specific evidence of the case.

Mohr, 172 Wn.2d at 862 (emphasis added). By emphasizing the basic requirement of tort law, we implicitly recognized that generally a but for test is the applicable standard. While we did not conclusively reject a relaxed causation standard, we suggested in Mohr that general tort law principles apply.

         We have held in certain circumstances the substantial factor standard is appropriate to use:

First, the test is used where either one of two causes would have produced the identical harm, thus making it impossible for plaintiff to prove the "but for" test. In such cases, it is quite clear that each cause has played so important a part in producing the result that responsibility should be imposed on it. Second, the test is used where a similar, but not identical, result would have followed without the defendant's act. Third, the test is used where one defendant has made a clearly ...

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