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Harbottle v. Braun

Court of Appeals of Washington, Division 2

August 27, 2019

TERESA HARBOTTLE, individually and as Personal Representative of the Estate of JOHN F. HARBOTTLE III, deceased, Appellant,
KEVIN E. BRAUN, M.D. and JANE DOE BRAUN, and their marital community, Respondents.

          MELNICK, P.J.

         John Harbottle, III became Dr. Kevin Braun's patient. After Harbottle passed away, his wife, individually and on behalf of his estate (collectively Estate) filed a lawsuit for medical negligence and failure to obtain informed consent. The trial court granted summary judgment to Braun on the informed consent claim. The medical negligence claim went to trial and a jury found for Braun. The Estate appeals the summary judgment order and the trial court's exclusion of Braun's prior misconduct from evidence at trial.

         The Estate did not have a claim for failure to obtain informed consent because Braun failed to diagnose Harbottle's condition and did not know about it. When a doctor misdiagnoses a patient's condition, and therefore is unaware of an appropriate treatment, a claim for failure to obtain informed consent does not arise. In addition, the trial court did not abuse its discretion by excluding the prior misconduct evidence. We affirm.


         I. Treatment

         John Harbottle first became Braun's medical patient in January 2010. In June 2011, Harbottle complained to Braun of "chest burning" he had been experiencing for about two months. Clerk's Papers (CP) at 263. At first, Braun believed numerous potential causes for the chest burning existed, including gastrointestinal and cardiovascular. Braun performed a physical examination and determined the cause was likely gastroesophageal reflux disorder (GERD).[1]

         Braun ordered a number of tests for Harbottle, including an electrocardiogram (EKG), a chest x-ray, and a stress test. Braun's nurse performed the EKG on the same day as the appointment. Braun and a cardiologist reviewed the EKG and stated it did not suggest any problems with his cardiovascular system. Another doctor stated the EKG signaled the need for a stress test, but agreed the EKG alone was not a reason to get a stress test. The x-ray came back as normal. Braun referred Harbottle to a cardiologist to perform a stress test, which would determine if the source of Harbottle's pain involved cardiovascular issues.

         Braun prescribed a GERD medication. Braun and Harbottle scheduled a follow-up visit for July to see whether the GERD medication resolved Harbottle's symptoms and to review the results of the diagnostic tests.

         At the July follow-up appointment, Harbottle reported that his symptoms had resolved. Braun felt he had identified the cause of the chest pain as GERD. The GERD medication would not have prevented coronary artery disease symptoms other than via placebo effect. Braun did not believe a cardiovascular cause of the pain was "ruled out," but thought it was unlikely because the symptoms had resolved. CP at 266. Braun did not follow up with Harbottle regarding the stress test, as he believed the issue had been resolved through GERD treatment.

         In August, Harbottle saw Braun for unrelated issues. He noted that Harbottle's heartburn was well treated by GERD medication. A physical examination showed no abnormalities. Neither Braun nor Harbottle mentioned the stress test. A cardiologist later stated that Braun should have treated Harbottle for elevated lipids and cholesterol at this visit.

         At some point, Harbottle cancelled the stress test believing that Braun had "pinpointed" the problem. CP at 267. Braun did not tell Harbottle to cancel the test and did not know why he did so. If Harbottle had followed through with the stress test, the test would likely have been positive for coronary artery disease. Braun stated, with regard to the stress test, "I engaged in shared decision-making with Mr. Harbottle, with regard to his options for additional testing. At the time he elected a stress test, and it was ordered, and the referral was completed, to the best of my ability." CP at 274.

         In March 2012, Harbottle complained to Braun of shortness of breath caused by exertion. After reviewing Harbottle's symptoms, Braun prescribed him medication for asthma. Braun did not believe the issues related to Harbottle's cardiovascular system because Harbottle specifically denied experiencing chest pain. Braun did not see Harbottle again.

         The following May, Harbottle died of cardiac arrest at the age of 53. An autopsy report noted his cause of death as atherosclerotic heart disease.

         II. Lawsuit

         In January 2015, the Estate filed a complaint against Braun alleging medical negligence and failure to obtain informed consent, both of which proximately caused Harbottle's death. Braun moved for summary judgment on the informed consent claim, arguing that failure to diagnose a condition is a matter of medical negligence but not informed consent. The trial court granted Braun's motion, concluding that no genuine issue of material fact existed.

         A. Expert Testimony

         Dr. Jerrold Glassman, a cardiologist, testified in a deposition that every male patient with chest pressure consistent with heart disease should be referred to a cardiologist for a stress test. Glassman and Dr. Howard Miller, another expert witness, believed that Harbottle suffered from two heart disease risk factors: he was a male and he had a history of elevated lipids. Glassman said that referral to a cardiologist for a stress test would have been appropriate, despite the results of the tests Braun performed and the resolution of his symptoms via the GERD medication. Glassman also stated he believed the failure to refer Harbottle to a cardiologist led to his death. Miller stated Braun should have followed up with the stress test to rule out coronary artery disease, even though the GERD medication resolved Harbottle's symptoms. Miller stated that the standard of care should have required Braun to "rule out" coronary artery disease with a stress test. CP at 330.

         Relating to the diagnostic process generally, Braun said, "I'm not sure ruling out is ever what we do. What we do is risk stratify and try and do a responsible history, physical examination, data gathering, like labs and EKG, and subsequent risk stratification as to how high a risk you have rather than ruling out." CP at 274. Throughout his deposition, Braun used terminology reflecting relative likelihood that Braun suffered from various conditions. While he refused to say he felt a cardiac cause was "ruled out," he stated that after the GERD medication resolved Harbottle's symptoms, that "what had been a very unlikely potential cause of his symptoms was even less likely, given that his symptoms had completely resolved." CP at 266.

         B. Evidence Excluded

         During discovery, the Estate submitted an interrogatory asking whether Braun had "ever been the subject an [sic] allegation, claim, complaint, or lawsuit (including any civil claims, criminal claims, and/or professional complaints) alleging inappropriate conduct or improper and/or negligent or substandard treatment." CP at 716. Braun responded, "[o]ther than this case, no." CPat716.

         At Braun's subsequent deposition, the Estate asked why he had left his job at a clinic in 2005. Braun said he left to practice on his own and for more direct control over his care and stated that his departure was "favorable." CP at 275. He said he would "have to speculate" whether the clinic would know of additional reasons for his departure. CP at 275-76. Braun listed reasons he wanted to leave the clinic, including complaints about the clinic staff "among other things." CP at 276. When asked whether he was subject to complaints during his time at the clinic, Braun said "[t]here's always complaints" such as by patients who didn't receive prescriptions they wanted. CP at 276. When asked about other complaints, Braun said he would "have to go back and look through" but did not know what he would look through. CP at 276. Braun maintained that his departure from the clinic had been mutual.

         The Estate subpoenaed Braun's employment file and various other documents relating to his employment at the clinic, including "any and all complaints, grievances, or investigations, and the like pertaining" to Braun. CP at 590-91. Records produced by the clinic indicated that three female patients had complained of inappropriate flirtatious behavior and untoward touching. The clinic placed Braun on administrative leave as a result of the complaints and considered terminating his employment. Braun resigned five days later.

         The Medical Quality Assurance Commission (MQAC) conducted an investigation and described the allegations of misconduct in detail. The MQAC case summary described three incidents between 2003 and 2005 in which Braun allegedly inappropriately touched and made sexual innuendo comments to female patients. Braun denied any wrongdoing. The MQAC dismissed the complaints and closed the file based on insufficient evidence. It determined no disciplinary action was necessary.

         Braun moved to exclude evidence of past grievances filed against him, arguing they were irrelevant, overly prejudicial under ER 403, and not germane to his treatment of Harbottle. The Estate responded that Braun's professional misconduct and untrustworthiness during discovery were "highly relevant to his veracity" at trial. CP at 820.

         At arguments on the motion to exclude, the trial court stated that "[t]here would never, in this case, be a reveal to the jury as to what the underlying issues were, sexual misconduct, there'd be no way that I would allow that in," as it would be "way too prejudicial." Report of Proceedings (RP) (Sept. 8, 2017) at 26. The Estate's attorney agreed. The court said it was concerned that the facts of the underlying misconduct were "so prejudicial that [it was] concerned about whether it takes over the case as opposed to what needs to be the issue, which is did he violate the standard of care." RP (Sept. 8, 2017) at 27-28. The parties primarily argued about whether the Estate could impeach Braun's credibility with his dishonest discovery responses. The court granted Braun's motion to exclude.

         After a trial, the jury returned a verdict for Braun on the medical negligence claim and the trial court entered judgment for Braun. The Estate appeals, arguing the court erred by granting summary judgment on the informed consent claim and excluding evidence of Braun's prior instances of misconduct.


         I. ...

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