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Needham v. Dreyer

Court of Appeals of Washington, Division 1

December 23, 2019

JAMES NEEDHAM, Individually, Appellant,
SHERYL DREYER, Individually, and her marital community, and DAVITA EVERETT PHYSICIANS, INC. P.S. d/b/a The Everett Clinic, Respondents.

          SMITH, J.

         On December 28, 2012, James Needham visited his primary care physician, Dr. Sheryl Dreyer, at The Everett Clinic (Clinic). Needham presented to the medical assistant with, among other things, difficulty breathing and gastrointestinal issues. Dr. Dreyer did not address his breathing symptoms, but treated Needham for his "active problems," including HIV and diarrhea. On January 1, 2013, Needham was found unconscious in a friend's cabin in Concrete, Washington. Needham suffered frostbite, which resulted in the amputation of both of his legs. Needham sued Dr. Dreyer and the Clinic alleging medical negligence as the cause of his injuries. Needham appeals the defense verdict, arguing that the trial court erred when it provided the exercise of judgment instruction, which directs the jury to find that a physician is not liable for medical negligence if the physician used their medical judgment to choose one of multiple treatments or diagnoses. Needham further argues that the trial court erred by admitting expert opinion evidence regarding Needham's alcohol use on the day of his collapse.

         Because Dr. Dreyer did not select one of two or more alternative courses of treatment and did not arrive at a judgment to follow a particular course of treatment or make a particular diagnosis with regard to Needham's breathing symptoms, the trial court erred by giving the exercise of judgment instruction. The trial court further erred by admitting evidence of Needham's alcohol use on the day of his collapse because the probative value of that evidence was substantially outweighed by the risk of unfair prejudice. Finally, because these errors were not harmless, we reverse the jury verdict and remand for a new trial.


         Needham is HIV positive, and Dr. Dreyer had been his primary care physician since 2011. After their first appointment, Dr. Dreyer ordered lab testing and discovered that Needham's "T cells [were] at 92," which put him at risk for "pneumocystis" pneumonia (PCP). PCP is a type of pneumonia to which individuals with HIV are particularly susceptible. After receiving these lab results, Dr. Dreyer sent Needham a letter explaining that he should begin taking a prophylactic to prevent PCP.

         On September 28, 2012, Needham's roommate, Jackie Black, called the Clinic to express concerns regarding Needham's health; Needham was coughing and exhibiting loss of balance, drowsiness, and disorientation. Dr. Dreyer recommended that Black take Needham to an emergency room (ER) for an evaluation. Two days later, United General Hospital admitted Needham and treated him for pneumonia in the lower right lobe of his lung. The treating physician took a chest X-ray, which indicated that Needham suffered from a possible collapsed lung.

         Two weeks after United General discharged him, Needham visited Dr. Dreyerfor, among other things, pain in his ribs and shoulder, which worsened when he breathed. Despite these symptoms, Dr. Dreyer believed Needham's pneumonia was improving but that he "may need a follow up chest CT" (computed tomography) scan. She recommended a follow-up in one month.

         On October 23, 2012, Black once again called the Clinic, reporting that Needham's health had deteriorated. The Clinic advised Black to take Needham to the hospital and to notify the ER of the potential for PCP. The ER at Providence Health Center admitted Needham for Clostridium difficile (C. difficile) infection. The treating physician, Dr. Donald Berry, took a CT scan of Needham's abdomen. Needham's experts later testified that the CT scan indicated "[t]here was still something going on in th[e] lower lobe" of his right lung. Conversely, Dr. Dreyer's expert, Dr. Robert Harrington, testified that the CT scan did not show evidence that Needham had pneumonia at that time. Dr. Berry also took a chest X-ray, which he-and later, Dr. Dreyer-determined showed normal lung health. After treatment for C. difficile, the hospital discharged Needham.

         On November 14, 2012, Needham visited the Clinic for a follow-up. He expressed concerns of back pain. The records from his visit indicate that he reported he was "slowly feeling better" after his pneumonia. Dr. Dreyer performed a chest exam and found that Needham's "chest [was] clear [with] no wheezes or rales." Based on the results of Needham's ER X-ray from October 23, Dr. Dreyer chose to forego additional testing for Needham's pneumonia because she believed "the pneumonia wasn't there anymore." As a result, Dr. Dreyer did not recommend any follow-up on Needham's pneumonia in his intoxicated treatment plan.

         On November 30, Black contacted the Clinic reporting that Needham had been experiencing diarrhea for six weeks; the Clinic advised that he needed a C. difficile test. Additionally, Dr. Dreyer entered a referral for a gastroenterologist. On December 5, 2012, the Clinic called Needham to inquire when he would take laboratory tests for C. difficile. Needham explained that his dog was dying and that "making her comfortable [was] his only concern."

         A week later, Needham called the Clinic to re-order an X-ray, which his previous doctor had ordered over the summer but that Needham had been unable to complete at the time. In response to Needham's call, Dr. Dreyer requested that Needham also get his "usual lab orders" completed. Needham did not get his lab orders completed until he visited the Clinic on December 28, 2012. At that appointment, Needham mentioned difficulty breathing to the medical assistant as one of his reasons for visiting. The medical assistant noted this in Needham's record. Needham claims his vital signs were abnormal; his pulse was 106, his blood pressure was 80/50, and his pulse oximeter reading was at 93 percent-below a normal range of 95 to 100 percent.

         Dr. Dreyer did not discuss Needham's breathing problem with him, but later testified that she performed an "observational" exam, which Dr. Dreyer alleges involves listening to a patient, observing whether the patient is coughing, is short of breath, or has difficulty speaking. The medical record from Needham's visit indicates that Dr. Dreyer treated Needham for his "active problems": HIV, diarrhea, back pain, and his "social situation," which included the recent passing of his housemate and his dog. Needham testified that Dr. Dreyer discredited his hypothesis that he had cracked his right rib or that he suffered from a hernia, and instead, Needham testified that she said it was "just depression." Needham also testified that no one discussed his abnormal vital signs with him and that Dr. Dreyer did not complete a chest exam.

         Later that morning after Needham had left the Clinic, at 10:51 a.m., the laboratory paged the Clinic's on-call doctor, Dr. Eileen de la Cruze, about the results of Needham's same-day lab tests. The laboratory explained that Needham's white blood cell count showed a potentially serious infection. Dr. de la Cruze tried but could not reach Needham on his cell phone, and she documented in the Clinic's records that Needham had not set up his voicemail. At 9:07 p.m., Dr. de la Cruze called Needham's previous home number and then retried Needham's cell phone. At that time, she noted in the record that she left a voicemail. A few days later, on December 31, 2012, Registered Nurse (RN) Colleen Burt called Needham's counselor to ask if she had a new contact number for Needham. The counselor was out of the office, and RN Burt left a voicemail message.

         The next day, January 1, 2013, Needham's friends found Needham unconscious at his friend's cabin in Concrete, Washington, and first responders transported him to Sedro-Wooley Hospital. The treating physician determined that Needham suffered from pneumonia, pleural effusion, and frostbite. His legs were later amputated as a result of the frostbite.

         Needham sued Dr. Dreyer and the Clinic for medical negligence. At trial, Needham testified that following his return from the Clinic on December 28, he spent the next two days trying to clean up his friend's cabin in Concrete. Needham recalled that it was hard to breathe. Needham testified that on December 31, he drank about three shots of alcohol. He testified that while cleaning, he looked outside and saw his deceased friend's cat, which had been missing for two days. Needham recalled that when he tried to grab the cat, he saw "like, a big white flash, and . . . [t]hat's all [he] remember[ed]" until he woke up in Sedro-Wooley Hospital.

         The case was tried to a jury, and the trial court-over Needham's objection-gave the exercise of judgment instruction. The instruction, modeled after 6 Washington Practice: Washington Pattern Jury Instructions: Civil 105.08 (6th ed. 2012) (WPI), states:

A health care provider is not liable for selecting one of two or more alternative courses of treatment, if, in arriving at the judgment to follow the particular course of treatment or make a particular diagnosis, the health care provider exercised reasonable care and skill within the standard of care the health care provider was obliged to follow.

         The trial court also denied Needham's motion in limine to exclude defense expert opinions that alcohol use on the day of the accident could have caused Needham's collapse. Needham had argued it was speculative and irrelevant. The trial court concluded that the evidence was relevant and probative and that the defense experts "don't have to attack based on a probability of a reasonable degree of medical certainty ... if they're just attacking and not offering an alternative causation." Thus, at trial, Dr. Dreyer and the Clinic introduced testimony from Dr. Benjamin Starnes and Dr. Peter Shalit regarding how alcohol could have caused Needham's collapse.

         Before submitting the case to the jury, Needham renewed his earlier motion in limine to exclude testimony of alcohol use on the day of his collapse. The jury returned a verdict ...

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