IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BERNARDO FIGUEROA and ROSA FIGUEROA, husband and wife, No. 68272-5-
Respondents, DIVISION ONE
v. UNPUBLISHED OPINION £^ © 2 —-^ HIGHLINE MEDICAL CENTER, a —, """•—4
Washington non-profit corporation,
Defendant, 3iL — ». THOMAS RYAN, M.D., " —IO
Appellant,
and HIGHLINE EMERGENCY PHYSICIANS, PLLC, a Washington Professional Limited Liability Company, FILED: October 14, 2013
Defendant.
Grosse, J. — Generally, all relevant evidence is admissible except as
limited by constitution, statute, or other evidentiary rule.1 In a medical malpractice suit, physicians may testify as to their professional conduct that is
repeatedly and consistently performed when treating persons with similar
symptoms so long as it is relevant. Here, the trial court did not abuse its
discretion in excluding certain evidence offered by defendant-physician because
the conduct described did not meet the standard for habit evidence.
Nor did the trial court abuse its discretion in its other evidentiary rulings or
in declining to give an instruction proffered by the defendant-physician,
particularly here, where the jury received proper standard of care instructions and
1SeeER401. No. 68272-5-1 / 2
was accurately instructed on the law and permitted the defendant-physician to
argue his theory of the case. The trial court is affirmed.
FACTS
At approximately 3:00 p.m., on October 3, 2005, Bernardo Figueroa's wife,
Rosa, drove him to Highland Hospital's emergency room because he was
experiencing abdominal pain. Dr. Thomas Ryan examined Figueroa and ordered
a computed tomography (CT) scan to rule out appendicitis. An intravenous (IV)
needle was attached to Figueroa's right hand. When contrast dye was injected,
Figueroa experienced a great deal of pain. Approximately 60 milliliters of the IV
fluid with the contrast dye escaped from the vein. The medical term for this event
is extravasation. Usually extravasation results in swelling and pain, which is
treated by ice, elevation, and observation. In rare instances, extravasation can
result in compartment syndrome, which, if left untreated, can result in the
collapse of the veins.2 The treatment for compartment syndrome is a fasciotomy, a surgery in which the fascia (connective tissue) surrounding the veins is cut until
the pressure decreases and the affected vessels can re-expand. If not treated in
a timely manner, compartment syndrome can cause partial paralysis.
After the IV was removed, Figueroa returned to the emergency room with
extravasation, still experiencing pain and swelling in his arm. His arm was
elevated and ice was applied to reduce swelling. Dr. Ryan ordered a Demerol
injection for pain, after which Figueroa experienced less pain. The CT scan
result was negative for appendicitis and Figueroa was discharged at 5:28 p.m.
Compartment is a part of the body that is enclosed by thick connective tissue. No. 68272-5-1 / 3
Figueroa continued to experience pain at home and when it became
unbearable, he returned to the emergency room at 9:40 p.m. Figueroa
presented with forearm pain, numbness, and swelling. Figueroa was diagnosed
with compartment syndrome and was immediately transferred to the Burien
Hospital campus for surgery, where Dr. Vincent Muoneke performed an
emergency fasciotomy approximately eight hours after the extravasation.
In the following days, Figueroa continued to experience problems with his
arm and was referred to Dr. Clark for a second opinion. Dr. Clark observed that,
because the operation took place over six hours after the extravasation, the
operation did not totally repair the damage from the compartment syndrome.
Because of this injury, Figueroa continues to experience "decreased motion,
significant stiffness and continued pain as well as parathesia in the median nerve
distribution
At trial, the defense sought to impeach Figueroa's description of his
inability to perform certain actions by showing a video recording of Figueroa
performing some operations with his arm that he claimed he was unable to do.
Figueroa offered rebuttal testimony explaining some of those actions. The matter
went to the jury who found for Figueroa and awarded him $122,000.00.
Dr. Ryan appeals, raising a variety of evidentiary rulings and instructional
error.
ANALYSIS
Dr. Ryan contends the trial court's rulings on a variety of evidentiary
issues resulted in a one-sided presentation of evidence and prevented him from No. 68272-5-1 / 4
defending the suit. A trial court's decisions to admit or exclude evidence are
reviewed for abuse of discretion.3 "A trial court abuses its discretion when its
decision 'is manifestly unreasonable or based on untenable grounds or
reasons.'"4
Evidence of Habit
Dr. Ryan argues that the trial court improperly precluded him from
testifying as to his habit and routine practice of orally instructing patients with
compartment syndrome. Evidence of the habit of a person, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant
to prove that the conduct of the person on a particular occasion conformed to
habit or routine.5 Under ER 406, relevant evidence is admissible to prove
behavior in conformity with habit on a particular occasion.6 Washington courts have found a broad range of conduct to rise to the level of habit. Courts consider
the regularity of the behavior and the surrounding circumstances in determining
whether particular conduct rises to the level of habit, as it is "'the notion of the
invariable regularity that gives habit evidence its probative force.'"7 In Meyers v.
3 Salas v. Hi-Tech Erectors. 168 Wn.2d 664, 668, 230 P.3d 583 (2010). 4 Salas, 168 Wn.2d at 668-69 (quoting State v. Stenson, 132 Wn.2d 668, 701, 940P.2d 1239(1997)). 5 ER 406. 6 ER 406 provides: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. See also Mevers v. Meyers. 81 Wn.2d 533, 503 P.2d 59 (1972). 7 State v. Thompson, 73 Wn. App. 654, 659 n.4, 870 P.2d 1022 (1994) (quoting comment to ER 406); see also State v. Young, 48 Wn. App. 406, 739 P.2d 1170 No. 68272-5-1 / 5
Meyers, the Supreme Court found testimony offered by a defendant about her
standard business practices admissible, even though such behavior required
some degree of conscious action as opposed to being a nearly involuntary or
automatic response to given stimuli.8 Meyers involved a notary public who was permitted to testify it was her professional habit to always ask for identification
before notarizing a document. Moreover, the Meyers court held that the
exclusion ofsuch testimony would be reversible error.9 However, not all behavior claimed as regular and consistent in similar
circumstances is admissible as habit evidence under ER 406. For example, in
Washington State Physicians Insurance Exchange & Ass'n v. Fisons Corp., a
case cited by the trial court in its ruling, the Supreme Court upheld the exclusion
of a drug company sales representative's testimony regarding his typical
business-related conversations with physicians, determining that such conduct
did not rise to the level of habit.10 The Supreme Court defined habitual behavior
in Fisons as "semi-automatic, almost involuntary and invariabl[y] specific
responses to fairly specific stimuli."11
(1987) (citing Breimon v. General Motors Corp.. 8 Wn. App. 747, 752-54, 509 P.2d 398 (1973)). 881 Wn.2d 533, 503 P.2d 59 (1972). 9 Meyers, 81 Wn.2d at 538-39; see also Heigis v. Cepeda, 71 Wn. App. 626, 862 P.2d 129 (1993) (upholding evidence from insurance claims adjuster that it was her habit to advise claimants in double-claim situations that she represented an adverse party even though the adjuster had no memory of the particular transaction in dispute); State v. Maule. 35 Wn. App. 287, 291-92, 667 P.2d 96 (1983) (upholding admission of testimony from a child abuse expert regarding her usual interviewing habits offered to prove that her interviews with victims in the case conformed to her usual professional practices). 10 122 Wn.2d 299, 325, 858 P.2d 1054 (1993). 11 Fisons. 122 Wn.2d at 325 (internal quotation marks and citations omitted). No. 68272-5-1 / 6
Here, Dr. Ryan's actions were not similar to those at issue in Meyers
because the actions were not consistent and automatic. Nor do Dr. Ryan's
actions fit within the definition of habitual behavior in Fisons. Dr. Ryan and his
expert both testified that compartment syndrome is rare in cases of
extravasation. This indicates that his practice of orally instructing patients with
extravasation was not routine or habitual. Indeed, Dr. Ryan testified that he had
not seen compartment syndrome caused by extravasation either before or since
Figueroa. Moreover, Dr. Ryan's testimony revealed that he did not remember
Figueroa and could not recall treating him. Nevertheless, Dr. Ryan testified,
without objection, that he was surprised that Figueroa came back with a swollen
hand from an extravasation. Further, in response to a question of what he would
have done if he had found something significantly abnormal, Dr. Ryan stated he
would have admitted him. His remaining testimony about what he would have
done differently was not indicative of his habit or routine. For example, Dr. Ryan
further testified that if Figueroa had compartment syndrome, he would have
consulted a hand surgeon and had him admitted; but did not do so because he
was confident that there was no compartment syndrome. The record reveals that
Dr. Ryan was permitted to testify that he routinely orally advises patients to return
to the emergency room ifthey experience increased pain. Dr. Ryan also testified
that he gave Figueroa compartment syndrome warnings or instructions because
of the swelling even though he did not have compartment syndrome when he left.
Because this evidence was placed before the jury, Dr. Ryan fails to establish that No. 68272-5-1 / 7
he was unduly prejudiced by the evidentiary ruling to which he does object.
There was no abuse of discretion.
Excluded Alias
Under ER 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.12 The trial court has "broad discretion to balance probative value versus prejudice under ER 403."13 "When evidence is likely to stimulate an emotional response rather than a
rational decision, a danger of unfair prejudice exists."14 When Figueroa arrived in the emergency room, he identified himself as
Seku Montana-Linares and provided a driver's license with his picture and the
Seku Montana-Linares name. He signed both his consent to treatment and his
discharge from the emergency room with that alias. In his deposition, he
revealed that he did this because he had an outstanding bill at the hospital and
was worried that they would not treat him. He also stated that he used the false
driving license because his license had been suspended for driving under the
influence of an intoxicant. Figueroa moved in limine to exclude any evidence of
this alias.
Figueroa argued that the evidence had marginal relevance and was
unfairly prejudicial and would focus the jury on issues other than those being
12 Salas, 168 Wn.2d at 671. ER 403 provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 13 Lodis v. Corbis Holdings. Inc., 172 Wn. App. 835, 863, 292 P.3d 779 (2013). 14 Salas, 168Wn.2dat671. No. 68272-5-1 / 8
litigated. The trial court granted the motion in limine and redacted Figueroa's
signature from the two medical records.15 At trial, Figueroa testified that the signature on the medical records at the
time of discharge was similar to the signature he signed on the admission record.
Dr. Ryan moved to reconsider the trial court's decision redacting the signatures,
arguing that the similarity of the signatures constituted objective evidence directly
negating Figueroa's testimony regarding the swelling in his hand and his inability
to use his fingers. Dr. Ryan argued that even though Figueroa admitted that his
signature on the admitting and discharge papers were identical, it was still
necessary to introduce the signature evidence. Figueroa contended that the
admission of the signatures was duplicative of the testimony regarding the
similarity of signatures and that the testimony itself was sufficient for Dr. Ryan to
argue that the similarities of the signatures was contrary to Figueroa's testimony
that his hand was significantly swollen. The court found that there was still
substantial prejudice to the admission of these documents that outweighed any
incremental additional probative value that these documents might have had.
The court, without objection from Figueroa, permitted Dr. Ryan to elicit testimony
from Rosa that the signatures look substantially the same.
Nor is there any merit to Dr. Ryan's argument that the jury's request for
missing medical records was specifically directed at the missing signatures.
After the court initially responded that the jury had all the records, both counsel
discovered that some medical records were indeed missing. This was corrected
15 The exclusion of the driver's license is not at issue in this appeal. No. 68272-5-1 / 9
and those records were sent back to the jury room. Dr. Ryan's assertion that the
jury's request was related to the missing signatures is speculative and not
supported by the record. The court's rationale for excluding the evidence was
reasonable.
Dr. Ryan also asserts that the missing signatures violated the rule of
completeness as set forth in ER 106.16 Under ER 106, if a party introduces a statement, an adverse party may require the party to introduce any other part of
that statement, "which ought in fairness to be considered contemporaneously
with it." However, the evidence must be relevant to the issues in the case, and
"the trial judge need only admit the remaining portions of the statement which are
needed to clarify or explain the portion already received."17 Here, whether or not there is a signature on the medical records is not necessarily needed to explain
or complete the documents.
Expert Testimony
Dr. Ryan argues that the trial court improperly admitted Dr. Ken Zafren's
opinion testimony on the standard of care and proximate cause. The admission
or exclusion of expert testimony is discretionary with the trial court. Expert
testimony is generally required to establish proximate cause in a medical
16 ER 106 provides: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it. 17 State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001) (citing United States v. Velasco. 953 F.2d 1467, 1475 (7th Cir. 1992)). No. 68272-5-1/10
malpractice suit.18 Here, the trial court permitted Dr. Zafren to testify regarding causation.
Dr. Zafren testified that Dr. Ryan breached the standard of care by not
diagnosing the compartment syndrome, by not giving proper discharge
instructions, and by not requesting a surgical consult. In reaching his decision,
Dr. Zafren testified that he relied on the medical records, and the depositions of
the Figueroas, Dr. Ryan, and Dr. Ryan's expert, Dr. Ronald Dobson.
Dr. Zafren testified that in cases of extravasations, adverse outcomes
resulting in compartment syndrome occurred in instances where the amount of
fluid released was 50 to 60 milliliters. Here, the nurse's notes indicated that
approximately 60 milliliters of intravenous contrast dye infiltrated during the test.
The nurse observed swelling in the right hand and notated that Figueroa
complained of pain radiating to the mid-forearm and that continued monitoring
would be done. These notes were made at 3:40 p.m. Figueroa returned to the
emergency room from the radiology department still experiencing a great deal of
pain for which he was given 125 milligrams of Demerol at 4:20 p.m. Dr. Zafren
testified that this dosage was significant and would decrease pain from any
cause, yet Figueroa was still experiencing some pain. Dr. Zafren testified that his
review of the medical charts did not show anything that would suggest that the
doctor had conducted an examination of Figueroa's arm. The only medical
notation, regarding the arm, was made by a nurse indicating that at 4:45 p.m.,
Figueroa experienced relief from the injection and that swelling was decreasing
18 Harris v. Robert C. Groth. M.D.. Inc., P.S., 99 Wn.2d 438, 449, 663 P.2d 113 (1983).
10 No. 68272-5-1 /11
in the fingers with Figueroa stating that he could move his fingers. Dr. Zafren
testified that one reason a person does not move their fingers is because it
causes pain. Because Figueroa had received a significant dose of pain
medication, his ability to move his fingers was related to less pain, not
necessarily because the swelling was going down. Figueroa was discharged at
5:28 p.m., an hour after having received the Demerol. Dr. Zafren opined than an
hour was an insufficient amount of time to observe an extravasation injury
because compartment syndrome evolves over a period of time. Further
observation should have occurred because the golden time within which to treat
compartment syndrome is six hours before irreversible tissue damage would
occur. Here, the surgery was not performed until eight hours after the original
injury.
In reviewing the discharge instructions, Dr. Zafren opined that the
instruction that "your symptoms should improve within 24-hours of treatment"
was intended for the abdominal pain. Dr. Zafren testified that a more appropriate
instruction would inform the patient that he should return to the emergency room
within a certain amount of time "if not improved and immediately if your condition
is getting worse." Dr. Zafren testified that the written discharge instructions did
not meet the standard of care because there was nothing in them relating to the
treatment for extravasation, should complications occur.
Outside the presence of the jury, the court addressed whether Dr. Zafren
was sufficiently qualified to render an opinion on the issue of proximate cause.
Dr. Zafren testified that he reviewed the records of Dr. Muoneke, who performed
11 No. 68272-5-1/12
the fasciotomy and follow-up care for Figueroa. Dr. Zafren testified to a
reasonable degree of medical certainty that Figueroa might not have experienced
the problems that were documented in Dr. Muoneke's medical records had he
received the appropriate care within the six hour time frame.
In its ruling permitting the testimony, the court stated:
My ruling is I am going to allow the testimony. I think that the points made by the defense primarily go to the weight of the testimony. I recognize at this time is a close call. I would also note that there is no claim of unfair surprise, because he did testify to this at his deposition, even though that the defense didn't concede that he was competent to give that testimony.
Both parties stipulated to the admission of Dr. Muoneke's medical records on his
treatment of Figueroa. Those records indicated that Dr. Clark's observations of
Figueroa were in agreement with Dr. Muoneke that the lapse of time between the
extravasation when compartment syndrome began and when Figueroa went into
surgery to correct the problem. This was sufficient to establish causation. There
was no error.
Jury Instruction
Dr. Ryan argues that the trial court erred in not giving WPI 105.08.19 As noted in Ezell v. Hutson, "Jury instructions are sufficient if they allow the parties
to argue their theories of the case, do not mislead the jury and, when taken as a
whole, properly inform the jury of the law to be applied."20 We review de novo
19 6 Washington Pattern Jury Instructions: Civil 105.08 (6th ed. 2012). 20105 Wn. App. 485, 488, 20 P.3d 975 (2001) (internal quotation marks and citations omitted).
12 No. 68272-5-1/13
whether an instruction is an error of law.21 But, the giving of a particular instruction is reviewed for an abuse of discretion.22
The "error of judgment" instruction found at WPI 105.08 is used to
supplement the standard of care instruction and should be given with caution and
"be limited to situations where the doctor is confronted with a choice among
competing therapeutic techniques or among medical diagnoses."23 The instruction proposed by Dr. Ryan reads as follows:
A physician is not liable for selecting one of two or more alternative courses of treatment and/or diagnoses, if, in arriving at the judgment to follow a particular course of treatment and/or make a particular diagnosis the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.
Dr. Ryan argues that this instruction was proper because he and his expert both
testified that the exercise in judgment in deciding to discharge Figueroa under
the circumstances was reasonable because of the symptoms presented upon
return from the radiology department. But this is different from a situation where
the physician has a choice among different therapeutic techniques. The issue
was whether Figueroa had acquired compartment syndrome and whether Dr.
Ryan exercised reasonable care in his diagnosis or discharge instructions. Here,
no written discharge instructions were given relating to extravasation or the need
to immediately return if continued or worsening pain occurred. There is no
dispute about which discharge instruction should have been given.
21 Ezell. 105 Wn. App. at 488. 22 Thomas v. Wilfac. Inc.. 65 Wn. App. 255, 264, 828 P.2d 597 (1992). 23 Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986).
13 No. 68272-5-1 /14
The jury instructions as given informed the jury of the applicable law and
presented Dr. Ryan with the opportunity to argue his theory of the case. Dr.
Ryan's instruction does not fit the facts presented in this case and would have
confused the jury because it is not clear that the treatments advocated by the
experts were alternative choices or that there were only two choices available to
administer to the patient.24 The instructions set forth the burden of proof that Figueroa needed to
establish, including whether Dr. Ryan failed to follow the applicable standard of
care.25 Thus, Dr. Ryan was able to argue that he gave the appropriate standard
of care in this situation. There was no error.
New Trial
Dr. Ryan argues that the court erred in not granting a new trial because of
alleged juror and attorney misconduct. Dr. Ryan further argues that the trial court abused its discretion when it denied his motion for a new trial after a juror
posted comments regarding the case on Facebook. A juror's communication
with a third party about a case constitutes misconduct.26 The trial court may grant a new trial only where such juror misconduct has prejudiced the
defendant.27
24 Nelson v. Mueller, 85 Wn.2d 234, 238-39, 533 P.2d 383 (1975) (There is no error in refusing to give an instruction where the proponent of such instruction adequately argued their theory to the jury.) 25 Ezell. 105 Wn. App. at 488. 26 State v. Depaz, 165 Wn.2d 842, 858-59, 204 P.3d 217 (2009). 27 State v. Earl, 142 Wn. App. 768, 774, 177 P.3d 132 (2008).
14 No. 68272-5-1/15
Here, no such prejudice was shown. The juror's comments were limited
and innocuous. They were nothing more than a description of the juror's day
interspersed with the following related comments on her jury duty:
• Spent the day in Superior Court doing my civic duty. On jury duty for next 2 weeks. • Day 3 of jury duty. Very difficult to listen to a translator during the questioning. I can pick out some words. • Day 4 of jury duty, off on Friday, and back to the jury on Monday. Hope to finish by noon on Thursday. It's been interesting. Love the 1 1/iz hour lunches. • My civic duty, jury duty ended today with a negligent claim on the doctor. This was tough to decided $s to the plaintiffs. Mentally exhausting!
While it was inappropriate for the juror to post anything on Facebook regarding
the case, these comments were not prejudicial to Dr. Ryan.28 During closing argument, Figueroa's counsel referred to the facts of an
unrelated case in which a physician, Dr. Charles Momah, sexually abused
patients while they were under anesthetic. Dr. Ryan objected and the court
sustained, striking any reference to the unrelated sex abuse case. A jury is
presumed to follow a court's instruction.
On appeal, Dr. Ryan also objects to additional comments of Figueroa's
counsel, but failed to make any objections thereto. Dr. Ryan takes the
statements out of context and mischaracterizes those comments as racist,
picking and choosing certain portions of the argument. When the argument is read in its entirety, it does not convey racist overtones.
28 See State v. Theobald, 78 Wn.2d 184, 186, 470 P.2d 188 (1970) (juror's question to a witness on a trip to the crime scene, held not to be prejudicial, where such question and answer were unrelated to an important issue in the case and produced no evidence different from the in-court testimony).
15 No. 68272-5-1/16
The trial court did not abuse its discretion in any of its rulings. We affirm
the judgment of the trial court.
vy^*- \
WE CONCUR:
VT