FILED AUGUST 17, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
DAVID W. MURPHY, as Personal ) No. 37545-5-III Representative for the Estate of ) KATHLEEN J. MURPHY, ) ) Appellant, ) ORDER CORRECTING OPINION ) AND OTHERWISE DENYING ) MOTION FOR v. ) RECONSIDERATION ) MEDICAL ONCOLOGY ) ASSOCIATES, P.S., a Washington ) corporation; ARVIND CHAUDHRY, ) M.D., Ph.D.; RAJEEV RAJENDRA, ) M.D.; BRUCE CUTTER, M.D.; ) PROVIDENCE HEALTH & ) SERVICES, a Washington ) corporation, d/b/a PROVIDENCE ) HOLY FAMILY HOSPITAL; HEATHER ) ) HOPPE, Pharm.D.; and ERIN WHITE, ) Pharm.D., ) ) Respondents. )
THE COURT has considered Appellant’s motion for reconsideration and the
record and file therein, and is of the opinion that corrections to the opinion filed June 29,
2023, should be made to statements on page 9, and that the motion should otherwise
be denied.
The opinion shall be corrected as follows:
The first full paragraph on page 9 is corrected to read: No. 37545-5-III
During jury selection, and after prospective jurors had heard something about the case, the court asked them whether there was anything about the case that “would cause you to begin this trial with any feelings or concerns regarding your participation as a juror.” RP at 81. Two individuals raised their hands, and the court questioned both. One of the prospective jurors, number 15, explained that he raised his hand because “Dr. Chaudhry treated my brother years ago during his cancer as an oncologist.” RP at 81. Asked if he had ever met the doctor, number 15 responded that he had, over 10 years earlier, “At a very young age, around just 8, 9 years old.” Id. A second juror, prospective juror 25, disclosed that Dr. Chaudhry was her mother’s oncologist.
Therefore,
IT IS ORDERED, the opinion will be corrected on page 9 as indicated and the
motion for reconsideration of this court’s decision of June 29, 2021, is otherwise denied.
PANEL: Judges Siddoway, Fearing, Pennell
FOR THE COURT:
_________________________________ GEORGE B. FEARING Chief Judge FILED JUNE 29, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DAVID W. MURPHY, as Personal ) Representative for the Estate of ) No. 37545-5-III KATHLEEN J. MURPHY, ) ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) MEDICAL ONCOLOGY ASSOCIATES, ) P.S., a Washington corporation; ARVIND ) CHAUDHRY, M.D., Ph.D.; RAJEEV ) RAJENDRA, M.D.; BRUCE CUTTER, ) M.D.; PROVIDENCE HEALTH & ) SERVICES, a Washington corporation, ) d/b/a PROVIDENCE HOLY FAMILY ) HOSPITAL; HEATHER HOPPE, ) Pharm.D.; and ERIN WHITE, Pharm.D., ) ) Respondents. )
SIDDOWAY, J. — In this medical malpractice action that resulted in a defense
verdict below, David Murphy, as the personal representative of the estate of his mother,
sued some of the doctors who treated her in her final illness. He contends it was error for
the trial court not to strike, sua sponte, at least two prospective jurors for cause and not to
exclude, sua sponte, defense evidence that he contends violated the dead man’s statute or
evidence rules. He also appeals the denial of his motion for a new trial on an informed
consent claim. No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
He fails to demonstrate actual bias on the part of any juror, and assuming without
agreeing that defense witnesses provided inadmissible testimony, error was not
preserved. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Medical treatment
In late May 2015, Kathleen Murphy was admitted to Holy Family Hospital in
Spokane for a worsening of unwellness she had experienced since being hospitalized in
the beginning of 2015 for exacerbation of chronic obstructive pulmonary disease
(COPD). COPD is a “lung disease of the airways where there is a certain obstructive
pattern on how people are able to exhale or inhale.” Rep. of Proc. (RP) at 395. It is often
caused by long term smoking. Kathleen’s1 treatment providers were aware she was a
half-a-pack per day smoker.
Soon after her admission, a tissue biopsy revealed that Kathleen had Hodgkin’s
lymphoma. Hodgkin’s lymphoma is a cancer that primarily affects the lymph nodes and
other lymphoid tissue in the body.
On June 2, Kathleen established care with Dr. Arvind Chaudhry, an oncologist
with Medical Oncology Associates, P.S. Dr. Chaudhry would later testify that Kathleen
had an unusual presentation of Hodgkin’s disease. For one thing, the disease is rare in
1 Given the common last name, and for clarity, we refer to David as “Mr. Murphy” but to other members of the family by their first names. We intend no disrespect.
2 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
someone who is 65 years old. In addition, Kathleen had nodules in her lungs and liver in
addition to enlarged lymph nodes; if it was Hodgkin’s disease, that meant it had
progressed to other organs. Believing it might be a different type of lymphoma, Dr.
Chaudhry deferred a treatment decision pending a report on the pathology. The
pathology confirmed that Kathleen had Hodgkin’s lymphoma.
On June 4, Kathleen met with Dr. Rajeev Rajendra, one of Dr. Chaudhry’s
colleagues, because Dr. Chaudhry was unavailable. Present during this meeting were
Kathleen’s son, Michael, and her daughter, Susan. According to medical records, the
meeting lasted 35 to 40 minutes and included discussion of treatment objectives.
Dr. Rajendra ordered a pulmonary function test to measure lung health,
information needed to determine whether Kathleen could take a drug called bleomycin.
Bleomycin is one drug within a chemotherapy regimen called “ABVD.” ABVD is
named for its four drug components: adriamycin, bleomycin, velban, and dacarbazine. In
Dr. Chaudhry’s opinion, ABVD was the best available avenue for the treatment and cure
of Hodgkin’s disease and gave Kathleen the best shot at curing her cancer. The standard
treatment with the ABVD regimen is a cycle every four weeks, with drug infusions on
day 1 and day 15 of each cycle. Chemotherapy is most efficacious if the patient is able to
stay on schedule with the recommended dosage.
3 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Dr. Chaudhry reviewed Dr. Rajendra’s notes before seeing Kathleen the following
day, June 5. The medical record of Dr. Chaudhry’s visit with Kathleen that morning
states, in part, “Dr[.] Raj has discussed chemo options.” Ex. D102, at 226. It continues,
“She would like to proceed, but focused on eating today. . . . Hope to start this weekend.
Will need ABVD.” Id. at 226-27. Dr. Chaudhry recognized that Kathleen “did not have
too much time to wait for all the testing and results.” RP at 404. Nevertheless, he wished
to have received all of the informative pathology before beginning chemotherapy.
On the morning of June 6, Dr. Chaudhry met again with Kathleen. He
recommended ABVD “in-house,” meaning in the hospital. RP at 273. His note of the
visit adds: “Discussed risks and benefits.” Ex. D102 at 220. Kathleen also received
printed information about chemotherapy guidelines and drugs. The first administration of
ABVD occurred that day.
Kathleen’s white blood cell count dropped following the first administration, a
condition called “neutropenia.” RP at 274. As a result, the second administration of
ABVD was postponed, and Dr. Chaudhry decided to reduce the dosage of adriamycin.
Kathleen was discharged from the hospital to a nursing facility on June 22.
Kathleen received her delayed second administration of ABVD at the doctors’
clinic, on July 2. Medical records of her meeting with a nurse practitioner on that date
state, “Discussed risks and side effects of therapy in detail with patient. Written materials
4 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
provided. She wishes to proceed.” Ex. D101, at 16. Consent paperwork signed by
Kathleen at that time listed the chemotherapy drugs and their side effects.
Kathleen had an infection following this second chemotherapy and was readmitted
to Holy Family Hospital on July 12. A CT2 scan showed a mild pulmonary edema at her
lung bases. She was discharged on July 15. She agreed to go forward with her third
administration of ABVD and received it on July 16.
Sometime after, Kathleen was sent to Valley Hospital after showing low white
blood cell counts once more. On July 30, Dr. Chaudhry decided to delay the next
administration of ABVD and to reduce the dosage of adriamycin to prevent further
episodes of neutropenia. At that point, Dr. Chaudhry had determined to cease providing
care to Kathleen as soon as she could be seen by another physician.3
On August 13, Dr. Bruce Cutter, another oncologist with Medical Oncology
Associates, assumed Kathleen’s care and she received her fourth administration of
ABVD. An entry in the medical record states that Dr. Cutter, Kathleen, and Susan “had a
good talk and all wish to continue care here.” Ex. D101, at 10. Dr. Cutter’s notes
2 Computed tomography. 3 Apparently Susan had her own thoughts about how her mother’s neutropenia should have been treated, which led to friction with Dr. Chaudhry and his notification that Kathleen should seek treatment from another oncologist. Before trial, the defendants sought an order in limine excluding evidence on this collateral issue. The trial judge agreed that the jury should hear only that the care was transferred, unless Mr. Murphy could demonstrate that the particulars were important.
5 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
“emphasized plan is to cure her” and recorded that “[w]e need to be aggressive to do so.”
Id. At a follow-up later that week, Kathleen reported feeling unwell and displayed some
shortness of breath with exertion. Dr. Cutter conducted a physical exam and noted no
baseline respiratory issues. He attributed her symptoms to her ongoing anemia. Before
her next visit, Kathleen received a transfusion of two units of red blood cells.
At her next visit, on August 27, Kathleen presented with diffuse “crackles” in her
lower lung bases. Lung crackles, or crepitations, are detectable by stethoscope and often
sound like “Velcro opening up.” RP at 450.4 They can be an early indication of
bleomycin toxicity, but may be caused by many ailments, including Hodgkin’s
lymphoma in the lungs. This was the first time Dr. Cutter heard lung crackles in
Kathleen. Although Dr. Cutter had growing concerns about the dose delays and
modifications affecting Kathleen’s chemotherapy, he decided to hold off treatment until
the next week, as a start, to do diagnostic testing. A few days later, Kathleen visited the
emergency room where complaints of lightheadedness and dizziness were treated.
On September 10, the lung crackles were still present. Given a concern about
bleomycin toxicity but the continued goal to aggressively pursue a cure, Kathleen
received a fifth administration of chemotherapy consisting of only ADV. The next day,
4 The “popping sound” is made when the alveoli “try to open up.” RP at 450-51.
6 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Dr. Cutter treated Kathleen with Neulasta, which causes bone marrow to produce more
white blood cells.
On September 13, Kathleen went to the hospital by ambulance with significant
shortness of breath. She was admitted to the intensive care unit (ICU) and placed on a
ventilator. The treating physicians diagnosed Kathleen with acute respiratory distress
syndrome (ARDS).
Kathleen died on September 24. Her treating physician in the ICU described the
cause of death as ARDS, recording it in her medical record as acute cardiopulmonary
failure secondary to pneumonia with underlying COPD and Hodgkin’s disease.
Litigation
David Murphy thereafter brought suit against a number of medical providers and
practices, but by the time of trial he had dismissed claims against all but Medical
Oncology Associates, Dr. Chaudhry and Dr. Cutter. He asserted claims for medical
malpractice under chapter 7.70 RCW and negligence, personal injury claims that
survived Kathleen’s death under RCW 4.20.060. On behalf of Kathleen’s children, he
asserted a claim of wrongful death under RCW 4.20.010 and .020.
In pretrial motions in limine, Mr. Murphy asked the court to preclude Drs.
Chaudhry and Cutter from testifying to transactions with and statements made by
Kathleen, which he argued were inadmissible under Washington’s dead man’s statute,
7 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
RCW 5.60.030.5 He acknowledged that testimony by third parties is not excluded by the
statute; only parties in interest are precluded from testifying on their own behalf.
The defendants responded that the dead man’s statute applies only to actions
brought on behalf of the decedent’s estate, and because Mr. Murphy also asserted a
wrongful death claim for the benefit of Kathleen’s children, the statute, by its terms, did
not apply.
After hearing argument, the court observed that the parties appeared to agree that
the dead man’s statute applied to Kathleen’s claims that survived her death, but not to the
wrongful death claim on behalf of the children. As to the latter claim, then, the evidence
was not precluded by the statute. The court observed that testimony about
communications between providers and Kathleen might still be inadmissible hearsay.
Ultimately, the court offered a tentative, qualified ruling:
[N]ot knowing what the testimony, what it’s going to look like, I’m sort of guessing and putting some parameters on this. If there’s⎯the deadman’s
5 RCW 5.60.030 does not generally prevent an interested party from giving evidence by reason of his or her interest in the event of the action, but is subject to the key proviso, That in an action or proceeding where the adverse party sues or defends as executor, administrator or legal representative of any deceased person, or as deriving right or title by, through or from any deceased person . . . then a party in interest . . . shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased, incompetent or disabled person.
8 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
statute doesn’t apply. So if it’s not hearsay, then it comes in. If you’re not suggesting that it’s hearsay, then it comes in.
RP at 361. Mr. Murphy’s lawyer had conceded that case law recognizes medical records
as an exception to the bar established by the dead man’s statute, and the trial court ruled
that medical records were “fair game.” RP at 360.
During jury selection, and after prospective jurors had heard something about the
case, the court asked them whether there was anything about the case that “would cause
you to begin this trial with any feelings or concerns regarding your participation as a
juror.” RP at 81. Sixteen individuals raised their hands, and the court questioned each.
One of the prospective jurors, number 15, explained that he raised his hand because “Dr.
Chaudhry treated my brother years ago during his cancer as an oncologist.” RP at 81.
Asked if he had ever met the doctor, number 15 responded that he had, over 10 years
earlier, “At a very young age, around just 8, 9 years old.” Id. A second juror,
prospective juror 25, disclosed that Dr. Chaudhry had been her mother’s oncologist.
When questioning was turned over to the lawyers, Mr. Murphy’s lawyer
questioned number 15 briefly about his brother’s treatment by Dr. Chaudhry. He did not
engage in any individual questioning of number 25. When the court entertained
challenges for cause at the conclusion of voir dire, Mr. Murphy had no for-cause
challenges.
9 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
During the trial, jurors heard testimony from defendants Dr. Chaudhry and Dr.
Cutter, and from four other treating providers: two hospitalists who had worked at Holy
Family Hospital, Dr. Peter Weitzman and Dr. Jeremy Cope, and two physicians who had
cared for Kathleen in the Holy Family ICU: Dr. Jeffrey Elmer and, by deposition, Dr.
Donald Howard. They heard testimony from Mr. Murphy and briefly from Susan. They
heard from two expert witnesses for Mr. Murphy: Dr. John Sweetenham, an oncologist,
and Dr. Michael Fishbein, a pathologist specializing in pathology of the heart and lung.
They also heard from two experts for the defense: Dr. Curtis Veal, an internist
specializing in pulmonary disease and critical care and Dr. Craig Nichols, an oncologist.
In closing argument, Mr. Murphy’s lawyers emphasized the testimony of their
expert, Dr. Sweetenham, that while the ABVD regime is the gold standard for treating
Hodgkin’s lymphoma in younger people, the bleomycin component presents a risk of
bleomycin toxicity, and death, in older individuals. Dr. Sweetenham opined that the four
to five percent increase in a cure that is presented by including bleomycin is more than
offset by the risk of the patient developing bleomycin toxicity. Mr. Murphy’s lawyers
argued that Kathleen should have been informed of what they contended was a safer
course of treatment for her: a regimen that excluded bleomycin.
Mr. Murphy’s lawyers spent a considerable part of their argument talking about
the informed consent claim, arguing that the lack of detail in the medical records about
10 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
the risks and alternatives discussed was evidence that bleomycin toxicity and the
alternative of omitting bleomycin had not been discussed. They also argued that the
written documentation of informed consent obtained on July 2 proved that obtaining it
was overlooked earlier. They reminded jurors of the testimony of their expert
pathologist, Dr. Fishbein, that the diffuse alveolar damage to Kathleen’s lungs that
resulted in her death from ARDS was more probably than not the result of bleomycin
toxicity.
Defense lawyers emphasized that all the experts agreed that the ABVD regime for
treating Hodgkin’s lymphoma had been the gold standard for 40 years. They argued that
Drs. Chaudhry and Cutter would have breached the standard of care had they not
recommended it. They pointed to entries in the contemporaneous medical records that
Kathleen’s treatment objective was cure, not palliative treatment, as reported not only by
her but by her children. They pointed to four medical record entries that they argued
reflected advice and consent about treatment and options before the first administration of
ABVD. Addressing the July 2 documentation of informed consent, they contended it was
obtained as a matter of routine because it was the first administration Kathleen had
received at their clinic, since the first administration took place at Holy Family Hospital.
They reminded jurors that Dr. Nichols had extensive experience treating patients with
bleomycin and expressed the opinion that ABVD was the best treatment option for
11 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Kathleen notwithstanding her age. They pointed out that while it was undesirable that
Kathleen’s neutropenia had caused delays in her doses, contemporaneous entries in the
medical records supported a conclusion that the ABVD treatment had been working, and
conflicted with plaintiff’s theory that bleomycin toxicity caused the ARDS that was her
cause of death. They reminded jurors that the experts agreed that ARDS could be the
result of oxygen toxicity or pneumonia.
The jury returned a defense verdict on all claims. Mr. Murphy moved for a new
trial on the issue of informed consent, which the court denied. Mr. Murphy appeals
denial of his motion for a new trial and the judgment.
I. THE TRIAL COURT DID NOT ERR BY FAILING TO EXCLUDE JURORS SUA SPONTE
Mr. Murphy’s first assignment of error is to the trial court’s alleged error in
failing, sua sponte, to strike certain prospective jurors for cause. For the first time on
appeal, Mr. Murphy contends that prospective juror 15, who was seated as juror 8 (and
who we generally refer to hereafter as juror 8), was actually biased.6 He also contends
6 A threshold issue of whether Mr. Murphy allowed prospective juror 15 to be seated without exhausting his peremptory challenges, thereby precluding his ability to appeal on the basis that juror15 should have been excused, is not addressed by the parties. Appeal is unavailable in such a case, as recently clarified by our Supreme Court in State v. Talbott, 200 Wn.2d 731, 521 P.3d 948 (2022). Talbott also rejects Mr. Murphy’s suggestion that if he was required to exercise a peremptory challenge to exclude prospective juror 25, that would be prejudicially unfair. Opening Br. of Appellant at 35 n.2; see Talbott, 200 Wn.2d at 739 (a party’s rights are not violated “‘simply because [they] had to use peremptory challenges to achieve an impartial jury’”) (alteration in original) (quoting State v. Fire, 145 Wn.2d 152, 163, 34 P.3d 1218 (2001)).
12 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
for the first time on appeal that by failing to strike members of the venire whose close
family members were or had been patients of the defending doctors, the court “gave the
defendant doctors an unfair advantage in jury selection . . . result[ing] in a biased jury.”
Opening Br. of Appellant at 5.
Because neither objection was raised in the trial court, Mr. Murphy recognizes that
RAP 2.5(a) requires him to demonstrate that “‘(1) the error is manifest and (2) the error is
truly of constitutional dimension.’” State v. J.W.M., 1 Wn.3d 58, 90, 524 P.3d 596
(2023) (quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). Proof that an
alleged error is manifest requires a showing of actual prejudice; stated differently, it
requires that the asserted error had practical and identifiable consequences at trial. Id.
(citing State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). A manifest
constitutional error remains subject to a harmless error analysis. Id.
Article I, section 21 of the Washington State Constitution provides that “the right
of trial by jury shall remain inviolate.” In civil proceedings, “‘[t]he right to trial by jury
includes the right to an unbiased and unprejudiced jury, and a trial by a jury, one or more
whose members is biased or prejudiced, is not a constitutional trial.’” Henderson v.
Thompson, 200 Wn.2d 417, 434, 518 P.3d 1011 (2022) (internal quotation marks
omitted) (quoting Mathisen v. Norton, 187 Wash. 240, 245, 60 P.2d 1 (1936)); see also
Allison v. Dep’t of Lab. & Indus., 66 Wn.2d 263, 265, 401 P.2d 982 (1965).
13 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
The court has a duty to act on a prospective juror’s apparent bias or prejudice.
“Both RCW 2.36.110[7] and CrR 6.4(c)(1)[8] create a mandatory duty to dismiss an unfit
juror even in the absence of a challenge.” State v. Lawler, 194 Wn. App. 275, 284, 374
P.3d 278 (2016). Contrary to the doctors’ position, a party able to demonstrate the actual
bias of a juror may seek relief on appeal even after having been afforded an opportunity
for a full and fair voir dire, and after failing to challenge the juror for cause.
A juror demonstrates actual bias when he or she exhibits “a state of mind . . . in
reference to the action, or to either party, which satisfies the court that the challenged
person cannot try the issue impartially and without prejudice to the substantial rights of
the party challenging.” RCW 4.44.170(2). “Equivocal answers alone do not require that
a juror be dismissed for cause.” Lawler, 194 Wn. App. at 283. A juror who has
preconceived ideas need not be excused if the juror credibly states that she or he can set
those ideas aside and decide the case on the basis of the evidence presented and the law
as instructed by the court. State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). To
excuse a juror based on actual bias, the trial court “must be satisfied, from all the
7 “It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.” 8 “If the judge after examination of any juror is of the opinion that grounds for challenge are present, he or she shall excuse that juror from the trial of the case. If the judge does not excuse the juror, any party may challenge the juror for cause.”
14 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
circumstances, that the juror cannot disregard such opinion and try the issue impartially.”
RCW 4.44.190.
The party challenging a potential juror on the ground of actual bias has the burden
of proving the facts necessary to the challenge by a preponderance of the evidence. Ottis
v. Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747, 754, 812 P.2d 133 (1991).
Because “‘the trial court is in the best position to determine a juror’s ability to be fair and
impartial,’” we review a trial court’s decision not to dismiss a juror for manifest abuse of
discretion. State v. Guevara Diaz, 11 Wn. App. 2d 843, 856, 456 P.3d 869 (2020)
(quoting State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991)). A trial court’s
implicit decision not to dismiss a juror sua sponte is subject to the same review. The trial
court’s fact-finding discretion includes the power to weigh the credibility of the
prospective juror. Ottis, 61 Wn. App. at 753-54.
Actual bias has been found in the case of a juror who made an unqualified
representation in a questionnaire that she could not be fair to both sides. Guevara Diaz,
11 Wn. App. 2d at 846. It has been found in a case in which a juror responded, when
asked if she might not be able to give both sides a fair trial, that she was “more inclined
towards the prosecution I guess,” and said, “I would like to say [the defendant’s] guilty.”
State v. Irby, 187 Wn. App. 183, 190, 347 P.3d 1103 (2015). It has been found in a case
in which a juror “unequivocally admitted a bias . . . in favor of police witnesses,”
15 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
“indicated the bias would likely affect her deliberations,” and “candidly admitted she did
not know if she could presume [the defendant] innocent in the face of officer testimony
indicating guilt.” State v. Gonzales, 111 Wn. App. 276, 281, 45 P.3d 205 (2002),
overruled on other grounds by State v. Talbot, 200 Wn.2d 731, 521 P.3d 948 (2022).
In this case, members of the venire were asked early in voir dire to identify
themselves and answer a handful of questions, one of which was, “Can you be fair?”
RP at 86-87. Juror 8 answered that question, “I believe I can be fair.” RP at 91. When
the parties were given their opportunity to question the venire, Mr. Murphy’s lawyer
asked whether anyone had any feelings about medical malpractice, and juror 8 was one of
the individuals who raised his hand. He and the lawyer engaged in the following
exchange:
[PROSPECTIVE] JUROR NO. 15: I mentioned earlier my slight experience with Dr. Chaudhry and you mentioning malpractice, I believe it was? [PLAINTIFF’S COUNSEL]: Yes, negligence. [PROSPECTIVE] JUROR NO. 15: I⎯I’ve had both good doctors and bad doctors in my experience. So I don’t feel like I would have a bias I would express anyways or even have it internally. But I have been caught in the medical system, my family and myself, for generations literally. But I’ve seen both sides of it. [PLAINTIFF’S COUNSEL]: And thank you again for sharing that. Maybe you could share a little more about your feelings here as far as being able to sit on this jury?
16 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
[PROSPECTIVE] JUROR NO. 15: I don’t think I would have a problem, to answer you very generically. Personally, I don’t know Dr. Chaudhry at all. [PLAINTIFF’S COUNSEL]: Okay. [PROSPECTIVE] JUROR NO. 15: But I know my brother’s experience and what little bit I shared of that. And I know my mother was very close with Dr. Chaudhry during my brother’s experience. However, like I say, that was years ago for me. But I would⎯I would have to take this case by case, just as I do everything else. [PLAINTIFF’S COUNSEL]: Okay, that’s good. Thank you. And I guess the thing⎯do I have or my client have anything to fear here that because of your experience with your brother, you might lean one way or the other? [PROSPECTIVE] JUROR NO. 15: I don’t believe so, because I don’t trust anybody’s opinion, even my own sometimes, meaning that because my brother had a good experience with Dr. Chaudhry does not mean that I would or that his mother would have. [PLAINTIFF’S COUNSEL]: Okay, thank you very much for sharing that.
RP at 103-04.9
Juror 8’s answers cannot be characterized as even equivocal statements of bias or
prejudice. Mr. Murphy points to juror 8’s statement that he was 8 or 9 years old at the
time of his brother’s cancer and speculates that he would have been “impressionable,”
and that in this “searing context,” juror 8 would have perceived Dr. Chaudhry as having 9 Juror 8 later engaged in a more extensive exchange with defense counsel, after defense counsel asked the venire about any history of having a treatment relationship terminated by their doctor. See RP at 178-80. He talked about his relationships with three doctors; some favorable, some not. Mr. Murphy has nothing to say about these additional disclosures by juror 8, other than to dismiss them as “progressively less responsive.” Opening Br. of Appellant at 24.
17 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
“saved his brother’s life.” Opening Br. of Appellant at 23, 26; Reply Br. of Appellant at
13. Mr. Murphy points to juror 8’s statement that his mother was “very close” to Dr.
Chaudhry during his brother’s care and speculates that no such son “could reasonably be
considered free from actual bias.” Opening Br. of Appellant at 26. But Mr. Murphy
never obtained juror 8’s agreement that he had been impressionable, or that he had such
attitudes. Rather, juror 8 spoke of “what little bit [he] shared” of his brother’s
experience, and stated, “Personally, I don’t know Dr. Chaudhry at all,” and “like I say,
that was years ago for me.” RP at 104.
Ultimately, what Mr. Murphy is asking us to do is to infer bias from the “doctor-
to-a-close-family member” relationship. But challenges for implied bias are governed by
RCW 4.44.180, which identifies relationships for which a challenge for implied bias may
be taken “and not otherwise.” Being a close family member of a patient of a party is not
identified as a basis for a challenge for implied bias. Accordingly, Mr. Murphy is
required to demonstrate juror 8’s actual bias, and he fails to do so.
Mr. Murphy’s remaining argument is that once it was revealed that prospective
juror 25’s mother was a current patient of Dr. Chaudhry, the trial court should have
excused all similarly-situated venire members sua sponte. This is despite the fact that in
introducing herself and answering the question, “Can you be fair?” prospective juror 25
answered, “I can be fair.” RP at 95. Mr. Murphy’s lawyers did not use their allotted time
18 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
in voir dire to ask her any questions. Mr. Murphy argues that this categorical
disqualification was nevertheless required because the defense would otherwise have
unfair access to information about how the jurors’ family members had fared under the
defendants’ treatment.
Again, Mr. Murphy is required to demonstrate manifest constitutional error. He
offers no legal authority or analysis supporting the proposition that a party has a
constitutional right to disqualify a prospective juror if the party’s adversary might have
greater access to information about that juror. “‘[N]aked castings into the constitutional
sea are not sufficient to command judicial consideration and discussion.’” In re Rosier,
105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d
1364, 1366 (8th Cir. 1970)).
II. THE TRIAL COURT DID NOT ERR BY FAILING TO INTERCEDE AND, SUA SPONTE, EXCLUDE UNOBJECTED-TO TESTIMONY
Mr. Murphy’s next assignment of error is to testimony by Drs. Chaudhry, Cutter,
and Nichols supportive of Kathleen’s informed consent that he contends was speculative,
unduly prejudicial, or violated the dead man’s statute. The complained-of testimony was
not objected to, but he advances two theories on which he claims to avoid the issue
preservation problem. He also argues that because the dead man’s statute would have
applied to the estate’s assertion of Kathleen’s claims that survived her death, the trial
court should have severed the wrongful death claim sua sponte.
19 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
A. The cumulative error doctrine does not apply
Mr. Murphy first seeks to avoid the issue preservation problem by invoking the
cumulative error doctrine. The cumulative error doctrine applies “‘when there have been
several trial errors that standing alone may not be sufficient to justify reversal but when
combined may deny a defendant a fair trial.’” In re Pers. Restraint of Morris, 176 Wn.2d
157, 172, 288 P.3d 1140 (2012) (quoting State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d
390 (2000)). Mr. Murphy acknowledges that this court has repeatedly held that
cumulative error is not a method for obtaining appellate review of unpreserved issues.
Opening Br. of Appellant at 37. Instead, cumulative error is “simply a recognition that
the net impact of multiple small errors can still result in a prejudicial impact on the trial.”
Rookstool v. Eaton, 12 Wn. App. 2d 301, 311-12, 457 P.3d 1144 (2020). Nevertheless,
Mr. Murphy points to our Supreme Court’s statement in State v. Clark, 187 Wn.2d 641,
649, 389 P.3d 462 (2017), that “cumulative error present[s a] constitutional issue[ ] which
we review de novo,” and urges us to “follow the Supreme Court’s reasoning” by
reviewing his assigned error under “RAP 2.5(a)(3)’s manifest constitutional error
doctrine.” Opening Br. of Appellant at 38.
Cumulative error does present a constitutional issue, which Rookstool recognizes,
analyzing it as implicating the fair trial right. See 12 Wn. App. 2d at 309-11. But a party
must still present individually harmless preserved errors, or individually harmless
20 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
manifest constitutional errors, before asking this court to consider whether, cumulatively,
they operated to deprive the party of a fair trial. Clark does not hold otherwise. The
cumulative evidence doctrine does not apply.
B. Mr. Murphy identifies only a narrow basis for a standing objection
Mr. Murphy’s second argument is that his motions in limine created a standing
objection sufficient to preserve his challenges on appeal. When a party has moved in
limine in the trial court to exclude evidence, “giving the trial court opportunity to rule on
relevant authority, and the court does so rule, it may not be necessary to object at the time
of admission of the claimed erroneous evidence in order to preserve the issue for appeal.”
State v. Sullivan, 69 Wn. App. 167, 170, 847 P.2d 953 (1993). The party losing the
motion in limine has a standing objection to the evidentiary issue decided. Id. at 170-71.
The rule protects the losing party from being required to renew its objection in front of
the jury “at the risk of making comments prejudicial to its cause, as well as incurring the
annoyance of the trial judge.” Id. at 171. The rule only applies “[w]hen the trial court
has clearly and unequivocally ruled against the exclusion of evidence.” Id.
Here, the rule afforded Mr. Murphy a standing objection to the trial court’s ruling
on the dead man’s statute-related issue that he lost: its ruling that “the deadman’s statute
doesn’t apply.” RP at 361. Mr. Murphy baldly asserts that the standing objection created
by his loss on that issue “should be construed to preserve a challenge to Dr. Chaudhry[ʼs]
21 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
and Dr. Cutter’s speculative testimony,” Opening Br. of Appellant at 47, but he provides
no authority or reasoning in support. He had no standing objection to speculative
testimony. Any objection was required to be asserted during trial.
C. Mr. Murphy fails to demonstrate that the trial court breached a duty or abused its discretion when it did not bifurcate the wrongful death claim sua sponte
Mr. Murphy also argues that when the trial court ruled that the dead man’s statute
did not apply to the wrongful death claim asserted on behalf of the children, it was an
abuse of discretion not to “sever—or at least to consider severing—the individual- and
representative-capacity claims so that the representative claim would not be prejudiced
by the loss of the deadman’s statute’s testimonial protections.” Opening Br. of Appellant
at 42. Implicit in this argument is an acknowledgment that because the statute did not
apply to the wrongful death claim, the court could not exclude the evidence altogether.10
As the court’s instructions explained to the jury, Mr. Murphy’s survival claim on
behalf of the estate was for the personal losses suffered by Kathleen, and the damages
sought were her medical expenses and damages for personal injury, pain, suffering, and
10 Although not addressed by the parties, a limiting instruction might have been an option, although it would doubtless have been difficult for the jury to apply. In Dennick v. Scheiwer, 381 Pa. 200, 113 A.2d 318, 319 (1955), the plaintiff sued under a death statute and brought a survival action, and the court held he was “a competent witness generally.” The trial court had observed, “‘To tell the jury to listen to the defendant in one claim and close its ear in the other might possibly be technically correct but practically senseless.’” Id.
22 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
loss of enjoyment of life until her death. His wrongful death claim was for the losses
suffered by her children, as beneficiaries of the estate, and the damages sought were for
the loss of Kathleen’s love, care, companionship and guidance. As acknowledged by Mr.
Murphy’s counsel, the claims were joined by Mr. Murphy “as a matter of judicial
economy.” Opening Br. of Appellant at 42.
CR 42(b) provides that the court may order a separate trial of any claim or issue,
in furtherance of convenience or to avoid prejudice. Mr. Murphy might have sought an
order bifurcating the wrongful death claim, but he did not.
We review a trial court’s decision whether to order separate trials for abuse of
discretion, and will not reverse the court’s decision if it rests on tenable bases. Del
Rosario v. Del Rosario, 116 Wn. App. 886, 901, 68 P.3d 1130 (2003) (citing Hawley v.
Mellem, 66 Wn.2d 765, 768, 405 P.2d 243 (1965)), aff’d in part, rev’d in part on other
grounds, 152 Wn.2d 375, 97 P.3d 11 (2004). When a personal representative chooses to
join survival and wrongful death claims in the same action, and to proceed with the
claims as joined after the ramifications for the dead man’s statute are identified, any
reasonable judge would infer that the personal representative views a single trial as most
convenient and least prejudicial. And cf. Armstrong v. Marshall, 146 S.W.2d 250, 252
(Tex. Ct. App. 1940) (since evidence was admissible as applied to the survival action,
23 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
and no request was made to limit it to the other cause of action, appellants were in no
position to complain of its admission).
Mr. Murphy identifies no legal authority that required the trial court to raise
bifurcation under CR 42(b) sua sponte. We find no abuse of discretion.
D. Challenged testimony
Mr. Murphy identifies testimony by each of Drs. Chaudhry, Cutter and Nichols
that he contends should have been cut off or struck by the trial court, sua sponte.
1. Testimony by Dr. Chaudhry about Kathleen’s ability to understand his communications
Mr. Murphy points out that in questioning by Mr. Murphy’s lawyer, Dr. Chaudhry
testified he was not present for Dr. Rajendra’s discussion with the family on June 5, so
his understanding of what was said was limited to what the medical record reflected. Dr.
Chaudhry also sometimes testified in response to questions that he did not recall a
particular interaction with Kathleen, and would have to rely on the records. From this,
Mr. Murphy argues that Dr. Chaudhry’s answers to the following questions from Dr.
Chaudhry’s own lawyer were “speculation, which should not have been admitted,”
Opening Br. of Appellant at 46:
Q. . . . Now, let’s go back to your actual discussions with Ms. Murphy. Any concerns about her ability to understand what you were saying? A. Not at all.
24 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Q. Can you provide any more detail relating to the discussion and the back-and-forth that gave you that impression? A. So at multiple times, from 6/4 when she spoke to Dr. Raj, 6/5 and 6/6 with me, she was very clear she wanted to go for a cure. And I asked her multiple times. Even in the clinic, she was very clear she wanted to go for a full cure. So there was no doubt in my mind that she and the family had chosen the path of curative therapy. Q. Did she express to you understanding when you did⎯when you explained the risks and benefits of the drugs? A. Yes, she did.
RP at 1156-57. Mr. Murphy also contends that this testimony violated the dead man’s
statute.
No objection was made to these questions or answers in the trial court. Mr.
Murphy had a standing objection to the trial court’s ruling that the dead man’s statute did
not apply, but on appeal, he does not challenge that ruling on the merits—he merely
argues that the trial court should have bifurcated the claims, sua sponte, which we reject
in section II.C. Assuming without agreeing that the questions called for Dr. Chaudhry to
speculate, error was not preserved.
2. Testimony by Dr. Cutter about his August 13 conversation with Kathleen and Susan
Mr. Murphy next points out that when Dr. Cutter was questioned by Mr. Murphy’s
lawyer, he testified that he could not recall speaking to Dr. Howard about Kathleen on
September 15, but he likely did speak to him, based on a note in the medical records.
Elsewhere, Dr. Cutter testified that Dr. Elmer was also involved in Kathleen’s care “[b]ut
25 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
I don’t recall what discussions I had with who” and his only independent recollection of
his conversation with the doctors was the medical records. RP at 642-43.
Based on that testimony, Mr. Murphy argues that almost four pages of transcribed
testimony by Dr. Cutter about the August 13 note of his conversation with Kathleen and
her daughter “could only be speculation, and . . . should not have been admitted.”
Opening Br. of Appellant at 46-47 (identifying testimony at RP 648-52). At no point in
that testimony was any objection made. Assuming without agreeing that the questions
called for Dr. Cutter to speculate, error was unpreserved.
3. Testimony by Dr. Nichols
Finally, Mr. Murphy contends the trial court should have cut off parts of defense
counsel’s examination of Dr. Nichols sua sponte. The first occasion was questioning by
defense counsel about a note electronically signed by Dr. Rajendra on June 4. Much of
what Dr. Nichols stated in response was quoting from the medical record, so we revise
the formatting to make Dr. Nichols’s relatively limited testimony more easily discerned
(the quoted testimony is italicized and set off as appropriate):
Q. . . . [W]ill you read through that addendum and tell me if it is consistent or inconsistent with what you would expect for documenting informed consent? A. Okay. So it starts with “I had an extensive d/w,” [discussion with], “the family, daughter, and son Mike. I discussed the final pathology. I reiterated that I would discuss the pathology again with Dr. Corn to confirm. I next discussed staging;
26 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
[workup] which would include CT [of the chest, abdomen, and pelvis] (done); Echo; [pulmonary function tests]; PICC/,” which is the catheter that’s put in under the (indicating) clavicle to administer chemotherapy; “and a bone marrow biopsy. Port once they decide to proceed with chemotherapy. I discussed that if they decided to proceed with chemo[therapy], which they seem very keen on doing, I recommended 4 cycles of ABVD followed by [a] restaging PET/CT and then additional 2 cycles of ABVD, switching therapy⎯v[ersus] Switching therapy based on the results of PET/CT based on the Deauville Criteria.” The Deauville criteria are a graded criteria about how metabolically active the PET scan is. “I discussed the chemotherapy agents used and their toxicities for each of these agents. I also discussed the prognosis for advanced stage [Hodgkin lymphoma]. Finally, they also were concerned about the patient’s mentation [and]⎯and she feeling sluggish and lethargic, which is very unusual for their mother. I recommended checking for adrenal insufficiency, and if this⎯that’s not the case, doing the LP for CSF,” which is cerebral spinal fluid, which is the fluid that surrounds the spinal cord, “or even an MRI brain. All of their questions were answered. I spent a total of 35-40 minutes discussing her patho[logy, ]physiology/staging, [workup], treatment options, and answering all their questions.” Q. Is that inconsistent or consistent with what you would expect in relation to informed consent regarding the administration of ABVD? A. It’s consistent with my practice and my understanding and experience with the practice in Washington. Q. And spending 35 to 40 minutes with them in that discussion, is that also consistent with . . . A. I would say that⎯I never say excessive, but it’s more than is typically spent, yes.
RP at 797-98 (quoting Ex. D102 at 229) (format modified).
27 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Defense counsel then questioned Dr. Nichols about a note Dr. Cutter entered in the
medical records on the day he administered AVD, omitting bleomycin. Defense counsel
asked Dr. Nichols to read through Dr. Cutter’s assessment and “let me know when you’re
done there.” RP at 803. This testimony followed:
A. (Looking at a document.) I’m done. Q. And then under “Plan,” do you see No. 2? A. I do. Q. Indicates the plan that Dr. Cutter had put into play, or intended to put in play? A. I do. Q. And then ultimately No. 5, what’s that indicate to you? A. Number 5 says, “I went over the above in detail with both the patient and her doctor.” Q. If Dr. Cutter testified not only consistent with the record there as well as indicated the assessment was discussed and that’s what he meant by in No. 5 in relation to “Went over the above in detail,” is that consistent with you with providing necessary information for informed consent? A. Yes.
RP at 803-04. Mr. Murphy contends that all of the foregoing testimony was speculative,
unreliable and prejudicial, and should have been excluded. Assuming without agreeing
that the testimony was objectionable on any of those bases, error was not preserved.
Finally, Mr. Murphy complains about a line of questioning of Dr. Nichols that is
reflected on a full five pages of the trial transcript. Defense counsel began by asking,
“[I]f you were meeting with Ms. Murphy . . . what’s the material information that you
28 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
would have provided to her for what you consider to be informed consent?” and
thereafter, “[T]ake us through what you would have said to Ms. Murphy.” RP at 789-90.
Representative of the nature of Dr. Nichols’s response is the following snippet:
“We are going to give four drugs: [o]ne has⎯is hard on your heart or can be hard on your heart, can be hard on your bone marrow; one can be hard on your lungs and cause lung stiffening and breathing problems; one can cause muscle aches, constipation, and be hard on your bone marrow; and the other can be hard on your bone marrow and blood and platelet counts. We’ll check you carefully. We’ll do what we can. But any or all of those drugs, alone or in combination, can rarely cause catastrophic outcomes and death.”
RP at 792. At the conclusion of Dr. Nichols’s articulation of what he would have said to
Kathleen, defense counsel asked if Dr. Nichols would have noted the entire conversation
on Kathleen’s chart. The doctor answered, “No,” explaining, “My chart note would be
something like, ‘I had a long discussion with Ms. Murphy . . . about her diagnosis, her
prognosis, treatment option—general treatment options and general discussion of toxicity
and of risk and benefit from the—from ABVD.’” RP at 794. The unstated implication
was that Dr. Chaudhry’s similarly succinct chart note could summarize what had been a
much lengthier discussion with Kathleen. At no point during the questioning did Mr.
Murphy object.
Mr. Murphy argues that this testimony was “profoundly and overwhelmingly
prejudicial,” and the trial court had discretion to strike it sua sponte under In re Estate of
Hayes, 185 Wn. App. 567, 591-92, 342 P.3d 1161 (2015). Opening Br. of Appellant at
29 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
51-52. Hayes merely holds that a trial court has discretion to strike evidence sua sponte,
not that it can have a duty to do so. Not only does Hayes not recognize any duty, it holds
that the court’s discretion to strike testimony sua sponte is limited and can be abused,
explaining, “‘“[I]t is only when the evidence is irrelevant, unreliable, misleading, or
prejudicial, as well as inadmissible, that the judge should exercise [the] discretion[ ] . . .
to intervene.”’” Id. at 592 (alteration in original) (quoting Vachon v. Pugliese, 931 P.2d
371, 381 (Alaska 1996) (quoting 1 JOHN W. STRONG, MCCORMICK ON EVIDENCE § 55,
at 225 (4th ed. 1992))).
Assuming without agreeing that this testimony by Dr. Nichols was excludable
under ER 403, error was not preserved.
III. DENYING THE NEW TRIAL MOTION WAS NOT AN ABUSE OF DISCRETION
Finally, Mr. Murphy assigns error to the trial court’s denial of his motion for a
new trial. In moving for a new trial, Mr. Murphy had argued that because Dr. Rajendra
did not testify, Dr. Chaudhry was unaware whether Dr. Rajendra discussed with Kathleen
the option of omitting bleomycin, and Dr. Chaudhry admitted that he, himself, did not
speak with her about that alternative, the evidence was insufficient to support a defense
verdict on the informed consent claim.
The jury was properly instructed that Mr. Murphy’s informed consent claim
required him to prove each of the following elements:
30 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
First, that the Defendants failed to inform the patient of a material fact or facts relating to the treatment; Second, that the patient consented to the treatment without being aware or fully informed of such material fact or facts; Third, that a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; and Fourth, that the treatment in question was a proximate cause of injury to the patient.
Clerk’s Papers (CP) at 260 (Instr. 15); see RCW 7.70.050(1). The jury was further
instructed, as to the meaning of “material facts,” that
[a] medical oncologist has a duty to inform a patient of all material facts, including risks and alternatives, that a reasonably prudent patient would need in order to make an informed decision on whether to consent to or reject a proposed course of treatment. A material fact is one to which a reasonably prudent person in the position of the patient would attach significance in deciding whether or not to submit to the proposed course of treatment.
CP at 259 (Instr. 14); see RCW 7.70.050(2).
The trial court’s order identified three grounds on which to deny the new trial
motion, with the following findings:
3. The jury heard testimony that the medical records demonstrated compliance with informed consent consistent with Washington law. 4. It is reasonable to infer that the jury believed that Ms. Murphy would have consented to the use of ABVD regardless of the risk. 5. Further, the jury heard testimony that allowed them to infer that Bleomycin was not the proximate cause of Ms. Murphy’s death.
CP at 381.
31 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
CR 59 permits the trial court to order a new trial following a jury’s verdict when
“there is no evidence or reasonable inference from the evidence to justify the verdict.”
CR 59(a)(7). We review the denial of a motion for a new trial for abuse of discretion.
Conrad v. Alderwood Manor, 119 Wn. App. 275, 290, 78 P.3d 177 (2003). Where the
proponent of a new trial argues the verdict was not based on the evidence, appellate
courts will look to the record to determine whether there was sufficient evidence to
support the verdict. Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 811-12,
490 P.3d 200 (2021) (citing Palmer v. Jensen, 132 Wn.2d 193, 197-98, 937 P.2d 597
(1997)). This analysis is akin to the inquiry courts make in considering a motion for
judgment as a matter of law under CR 50, where the court is required to view the
evidence and reasonable inferences in the light most favorable to the verdict, without
regard to contrary evidence or inferences. Id. at 812. This substantial evidence review
respects the jury’s prerogative to evaluate and weigh the evidence. Id. (citing Cox v.
Charles Wright Acad., Inc., 70 Wn.2d 173, 176-77, 422 P.2d 515 (1967)).
There was sufficient evidence to support a jury finding that a reasonably prudent
patient under similar circumstances would have consented to Kathleen’s course of
treatment if informed of material facts. This is an independently sufficient basis for the
jury’s verdict. Drs. Chaudhry and Cutter testified that they informed Kathleen of
material facts, both testified that the treatment provided best met Kathleen’s objective of
32 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
cure, and Dr. Nichols agreed that he would have pursued the same course of treatment.
That testimony, if credited by jurors, supported this finding.
Mr. Murphy complains that the trial court’s finding was that “[i]t is reasonable to
infer that the jury believed that Ms. Murphy would have consented to the use of ABVD
regardless of the risk,” thereby misanalyzing the essential element as subjective. CP at
381 (emphasis added). But the same evidence that supports the trial court’s subjectively-
framed finding supports our objectively-framed finding. In our review for abuse of
discretion, we may affirm the trial court on any basis that the record supports. Coogan,
197 Wn.2d at 820 (citing State v. Arndt, 194 Wn.2d 784, 799, 453 P.3d 696 (2019)).
There was also sufficient evidence to support a jury finding that Mr. Murphy
failed to prove that the treatment in question was a proximate cause of Kathleen’s death.
This, too, is an independently sufficient basis for the jury’s verdict. While Drs.
Sweetenham and Fishbein testified that the underlying lung injury was caused by
bleomycin toxicity, aggravated by the Neulasta, Dr. Nichols testified that Kathleen’s
death was more likely caused by something else, and Dr. Howard testified he would
attribute it to ARDS of undetermined etiology.
Since the trial court’s decision can be affirmed on both these grounds, we need not
reach its third alternative ground (that the medical records, as explained by the testimony,
sufficiently demonstrated compliance with the requirement for informed consent).
33 No. 37545-5-III Murphy v. Medical Oncology Assoc., PS
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR:
Fearing, C.J.
Pennell, J.