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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MARI YVONNE DAVIES, NO. 100079-1
Respondent, v. EN BANC
MULTICARE HEALTH SYSTEM, a Filed: June 2, 2022 Washington corporation d/b/a GOOD SAMARITAN HOSPITAL, and MT. RAINIER EMERGENCY PHYSICIANS, PLLC; MICHAEL HIRSIG, M.D.,
Petitioners.
GORDON McCLOUD, J.—This case addresses the difference between two
claims that arose from the same accident and that were based on the same medical
care: a medical malpractice claim and a failure to secure informed consent claim.
We adhere to our prior decisions holding that these are two separate claims and
that in general, a patient cannot bring an informed consent claim where, as here,
the physician ruled out the undiagnosed condition entirely.
FACTUAL BACKGROUND
On August 23, 2017, Mari Davies was in a single-car rollover accident.
Clerk’s Papers (CP) at 52. Emergency responders transported her to the emergency For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
room (E.R.) at Good Samaritan Hospital in Puyallup. Id. at 53. When Davies
arrived at the E.R. she had hypertension, high blood pressure, left shoulder pain,
neck pain, chest pain, abdominal pain, a headache, and some tingling in her left
arm. Id. at 53-54. She also had preexisting kidney stones, diverticulosis,
pneumonia, and diabetes. Id. at 54-55.
Dr. Michael Hirsig evaluated her as soon as she arrived in the E.R. Id. at 55.
Dr. Hirsig ordered computerized tomography (CT) scans of her head, cervical
spine, abdomen, chest, and pelvis. Id. He also ordered an electrocardiogram and X-
rays, among other laboratory tests and blood work. Id. at 55, 73.
Davies’ CT scan showed a cervical spine fracture at the C3 level. Id. at 55-
56. Dr. Hirsig therefore consulted by phone with Dr. William Morris, the on-call
neurosurgeon for Good Samaritan Hospital. Id. at 55. Dr. Morris reviewed the
images and noted Davies’ C3 fracture; he determined that it did not require
surgery. Id. at 55, 59. Dr. Morris recommended a cervical collar for eight weeks
with a follow-up CT scan to check for healing and alignment. Id. at 59. 1
Dr. Hirsig diagnosed Davies with a stable cervical spine fracture. Id. at 56,
72. He then placed Davies in an Aspen collar and had her “ambulate” around the
1 Dr. Morris’ notes also reflect his assumption that Davies would be transferred to Tacoma General Hospital for observation. CP at 59. But after hearing that Davies’ fracture did not require surgery, Dr. Hirsig determined that transfer to Tacoma General was not necessary and that discharge was more appropriate. Id. at 176-78. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
room to make sure she could be discharged. Id. at 55, 177. He determined that she
had no “neurological symptoms.” Id. at 177. He gave her Percocet (for pain),
Zofran (for nausea), and Flexeril (a muscle relaxant) and told her to schedule a
follow-up with Dr. Morris and her primary care provider, Dr. Andrew Larsen. Id.
at 55, 72, 178. He then discharged her to the care of her family. Id. at 55, 178.
Davies visited her primary care provider, Dr. Larsen, the next day. Id. at 84.
While in his office, Davies exhibited stroke symptoms. She was immediately
transported to the E.R. at Providence St. Peter Hospital. She had, indeed, suffered
a stroke. Id. at 89. Davies now has brain damage and lives in an assisted living
facility. Id. at 63, 67-68.
Davies’ stroke was caused by a vertebral artery dissection (VAD) that
occurred at the time of the accident. 2 Id. at 89-90. A VAD is typically detected by
a computed tomography angiography (CTA) scan. Id. at 129. A CTA scan involves
injecting the patient with a contrast dye that lights up in a CT scanner to detect any
artery dissections. 5 Verbatim Tr. of Proceedings (VTP) (Oct. 3, 2019) at 762-63.
It is undisputed that Dr. Hirsig did not order a CTA scan for Davies while she was
in the E.R. CP at 551.
2 There are two vertebral arteries that run along the side of the neck. 4 Verbatim Tr. of Proceedings (VTP) (Oct. 2, 2019) at 504; 6 VTP (Oct. 7, 2019) 940. If one of those arteries experiences a tear (dissection), then blood will start to clot to heal the tear; but those clots can quickly travel to the brain and cause a stroke. 4 VTP (Oct. 2, 2019) at 504. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
PROCEDURAL HISTORY
I. The trial court dismissed the informed consent claim on summary judgment; the jury found for the health care provider defendants on Davies’ negligence claim at trial
On May 31, 2018, Davies filed suit against MultiCare Health System, the
parent corporation of Good Samaritan Hospital, alleging (1) medical negligence,
(2) failure to obtain informed consent, and (3) corporate negligence. Id. at 1-4.
Davies later amended her complaint to add defendant Mt. Rainier Emergency
Physicians, the employer that procures Dr. Hirsig’s independent contractor
services. Id. at 18, 61. Dr. Hirsig also intervened as a defendant. Id. at 799.
On cross motions for partial summary judgment, the trial court dismissed
Davies’ informed consent claim. 3 Id. at 22-32, 33-44, 110-23, 590-92.
The trial court based its decision on the following undisputed evidence.
Davies’ experts testified (at deposition) that because Davies was in a rollover
collision and had fractures at the C3 level of her neck, she was at risk of a VAD.
3 Mt. Rainier Emergency Physicians and Dr. Hirsig moved for summary judgment dismissal of Davies’ corporate negligence and informed consent claims. CP at 22. MultiCare moved for summary judgment to dismiss all claims against MultiCare employees/agents, besides the claims regarding Dr. Morris and Dr. Hirsig, and it moved to dismiss Davies’ claim of corporate negligence against MultiCare. Id. at 110. Davies moved for partial summary judgment as to the defendant’s affirmative defenses of comparative fault and third party fault—the motion regarding third party fault was unopposed and was granted. Id. at 34, 818. The trial court granted the motion to dismiss the informed consent claim. Id. at 590-92. The court also granted an agreed motion for summary judgment dismissal of claims against MultiCare employees and agents other than Dr. Morris and Dr. Hirsig. Id. at 821. The trial court denied the rest of the motions. Id. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
Id. at 142, 145. Davies’ experts also testified that if Davies had undergone a CTA,
it would have revealed her VAD and she would have received treatment that likely
would have prevented the stroke. Id. at 145, 147-48, 198. Additionally, Davies’
experts testified that a VAD is “commonly found” when there is a cervical spine
fracture, so it is standard to perform a CTA scan if there is a C3 fracture. Id. at 143,
145. Once a VAD is detected, a medication regimen of Plavix, heparin, or aspirin
should have been started to prevent a subsequent stroke. Id. at 145.
Dr. Hirsig testified (via deposition) that he considered the possibility of a
VAD but that Davies’ symptoms and presentation led him to rule it out:
Q What would be the signs or symptoms that would cause you to order a CTA?
A Well, I mean, in this—in Ms. Davies’ case, she had—she would have had signs and symptoms consistent with, you know, vertebral artery dissection. Or if I was concerned about that on my clinical evaluation, then I would have ordered it. She had nothing that led me to believe or suspect that she had a dissection.
Q Did you consider a vertebral artery injury in your differential diagnosis for this—
A Yeah.
Q For Ms. Davies? You did?
A Yeah. Absolutely. I mean, I considered all types of injuries. I mean, she could have had a vertebral artery dissection. She could have had a head bleed. She could have had a pneumothorax, rib fractures, hip fractures. So, yeah, I had to consider all of that.
Q Did you ultimately exclude vertebral artery injury? 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
A You know, in my judgment, I mean, my—in my judgment, at that time, her clinical picture did not lead me to suspect that she had a dissection. She had no signs or symptoms of it.
Q What would you be looking for? What would be the signs and symptoms you would be looking for of a vertebral artery injury?
A Like we talked about, usually you will see a little bit of vertigo. They will have maybe some nystagmus. They’ll have a Horner’s syndrome. They will have inability to stand, loss of balance. They can have blurred vision, facial pain, ear pain. They can have swelling in the throat or in the neck.
Q Okay. And if you had suspected vertebral artery dissection, or vertebral artery injury, is there—would you have ordered a CTA or an MRI, or what would you have done?
A It all depends. In Mrs. Davies’ case, I didn’t suspect that she had a dissection, so I didn’t order anything else.
Id. at 512. The trial court apparently found no material factual dispute related to
the informed consent claim and dismissed it as unsupported by the law. Id. at 590-
91.
Davies’ medical negligence claims proceeded to trial. The jury found that
none of the health care provider defendants were negligent. 15 VTP (Oct. 23,
2019) at 3074; CP at 823. The trial court entered judgment against Davies. CP at
826-32.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
II. The Court of Appeals reversed the trial court’s summary judgment dismissal of the informed consent claim
Davies appealed the trial court’s order dismissing her informed consent
claim. 4 The Court of Appeals reversed the dismissal of that claim and remanded.
Davies v. MultiCare Health Sys., 18 Wn. App. 2d 377, 381, 491 P.3d 207 (2021).
The Court of Appeals opined that Davies had presented evidence at
summary judgment showing that “had she undergone a CTA, her vertebral artery
dissection would have been diagnosed and a different treatment regimen other than
sending her home in a neck brace would have been initiated, preventing her
subsequent stroke.” Id. at 390. The court explained that “Davies was never advised
of the risk of a vertebral artery dissection or the availability of a CTA scan to look
for the injury which would have led to a different treatment.” Id. at 391. It also
explained that the doctors had diagnostic procedures available to test Davies for a
vertebral artery dissection. Id. at 392. It then concluded that these facts were
sufficient to support an informed consent claim. Id. at 391-92. It therefore reversed
the trial court’s dismissal of that claim. Id. at 392.
Davies also appealed the trial court’s decisions to give an exercise of judgment 4
jury instruction and to prevent her expert neurosurgeon from testifying at trial regarding the standard of care for an emergency room physician. Davies v. MultiCare Health Sys., 18 Wn. App. 2d 377, 381, 491 P.3d 207 (2021). She did not petition for review of these issues in this court. Answer to Pet. for Review at 1-2. 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
We accepted review of whether the informed consent claim was properly
dismissed at summary judgment. Davies v. MultiCare Health Sys., 198 Wn.2d
1026 (2021).
ANALYSIS
Motions for summary judgment are reviewed de novo, and this court
engages in the same inquiry as the trial court. DeWater v. State, 130 Wn.2d 128,
133, 921 P.2d 1059 (1996). We will “consider only evidence and issues called to
the attention of the trial court.” RAP 9.12. Summary judgment is proper if there are
no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law. Gunnier v. Yakima Heart Ctr., Inc., 134 Wn.2d 854, 858, 953 P.2d
1162 (1998); CR 56(c). We review all evidence in the light most favorable to the
nonmoving party. Keck v. Collins, 184 Wn.2d 358, 368, 357 P.3d 1080 (2015).
I. Background about informed consent claims and medical malpractice claims
Under the common law doctrine of informed consent, “a health care
provider has a fiduciary duty to disclose relevant facts about the patient’s condition
and the proposed course of treatment so that the patient may exercise the right to
make an informed health care decision.” Stewart-Graves v. Vaughn, 162 Wn.2d
115, 122, 170 P.3d 1151 (2007) (citing Miller v. Kennedy, 11 Wn. App. 272, 282,
522 P.2d 854 (1974), aff’d, 85 Wn.2d 151, 530 P.2d 334 (1975)). This doctrine is
based on “the individual’s right to ultimately control what happens to his body.” 8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
Keogan v. Holy Family Hosp., 95 Wn.2d 306, 313-14, 622 P.2d 1246 (1980). We
first recognized this right in ZeBarth v. Swedish Hospital Medical Center, 81
Wn.2d 12, 499 P.2d 1 (1972), and it was later codified in RCW 7.70.050 and RCW
7.70.030. Stewart-Graves, 162 Wn.2d at 123.
RCW 7.70.030(3) codified that common law informed consent claim by
stating that a patient can assert a claim when an “injury resulted from health care to
which the patient or his or her representative did not consent.” RCW 7.70.050(1)
then codified the elements required to prove such a claim:
(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment; (b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts; (c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; (d) That the treatment in question proximately caused injury to the patient.
A typical informed consent case arises when a physician diagnoses a
patient’s condition and recommends a course of treatment. Backlund v. Univ. of
Wash., 137 Wn.2d 651, 661 n.2, 975 P.2d 950 (1999). The physician must disclose
the risks attendant to such treatment and allow the patient to make an informed
decision about accepting those risks. Otherwise, the physician faces liability under
RCW 7.70.050. Id. “Similarly, the physician is liable if the physician fails to
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
disclose other courses of treatment, including no treatment at all, as options upon
which the patient makes the ultimate choice.” Id.
A medical malpractice claim based on an alleged misdiagnosis is different.
To bring a negligence claim for failure to follow the standard of care, a plaintiff
must show that
(a) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances;
(b) Such failure was a proximate cause of the injury complained of.
RCW 7.70.040(1).
II. Misdiagnosis claims and informed consent claims are distinct, and “a health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it”
Misdiagnosis claims and informed consent claims are different. Our two
most recent decisions analyzing the difference between the two claims were both
decided after the legislature codified the informed consent claim. Both decisions
clearly held that under RCW 7.70.050(1), the physician has a duty to inform the
patient about “treatment” options; the physician does not have a duty to inform the
patient about possible diagnoses. While treatment and diagnosis can at times
overlap, a physician cannot be held liable for failure to secure informed consent if
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
the physician misdiagnoses the patient and therefore remains unaware of treatment
options for the undiagnosed condition.
In the first case, Backlund, this court held that informed consent claims and
negligence claims are distinct causes of action that generally cannot be based on
the same underlying facts. In that case, the Backlunds’ newborn daughter, Ashley,
suffered from jaundice and Dr. Jackson treated her with phototherapy. 137 Wn.2d
at 654-55. The type of jaundice Ashley experienced was generally treated with
phototherapy, but more serious cases were treated with a transfusion of all the
blood in the infant’s body. Id at 655. Transfusion poses significantly greater health
risks. Id. Dr. Jackson never discussed the option of a transfusion with the
Backlunds because he determined that the risk of brain damage from jaundice was
less likely than the risk of death or serious bodily harm from a total blood
transfusion. Id at 656.
But the phototherapy failed, and Ashley suffered brain damage. Id. at 655. A
jury found in favor of Dr. Jackson on the Backlunds’ subsequent negligence claim
“because Dr. Jackson did not breach the standard of care in deciding to treat
Ashley with phototherapy rather than a complete transfusion of her blood.” Id. The
parties then tried the informed consent claim to the bench. Id. The court ruled that
the informed consent claim was proper in this context because Ashley was
correctly diagnosed with jaundice, so the Backlunds should have been informed
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that transfusion was a “recognized possible alternative form of treatment.” Id. at
655-57 (internal quotation marks omitted). The trial court nevertheless rejected the
claim for a different reason—failure to prove causation. Id. at 658. The Court of
Appeals affirmed, and this court accepted review.
We affirmed and agreed with the trial court’s reasoning. We began by
emphasizing that “[n]egligence and informed consent are alternative methods of
imposing liability on a health care practitioner” and a plaintiff can prevail on a
failure to secure informed consent claim even if that patient loses on the negligence
claim. Id. at 659. We continued that these two claims cannot be “‘predicated on the
same facts.’” Id. at 661 (quoting Bays v. St. Luke’s Hosp., 63 Wn. App. 876, 883,
825 P.2d 319 (1992)). We concluded, “A physician who misdiagnoses the patient’s
condition, and is therefore unaware of an appropriate category of treatments or
treatment alternatives, may properly be subject to a negligence action where such
misdiagnosis breaches the standard of care, but may not be subject to an action
based on failure to secure informed consent.” Id.
We therefore agreed with the trial court that Dr. Jackson properly diagnosed
Ashley with jaundice, so he should have informed the Backlunds that transfusion
was an alternative treatment option. Id. at 662. But we also upheld the trial court’s
decision to reject the claim due to failure to prove causation. Id. at 668-70.
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In that case, Dr. Jackson properly diagnosed Ashley’s medical problem
(jaundice); Dr. Jackson was therefore required to provide the Backlunds with
sufficient information to ensure that they provided informed consent to her
treatment. In this case, however, Dr. Hirsig affirmatively ruled out Davies’
medical problem (VAD). For that reason, Dr. Hirsig remained unaware of the
“appropriate category of . . . treatment alternatives” that were available. Id. at 661.
Following Backlund, a patient cannot bring an informed consent claim based solely
on the physician’s misdiagnosis.
Our second case interpreting RCW 7.70.050(1), Anaya Gomez v. Sauerwein,
180 Wn.2d 610, 331 P.3d 19 (2014), also held that a claim of failure to procure
informed consent generally cannot rest on the fact that the physician ruled out the
correct diagnosis. In that case, Christina Anaya suffered from uncontrolled
diabetes, causing her to be immunocompromised and susceptible to serious
infections. Id. at 613. In 2006, she went to the hospital complaining of urinary tract
infection symptoms. Id. The hospital took urine and blood samples, and several
days later her blood culture results came back positive for yeast. Id. at 613-14. Dr.
Sauerwein, her treating physician, was concerned about the test result but
determined that it was more likely that it was a false positive, a common
occurrence in microbiology labs. Id. at 614. Dr. Sauerwein had a nurse call Anaya,
who said she was feeling better. The doctor moved Anaya’s appointment up, but
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
he did not tell her about the positive test result. Id. Several days later, Anaya’s
condition worsened. She went to the hospital and was diagnosed with glabrata, a
serious yeast infection of the blood. Id. at 615. The treatment for this infection
came too late to stop the glabrata from spreading to her internal organs; she died
from this disease at age 32. Id. Anaya’s estate brought suit against Dr. Sauerwein
and the clinic. Id. The trial judge granted the defense motion to dismiss the
informed consent claim. Id. A jury found in favor of Dr. Sauerwein on the
negligence claim. Id. at 616. The Court of Appeals affirmed. Id.; Anaya Gomez v.
Sauerwein, 172 Wn. App. 370, 385, 289 P.3d 755 (2012).
On review in this court, we held that providers do not have a duty to inform
patients of all positive test results because “[a] lab test is one tool among many that
a health care provider uses to form a diagnosis” and “[o]nly after the provider has
used these tools to make a diagnosis can he or she inform the patient about possible
treatments and the risks associated with each.” Anaya Gomez, 180 Wn.2d at 620.
We explained,
[A] health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it. In such situations, a negligence claim for medical malpractice will provide the patient compensation if the provider failed to adhere to the standard of care in misdiagnosing or failing to diagnose the patient’s condition.
Id. at 618. We further explained,
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[W]hen a health care provider rules out a particular diagnosis based on the patient’s clinical condition—including test results, medical history, presentation upon physical examination, and any other circumstances surrounding the patient’s condition that are available to the provider—the provider may not be liable for informed consent claims arising from the ruled out diagnosis under RCW 7.70.050.
Id. at 613. This court therefore concluded, “informed consent [claims are]
available only when there is something to inform the patient about.” Id. at 626-27.
The language of RCW 7.70.050 and our decisions in Backlund and Anaya
Gomez make clear that a physician has a duty to provide a patient with information
about relevant treatment options. But those decisions also make clear that if a
physician rules out a diagnosis based on a patient’s total clinical picture, then that
physician has no duty to inform the patient about a condition of which the
physician is unaware.
Here, Dr. Hirsig ruled out a VAD based on Davies’ total clinical picture. He
did not provide her with treatment options for a VAD because he did not know she
had it. This set of undisputed facts is sufficient to support a medical malpractice
claim. It is not sufficient to support an informed consent claim.
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III. The Gates 5 exception for a known “abnormal [body] condition” does not apply to these facts, which support a claim of medical malpractice but not of failure to procure informed consent
Acknowledging the distinction between misdiagnosis and informed consent
claims, Davies argues that Dr. Hirsig correctly diagnosed Davies’ condition as
multiple neck fractures but failed to inform her (1) that VAD was essentially a risk
of the neck fracture diagnosis and (2) that other treatment options were available to
deal with this risk. Resp’t’s Suppl. Br. at 1. Davies argues that the “material risk[]”
of a cervical neck fracture is a VAD and the “treatment options” are a CTA scan
and medication to prevent strokes. Id. at 1, 14.
Davies points to our decision in Gates to support this assertion. Resp’t’s
Suppl. Br. at 9, 13, 15. The Gates case arose before the informed consent claim
was codified. In May 1972, Elisabeth Gates consulted her ophthalmologist, Dr.
Hargiss, about difficulty in focusing, blurring, and gaps in her vision. Gates, 92
Wn.2d at 247. Gates was 54 years old at the time and had severe myopia, which
doubled her risk of glaucoma. Id. Dr. Hargiss found high pressure in both eyes that
put her in a borderline area for glaucoma. Id. But Dr. Hargiss then examined
Gates’ optic nerves (without benefit of dilation) and found no abnormality. As a
result, he did not perform any other tests for glaucoma. Id. In response to Gates’
inquiry about the eye pressure test, he said that he had “checked for glaucoma but
5 Gates v. Jensen, 92 Wn.2d 246, 251, 595 P.2d 919 (1979). 16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
found everything all right” and diagnosed her with difficulties with her contact
lenses. Id. at 247-48.
By the time Gates’ glaucoma was discovered, about two years later, her
vision had deteriorated drastically to the point of being functionally blind. Id. at
248-49. Gates brought a malpractice claim. Id. at 247. At the end of trial, Gates
requested an instruction on the doctrine of informed consent; the trial court denied
her request. Id. at 249. The jury ruled for the health care providers, and the Court
of Appeals affirmed. Id.; Gates v. Jensen, 20 Wn. App. 81, 579 P.2d 374 (1978).
This court reversed the trial court’s refusal to give the informed consent
instruction. Gates, 92 Wn.2d at 249. We held that a physician’s duty to obtain
informed consent can extend beyond the treatment of a medical condition to the
diagnostic phase of care. Id. at 250. Specifically, this court held that a patient has a
right to know of “[t]he existence of an abnormal condition in one’s body, the
presence of a high risk of disease, and the existence of alternative diagnostic
procedures to conclusively determine the presence or absence of that disease.” Id.
at 251. This court determined that “[t]he physician’s duty of disclosure arises,
therefore, whenever the doctor becomes aware of an abnormality which may
indicate risk or danger.” Id. (citing Betesh v. United States, 400 F. Supp. 238
(D.D.C. 1974)).
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But Dr. Hirsig never identified an “abnormality” in Davies, other than the
neck fractures that he explicitly diagnosed. Dr. Hirsig ruled out a VAD and
determined that Davies exhibited “no . . . neurological symptoms.” CP at 177.
Rather, he diagnosed Davies with an entirely different condition—a stable cervical
spine fracture. CP at 56, 72. Therefore, Dr. Hirsig did not have a duty to inform
Davies under Gates.
Additionally, Gates was decided before the legislature enacted RCW
7.70.050. While Gates has not been overruled, it has been significantly narrowed.
Anaya Gomez, 180 Wn.2d at 623, 626 (“Gates is the exception and not the rule
with regard to the overlap between medical negligence and informed consent.”) It
is possible that treatment and diagnosis can overlap in some circumstances.
Davies’ case, however, does not present such a circumstance.
Instead, Davies’ claim falls into the medical negligence category. Dr. Hirsig
misdiagnosed Davies and ruled out a VAD as a possible diagnosis. A VAD is a
condition that must be diagnosed, and a CTA scan is the tool used to diagnose a
VAD. In his deposition testimony that was provided at summary judgment, Dr.
Hirsig said that he had considered VAD as a “diagnosis,” but he ruled it out as an
option because “[s]he had no signs or symptoms of it.” CP at 512. Dr. Hirsig’s
testimony that he determined that Davies did not have a VAD was uncontradicted.
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In fact, Davies herself consistently refers to a VAD as a condition that a
physician must “diagnose” (rather than a treatment that a physician might offer)
and refers to a CTA scan as the “diagnostic test” used to identify a VAD (rather
than a treatment used to mitigate or cure it). See, e.g., Resp’t’s Suppl. Br. at 21
(“Davies had numerous diagnostic and treatment options including a CTA scan and
medication like Plavix and aspirin.”); CP at 33 (“In fact, Ms. Davies had a
vertebral artery dissection that was left undiagnosed.”), 37 (“That injury could
have been diagnosed and treated if Defendants had performed a CTA scan prior to
discharge . . . .”), 129 (“Had Ms. Davies undergone a CTA, her vertebral artery
dissection would have been diagnosed and treatment would have been initiated . . .
.”), 3 (in her complaint Davies frames her informed consent cause of action as Dr.
Hirsig’s failure to explain “the alternative diagnostic tests and treatments
available.”), 142 (in deposition Davies expert was asked, “Was Ms. Davies ever
diagnosed with a vertebral artery dissection?” to which the expert responded, “It
was diagnosed—it was found on the CT angiogram.”).
The Court of Appeals similarly referred to a VAD as a diagnosis and a CTA
scan as the diagnostic tool. Davies, 18 Wn. App. 2d at 391 (“had she undergone a
CTA, she would have been diagnosed with a vertebral artery dissection, which
then would have been treated”).
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
Dr. Hirsig failed to diagnose Davies with a VAD—a failure that can be, and
was, properly brought as a negligence action. Like the physician in Anaya Gomez,
Dr. Hirsig examined the entirety of his patient’s current medical conditions,
medical history, and presentation of symptoms and determined that she did not
have a VAD and that a CTA scan to detect a VAD was therefore unnecessary. CP
at 512. Unlike the physician in Backlund, Dr. Hirsig did not properly diagnose
Davies with a VAD—Dr. Hirsig was therefore unaware of her condition and the
potential treatment options for that condition. Backlund, 137 Wn.2d at 662.
Additionally, Dr. Hirsig would have to diagnose a VAD for him to be aware of the
possibility of a stroke and the necessity for medication to prevent a stroke. A
“provider may not be liable for informed consent claims arising from [a] ruled out
diagnosis under RCW 7.70.050.” Anaya Gomez, 180 Wn.2d at 613. Dr. Hirsig
cannot be expected to have informed his patient about a condition of which he was
not aware. Id. at 618; Backlund, 137 Wn.2d at 661.
RCW 7.70.050(1) limits informed consent claims to “treatment,” and here,
Dr. Hirsig did not inform Davies of other possible diagnoses or of other diagnostic
tests available. Davies’ allegations and evidence therefore supported a
misdiagnosis negligence claim. They did not support an informed consent claim.
20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 100079-1
CONCLUSION
Dr. Hirsig failed to properly diagnose Davies with a VAD. Davies can and
did bring a negligence action based on that misdiagnosis. But she cannot bring an
informed consent claim where, as here, the physician ruled out the undiagnosed
condition entirely. The physician is not required to obtain informed consent about
taking further action to detect or mitigate a condition that the physician has ruled
out.
We reverse the Court of Appeals and reinstate the trial court’s order
dismissing Davies’ informed consent claim.
WE CONCUR: