FILED SEPT 22, 2016 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
ESTATE OF JOAN R. EIKUM ) By and through its Personal ) No. 32934-8-111 Representative, JOHN J. EIKUM, and ) JOAN R. EIKUM, By and through her ) Personal Representative, ) ) Appellants, ) UNPUBLISHED OPINION ) v. ) ) SAMUEL JOSEPH, D.O., SPOKANE ) RESPIRATORY CONSULTANTS, ) ) Respondents. )
KORSMO, J. -The estate of Joan Eikum (Estate) appeals from an adverse jury
verdict in its medical malpractice action against Dr. Samuel Joseph. Concluding that the
trial court correctly refused to instruct the jury on an informed consent theory and that the
Estate has not shown any prejudicial error, we affirm.
FACTS 1
Upon the retirement of her primary physician, Dr. Joseph treated Ms. Eikum for
the last four years of her life. She already suffered from diabetes when referred to Dr.
1 Inlight of the review standards governing the primary issue, we state the facts primarily from the Estate's view of the case, recognizing that Dr. Joseph and his experts saw them in a different light. No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
Joseph. In October 2008, Dr. Joseph detected a bruit in Ms. Eikum's carotid artery. 2 A
bruit is a sound caused by turbulence of the blood as it moves through the body. When
heard in the neck, it can signify a narrowing of the carotid artery (carotid stenosis ), but it
can also signify narrowing of the aortic valve in the heart (aortic stenosis). Sound from
the valve can be heard in the neck because the sound transmits through the artery. When
aortic stenosis is heard directly from the heart it is more properly called a murmur.
Dr. Joseph sent Ms. Eikum for a carotid duplex examination. It revealed no
evidence of stenosis (narrowing) of the carotid artery. The absence of carotid stenosis
made aortic stenosis more likely. However, Dr. Joseph did not share any of this
information with Ms. Eikum.
Around Thanksgiving 2008, Ms. Eikum fell while at home. Later that year, she
passed out on a bed, laying back for five or six seconds and then coming up out of it.
Around Christmas, Ms. Eikum slumped to the floor in the kitchen without reason, and
then came up again. In January, she sprawled backwards while sitting on the toilet,
coming back almost immediately. After this last incident, Ms. Eikum went to the
emergency room.
The records of that visit indicated she suffered from syncope, the temporary loss
of consciousness. There she underwent an electrocardiogram (EKG), a test that shows
2 This was the only time the bruit was detected by any doctor. In subsequent examinations, neither Dr. Joseph nor any other doctor detected a bruit.
2 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
the rate of the heart, including whether there is interference with either the left or right
ventricle. The EKG indicated tachycardia, which is an abnormally rapid heart rate.
Following the emergency room visit, Ms. Eikum saw Dr. Joseph on January 21, 2009.
Dr. Joseph was aware of the syncopal episodes, but did not know the cause of them. He
ordered further pulmonary function tests, and also requested a Holter monitor. 3 His notes
also indicated he planned to request a cardiology evaluation of Ms. Eikum.
Ms. Eikum saw Dr. Joseph again in March 2009 to obtain clearance for knee
surgery. She desired to have her right knee replaced to eliminate some knee pain. She
met with Dr. Joseph and he cleared her for surgery. However, Dr. Joseph did not indicate
any heart-related concerns to Ms. Eikum, nor did he share that he did not know what was
causing the syncope, or that he had considered ordering a cardiology consultation. He
also did not discuss with her the possibility of getting an echocardiogram. An
echocardiogram is a low-cost, non-invasive test that gives doctors a picture of how the
heart valves are functioning and the condition of the heart muscle. With it, a doctor can
assess the existence and severity of heart problems.
Dr. Joseph cleared Ms. Eikum for the elective knee surgery and she underwent the
procedure in early April. The knee surgery exacerbated a pre-existing heart condition.
3 A Holter monitor measures a person's heart rate. Ms. Eikum wore the monitor for the required 24 hour period. It showed that her heart rate exceeded 100 beats per minute for over nine hours, a sign of tachycardia. The results of the monitor were not shared with Ms. Eikum.
3 No. 32934-8-111 Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
This caused a heart attack 36 hours after the surgery, which in tum required emergency
bypass surgery. Her "cascade to death" began with the heart attack, which came when
she was at risk while recovering from the knee surgery. The heart attack likely was
caused when a small clot (or several of them) blocked an already narrowed blood vessel.
Report of Proceedings (RP) at 823-824. She died later that month.
John Eikum, on behalf of his wife's estate, sued Dr. Joseph on theories of
negligence and lack of informed consent. The case ultimately proceeded to jury trial.
The estate called several doctors to testify at trial, including standard-of-care
witness Dr. Leslie Stricke. During defense cross-examination of Dr. Stricke, counsel
brought up the revised cardiac risk index. It considers a patient's risk of cardiac
complications from noncardiac surgery. Dr. Stricke indicated familiarity with the index.
Counsel then brought forward a copy of "Harrison's text on internal medicine," which
contained tables involving the index. After Dr. Stricke conceded that Harrison's is a
"well-recognized treatise that physicians and internists use and rely on," counsel provided
Dr. Stricke with a three-page excerpt of the book, including the cover page, title page,
and page 50, which contained the tables in question. The excerpt contained the "revised
cardiac risk index clinical markers," which counsel used to cross-examine the doctor.
During the cross-examination, the full Harrison's text was present in the courtroom. 4
4 "The book's right here, correct? ... Correct." RP at 442.
4 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
After counsel finished his cross-examination, Ms. Eikum's attorney was given an
opportunity to look at the book in more detail, and used other portions of the book in
redirect examination.
The cardiac risk index continued to be an issue at trial; both sides brought up the
risk index with Ms. Eikum's next witness. Part way through defense cross-examination
of this witness, Ms. Eikum's counsel requested to use the Harrison's text again. The
book was no longer in the building and counsel asked Dr. Joseph's attorney to produce it.
The trial court refused to order him to produce it unless he was going to use it again. At
no point were additional excerpts of the book read into evidence with this witness.
Instead, the cardiac risk index was discussed generally.
The cardiac risk index came up again with a defense expert, Dr. Darrel Potyk.
This witness discussed the risk index generally, how it was created and how it evolved.
He also discussed what the index indicates with regard to risk of a patient for surgery.
The Estate did not raise a hearsay objection during Dr. Potyk's testimony. 5
5 Ms. Eikum' s counsel did object on what appears to be a relevance theory: "Your Honor, just a continuing objection to the use of the revised cardiac risk index when it's not indicated as having been used." RP at 1043-1044. Dr. Joseph's counsel immediately objected "to counsel's speaking objection," and the trial court noted Ms. Eikum's objection but overruled it. RP at 1044.
5 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
After the plaintiff was done calling witnesses, Dr. Joseph moved for a judgment as
a matter of law on the informed consent claim. 6 The court granted the motion, stating
that "a provider cannot be liable for informed consent claims arising from the ruled out
diagnosis" and that there had been "no testimony that Dr. Joseph knew of the heart
condition and failed to inform her of the possible treatments." RP at 1126-1127.
Ms. Eikum requested, but the court declined to give, a series of five additional jury
instructions. The two primary instructions were proposed instructions 10 and 14. The
first proposed a "reasonable prudence" standard as an alternative basis for finding
liability, while the second addressed the obligation to discuss conditions with a patient.
Clerk's Papers (CP) at 28-32. Instead, the court gave the general health care negligence
instruction:
A health care professional owes to the patient a duty to comply with the standard of care for one of the profession or class to which he or she belongs.
A physician who holds himself out as a specialist in internal medicine/pulmonary medicine has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent internal medicine/pulmonary medicine in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in
6 Witnesses were heard out of order during trial and, in order to limit the inconvenience to Dr. Joseph, the Estate decided not to call him during its case in chief with the understanding that it would not face scope of direct examination objections when cross-examining the doctor. RP 1008-1014. Rather than await the testimony, the Estate asked that the motions to dismiss be heard immediately. RP at 1102.
6 No. 32934-8-III Estate of Joan R. Eikum, et al. v. Samuel Joseph, et al.
question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.
The degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent. However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.
CP at 138.
The Estate urged the jury to find that Dr. Joseph had violated the standard of care
by failing to diagnose Ms. Eikum's heart condition and by failing to communicate with
her. The doctor, in tum, told the jury that her symptoms were not indicative of heart
disease. The jury sided with Dr. Joseph, concluding by a 10 to 2 vote that he was not
negligent.
Judgment was entered on the verdict. The Estate then timely appealed to this
court.
ANALYSIS
The Estate presents three issues for consideration that we address in the following
order. First, the Estate believes the trial court erred in dismissing the informed consent
claim. Second, it contends the court erred in permitting the defense to reference a learned
treatise. Finally, the Estate argues the court erred in not giving its requested instructions.
Informed Consent Claim
The Estate contends the court erred in dismissing its informed consent claim,
arguing that the failure to diagnose the heart problem prevented Ms. Eikum from giving
7 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
her informed consent to the elective knee surgery. Assuming, without deciding, that the
informed consent doctrine was available to the Estate in this "one off' circumstance, the
trial court correctly determined that the evidence did not support the claim.
Well settled standards govern review of this issue. Appellate courts apply de novo
review to a trial court decision to grant or deny a motion for judgment as a matter oflaw.
Alejandre v. Bull, 159 Wn.2d 674,681, 153 P.3d 864 (2007). Judgment as a matter of
law is appropriate when, viewing the evidence in favor of the nonmoving party, there is
substantial evidence to support a verdict for that party. Sing v. John L. Scott, Inc., 134
Wn.2d 24, 29, 948 P .2d 816 (1997). "Substantial evidence" is evidence sufficient "to
persuade a rational, fair-minded person that the finding is true." Cantu v. Dep 't ofLabor
& Indus., 168 Wn. App. 14, 21,277 P.3d 685 (2012).
The Estate's specific argument is that by failing to inform Ms. Eikum of the
unresolved symptoms and suggest use of an echocardiogram to investigate potential heart
problems, she consented to the knee surgery without awareness of material facts. Br. of
Appellant at 29. Although this seems to be merely a restatement of her negligence claim
that the failure to diagnose the heart problem led to the fatal heart attack following
surgery she should not have undergone, we need not address that point because the
evidence does not support an informed consent claim. This issue requires a review of the
case law governing informed consent theories involving a failure to diagnose.
8 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
Our statute provides four elements for an informed consent 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.
RCW 7.70.050(1).
The informed consent doctrine has its basis in common law, developing from the
tort of assault and battery. The original theory was that a patient could not intelligently
consent to a battery (the medical procedure) without a full understanding of any
significant risks. Keogan v. Holy Family Hosp., 95 Wn.2d 306, 313, 622 P.2d 1246
(1980). The doctrine was expanded to apply to situations where doctors failed to advise a
patient of an abnormal condition 7 so the patient would be able to evaluate treatment
options. Miller v. Kennedy, 11 Wn. App. 272, 282, 522 P.2d 852 (1974), ajf'd, 85 Wn.2d
151,530 P.2d 334 (1975). Informed consent was applied in the context of a failure to
7 The failure to inform the patient of an abnormal condition presented a question of negligence. Miller v. Kennedy, 11 Wn. App. 272, 282, 522 P.2d 852 (1974). It was the need to decide on treatment options that moved this aspect of malpractice to the informed consent side of the ledger. Id. at 281-282.
9 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
diagnose in Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979). There an
ophthalmologist, confronted with high pressure readings in the plaintiff's eyes, failed to
advise the patient of the fact and of additional testing that might have confirmed the
presence of glaucoma. Id. at 248. The court concluded the plaintiff had been entitled to
an instruction on informed consent in addition to the instructions on negligence that had
been given to the jury. Id. at 250-251.
The legislature subsequently codified medical malpractice actions, including
informed consent claims. Chapter 7.70 RCW. Construing the statute, our court
subsequently concluded that in a failure-to-diagnose context, an action for breach of
informed consent was inappropriate. Backlund v. Univ. of Wash., 13 7 Wn.2d 651, 661,
975 P.2d 950 (1999). "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. After Backlund, it was questionable whether or not Gates remained valid.
This court soon thereafter concluded that Gates either had been overruled or
limited to its facts. Anaya Gomez v. Sauerwein, 172 Wn. App. 370, 385, 289 P.3d 755
(2012), aff'd, 180 Wn.2d 610, 331 P.3d 19 (2014). While affirming this court, the
Washington Supreme Court concluded that Gates remained good law in situations where
a failure to inform arises during the diagnostic process. 180 Wn.2d at 623. However, the
10 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
majority 8 expressly stated that an informed consent claim cannot be based on the same
facts as a negligence claim. Id. at 617-623. The court held that "when a health care
provider rules out a particular diagnosis based on the circumstances surrounding a
patient's condition, including the patient's own reports, there is no duty to inform the
patient on treatment options pertaining to a ruled out diagnosis." Id. at 623.
We need not determine whether Gates would have applied to the facts of this case
because Ba~klund expressly controls. Here, Dr. Joseph had ruled out heart trouble as the
cause of bruit or the episodes of syncope. He expressly told the jury that after the Holter
monitor test in January, his "final impression was no acute cardiopulmonary disease."
RP at 1942. He testified that after examining Ms. Eikum in March, there was "no
evidence of heart disease" behind the syncope incidents. RP at 1970. Whether or not Dr.
Joseph erroneously ruled out heart disease was properly placed before the jury as a
question of medical negligence. Both sides addressed the problem from that perspective
and the jury rendered its verdict in favor of the doctor. Since the doctor had concluded
that there was no heart disease, the trial court correctly applied Backlund and took the
informed consent issue from the jury. While Dr. Joseph had not yet determined what had
caused the incident, he had ruled out a heart condition as the cause.
8 Justice Gonzalez, writing for four justices who concurred in the result, would not foreclose the possibility of both negligence and informed consent claims arising from the same facts. 180 Wn.2d at 627-630. However, it would be "rare" that both theories were available under the same facts. Id. at 630-631.
11 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
The trial court did not err in granting judgment as a matter of law on the question
of informed consent. 9
Learned Treatise
The Estate next argues that the trial court erred in its rulings concerning defense
use of the cardiac risk assessment tool discussed in the learned treatise. We need not
decide whether any error occurred since the Estate has not established any harm from the
alleged errors.
Trial court evidentiary rulings are reviewed for abuse of discretion. State v.
Guloy, 104 Wn.2d 412, 429-430, 705 P.2d 1182 (1985). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P .2d 77 5 ( 1971 ). An appellate court will only consider the specific
evidentiary objections that were presented to the trial court. Guloy, 104 Wn.2d at 422.
An evidentiary error, like any nonconstitutional error, is harmless if, within reasonable
probability, it did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d
1101 (1986).
9 The one complicating factor is that the trial testimony occurred after the motion to dismiss had been granted. As stated in footnote 6, in part this was because the Estate deferred its questioning of Dr. Joseph until the defense case as a matter of courtesy and also asked that the court rule immediately on the defense motion instead of awaiting the doctor's testimony. RP at 1008-1014, 1102. Under these circumstances, the ruling might have been premature, but it ultimately was correct.
12 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
At issue is the learned treatise exception to the hearsay rule. Hearsay is a
"statement ... offered in evidence to prove the truth of the matter asserted." ER 801(c).
While there are numerous exceptions and exclusions, hearsay statements are typically
inadmissible at trial. ER 802, 803, 804. ER 803(18) specifically provides that learned
treatises may be read into evidence:
To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The matter first arose when the defense brought up the index in cross-examination
of Dr. Stricke. Defense counsel first asked whether Dr. Stricke was aware of "the revised
cardiac risk index" and then more generally whether the doctor was aware of Harrison's
text on internal medicine. RP at 441. Dr. Stricke answered in the affirmative to both
questions. Counsel also asked if Harrison's was a "well-recognized treatise that
physicians and internists use and rely on in the conduct of their medical practices." Id.
Doctor Stricke again answered in the affirmative. RP at 442. Counsel then provided two
tables excerpted from Harrison's to Dr. Stricke and questioned him about whether the
conditions indicated in the tables existed in Ms. Eikum. Id. at 448-449. Although
counsel only provided a photocopy of three of the pages of the book (cover, title page,
and page 50, containing the tables), the entire book was present in the courtroom at this
13 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
time. RP at 442 ("The book's right here, correct? ... Correct."). Further, Ms. Eikum's
attorney was given an opportunity to look at the book during the break and had the
witness read some more information from the book during redirect. RP at 470, 508. No
objection was raised to this process. There was no error.
Other experts for both sides were asked about the risk index even though the
Harrison's book was no longer in the courtroom. The plaintiff several times objected to
examination of the witnesses concerning the risk index in the absence of the book, thus
preserving this issue for review. 10 Even if we assume that it was erroneous to question
the witnesses in the absence of the learned treatise, the Estate has not established
prejudicial error. The evidence was properly admitted in accordance with the rule during
the testimony of Dr. Stricke, and similar evidence came in through defense expert Dr.
Potyk 11 without the Estate raising any hearsay objection. 12 The evidence was properly
before the jury during the testimony of those two experts. Discussing the matter with the
other witnesses, even in the absence of the treatise, did not add to or detract from to the
evidence already properly before the jury. At most, even if improperly admitted, the
other testimony was merely cumulative to the original evidence. Cumulative evidence is
10 Appellant never raised a "best evidence" objection at trial. ER 1002. The attempt to do so now is unavailing since we will not consider an evidentiary argument not raised to the trial court. Guloy, 104 Wn.2d at 422. 11 RP at 1033-1047. 12 RP at 1016-1101.
14 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
not a basis for finding prejudicial error. State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542
(1970).
The Estate has not shown how the questioning of witnesses in the absence of the
treatise affected the verdict. Accordingly, it has not demonstrated prejudicial error.
Additional Jury Instructions
Lastly, the Estate argues that the trial court erred by failing to give its five
requested "additional" instructions. However, the instructions given by the trial court
were proper and the Estate has not shown an entitlement to the additional instructions. 13
There was no error.
The trial court has discretion in the wording and number of jury instructions; this
court reviews the trial court's decision for abuse of discretion. Fergen v. Sestero, 182
Wn.2d 794, 802, 346 P.3d 708 (2015). Instructions are sufficient ifthey are supported by
substantial evidence, allow the parties to argue their theories of the case, and, when read
as a whole, properly inform the jury of the applicable law. Id. at 803. An instruction that
misstates the applicable law is reversible error if it causes prejudice. Id. The court need
not give an instruction that is erroneous in any respect. State v. Hoffman, 116 Wn.2d 51,
110-111, 804 P.2d 577 (1991). The discretion afforded the trial court in the wording of
13 We agree with the Estate that it properly preserved this issue. We need not address the defense arguments that the instructions are erroneous.
15 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
instructions means that it need not give additional instructions, even when they are
correct, if the court's other instructions are sufficient. Gammon v. Clark Equip., 104
Wn.2d 613,617, 707 P.2d 685 (1985).
The Estate's argument founders on this latter point. Neither party contends the
instructions given by the trial court were erroneous in any manner. Assuming that the
Estate's proposed instructions were correct statements of the law, it has failed to establish
that any of them were necessary in the sense that the Estate could not argue its theory of
the case without them. The court's instructions did allow the Estate to argue its case.
The five instructions all addressed the standard of care in one manner or another. Two of
the instructions involved the failure to order additional tests, while the other three
addressed alleged failures of Dr. Joseph to communicate with Ms. Eikum concerning
diagnosis and treatment. The general negligence instruction given by the court allowed
the Estate to make its arguments on these points. It put forth its theory of the case
concerning all of these topics and the jury was able to consider them.
A party is only deprived of its theory of the case if the court's instructions do not
allow it to argue the theory. Fergen, 182 Wn.2d at 803. The court's instructions did
permit the Estate to argue its theory. Accordingly, they were adequate. The fact that
some or all of the additional instructions might have been proper does not mean the trial
court erred by refusing to give them.
16 No. 32934-8-III Estate ofJoan R. Eikum, et al. v. Samuel Joseph, et al.
The trial court did not abuse its discretion.
The judgment is 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.
WE CONCUR:
~.a: ~J.
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