Richard Fortman v. Proliance Surgeons, Inc., P.s. D/b/a ..

• Court: Court of Appeals of Washington
• Decided: February 16, 2021
• Docket: 79864-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RICHARD FORTMAN, ) No. 79864-2-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) PROLIANCE SURGEONS, INC., P.S. ) d/b/a PROLIANCE ORTHOPEDIC ) ASSOCIATES, ) ) Appellant. ) )

HAZELRIGG, J. — Richard Fortman brought a medical negligence claim

against Proliance Surgeons, Inc. after developing a chronic infection in his ankle

when recovering from surgery. Proliance seeks reversal of an order granting

partial summary judgment on its affirmative defense of contributory negligence and

vacation of the jury’s verdict finding that Proliance’s negligence led to Fortman’s

injury. Because Proliance did not present evidence that Fortman’s actions

between the date of surgery and the date of Proliance’s negligent act contributed

to the development of a chronic infection, we affirm the grant of partial summary

judgment. We also affirm the court’s denial of a motion for a new trial because

there was evidence to support the jury’s finding that Fortman was not negligent

and the trial court was in the best position to assess any prejudicial impact of

counsel’s conduct.

Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 79864-2-I/2

FACTS

On June 24, 2015, Richard Fortman fell and fractured his ankle. When he

tried to stand, the bone broke through the skin. Fortman was taken by ambulance

to Valley Medical Center. Dr. Niket Shrivastava, a board-certified orthopedic

surgeon and employee of Proliance Orthopedic Associates (Proliance), was on call

for orthopedic trauma in the emergency department. Shrivastava diagnosed a

grade three open fracture of the left fibula, involving a fractured bone and

laceration of the skin greater than 10 centimeters in length with visible

contamination from the environment. He performed surgery that day to realign the

bone, secure the bones with screws, repair a torn ligament, and irrigate and

debride the wound to clean out dirt and other contaminants.

On July 1, 2015, Fortman was discharged from the hospital to Hallmark

Manor, a skilled nursing and rehabilitation facility. He was scheduled to begin

physical therapy and instructed to bear no weight on his left ankle. Chad Moloney,

a physician assistant and employee of Proliance, examined Fortman five days later

and found no signs of infection. Fortman saw Shrivastava on July 17, 2015 and

reported that he had accidentally fallen and “landed with some force on his left

foot” three days before. Shrivastava noted mild redness around the wound but did

not observe drainage. He prescribed a two-week course of an antibiotic, Bactrim,

because he was concerned that the wound was showing early signs of infection

and wanted to prevent the infection from progressing deeper into the bone.

On July 20, 2015, Fortman had another follow up appointment with

Moloney. Fortman reported drainage from the wound and fevers, chills, and flulike

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symptoms, indicating a worsening infection. He was admitted to the hospital and

given intravenous (IV) antibiotics with a plan to perform another irrigation and

debridement procedure the next day in an effort to control the bacterial load.

Shrivastava performed the procedure to clean out the wound and collected

samples for analysis. The cultured samples showed a large amount of MSSA.1

Fortman was to remain on the IV antibiotics until he was discharged and then

resume Bactrim for one month in an effort to suppress the infection. He was

discharged to Hallmark Manor on July 27, 2015.

Fortman returned for a follow up appointment with Shrivastava on August

5, 2015. He reported that he had been putting some weight on his ankle during

physical therapy activities despite being instructed to be non-weight bearing on his

left ankle. On August 20, 2015, he again saw Shrivastava for a follow up, at which

point Shrivastava discovered that Fortman had not been receiving Bactrim for the

previous 20 days. The Bactrim was immediately restarted. One week later,

Fortman saw Dr. Michael Hori, an infectious disease specialist, who noted that the

infection was “clearly worse than it was in the hospital, with increased drain[age]

and swelling.” Fortman’s condition fluctuated over the next several months, during

which he underwent removal of the hardware in his ankle, additional irrigation and

debridement procedures, and several courses of antibiotics. He was ultimately

diagnosed with a chronic bone-deep infection that would require lifetime

suppressive antibiotics.

1 Methicillin-sensitive Staphylococcus Aureus.

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Fortman brought suit against Proliance, Moloney, and Shrivastava, alleging

that the defendants’ negligence resulted in his development of chronic

osteomyelitis and permanent disability. The parties stipulated to the dismissal of

Moloney and Shrivastava. In its answer, Proliance admitted that the lapse in the

Bactrim prescription in August 2015 was due to Moloney’s negligence and that

Proliance was vicariously liable for Moloney’s actions. However, Proliance denied

that any negligence was a proximate cause of Fortman’s injuries and asserted the

affirmative defenses of contributory negligence/comparative fault and failure to

mitigate damages. Fortman moved for partial summary judgment against

Proliance regarding its affirmative defenses. The court granted the motion in part

“as to the affirmative defense of contributory negligence/comparative fault as to

conduct preceding 7/27/15. Plaintiff’s motion is denied as to conduct in failure to

mitigate after 7/27/15.”

After trial, the jury found that Proliance was negligent and that its negligence

was a proximate cause of Fortman’s injury. The jury also found that Fortman was

not negligent after July 27, 2015. The court entered a judgment against Proliance

for $1,500,000. Proliance moved for a new trial, arguing that the verdict was not

supported by substantial evidence and that Fortman’s counsel committed

deliberate and repeated misconduct. The court denied the motion. Proliance

appealed from the judgment and the order denying a new trial.

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ANALYSIS

I. Summary Judgment

Proliance first argues that the trial court erred in granting partial summary

judgment to Fortman on Proliance’s affirmative defense of contributory negligence.

Specifically, Proliance argues that it should have been permitted to assert a

contributory negligence defense based on Fortman’s negligent conduct between

June 24, 2015 and July 27, 2015.

A. Waiver

Fortman contends that Proliance has waived this issue by proposing a jury

instruction stating that the jury could not attribute contributory negligence to

Fortman’s conduct preceding Proliance’s admitted negligence, by failing to raise

the issue in its motion for a new trial, and by failing to appeal from the summary

judgment order. An appellate court may refuse to review a claim of error that was

not raised in the trial court. RAP 2.5(a). We will review a trial court order or ruling

not designated in the notice of appeal, including an appealable order, if the order

prejudicially affects the decision designated in the notice. RAP 2.4(b).

First, as Proliance points out, Fortman proposed the jury instruction stating

that the court had already concluded that there was no contributory negligence on

Fortman’s part before July 27, 2015. Both parties and the court suggested

modifications to the language of the instruction. As Proliance also points out,

Fortman cites no authority that a party waives any objection to a partial summary

judgment order by failing to object to an instruction given in accordance with that

order.

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Proliance is also correct that the cases cited by Fortman in support of his

argument that this issue was waived when not raised in the motion for new trial

concern issues never raised before the trial court. See Koboski v. Cobb, 161

Wash. 574, 577, 297 P. 771 (1931) (claim that trial judge erred in visiting the scene

of the accident waived when raised for the first time on appeal); Olson v. City of

Seattle, 54 Wn.2d 387, 387–88, 341 P.2d 153 (1959) (claim that court commented

on the evidence waived when never brought to the attention of the trial court);

Wilson v. Overlake Hosp. Med. Ctr., Inc., 77 Wn. App. 909, 914, 895 P.2d 16

(1995) (claim that court erred in permitting evidence waived when appellant did not

object to evidence at trial and “made only vague and conclusory objections” in

motion for new trial). Unlike these cases, the trial court considered and decided

the issue of the scope of Proliance’s affirmative defenses. Fortman cites no

authority for the proposition that a party must challenge a court’s partial summary

judgment ruling in a motion for new trial to preserve the issue for appeal.

Finally, Proliance designated the judgment for the plaintiff and the order

denying the motion for a new trial in its notice of appeal. Although Fortman argues

that the order could not have prejudicially affected the judgment because the court

did not entirely dismiss the contributory negligence defense, the court did not allow

Proliance to assert that Fortman was contributorily negligent between June 24,

2015 and July 27, 2015. Because the partial summary judgment order restricted

the scope of Proliance’s affirmative defenses, it could have prejudicially affected

the final judgment. Appeal from the final judgment is sufficient to bring the partial

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summary judgment order up for review. Proliance has not waived review of the

partial summary judgment order.

B. Partial Summary Judgment

This court reviews a trial court’s grant of partial summary judgment de novo.

Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 637, 389 P.3d 498

(2017). We view all facts and reasonable inferences in the light most favorable to

the nonmoving party. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 164,

273 P.3d 965 (2012). Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of

law. CR 56(c). When reviewing a summary judgment order, we consider only the

evidence and issues called to the attention of the trial court. RAP 9.12.

To prevail on his medical negligence claim, Fortman had the burden to

prove that Proliance failed to follow the accepted standard of care and that this

failure was “a proximate cause of the injury complained of.” RCW 7.70.040. “In

an action based on fault seeking to recover damages for injury or death to person

or harm to property, any contributory fault chargeable to the claimant diminishes

proportionately the amount awarded as compensatory damages for an injury

attributable to the claimant’s contributory fault, but does not bar recovery.” RCW

4.22.005. To determine a plaintiff’s contributory negligence, “‘the inquiry is

whether or not he exercised that reasonable care for his own safety which a

reasonable man would have used under the existing facts and circumstances, and,

if not, was his conduct a legally contributing cause of his injury.’” Dunnington, 187

Wn.2d at 637–38 (quoting Rosendahl v. Lesourd Methodist Church, 68 Wn.2d 180,

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182, 412 P.2d 109 (1966)). The question of negligence or comparative negligence

is generally one for the jury “‘unless the facts are such that all reasonable persons

must draw the same conclusion from them, in which event the question is one of

law for the courts.’” Id. at 638 (quoting Hough v. Ballard, 108 Wn. App. 272, 279,

31 P.3d 6 (2001)).

In Dunnington v. Virginia Mason Medical Center, the plaintiff alleged that

his treating physician was negligent in his diagnosis, which deprived him of a 40

percent chance that his cancer would not recur had proper diagnosis and treatment

occurred. Id. at 632–33. The defendant asserted an affirmative defense of

contributory negligence based on the plaintiff’s delay in returning for follow up care

and his decision to pursue conservative treatment options and seek a second

opinion rather than undergo the recommended excision and biopsy. Id. The trial

court granted the plaintiff’s motion to bar the affirmative defense. Id. at 633. The

Washington Supreme Court found that the contributory negligence defense was

not barred as a matter of law because, looking at the facts in the light most

favorable to the defendant, there was an issue of fact as to whether the treating

physician would have again recommended an excision if the plaintiff had returned

promptly for follow up care. Id. at 639.

Proliance analogizes this case to Dunnington, arguing that it produced

evidence that Fortman’s negligent failure to follow medical advice between June

24, 2015 and July 27, 2015 contributed to his ultimate injury of chronic

osteomyelitis. Fortman contends that “the trial court ruled only that the defendant

takes his plaintiff as he finds him,” referring to the principle commonly referred to

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as the “eggshell plaintiff” doctrine. See Reeder v. Sears, Roebuck & Co., 41

Wn.2d 550, 556, 250 P.2d 518 (1952) (“[I]f by reason of delicate condition of health

the consequences of a negligent injury are more serious still, for those

consequences the defendant is liable, although they are aggravated by imperfect

bodily conditions.”) (quoting Jordan v. City of Seattle, 30 Wash. 298, 302, 70 P.

743 (1902)). Proliance does not dispute this principle, but rather, argues that

Fortman’s acts against medical advice between the date he began treatment and

the date of the negligent prescription aggravated his osteomyelitis.

This issue appears to turn on the nature of the “injury complained of” by

Fortman. See RCW 7.70.040. Proliance produced evidence that, during the

relevant period, Fortman continued to use nicotine, failed to keep his blood sugar

within healthy range, and bore weight on his injured ankle contrary to medical

advice, all of which increased his risk of infection. If Fortman had alleged that his

injury was the development of any infection, this evidence would likely have been

sufficient to sustain an affirmative defense of contributory negligence for his acts

during treatment. However, Fortman’s complaint shows that the injury he

complains of is not the initial infection but the development of chronic osteomyelitis

in his left ankle and resulting permanent disability. Proliance does not point to

evidence showing that Fortman’s acts in the period between June 24, 2015 and

July 27, 2015 contributed to the escalation of the initial infection to a chronic

condition. We affirm the order granting partial summary judgment.

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II. Motion for New Trial

Proliance also argues that the trial court erred in denying its motion for a

new trial. We review a trial court’s decision on a motion for a new trial for an abuse

of discretion unless the decision is based on an error of law. Teter v. Deck, 174

Wn.2d 207, 215, 274 P.3d 336 (2012). A much stronger showing of abuse of

discretion is required to set aside an order granting a new trial than one denying a

new trial. Id. A court abuses its discretion when its decision is based on untenable

reasons or untenable grounds. Hollins v. Zbaraschuk, 200 Wn. App. 578, 582–83,

402 P.3d 907 (2017).

Proliance first argues that the jury’s verdict finding that Fortman was not

negligent was not justified by any evidence or reasonable inference from the

evidence. A trial court may vacate the jury’s verdict and grant a new trial if “there

is no evidence or reasonable inference from the evidence to justify the verdict.”

CR 59(a)(7). A court abuses its discretion if it denies a motion for a new trial when

the verdict is contrary to the evidence viewed in the light most favorable to the

nonmoving party. Meinhart v. Anaya, 1 Wn. App. 2d 59, 66, 403 P.3d (2017).

Viewing the evidence in the light most favorable to Fortman, there was

evidence that Fortman acted with reasonable care after July 27, 2015 and did not

contribute to the development of the initial infection into chronic osteomyelitis.

Fortman testified that his doctors had not directed him to stop using nicotine, that

any weight-bearing on his left ankle was accidental, and that his diabetes was

under control. We affirm the court’s denial of a new trial on this ground.

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Proliance also argues that the flagrant misconduct of Fortman’s counsel

throughout the trial deprived Proliance of a fair trial. A trial court may grant a new

trial when misconduct of the prevailing party materially affects the substantial rights

of the losing party. CR 59(a)(2); Teter, 174 Wn.2d at 220–21. “The trial court is

‘in the best position’ to gauge the prejudicial impact of counsels’ conduct on the

jury,” and the appellate court should not substitute its own judgment in evaluating

the scope and effect of that misconduct. Clark v. Teng, 195 Wn. App. 482, 492,

380 P.3d 73 (2016) (quoting Taylor v. Cessna Aircraft Co., 39 Wn. App. 828, 832,

696 P.2d 28 (1985)).

Here, Proliance alleges that repeated violations of the rules of evidence and

the court’s rulings on the motions in limine. The trial court sustained many of

Proliance’s objections and gave curative instructions to the jury. The trial court

was in the best position to assess any prejudicial effect of these actions and

objections on the jury. We affirm the court’s denial of a new trial on this ground.

Affirmed.

WE CONCUR:

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