Daily Blast September 11, 2014

The Court of Appeals, Division II issued a published opinion in an appeal addressing, among other things, the admission of a prior settlement with another party and an instruction on informed consent. In Flyte v. Summit View Clinic, Cause Nol 43964-6-II, 2014 WL 4435852, Kenneth Flyte sued Summit View Clinic following the death of his wife Kathryn and their infant daughter Abbigail. Kathryn had visited the Clinic while feeling ill during her pregnancy. She was seven months pregnant. In the preceding months, the Clinic had received public health alerts from various authorities about a global pandemic of the potentially deadly H1N1 influenza virus (“swine flu”). Although many of Kathryn’s symptoms were consistent with swine flu, and the public health alerts recommended treating pregnant women prophylactically with a drug known as “Tamiflu,” the Clinic staff did not inform Kathryn about the pandemic or the available treatment. Kathryn’s condition progressively deteriorated and she received treatment from a number of different providers, including St. Joseph’s Medical Center (part of the Franciscan Health System). She died shortly thereafter. Abbigail, delivered by caesarean section while Kathryn lay comatose, died several months later.

Kenneth sued the Clinic, asserting claims for medical negligence and lack of informed consent. During discovery, the Clinic learned that he had already settled with Franciscan for $3.5 million. It moved in limine for a ruling that evidence of the settlement was admissible, requesting an instruction that the jury could use the evidence for the purpose of considering only whether Kenneth had already been compensated in full for his injuries. The trial court granted the motion. During voir dire, a member of the jury venire disclosed that she worked in management at Franciscan. Kenneth sought to question the venire member about the settlement, but the Clinic objected and the trial court did not allow the question. Kenneth did not challenge the venire member for cause; ultimately, the venire member served on the jury as foreperson. At the close of trial and over Kenneth’s objection, the trial court instructed the jury in a duty to disclose instruction that “[a] physician has no duty to disclose treatments for a condition that may indicate a risk to the patient's health until the physician diagnoses that condition.” Also over Kenneth's objection, the court gave the Clinic’s proposed limiting instruction concerning Kenneth’s settlement with Franciscan. Both parties’ counsel discussed the Franciscan settlement in opening statements and closing arguments, and the Clinic cross-examined Kenneth concerning it. The jury found by special verdict that the Clinic was not negligent and did not fail to provide informed consent. Kenneth moved for a new trial under CR 59, based largely on the trial court’s admission of the Franciscan settlement evidence and the challenged jury instructions. The court denied the motion and Kenneth appealed.

The Court of Appeals, Division II reversed, concluding the trial court erred by admitting evidence of and instructing the jury concerning the Franciscan settlement and by incorrectly instructing the jury on the law of informed consent. With respect to the admission of the Franciscan settlement, the Court held the trial court erred in admitting the evidence and giving the accompanying instruction based on the Supreme Court’s decision in Diaz v. State, 161 Wn. App. 500, 251 P.3d 249 (2011), aff’d on other grounds, 175 Wn.2d 457 (2012), which was issued six days after the trial court denied Kenneth’s motion for a new trial. The Court noted the limiting instruction did not cure the prejudice it was required to presume from the erroneous admission of the settlement evidence and that the error, consequently, was not harmless. As for the duty to disclose instruction, the Court concluded the instruction flatly misstated the law as clarified by Anaya Gomez v. Sauerwein, 172 Wn. App. 370, 381–85, 289 P.3d 755 (2012), aff'd, 180 Wn.2d 610 (2014), and grafted an extra burden of proof on Kenneth with respect to his informed consent claim. According to the Court, the swine flu pandemic and recommended treatment option were material facts that the Clinic should have disclosed to Kathryn when she presented with flu-like symptoms, regardless of whether she was conclusively diagnosed with the flu. Following Anaya, the Court held that under the doctrine of informed consent, even a health care provider who has not conclusively diagnosed a particular illness may have a duty to disclose information related to the treatment of that illness if the information is reasonably needed by the patient to make an informed decision about treatment. The trial court’s instruction was thus presumptively prejudicial and not harmless.

Acting Chief Judge Bjorgen authored the opinion, which was signed by Judges Hunt and Maxa.