80 Wn. App. 36, VILLANUEVA v. HARRINGTON[No. 13903-4-III. Division Three. December 7, 1995.]
MARY IRENE VILLANUEVA, ET AL., Individually and as Co-Personal Representatives, Appellants, v. JOHN F. HARRINGTON, Respondent.
[1] Appeal - Assignments of Error - Argument - Necessity - In General. An appellate court will not consider an assignment of error that is neither briefed nor argued.
[2] Medical Treatment - Malpractice - Informed Consent - Materiality of Risk - Determination. Whether a risk associated with a medical treatment is material and must be disclosed to the patient under the doctrine of informed consent is determined by a two-step process. First, the existence of a risk and the probability of its occurrence must be ascertained by means of expert testimony of a physician or other qualified expert. If that burden is met, the trier of fact must then decide whether the probability of the occurrence of the risk is a risk the patient would consider in deciding on the treatment. The patient has a right to know of the risk if a reasonable prudent person, in that patient's position, would attach significance to the probability of the risk when deciding whether to undergo the treatment.
Nature of Action: The parents of an infant delivered with forceps and who died a few weeks after delivery sought damages from the attending obstetrician for
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negligence and failure to obtain informed consent to conduct the forceps delivery.
Superior Court: After granting summary judgment dismissing the informed consent claim, the Superior Court for Yakima County, No. 92-2-01552-7, F. James Gavin, J., on February 4, 1994, entered a judgment on a verdict in favor of the obstetrician on the negligence claim.
Court of Appeals: Holding that the parents presented sufficient evidence to take to the trier of fact the question of whether the obstetrician should have informed them of the material risks associated with forceps delivery, the court reverses the summary dismissal of the informed consent claim.
David A. Williams, for appellants.
Kathryn M. Battuello and Elliott, Moody & Battuello, for respondent.
SWEENEY, J. - [1] Soon after birth, Mary Irene Villanueva's and Douglas Mitchell Uerling's son developed a cephalhematoma, a collection of blood and fluid in the posterior portion of the scalp. He had seizures. His head was deformed. And he also suffered acute renal failure, hypoglycemia, respiratory difficulties, and disseminated intravascular coagulation, all of which eventually resulted in, or contributed to, multiorgan failure. The infant died a few weeks after delivery. Villanueva and Uerling brought an action against Dr. John F. Harrington, Villanueva's obstetrician, for negligence and for failure to obtain their informed consent. They claimed they were not informed of the risks of and alternatives to forceps delivery and that it
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was the forceps delivery which led to their son's injury and death. The trial court held that Villanueva and Uerling had failed to create a genuine issue of material fact by expert testimony and granted Dr. Harrington's summary dismissal of the informed consent claim. A jury found in favor of Dr. Harrington on the negligence claim. Villanueva and Uerling appeal. Although they assign error to the verdict, they neither briefed nor argued that assignment of error and it is therefore not before this court. We must therefore pass only on the summary dismissal of their informed consent claim. We reverse and remand.
The standard of review for a summary judgment is well settled and need not be repeated here1
1 Grimsrud v. State, 63 Wn. App. 546, 548, 821 P.2d 513 (1991) (on summary judgment this court engages in the same inquiry as the trial court).
other than to again note that we consider the evidence in a light most favorable to the nonmoving parties-Villanueva and Uerling.2
2 Stephens v. City of Seattle, 62 Wn. App. 140, 143, 813 P.2d 608, review denied, 118 Wn.2d 1004 (1991).
In order to avoid summary judgment, Villanueva and Uerling must show, among other things, that Dr. Harrington failed to inform them of a material fact or facts relating to Villanueva's treatment.3
3 RCW 7.70.050(1)(a).
Dr. Harrington does not dispute that he applied forceps to rotate and deliver the baby. Nor does he dispute that he did not obtain consent for the use of the forceps. At issue here is whether Villanueva and Uerling made a sufficient showing that Dr. Harrington should have informed them of the material risks associated with a forceps delivery.
[2] A fact is material if "a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment."4
4 RCW 7.70.050(2); Smith v. Shannon, 100 Wn.2d 26, 30-31, 666 P.2d 351 (1983) ("informed consent doctrine 'does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature'" (quoting ZeBarth v. Swedish Hosp. Medical Ctr., 81 Wn.2d 12, 25, 499 P.2d 1 (1972))); Estate of Lapping v. Group Health Coop., 77 Wn. App. 612, 623, 892 P.2d 1116 (1995) (Washington follows a reasonable patient standard, as opposed to a professional medical standard); Thomas v. Wilfac, Inc., 65 Wn. App. 255, 260, 828 P.2d 597 ("[a] physician does not have a duty to explain all risks, only those of a material nature"), review denied, 119 Wn.2d 1020 (1992).
The test for materiality is an objective one. A patient has the right to know those
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hazards to which a reasonable prudent person, in that patient's position, probably would attach significance when deciding on whether to undergo the treatment.5
5 Shannon, 100 Wn.2d at 31 (quoting Miller v. Kennedy, 11 Wn. App. 272, 287, 522 P.2d 852 (1974), aff'd per curiam, 85 Wn.2d 151, 530 P.2d 334 (1975)); Estate of Lapping, 77 Wn. App. at 624 (risk is material "if any rational trier of fact could find, based on a preponderance of evidence, that a reasonably prudent person in the position of the patient, when deciding whether to submit to a proposed treatment would have attached significance to the fact in issue").
If the risk meets this criterion, it is material and must be disclosed.
The determination of materiality is a two-step process: (1) the scientific nature of the risk must be ascertained (the nature of the harm and the probability of its occurrence), and (2) the trier of fact must then decide whether that probability is a risk which a reasonable patient would consider in deciding on treatment.6
6 Shannon, 100 Wn.2d at 33; Ruffer v. St. Frances Cabrini Hosp., 56 Wn. App. 625, 631, 784 P.2d 1288, review denied, 114 Wn.2d 1023 (1990).
The first step of the test requires expert testimony.7
7 Shannon, 100 Wn.2d at 33.
Only a physician or other qualified expert is capable of determining the existence of a given risk and the chance of its occurrence.8
8 Shannon, 100 Wn.2d at 33-34.
Specifically, RCW 7.70.050(3)(d) requires that the plaintiff show by expert testimony that "[t]he recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment."
With this standard in mind, we review the facts in a light most favorable to Villanueva and Uerling. Dr. Peter Watson testified that a forceps delivery "does involve risk" which he thought "would be appropriate to discuss . . . with the patient." Dr. Mize Conner talked about the occurrence of risks associated with a forceps delivery:
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Cephalhematomas are common as can be and certainly do not warrant any imputation of failure to meet the standard of care or any improper behavior. Skull fractures have been known to occur with proper forceps application and no evidence of any improper use at all. So there are things that can happen.
He noted the risks associated with mid-forceps delivery as "[t]rauma to the baby, misapplication of the forceps, cephalhematoma, skull fracture, facial nerve damage, lacerations . . .." Dr. Maclyn Wade agreed "that there can be an injury to a fetus even when the use of forceps are applied properly and used appropriately." Dr. Stewart Hilscher testified that "[c]ephalhematoma is a well-recognized risk of forceps delivery/attempt. It is most often caused by the use of forceps. It is a very rare complication of Cesarean section and/or 'forces of labor' alone."
There is therefore ample expert testimony of the scientific nature of the risks associated with the use of forceps. The trial court's conclusion to the contrary is error.
During oral argument, Dr. Harrington also urged that Villanueva and Uerling had not shown that the application of forceps was the proximate cause of the baby's injury and death. Our review of the record convinces us otherwise.
Dr. Hilscher testified that "the probable cause of the cephalhematoma . . . was the application of forceps. Had this baby been delivered by Cesarean section without [the] application of forceps there most probably would have been no cephalhematoma. As I said at my deposition, I never saw a cephalhematoma where forceps had not been used." Based on his review of the chart, Dr. Watson correlated "a sudden, profound neurologic impact on the baby" with the application of forceps.
When the evidence here is viewed in a light most favorable to Villanueva and Uerling, they have made a showing that cephalhematoma is a common complication of a
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forceps delivery, that alternatives were available9
9 Dr. Conner testified to alternatives available to forceps delivery-"reasonable alternatives" included "[v]acuum extractor, forceps delivery, Cesarean section or letting the mother push longer."
and that their baby died as the result of complications of a cephalhematoma. The expert testimony established the "existence, nature, and likelihood of occurrence . . .."10
10 Ruffer, 56 Wn. App. at 632.
And it is for the trier of fact to determine whether this complication should have been disclosed. The trial court therefore erred in dismissing their informed consent claim on summary judgment.
The matter is reversed and remanded for trial on the issue of informed consent.
THOMPSON, C.J., and MUNSON, J., concur.