Chelsea Krich v. Mary B. Wittman, M.d. ( 2018 )


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  •                                                                      I t...z..2t)
    COURT OF APPEALS DIV I
    STATE OF WASHINGTON
    2018 JUL 1 6 AM 8:31
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    CHELSEA KRICH and MICHAEL KRICH,          )
    husband and wife; WILLOW KRICH, a         )              No. 76775-5-1
    minor child; PAISLEY KRICH, a minor       )
    child; and TANNER KRICH, a minor child,   )             DIVISION ONE
    )
    Appellants,           )              UNPUBLISHED OPINION
    )
    v.                          )
    )
    MARY B. WITTMAN, M.D. and JOHN           )
    DOE WITTMAN, individually and their      )
    marital community comprised thereof; and )
    EASTSIDE OB/GYN, PLLC, a Washington )
    Corporation,                             )
    )
    Respondents.          )              FILED: July 16, 2018
    )
    APPELWICK, C.J. — Krich appeals from summary judgment dismissing her
    medical malpractice and lack of consent action against her doctor and the doctor's
    medical group. She argues that she did not consent to continued labor after she
    consented to a cesarean section delivery, and that the continued labor caused
    injury to her daughter. Krich did not provide expert testimony establishing that the
    continued labor caused temporary or permanent injuries. We affirm.
    FACTS
    Chelsea Krich's pregnancy with daughter Willow was complicated by
    hypertension. Krich signed a consent form indicating that her doctor, Shannon
    Bailey, recommended inducing labor because of the hypertension. The consent
    form authorized the doctor to break Krich's water and to use the medications
    No. 76775-5-1/2
    Oxytocin (Pitocin) and Cervidil. Dr. Mary Wittman assumed care of Krich and
    induced her labor on June 26, 2014.
    In the morning of June 26, Krich was put on Pitocin, and later that morning
    Dr. Wittman ruptured Krich's membranes as part of the inducement process.
    Around 1:00 p.m. that day, there was an abrupt drop in the baby's heart rate. The
    baby's heart rate had recovered, but Dr. Wittman inserted an intrauterine pressure
    catheter to put extra fluid around the baby, in an attempt to prevent future drops in
    heart rate. Dr. Wittman raised the potential need for a cesarean section (C-
    section) with Krich. Krich signed a consent form for a C-section. Dr. Wittman
    allowed the induced labor to proceed.
    Around 10:00 p.m. the baby's heart rate dropped again, and Dr. Wittman
    recommended amnio infusion and to prepare for a C-section. Dr. Wittman was
    unable to find the baby's "heart tones," and called a "crash C-section." The baby,
    Willow, was admitted at Swedish Medical Center six days later due to neurological
    complications.
    In a suit against Wittman and Eastside OB/GYN PLLC(hereafter collectively
    referred to as Wittman), Krich alleged that the continued labor was without her
    consent. She further alleged that Willow suffered severe and permanent injuries
    because of the continued labor. Wittman moved for summary judgment. She
    argued that Krich did not produce expert testimony establishing that a breach of
    the doctor's standard of care caused the alleged injuries. Asserting that Krich
    2
    No. 76775-5-1/3
    could not establish this link, Wittman also argued that her informed consent claim
    failed.
    The trial court granted Wittman's motion for summary judgment. It found
    on Krich's medical malpractice claim,
    There is no witness who is expert in this case who is willing to
    testify that Dr. Wittman fell below the standard of care. And more
    importantly, there is no medical witness at all, including Dr. Wittman
    herself, that her standard of care violation more likely than not cause
    the damage to the plaintiff.
    On the informed consent claim, the trial court found,
    [I]t seems to be an argument that informed consent had been
    withdrawn and nonetheless that the labor continued, the question is
    whether or not that treatment, the continued labor, again, as opposed
    to what the plaintiff -- patient consented to, proximately caused injury
    to her. And here again, I have a complete gap in the testimony.
    Yes, there is testimony from Dr. Wittman, and it's pretty
    categorical, that there was a placental abruption here that she saw
    signs of at the time of the emergency C-section, but when did it
    happen and is that the cause of any of the plaintiffs' damage?
    Certainly, there's no evidence at all that it's cause of permanent
    injury here because there's a real absence of even clear evidence
    here of permanent injury such as cerebral palsy. All three doctors
    have opined otherwise.
    But also, there's a complete absence of testimony from Dr.
    Wittman or anybody else that the labor that continued until the
    emergency C-section caused the temporary injuries either.
    The court denied Krich's motion for reconsideration. Krich appeals.
    DISCUSSION
    Krich's sole argument on appeal is that she received treatment to which she
    did not consent, and that this treatment proximately caused injury.
    3
    No. 76775-5-1/4
    We review summary judgment orders de novo, considering the evidence
    and all reasonable inferences from the evidence in the light most favorable to the
    nonmoving party. Keck v. Collins, 
    184 Wash. 2d 358
    , 370, 
    357 P.3d 1080
    (2015).
    Summary judgment is appropriate only when no genuine issue exists as to any
    material fact and the moving party is entitled to judgment as a matter of law. 
    Id. Krich contends
    that she did not consent to continued labor. She argues that
    the continued labor caused three types of harm:(1) her emotional distress,(2) her
    husband's bystander emotional distress, and (3) injuries to Willow, resulting in
    medical bills around $160,000.
    The relevant statute provides,
    No award shall be made in any action or arbitration for damages for
    injury occurring as the result of health care which is provided after
    June 25, 1976, unless the plaintiff establishes one or more of the
    following propositions:
    (1) That injury resulted from the failure of a health care
    provider to follow the accepted standard of care;
    (2) That a health care provider promised the patient or his or
    her representative that the injury suffered would not occur;
    (3) That injury resulted from health care to which the patient
    or his or her representative did not consent.
    Unless otherwise provided in this chapter, the plaintiff shall
    have the burden of proving each fact essential to an award by a
    preponderance of the evidence.
    ROW 7.70.030.
    Under the statute, not only must Krich establish that she did not consent to
    the treatment she received, but also that injury resulted from that treatment. ROW
    7.70.030(3). In general, expert testimony is required when an essential element
    No. 76775-5-1/5
    in the case is best established by an opinion which is beyond the expertise of a
    layperson. Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438,449,663 P.2d 113
    (1983). Medical facts in particular must be proven by expert testimony unless they
    are observable by a layperson's senses and describable without medical training.
    
    Id. Expert testimony
    is generally necessary to establish most aspects of causation.
    
    Id. Krich asserts
    that she did not consent to the continued labor, and
    differentiates this claim from a claim of lack of informed consent. Krich relies on
    Bundrick v. Stewart, 
    128 Wash. App. 11
    , 
    114 P.3d 1204
    (2005).
    In Bundrick, this court explained that an action for total lack of consent is a
    claim of battery, while a claim for lack of informed consent is a medical malpractice
    action of negligence. 
    Id. at 17.
    Informed consent protects the patient's right to
    know the risks of the decisions she makes about her care, whereas the cause of
    action for battery protects an individual's right to privacy and bodily integrity. 
    Id. Battery is
    an intentional tort, and the plaintiffs burden is to show that the defendant
    intended to and caused either harm or offense. 
    Id. at 18.
    The burden ordinarily
    requires the plaintiff to show that she did not consent. 
    Id. And, when
    she
    consented to a surgical procedure, but contends she limited her consent to certain
    participants, she must demonstrate she communicated that limitation. 
    Id. Here, Krich
    argues that the consent form she signed early in the afternoon
    establishes that she sought a C-section at that time, and therefore did not consent
    5
    No. 76775-5-1/6
    to the continued labor that caused injury) The consent form she signed states, in
    part,
    I recognize that, during the course of the operation, post-operative
    care, medical treatment, anesthesia or other procedure, unforeseen
    conditions may necessitate additional or different procedures than
    those set forth above. I therefore authorize my above-named
    physician, and his or her assistants or designees, to perform such
    surgical or other procedures as are in the exercise of their
    professional judgment necessary and desirable. The authority
    granted under this paragraph shall extend to the treatment of all
    conditions that require treatment and are not known to my physician
    at the time the medical or surgical procedure is commenced.
    The consent form does not dictate a time for the C-section delivery. But, Krich's
    deposition testimony does,
    Q. So when she left, you understood from her perspective
    that you weren't going to have the C-section at that point?
    A. Yes, 1-- we stopped her. 1 stopped her at the door saying,
    "I don't want to continue on with labor. I want to have a C-section. I
    want to have a C-section now."
    In the light most favorable to Krich, Krich communicated that she no longer
    consented to the continued labor. But, even if Krich did not consent to the
    continued labor, statutorily she must prove that the continued labor caused injury.
    See RCW 7.70.030(3). A plaintiff who seeks recovery for injuries resulting from
    medical treatment must, except under unusual circumstances, offer expert
    testimony to establish"the essential elements of her claim. See 
    Groth, 99 Wash. 2d at 449
    .
    Krich does not cite to any case law to support her assertion that a doctor
    not performing a type of procedure immediately is a medical battery.
    6
    No. 76775-5-1/7
    In Krich's motion for reconsideration, she conceded that "no expert testified
    directly that [a] C-section earlier in the day would have avoided the neurologic
    depression that put Willow in the NICU [(neonatal intensive care unit)] for the
    weeks following her birth." Krich also stated,
    Indeed, though the treating neonatologist Dr. Menezes
    declined to connect Willow's current problems to the events of her
    birth, his note and deposition testimony seem to unambiguously
    support that fetal distress "20-30 minutes prior to delivery" were the
    direct cause of the "cooling protocol" that was initiated.
    Plaintiff's expert Dr. Lin likewise declined to connect Willow's
    current issues with the events of her birth, but he gave no testimony
    on whether earlier C-section would, or would not have prevented the
    "cooling protocol", defense counsel being (quite understandably)
    more concerned with Dr. Lin's opinions on Willow's long-term
    problems.
    After acknowledging the lack of expert testimony, Krich asked the trial court
    to reconsider summary judgment, arguing that "a jury could reasonably infer" from
    the evidence that an earlier C-section would have avoided injury. Krich relied on
    Douglas v. Freeman, 
    117 Wash. 2d 242
    , 
    814 P.2d 1160
    (1991). There, the Court
    recognized,
    Expert testimony usually is required to establish proximate cause in
    medical malpractice cases. It is not always necessary, however, to
    prove every element of causation by medical testimony. If, from the
    facts and circumstances and the medical testimony given, a
    reasonable person can infer that the causal connection exists, the
    evidence is sufficient.
    
    Id. at 252(footnotes
    omitted).
    Douglas is distinguishable from this case. In Douglas, the plaintiff charged
    her doctor with negligence in extracting her teeth, and the clinic with negligence in
    supervising him. 
    Id. at 253.
    The doctor who performed the plaintiff's procedure
    7
    No. 76775-5-1/8
    stated that wisdom tooth extractions require an assistant. 
    Id. at 253-54.
    And, two
    expert witnesses testified that the lingual nerve could be damaged at stages where
    the doctor stated he required an assistant. 
    Id. at 254.
    Our Supreme Court held
    that a jury could reasonably infer from the evidence that the assistant's absence
    and the clinic's negligence in supervising the doctor proximately caused the
    plaintiffs injuries. 
    Id. at 254-55.
    Here, in Krich's motion for reconsideration, she pointed to Dr. Wittman's
    statement,
    "You know, in the earlier part of the day, she had the
    deceleration, the baby recovered, the baby did well, the baby was
    having accelerations and good variability, and then, at the end, the
    baby just wasn't tolerating labor at all, which is why we did the urgent
    C-section, crash C-section."
    Krich argues that had a C-section been performed when the baby recovered, the
    injuries would have been avoided. Unlike Douglas, Krich did not provide any
    expert testimony from which a jury could reasonably infer that allowing the labor to
    continue from the early interventions until the C-section proximately caused injury.
    And, the statements the experts made declined to connect the injuries to the birth.
    The temporal inference that the injuries occurred before the C-section is not
    sufficient standing alone to allow the jury to infer any injury occurred after consent
    to the C-Section. The jury would have had to speculate about what caused any
    injuries and when they were caused.
    No. 76775-5-1/9
    We find that the trial court did not err in concluding that Krich did not present
    evidence that the continued labor caused injury. The summary judgment was
    properly granted.
    We affirm.
    WE CONCUR:
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Document Info

Docket Number: 76775-5

Filed Date: 7/16/2018

Precedential Status: Non-Precedential

Modified Date: 7/16/2018