Estate of Lorraine P. Hensley v. Community Health Association ( 2017 )

FILED
APRILll, 2017
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 LORRAINE P. HENSLEY, )
By and through its Personal ) No. 32652-7-111
Representative, JESSICA WILSON and )
LORRAINE HENSLEY, by and through )
her Personal Representative, )
)
Appellants, ) UNPUBLISHED OPINION
)
v. )
)
COMMUNITY HEAL TH )
ASSOCIATION OF SPOKANE (CHAS); )
PROVIDENCE HOLY FAMILY )
HOSPITAL; SPOKANE EAR, NOSE )
AND THROAT CLINIC P.S., and )
MICHAEL CRUZ, M.D., )
)
Respondents. )
SIDDOWAY, J. -The estate of Lorraine Hensley appeals several adverse rulings
before, during and following a four-week medical malpractice trial that ended with
defense verdicts in favor of three of the defendants and a hung jury as to the fourth.
Three defendants cross appeal trial court rulings.
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
We affirm all of the challenged rulings and remand for trial of the as yet
unresolved claim.
FACTUAL AND PROCEDURAL OVERVIEW
Beginning on January 2, 2009, Lorraine Hensley, then 52 years old, sought
medical care from Community Health Association of Spokane (CHAS) for a recurrence
of sinus infection and dental problems CHAS had treated over a couple of years. She
was diagnosed this time with sinusitis-sinus inflammation-likely related to an
abscessed molar. The CHAS providers' initial recommendation was to use a steroid
spray to decrease swelling and use nasal rinses. On January 9, after Ms. Hensley
complained of increasing pain, an odorous discharge, and swelling in the area of her right
eye, Ms. Hensley was prescribed oral antibiotics, prednisone to reduce inflammation, and
was referred for a CT 1 scan.
The CT scan revealed that the root of the abscessed molar was impinging into Ms.
Hensley's lower maxillary sinus. Since the tooth was the source of the infection, CHAS
providers gave Ms. Hensley a copy of the CT scan and told to see her dentist. In the
weeks that followed, CHAS providers prescribed a different antibiotic and pain
medication.
1
Computerized axial tomography.
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Ms. Hensley saw her dentist on January 27, her dentist agreed that the molar
needed to be removed, and an appointment was made to have it pulled on February 3.
On February 1, Ms. Hensley went to the emergency room of Providence Holy
Family Hospital (Holy Family) complaining of continuing sinus pain, swelling and a
headache. She was seen by John Hunter, a certified physician assistant, who reviewed
the January 9 CT scan; obtained and reviewed another CT scan of her brain; prescribed a
different antibiotic and some pain medication; and referred her to see an ear, nose and
throat specialist the next day.
On February 2, Ms. Hensley was examined at the Spokane Ear, Nose, and Throat
Clinic (the ENT clinic) by Michael Cruz, M.D. She told him her abscessed molar was
scheduled to be removed the next day. Dr. Cruz performed an endoscopic exam, took a
culture for testing, prescribed prednisone for inflammation, a painkiller, and
recommended a decongestant.
On the late evening of February 3, 2009, Ms. Hensley returned to the Holy Family
emergency room, complaining of worsening pain, and was seen by Dr. Christopher
Tullis, an emergency room physician. She told him about her tooth removal earlier in the
day. After taking her history and performing a physical examination, he administered
intravenous antibiotics and pain medication (Dilaudid) before discharging her in the early
morning hours of February 4.
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On February 6, 2009, Ms. Hensley died. The cause of death, identified at autopsy,
was brain herniation resulting from cerebral meningitis. A small hole was found in the
back wall of Ms. Hensley's frontal sinus bone that was too small for the medical
examiner to measure and an abnormal 4-millimeter hole was found in her dura (one of
the meninges, the membranes that surround the brain). The two holes proved to be the
pathway through which infection had reached the brain, causing Ms. Hensley's death.
In 2012, Ms. Hensley's estate brought this action against CHAS, Holy Family, the
ENT clinic and Dr. Cruz, alleging medical negligence and lack of informed consent. The
estate contended that the January 9 CT scan revealed Ms. Hensley was at high risk for
intracranial complications. It asserted that the standard of care required admitting Ms.
Hensley to a hospital for continuous intravenous antibiotics, surgical intervention, and
further testing. The estate also asserted lack of informed consent to the less aggressive
treatment provided by the defendants.
Pretrial summary judgment motions and counter motions were all denied. The
matter proceeded to trial in May 2014. During trial, the court denied several motions for
judgment as a matter of law, including defense motions to dismiss the medical negligence
claims for failure to establish a breach of the standard of care to the required degree of
medical certainty, and for failing to establish that the independent contractors who treated
·Ms.Hensley in Holy Family's emergency room were the hospital's agents. In arriving at
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final jury instructions, the trial court agreed with the defense that there was insufficient
evidence to submit the estate's lack of informed consent claim to the jury.
Defense verdicts were returned in favor of CHAS, the ENT clinic, and Dr. Cruz.
Although the jury found that providers at CHAS violated the standard of care, it found
that the violation was not the proximate cause of Ms. Hensley's death. The jury found no
violation of the standard of care by Dr. Cruz or the ENT clinic.
The jury was unable to reach a verdict on the estate's claim against Holy Family,
and the court declared a mistrial as to the hospital.
In June 2014, the estate filed a motion for a new trial based on the court's refusal
to instruct the jury on informed consent and on alleged juror misconduct. It supported its
allegation of juror misconduct with the declaration of one of the jurors, who asserted that
two other jurors "shut[ ] down" jurors who spoke in favor of the estate, exhibited bias in
favor of medical providers, made pejorative statements about the estate's attorney,
discounted the court's instructions on causation, and offered evidence of their own
experiences with medical treatment. Clerk's Papers (CP) at 937. The trial court denied
the motion and entered judgment on the jury verdicts.
The estate appeals and three of the defendants cross appeal, presenting a total of
six issues. A more detailed procedural history is provided in analyzing the respective
issues.
5
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ANALYSIS
The following errors are assigned:
By the estate:
• The trial court erred in denying the estate's motions for summary judgment against
Holy Family and CHAS on the elements of medical negligence liability and
causation;
• The trial court erred in refusing to instruct the jury on the estate's informed
consent claims; and
• The trial court erred in refusing to grant a new trial on the basis of jury
misconduct.
By Holy Family:
• The trial court erred in denying Holy Family's motions for judgment as a matter of
law that the estate failed to present evidence creating a jury issue of agency; and
• The trial court erred in denying defense motions for judgment as a matter of law
that the estate failed to present evidence creating a jury issue of a violation of the
applicable standard of care.
By the ENT clinic and Dr. Cruz:
• Both join Holy Family in contending the trial court erred in denying defense
motions for judgment as a matter of law that the estate failed to present evidence
sufficient to create a jury issue of a violation of the applicable standard of care.
We address the issues in the order stated.
I. APPEAL
A. We will not consider the estate's assignment of error to the trial court's
order denying its motions for summary judgment because following trial,
the challenge to the sufficiency of evidence must be to the trial evidence
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Within a few months after the estate's complaint was filed, the defendants moved
for summary judgment on the basis that the estate had not demonstrated a prima facie
case. The estate responded with a counter motion for summary judgment, an
accompanying declaration of Dr. Steven Kmucha alleging violations of the standard of
care and lack of informed consent on the part of all defendants, and argument that a right
to point to deficiencies in the other side's evidence "works both ways." CP at 28.
The defendants challenged the sufficiency of Dr. Kmucha's declaration to raise a
genuine issue of material fact, arguing that as an otolaryngologist, 2 he could not testify to
the standard of care of the emergency medical care providers contracted by Holy Family
or the family practitioners at CHAS, and that he failed to provide evidence as to the
standard of care in the State of Washington. 3
CHAS responded with only a conclusory declaration from its family practitioner
denying that he violated the standard of care. Holy Family, reporting difficulty obtaining
declarations from Mr. Hunter and Dr. Tullis, submitted only declarations from their
2 An otolaryngologist is "[a] physician who specializes in" the "diseases of the ear,
pharynx, and larynx, including the upper respiratory tract and diseases of the head and
neck, tracheobronchial tree, and esophagus." STEDMAN's MEDICAL DICTIONARY 1395
(28th ed. 2006) (combining the definitions of otolaryngologist and otolaryngology).
3
RCW 7.70.040(1) provides that one of the elements a plaintiff must establish for
a claim of medical negligence is that the defendant health care provider "failed to
exercise that degree of care, skill, and learning expected of a reasonably prudent health
care provider at that time in the profession or class to which he or she belongs, in the
state of Washington, acting in the same or similar circumstances."
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attorney, who claimed to have been told by both clients that they denied having violated
the standard of care. According to CHAS and Holy Family, the asserted deficiencies in
Dr. Kmucha's declaration reduced their concern about the estate's counter motion.
The ENT clinic and Dr. Cruz, whose standard of care Dr. Kmucha was more
clearly qualified to address, submitted a detailed opposition declaration from Dr. Cruz.
The estate does not contend it was entitled to summary judgment against them.
On June 22, the trial court heard argument of both sides' motions. It orally denied
the estate's counter motion on two grounds. As to CHAS and Holy Family, it found a
question of fact whether Dr. Kmucha, as an otolaryngologist, could testify to the standard
of care of the family practice and emergency medical care providers. As to all
defendants, it found Dr. Kmucha's declaration to be statutorily deficient because he
asserted that the standard of care in Washington was the national standard but without
explaining his basis for that assertion. Denial of the estate's counter motion was reduced
to a written order. 4
4
Rather than grant defense motions to dismiss the complaint on the basis of Dr.
Kmucha's failure to provide a foundation for his knowledge of the Washington standard
of care, the court gave the estate a deadline for obtaining a supplemental declaration from
Dr. Kmucha that would cure that deficiency. The estate complied.
After providing Dr. Kmucha's supplemental declaration, the estate asked the court
to allow the supplemental declaration to relate back, in effect, as a basis for reconsidering
the court's denial of its counter motion for summary judgment. The court refused, stating
in its order, "It was never my intention to grant Plaintiffs' countermotion for summary
judgment." CP at 301.
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The estate's first assignment of error is to this denial of its motion for summary
judgment against CHAS and Holy Family. It argues that evidence offered in opposition
to its motion was conclusory in the case of CHAS and inadmissible hearsay in the case of
Holy Family.
It is well settled that "[w ]hen a trial court denies summary judgment due to factual
disputes ... and a trial is subsequently held on the issue, the losing party must appeal
from the sufficiency of the evidence presented at trial, not from the denial of summary
judgment." Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wash. 2d 15, 35 n.9,
864 P.2d 921 (1993) (citing Johnson v. Rothstein, 52 Wash. App. 303, 759 P.2d 471
(1988)). The rule is supported by policy (we favor the decision that is based on the best
record) and by the purpose of summary judgment (the objective of avoiding useless trials
is no longer served once trial takes place). Johnson, 52 Wash. App. at 306-07.
The estate argues that a summary judgment denial is subject to review if the facts
are not disputed and the decision turned solely on a substantive issue of law, citing
Kaplan v. Northwestern Mutual Life Insurance Co., 115 Wash. App. 791, 799-800, 65 P.3d
16 (2003). In Kaplan, the issue of law decided incorrectly at summary judgment was
whether an ambiguous disability insurance policy was required to be construed against
the insurer. On facts that were sufficient and undisputed, the correct legal answer was
yes, but the court said no and allowed the meaning of the policy to be determined by the
Jury. The decision on that pure legal issue was held appealable.
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In this case, one basis for the trial court's denial of the estate's motion as it related
to CHAS and Holy Family was that a question of fact existed as to whether Dr. Kmucha
. could testify to the standard of care of their family practice and emergency medical care
providers. While Dr. Kmucha's declaration stated he was "well familiar with the national
standards of care of medical professional treatment for processes such as acute sinusitis"
and expressed his opinion that providers at CHAS and Holy Family provided medical
care below the standard "in the profession or class to which that provider belongs," he
offered no explanation as to how he was familiar with the standard of care of family
practitioners and emergency medical care providers. CP at 42.
CR 56(e) provides that a supporting affidavit such as that provided by Dr. Kmucha
"shall show affirmatively that the affiant is competent to testify to the matters stated
therein." Under the rule, declarations that contain conclusory statements unsupported by
facts are insufficient for purposes of summary judgment. Davies v. Holy Family Hosp.,
144 Wash. App. 483, 495-96, 183 P.3d 283 (2008) (citing Guile v. Ballard Cmty. Hosp., 70
Wash. App. 18, 25,851 P.2d 689 (1993)).
"To testify that the defendant has breached the applicable standard of care, 'a
physician must demonstrate that he or she has sufficient expertise in the relevant
specialty."' Id. at 494 (quoting Young v. Key Pharm., Inc., 112 Wn.2d. 216,229, 770
P.2d 182 (1989)). In Davies, a plaintiff submitted declarations of a Washington
physician who was board certified in radiology, offering his opinion as to a breach of the
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standard of care by members of Holy Family's medical staff. This court held that
because the expert's declarations failed to establish that he had sufficient expertise or
familiarity with the standard of care applicable to nurses and other health care providers,
he "[ could not] be deemed competent to establish the standard of care or to testify
regarding a breach of that standard." Id. at 496. The expert conclusorily claimed
familiarity with the appropriate measures that should have been taken by hospital staff in
treating the plaintiff, but this court held that his declarations did not affirmatively show
that he "had sufficient expertise to be considered qualified to express an opinion
regarding the standard of care applicable to nurses and other health care providers. In
fact, [his] declarations fail to reference any education, medical training, or supervisory
experience that could demonstrate his familiarity with the standard of care in other health
care fields." Id. at 495.
A party responding to summary judgment can show that genuine issues of material
fact require trial in two ways: (1) with conflicting evidence, or (2) by argument alone, if
the moving party's evidence is insufficient. "If the moving party fails to sustain [its
initial burden of production], it is unnecessary for the nonmoving party to submit
affidavits or other materials." Hash v. Children's Orthopedic Hosp. & Med. Ctr., 49 Wn.
App. 130, 132, 741 P.2d 584, (1987), ajf'd, 110 Wash. 2d 912 (1988). In opposing the
estate's early counter motion for summary judgment, CHAS and Holy Family persuaded
the court that the estate's evidence was insufficient.
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The trial court did not deny summary judgment based on an issue of substantive
law; it denied summary judgment because the estate presented too little evidence that Dr.
Kmucha was qualified to express an opinion regarding the standard of care applicable to
family practitioners or emergency medicine providers. The usual rule barring post-trial
appeal of summary judgment denial applies.
B. The trial court properly refused to instruct the jury on informed consent
The estate next assigns error to the trial court's refusal to instruct the jury on its
lack of informed consent claim. The court never limited the estate's effort to present
evidence in support of that claim. The court reserved ruling on a defense motion in
limine to exclude evidence and argument in support of the claim, and later denied a
defense motion for a directed verdict dismissing the claim at the end of the estate's case.
Ultimately, the court refused to instruct on the claim, however, stating "this,
fundamentally, is not an informed consent case, this is a medical negligence case."
Report of Proceedings (RP) 5 at 3355. It reiterated that primary reasoning in denying the
estate's new trial motion, stating, "[M]y view is that this is a standard of care issue, a
negligence issue." RP (July 11, 2015) at 56. On both occasions, the court also observed
that the estate had not presented expert testimony on the likelihood of the risk that a
5
Unless otherwise indicated by a parenthetical date, "RP" refers to the 3603 page
report of proceedings that begins with proceedings on May 2, 2014, continues through
trial proceedings up until the conclusion of closing arguments, and includes, at 3554-
3603, hearings taking place on June 22 and July 20, 2012.
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patient diagnosed with sinusitis and exhibiting the condition reflected on the CT scans
would suffer an intracranial infection and death.
Judgment as a matter of law is appropriate only when, after construing all facts
and reasonable inferences in favor of the nonmoving party, the court determines no
competent and substantial evidence exists to support a verdict. Paetsch v. Spokane
Dermatology Clinic, P.S., 182 Wash. 2d 842, 848, 348 P.3d 389 (2015). "Substantial
evidence" is evidence sufficient "to persuade a rational, fair-minded person that the
finding is true." Cantu v. Dep't of Labor & Indus., 168 Wash. App. 14, 21,277 P.3d 685
(2012). Review is de novo. Paetsch, 182 Wash. 2d at 848.
The Washington Supreme Court first recognized the doctrine of informed consent
in ZeBarth v. Swedish Hospital Medical Center, 81 Wash. 2d 12, 499 P.2d 1 (1972). Three
years later, the legislature adopted RCW 7.70.050 with the intent to codify the common
law doctrine as set forth in Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974),
aff'd per curiam, 85 Wash. 2d 151, 152,530 P.2d 334 (1975); Anaya Gomez v. Sauerwein,
180 Wn.2d 610,617,331 P.3d 19 (2014). Miller explained that the duty to warn and
advise of alternatives exists if"' ( 1) the risk of injury inherent in the treatment is material;
(2) there are feasible alternative courses available; and (3) the plaintiff can be advised of
the risks and alternatives without detriment to his well-being.'" Miller, 11 Wash. App. at
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286-87 (quoting Getchellv. Mansfield, 260 Ore. 174,182,489 P.2d 953 (1971)). 6 The
informed consent doctrine affirms an "individual's right to ultimately control what
happens to [her] body." Keogan v. Holy Family Hosp., 95 Wash. 2d 306, 313-14, 622 P.2d
1246 (1980).
In this case, the view of the estate's medical experts was not that this was a case in
which ( 1) there were "feasible alternative courses available" one being the course of
treatment followed by the defendant providers, (2) that each met the standard of care, and
(3) the patient had a right to know about each and its attendant risks. They opined,
instead, that the course of treatment followed by the defendant providers fell far short of
the standard of care. Arguably that alone demonstrates that this was a medical
negligence case, not an informed case. Since RCW 7.70.050(1) does not clearly
recognize that distinction, however, we examine the parties' positions further.
6
The statute requires proof of the following four elements:
(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(l)(a)-(d).
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The defendant providers rely on well settled Washington law that a health care
provider who misdiagnoses a patient's condition is not subject to an action based on
failure to secure informed consent with respect to treatments for the undiagnosed
condition. See, e.g., Backlund v. Univ. of Wash., 137 Wash. 2d 651, 661, 975 P.2d 950
( 1999). This is because "a health care provider who believes the patient does not have a
particular disease cannot be expected to inform the patient about the unknown disease or
possible treatments for it." Anaya Gomez, 180 Wash. 2d at 618. In such circumstances, it is
a medical negligence claim that compensates the patient for the provider's misdiagnosis
and resulting failure to provide appropriate treatment. See id.
The estate argues that this well settled law does not apply because this is not a
misdiagnosis case. According to the estate,
The condition that Ms. Hensley had (i.e., bony erosion and the frontal
sinusitis), was not undiagnosed. It was present in living color on CT
imaging. These providers didn't fail to diagnose the condition, they simply
minimized the risk of the known condition. They chose not to tell Mrs.
Hensley about her condition, or alternative treatments.
Appellant's Reply Br. at 26-27 (footnote omitted). The estate's experts agreed with the
sinusitis diagnosis and the presence of the bony erosion in the maxillary sinus. The estate
contends that Ms. Hensley acquiesced in the defendant providers' nonaggressive
treatment plan without being informed of the risk of intracranial complications and death,
whose materiality it argues was supported by its experts' testimony and should have been
a question for the jury.
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This case illustrates that it is a mistake to place too much emphasis on "diagnosis"
when a patient's experts are prepared to agree with a diagnosis but espouse a completely
divergent view of facts material to treatment and management given the patient's
presentation. 7 Washington cases hold that the doctrine of implied consent requires only
that health care providers disclose material facts and risk relating to treatment of which
they are subjectively aware. As the seminal decision in Miller 8 recognizes, the doctrine
of informed consent is a "negligence doctrine." 11 Wash. App. at 282, 289.
In Burnet v. Spokane Ambulance, for example, there was evidence that the treating
physician was unaware of the risk to his patient of brain herniation and subsequent injury.
As the court observed, "[i]t is undisputed Mr. Graham was unaware of Tristen's
condition which implicated risk to her, so he had no duty to disclose." 54 Wash. App. 162,
169, 772 P.2d 1027 (1989) (Burnet I). In Gustav v. Seattle Urological Associates, 90
Wash. App. 785, 790-91, 954 P.2d 319 (1998), the court held that a lack of informed
consent claim could not be based on a condition that had not been diagnosed but also
could not be based on the treating physician's lack of understanding of different assays
7
Defendants dispute whether the plaintiffs experts actually did agree with the
diagnosis, pointing to testimony by a defense expert that in substance, the plaintiffs
experts were relying on a diagnosis of "complicated acute frontal sinusitis," which is
different. See RP (July 11, 2015) at 39; RP at 2835 (stating "it's a bit of semantics").
8
See Smith v. Shannon, 100 Wash. 2d 26, 30,666 P.2d 351 (1983) (citations omitted)
("The seminal case on informed consent in this case is Miller v. Kennedy . . . . This Court
of Appeals opinion bears the strong stamp of approval by this court, which unanimously
and unequivocally approved it.").
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used in testing and failure to inform his patient of material facts on that score. Whether
he should have understood the difference in the assays "raised the question of negligence
... , not informed consent." Id. at 791.
No evidence was presented that any of the defendant providers subjectively knew,
given the sinusitis diagnosis and Ms. Hensley's presentation (including the CT scans),
that anything approaching a serious risk of intracranial infection and death existed. The
estate contends that they should have recognized the risk and responded differently but
that was the basis of the medical negligence claims. The estate presented those claims to
the jury.
The estate implies on appeal that the defendant providers did subjectively know of
the risk and "simply minimized [it]" and "chose not to tell Mrs. Hensley." Appellant's
Reply Br. at 27. It likens the estate's claim to the facts in Flyte v. Summit View Clinic,
183 Wash. App. 559, 579-80, 333 P.3d 566 (2014), in which a lack of informed consent
claim was remanded for trial because the evidence raised a jury question about the
defendant physician's subjective knowledge.
The defendant physician in Flyte testified at trial that he had ruled out a diagnosis
of influenza, which was ultimately the cause of his patient's death. Having ruled it out,
he argued that he had no obligation to inform the patient of facts material to treatment for
that diagnosis. Id. at 579. But his chart notes did not support his trial testimony that he
had ruled out influenza. The patient's father, who accompanied her into the exam room,
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testified that the physician said she had influenza. Id. Where evidence supporting a
health care provider's subjective knowledge of a material fact is presented but disputed,
the court should instruct the jury on informed consent-including the limitation of
informed consent to matters known by the health care provider. The jury can then decide
what the health care provider knew. Matters that "should have been" known can be
addressed by the patient's medical negligence claim.
In this case, construing all facts and reasonable inferences in favor of the estate, no
competent and substantial evidence at trial supported a claim that the defendant providers
knew that Ms. Hensley was at a material risk of intracranial infection and death but
minimized that risk or chose not to disclose it to her. Here, unlike in Flyte, there are no
contradictory chart notes. There were no witnesses to damning admissions. The expert
testimony as a whole demonstrated that the estate's medical experts did not speak for the
entire profession. And the estate offered no evidence of any reason or motive for the
defendant providers to withhold subjective knowledge of material facts.
The estate's evidence was, instead, that the defendant providers failed to recognize
and act on the asserted risk: its medical negligence claim. Like the trial court in Anaya
Gomez, the trial court below allowed the estate to present evidence but then reasonably
refused to instruct on the lack of informed consent claim. 9 Because we may affirm the
9
In the trial court, the estate also argued that the facts of its case were similar to
those in Gates v. Jensen, 92 Wash. 2d 246, 595 P.2d 919 (1979), which our Supreme Court
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trial court on this basis, we need not reach the estate's challenge to the court's secondary
basis for its ruling: that the estate presented insufficient evidence of the likelihood of
intracranial infection and death.
C. The trial court did not abuse its discretion in denying the motion for a new
trial on the basis ofjuror bias or misconduct
The estate finally argues that juror bias or misconduct required a new trial.
Juror bias
We first address the distinct situation where a juror's bias is evidenced by
dishonesty in voir dire, thereby depriving a party of the opportunity to challenge the
prospective juror for cause. This type of juror misconduct has been said to deprive a
identified in Anaya Gomez as presenting the limited circumstance in which a
misdiagnosis case can also present an issue of informed consent: "The determining factor
is whether the process of diagnosis presents an informed decision for the patient to make
about his or her care." 180 Wash. 2d at 623 (emphasis added). In Gates, an
ophthalmologist failed to diagnose a patient's glaucoma. The ophthalmologist had
treated the patient for over two years, had seen consistently high eye pressure readings
that pointed to her higher risk for glaucoma, had available two additional diagnostic tests
that were simple, inexpensive and risk free, and yet not only did not employ the tests but
did not tell the patient they were an option. Id. at 621. Anaya Gomez limits Gates to its
"unique set of facts" "aris[ing] during the diagnostic process." Id. at 623. It observes
that "Gates is the exception and not the rule with regard to the overlap between medical
negligence and informed consent" and "[g]iven the unique factual situation in Gates, it is
unlikely we will ever see such a case again." Id. at 626.
The Gates exception would apply if Ms. Hensley had shown consistent signs of
being at high risk of having a pathway for the infection from her abscess to reach the
brain; there were simple, inexpensive, and risk free diagnostic tests for determining
whether such a pathway existed; and her treating providers failed to inform her of the
option of having those tests performed. There was no such evidence here.
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party of a constitutional trial. E.g., Allison v. Dep 't ofLabor & Indus., 66 Wash. 2d 263,
265,401 P.2d 982 (1965). Robinson v. Safeway Stores, Inc., 113 Wash. 2d 154, 776
P .2d 676 (1989), on which the estate relies, is such a case. 10
As the United States Supreme Court has observed:
Demonstrated bias in the responses to questions on voir dire may result in
a juror's being excused for cause; hints of bias not sufficient to warrant
challenge for cause may assist parties in exercising their peremptory
challenges. The necessity of truthful answers by prospective jurors if this
process is to serve its purpose is obvious.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L.
Ed. 2d 663 (1984 ).
Whether a party is entitled to a new trial for juror bias is subject to its own test,
recognized in McDonough and later adopted in Washington. In McDonough, the
Supreme Court held that "to obtain a new trial in such a situation, a party must first
demonstrate that a juror failed to answer honestly a material question on voir dire, and
then further show that a correct response would have provided a valid basis for a
challenge for cause." Id. at 556. It added that "[t]he motives for concealing information
may vary, but only those reasons that affect a juror's impartiality can truly be said to
affect the fairness of a trial." Id.
10
As observed in State v. Cho, 108 Wn. App. 315,323, 30 P.3d 496 (2001),
Robinson applied a standard for challenging a verdict that was more lenient than current
Washington law.
20
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
The McDonough standard was adopted in Washington in a capital case, in which
our Supreme Court held that a prospective juror's incorrect responses to two questions
asking if he had been the victim of a crime or of a sexual offense did not warrant a new
trial. In re Elmore, 162 Wash. 2d 236, 267-68, 172 P.3d 335 (2007) (citing the observation
in In re Det. of Broten, 130 Wash. App. 326, 336, 122 P.3d 942 (2005) that Washington
cases are in accord with the McDonough standard for granting a new trial for juror bias)).
In this case, the estate contends that bias on the part of the presiding juror and
another male juror identified as "Jay" deprived it of a fair trial. Its opening brief
summarily identifies the portions of voir dire on which it relies. Br. of Appellant at 38-
40. We have set out in full, in an appendix, the lawyers' statements and questions that
the estate identifies. The estate relies for the most part on the lawyers' general
admonitions about the purpose of voir dire and the need for honest answers, but without
identifying any question it contends was answered dishonestly by the presiding juror or
Jay. The estate also relies on Holy Family's questions about jurors' emergency room
experiences, but here again, it identifies no question that the presiding juror or Jay
answered dishonestly.
Since there is no dishonestly answered question that, if answered honestly, would
have been a basis for excluding the juror for cause, the trial court had no basis for
21
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
ordering a new trial. 11
Other misconduct
The estate's remaining charges of misconduct rely on its juror affiant's allegations
that the presiding juror and Jay advocated for the defense and "' shut[ ] down'" jurors
who disagreed with them. CP at 937. The estate's affiant also claims the presiding juror
and Jay made the following statements during deliberations:
• That doctors should not be sued for trying to do their job; or if they only see a
patient once; or if, like CHAS's providers, they deal with a lot of poor people and
are not properly paid;
• Statements about Ms. Hensley's health condition delivered "in a pejorative
fashion"·
'
• That it was well known the estate's lawyer only took "big money cases"; the jurors
knew she could "twist things around"; and that her argument that the "more
probable than not" instruction applied to causation as well as to the standard of
care was "spin"; and
• That Jay's mother had been administered Dilaudid at the emergency room and was
discharged with slurring speech (like Ms. Hensley) but his mother was fine.
CP at 938-39. The defendants responded with a declaration of the presiding juror, who
denied personally making the improper statements alleged by the estate's affiant, denied
11
In a statement of additional authority, the estate directs our attention to the
recent United States Supreme Court decision in Pena-Rodriguez v. Colorado,
_U.S._, 137 S. Ct. 855, 197 L. Ed. 2d 107, 125 (2017), which recognizes an
exception to the federal no-impeachment rule for a juror's "clear statement that indicates
he or she relied on racial stereotypes or animus to convict a criminal defendant." The
decision was based on "unique historical, constitutional, and institutional concerns"
implicated by racial bias. Id. at 124. It has no application to this case.
22
No. 32652-7-111
Estate ofHensley v. Spokane Cmty. Health Ass 'n.
or claimed not to recall other jurors making the improper statements, asserted that no
juror was shut down, and claimed that jurors were encouraged to, and did, follow
instructions.
Professor Tegland has summarized the well settled two-step process by which a
trial court decides a challenge to a verdict based on jury misconduct:
First, the court determines whether the alleged misconduct is the sort of
juror misconduct that can be considered on a motion for new trial. Conduct
that inheres in the verdict, or inheres in the jurors' thought processes,
cannot be considered, and the inquiry is at an end. If the alleged
misconduct is the sort [of] misconduct that can be considered, then, as the
second step, the court determines whether the misconduct was sufficiently
prejudicial to warrant a new trial. On this second step, the outcome is
always fact-specific, and the trial court has considerable discretion.
14A KARLB. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE§ 32:29, at 377 (2d
ed. 2009).
Assuming for present purposes that the estate's affiant's allegations are true, most
inhere in the verdict. Most deal with the affiant's or other jurors' thought processes.
The mental processes by which individual jurors reached their respective
conclusions, their motives in arriving at their verdicts, the effect the
evidence may have had upon the jurors or the weight particular jurors may
have given to particular evidence, or the jurors' intentions and beliefs, are
all factors inhering in the jury's processes in arriving at its verdict, and,
therefore, inhere in the verdict itself, and averments concerning them are
inadmissible to impeach the verdict. ...
A different rule, one permitting jurors to impugn the verdicts which
they have returned by asserting matters derogatory to the mental processes,
motivations and purposes of other jurors or purporting to explain how and
why a juror voted as he did in arriving at his verdict, would inevitably open
nearly all verdicts to attack by the losing party and thwart the courts in
23
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
achieving a long held and cherished ambition, the rendering of final and
definitive judgments.
Cox v. Charles Wright Acad, Inc., 70 Wash. 2d 173, 179-80, 422 P.2d 515 ( 1967) (citations
omitted).
A failure to understand or follow the jury instructions also inheres in the verdict.
E.g., State v. McKenzie, 56 Wash. 2d 897, 900, 355 P.2d 834 (1960) Uuror argued law was
contrary to instruction); Ra/ton v. Sherwood Logging Co., 54 Wash. 254, 256, 103 P. 28
(1909) (ignored court's instructions). Whetherjurors feel threatened or pressured inheres
in the verdict. State v. Standifer, 48 Wash. App. 121, 127-28, 737 P.2d 1308 (1987) Uuror
sensed peer pressure to decide the case in a particular way); State v. Aker, 54 Wash. 342,
346, 103 P. 420 ( 1909) Uuror' s acquiescence after other jurors threatened to report the
juror's connection to a party).
What the estate characterizes as improper extrinsic evidence-Jay's mother's
response to Dilaudid-falls within well settled law allowing jurors to use personal life
experiences to evaluate the evidence presented at trial. Breckenridge v. Valley Gen.
Hosp., 150 Wn.2d 197,204, 75 P.3d 944 (2003).
The estate's evidence of juror misconduct fails at the first step of the verdict
challenge analysis, because the misconduct alleged is not the sort that can be considered
on a motion for a new trial.
24
No. 32652-7-111
Estate ofHensley v. Spokane Cmty. Health Ass 'n.
The trial court also considered prejudice, observing that the estate's "closest" case
for a comment that could have some impact on a jury verdict was that "you shouldn't sue
a doctor if they only see a patient once"-but the court then stated it was "really, really
unclear" that the statement had any impact here. RP (July 11, 2015) at 63. Given the
trial court's opportunity to observe the witnesses and its familiarity with the evidence, we
give great deference to its determination that the complained of conduct, if it occurred,
did not affect the verdict. See McCoy v. Kent Nursery, Inc., 163 Wn._App. 744,759,260
P.3d 967 (2011).
II. CROSS APPEALS
A. The trial court did not err in denying Holy Family's motions for a directed
verdict on the basis of a failure to present evidence of agency
Mr. Hunter and Dr. Tullis, who provided Ms. Hensley's care at Holy Family, are
not employees of the hospital. The estate alleged that they were agents, for whose
negligence Holy Family was vicariously liable. "Under apparent authority, an agent
(e.g., a doctor) binds a principal (e.g., a hospital) if objective manifestations of the
principal 'cause the one claiming apparent authority to actually, or subjectively, believe
that the agent has authority to act for the principal' and such belief is objectively
reasonable." Mohr v. Grantham, 172 Wash. 2d 844, 860, 262 P.3d 490 (2011) (quoting
King v. Rive/and, 125 Wn.2d 500,507,886 P.2d 160 (1994)). "A finding of apparent
25
No. 32652-7-III
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
agency can subject a hospital to vicarious liability for the negligence of contractor
physicians or staff working at the hospital." Id. at 860-61.
Holy Family moved for a directed verdict at the close of the estate's case, arguing
that the estate had presented no evidence of Mr. Hunter's and Dr. Tullis's ostensible
agency for the hospital. The estate responded that agency "was not a disputed issue
coming into this trial" and was not identified as such on the joint trial report. RP at 1863.
The court also expressed surprise that agency was an issue and stated it was "going to
deny the motion at this point." RP at 1869.
Holy Family renewed its motion at the end of the evidence, arguing that the record
still contained no evidence of agency. The trial court not only denied the motion but
instructed the jury that Mr. Turner and Dr. Tullis were Holy Family's agents and it was
vicariously liable for their conduct.
At issue is whether Holy Family's conduct leading up to the trial amounted to a
judicial admission of agency on which the estate and trial court were entitled to rely.
"Judicial admissions are not evidence ..... Rather, they are formal concessions in the
pleadings in the case or stipulations by a party or counsel that have the effect of
withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.
Thus, a judicial admission, unless allowed by the court to be withdrawn, is conclusive in
the case." 2 KENNETH BROUN, McCORMICK ON EVIDENCE§ 254, 181 (6th ed. 2006)
(footnote omitted). Factual stipulations are formal concessions that have the effect of
26
No. 32652-7-III
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.
Christian Legal Soc y Chapter of Univ. of Cal., Hastings Coll. ofLaw v. Martinez, 561
U.S. 661, 677-78, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010); Cf CR 2A (stipulations
will be recognized if made and assented to in open court or in writing and signed by the
attorney disputing the stipulation).
During the hearing on the parties' summary judgment motion on June 22, 2012,
Holy Family's counsel stated:
[COUNSEL FOR HOLY FAMILY]: ... There's four causes of action here,
your Honor; corporate negligence, informed consent, res ipsa loquitur, ...
and the vicarious liability, which would be the activities of Dr. Tullis and
Mr. Hunter, represented by Bill Etter.
[THE COURT]: Are they Holy Family staff?
[COUNSEL FOR HOLY FAMILY]: They are. They would be, your
Honor, at a minimum, ostensible agents. They are not employees, they are
independent contractors. But I think under Adamski. they are ostensible
agents. I am responsible for--it 's odd. I am responsible for their conduct
but I don't represent them so it is a unique situation. Obviously the burden
is on plaintiffs today to establish a primafacie case.
RP at 3572 (emphasis added). We agree with the estate that the underlined language
appears to be an admission. The italicized language that is not underlined creates
ambiguity, however.
At the conclusion of the hearing, the court orally announced its ruling, in which it
stated:
27
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
Everybody acknowledges that Holy Family ... would have vicarious
liability for the actions of the medical providers involved who are not
presently before the court so that is not an issue before me on summary
judgment.
RP at 3589. Holy Family did not object to or correct this statement.
The parties filed a trial management joint report in April 2014. The form indicates
that it is filed pursuant to Spokane County LCR 16. That rule requires parties to cases
governed by a civil case schedule order to jointly prepare "a Trial Management Joint
Report (form CI-06.0150)." LCR 16(a). The first page of the court form states, among
other matters,
Failure to fully disclose all items required on this report may result in
exclusion or restriction on use of evidence at trial. This is a joint report,
requiring counsel to meet, confer, and attempt to resolve differences in the
matter [sic] addressed in this report.
CP at 1255.
Section E of the court form reads:
E. LIST EACH ISSUE THAT IS DISPUTED (Issues not identified here
may not be raised at trial without leave of court):
CP at 1256.
The parties completed section E by listing the following as "each issue that is
disputed":
1. Standard of Care;
2. Informed Consent;
3. Res Ipsa Loquitor;
4. Wrongful Death;
28
No. 32652-7-III
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
5. Medical Causation;
6. Nature and extent of any damages;
7. Comparative fault.
Id. The report was signed or electronically approved by lawyers for all parties.
On the same day the trial management joint report was filed, Holy Family filed its
trial brief. A section was devoted to argument that evidence would show that Mr. Hunter
and Dr. Tullis did not violate the standard of care. There was no discussion of agency.
The Washington Constitution provides judges of the superior courts with authority
to adopt "uniform rules for the government of the superior courts." CONST. ART. IV, §
24. The superior courts also have the authority to adopt rules of procedure that are
supplementary and do not conflict with statewide rules adopted by the Washington
Supreme Court. RCW 2.04.210; RCW 2.08.230. The Washington Supreme Court has
adopted a rule that authorizes each superior court to "make and amend local rules
governing its practice not inconsistent with these rules." CR 83(a). "Court rules are
inconsistent under CR 83(a) only when they are 'so antithetical that it is impossible as a
matter of law that they can both be effective."' Sorenson v. Dahlen, 136 Wash. App. 844,
853, 149 P.3d 394 (2006) (quoting Heaney v. Seattle Mun. Ct., 35 Wash. App. 150, 155,
665 P.2d 918 (1983)).
We address the validity and application of a court rule de novo. Id. at 850. If a
court rule is valid and applies, we review a trial court's exercise of discretion recognized
by the rule for abuse of discretion.
29
No. 32652-7-III
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
Spokane County's LCR 16 is not inconsistent with the civil rules. A principal
purpose of the parallel civil rule, CR 16, which provides for pretrial conferences
participated in by the court, is to "compel the parties to disclose their claims and
defenses." Burnet v. Spokane Ambulance, 131 Wash. 2d 484, 503, 933 P.2d 1036 (1997)
(Burnet II). Spokane County's LCR 16 simply extends this valuable pretrial exercise to
cases where court time does not permit, or the issues do not require, court participation.
Under both the civil rule and the local rule, the identification of disputed issues is by
agreement.
A trial management report should not be construed as including an admission
where surrounding circumstances suggest that it was merely drafted unartfully or is
incomplete. Here however, there had been other indications that agency was not in
dispute. The trial court did not err in treating the identification of disputed issues in the
April 2014 trial management joint report as a judicial admission for purposes of the May
2014 trial. It therefore did not err in instructing the jury that Mr. Hunter and Dr. Tullis
were Holy Family's agents and that Holy Family was vicariously liable for their conduct.
B. The trial court did not err in denying Holy Family's and the ENT clinic's
motion to dismiss the estate's medical negligence claim for a lack of
adequate expert testimony
Finally, Holy Family and the ENT clinic argue that the court erred in denying their
motions for judgment as a matter oflaw on the basis that the estate's medical experts did
not testify to opinions based on a reasonable degree of medical certainty. "Expert
30
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
testimony is necessary to prove whether a particular practice is reasonably prudent under
the applicable standard of care." McLaughlin v. Cooke, 112 Wash. 2d 829, 836, 774 P.2d
1171 ( 1989). This expert testimony must be based on a reasonable degree of medical
certainty. Id. 12
The trial court denied the motion because it was confident from its trial notes that
the estate's lawyer had posed opinion questions to experts in the required form. 13
With the benefit of the transcript, we can see that while the estate's lawyer
sometimes asked a preliminary question as to whether an expert's opinion was based on a
reasonable degree of medical certainty, the "reasonable degree of medical certainty"
mantra was not repeated every time a question about the expert's opinion was asked. We
can also see, however, that the defense attorneys never objected to such questions for lack
of foundation nor did they move to exclude the witnesses. The failure to raise a timely
foundation objection precludes a party from moving for a new trial on the basis of an
12
The Restatement (Third) of Torts observes that "[t]o an expert witness, virtually
any proposition may be 'possible,' but the law demands proof by a preponderance of the
evidence in civil cases," so "[i]n an effort to screen expert opinions that are speculative,
some courts have employed a requirement that an expert testify that an opinion is held to
a 'reasonable degree of medical [or scientific] certainty' for it to be admissible."
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM§ 28
cmt. e (AM. LA w INST. 2010). Nonetheless, "the vast majority of those courts state that
the standard is equivalent to the usual preponderance requirement" when providing a
definition or defining the phrase. Id.
13
We can affirm the trial court's ruling on any basis supported by the record.
LaMon v. Butler, 112 Wash. 2d 193, 200-1, 770 P.2d 1027 (1989).
31
No. 32652-7-111
Estate ofHensley v. Spokane Cmty. Health Ass 'n.
inadequate foundation. Estate of Stalkup v. Vancouver Clinic, Inc., P.S., 145 Wash. App.
572, 584, 187 P.3d 291 (2008) (failure to object that physician did not testify to a
reasonable medical certainty waived the foundation challenge). Not having objected to
the foundation for the plaintiffs' experts' opinions, Holy Family and the ENT clinic were
not entitled to judgment as a matter of law.
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.
7?tlJotu~
Siddoway, J.
·6 '
WE CONCUR:
j
Pennell, J.
32
No. 32652-7-III
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
Appendix
APPENDIX
The estate identifies the following statements made or questions posed during voir
dire as relevant to its claim that the presiding juror and Jay were biased:
The estate's voir dire:
[T]he purpose of this process at this point is to allow me to talk with you a
little bit about some of the things that we learn through life and through
experience that become prejudices, that become biases, that become the
way that we think about things, sometimes without even knowing that we
think about things that way. So what I want to do is, I want to talk with you
a little bit about some of the things that may come up in this trial, some of
the beliefs you may have, about things that may come up in this trial that
might interfere with your ability to listen fairly to both sides of the
equation. In order for us to do that I'm going to hope that you'll share with
me freely, as best as you can in a group, some of the [sic] your beliefs on
some of these issues.
RP at 125.
CHAS's voir dire:
You all realize that that rule, is all we want to know, is can the panel that
sits here, can they be impartial to both sides, truly, to both sides. I think
that's the goal of this process, the jury selection process, is that we want an
impartial panel who will listen to the evidence and then listen to the law as
the judge instructs you on it, and then come to your decision based upon
that law.
RP at 146-47.
Holy Family's voir dire (questions about experiences in the emergency room) questions
only:
33
No. 32652-7-111
Estate ofHensley v. Spokane Cmty. Health Ass 'n.
Appendix
... [J]uror number 15. I wrote down that you had treatment at the Holy
Family emergency room, is that right?
... Okay. Can you tell me a little bit about, first of all, when this was?
... Okay. And if you're comfortable, what brought you to the emergency
room?
... All right. Were you admitted to the hospital or just treated in the
emergency room?
... Did you feel that you were listened to and cared for properly in the
emergency room?
... And would anything about your previous emergency room experience
at Holy Family impact your ability to listen to all the evidence in this case?
... [T]hank you. Mr. [],I think you said that your children had been
treated, if I wrote this down wrong correct me, maybe once at Holy Family
and once at Sacred Heart in the emergency room department.
... And hospital admission or just treated in the emergency department?
... Did you feel that your family's concerns were properly listened to and
addressed by the emergency physicians or nurses?
... Anything about your previous experience with the emergency
departments, understanding it wasn't Holy Family, that would impact your
ability to listen to the evidence in this case?
... Juror number 30, I wrote down that Holy Family and then three
question marks so maybe you can fill it in .
. . . Thanks. Tell me about Holy Family .
. . . When was that?
... All right. Were any of your children admitted after being treated in the
emergency room?
... Did you think that your concerns were listened to and you were treated
fairly by the emergency room staff?
... What do you mean by slow?
... Did you have any experience where you thought you were in the
waiting room longer than you needed to be?
... Pretty fair point there, yeah. I got it. My daughter's crying, it becomes
an emergency situation. And anything about your experiences at the
emergency room that would cause to you [sic] have trouble listening to go
[sic] all the evidence in this case?
34
No. 32652-7-III
Estate ofHensley v. Spokane Cmty. Health Ass 'n.
Appendix
... Thank you. And then lastly number 48, can you stand for me? I don't
want to hazard a guess at your name is so I'll just go with 48. I think you
said you had kids in the ER twice within the last six months, is that right?
... And was that at Holy Family?
... And what was the nature of the ER visits?
... Bones or scrapes or bruises, that type of thing?
... Were either of your children admitted to the hospital?
... Did you think you were treated fairly and equitably and people listen to
your concerns at the emergency room?
... So someone close to you that you're familiar with had passed away
based upon an infection they acquired at Holy Family, is that right.
... How did that impact you?
... Sure. And how long ago did this church member pass away?
... And you still have feelings about what happened to that person?
... You think that they probably shouldn't have caught an infection at the
hospital and passed away, right?
... And you still have those feelings about what happened at Holy Family.
And based upon the experience you had, or those close to you you've had,
would it impact your ability to listen to the record regarding Holy Family,
in particular the emergency department?
... Based upon the experience that you've had and those close to you .
. . . Those feelings aren't likely to change in the next three to four weeks as
I [sic] you sit here, correct?
... Absolutely. Thank you, I appreciate your candor. And I'll finish up
real quick by way of show of hands. I'm gonna ask some general questions
and try to follow up in the time that I have left. So if you can keep your
hands up in the air long enough for me to count them. Anybody here,
separate and apart from what the judge asked you, a bad medical
experience, I want to know, in particular, if anyone's had a bad experience,
you or a loved one, in the emergency room .
. . . Anywhere. You're number 13, is that right?
... Number 49, okay.
RP at 149-57.
35
No. 32652-7-111
Estate of Hensley v. Spokane Cmty. Health Ass 'n.
Appendix
ENT clinic voir dire:
... Do you have any problems setting aside sympathy that anyone would
have for someone that's lost a loved one, and to be objective as you listen
to the facts in this case?
PROSPECTIVE JUROR NO. 12: No. I think with any court case you
should be objective.
RP at 164-65.
36