Lisa Dunakin And Michael Dunakin, Apps. v. Maher M. Anous, M.d., F.a.c.s., Res. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
LISA DUNAKIN and MICHAEL No. 72819-9-1
DUNAKIN, individually and on behalf CD
of their marital community,
ro
Appellants,
v. us
cx> ;.-.. ~
MAHER M. ANOUS, M.D., F.A.C.S.,
d/b/a PROVENCE ESTHETIC
SURGERY CLINIQUE & MEDICAL UNPUBLISHED OPINION
SPA,
FILED: October 12, 2015
Respondent.
Verellen, A.C.J. — The jury in this medical malpractice case answered "yes"
to the special verdict question whether Dr. Maher Anous failed to secure Lisa
Dunakin's "informed consent" before surgery, and "no" to the question whether the
failure to obtain informed consent proximately caused her injury. Dunakin argues
those answers are inconsistent because the jury had been instructed that the four
elements of an informed consent claim include proximate cause. But Dunakin did not
object to the jury instructions or the special verdict form. And she did not raise any
challenge to those answers until she filed her motion for new trial, 10 days after the
jury returned its verdict.
No. 72819-9-1/2
We conclude that, on the record before us, Dunakin fails to establish that the
jury's answers to the special verdict questions are inconsistent.
FACTS
Dr. Anous performed reconstructive surgery on Lisa Dunakin. Dunakin had
postoperative complications and sued Dr. Anous for medical negligence and lack of
informed consent.
The informed consent jury instructions stated:
Instruction No. 9.
A physician has a duty to inform a patient of all material facts,
including risks and alternatives, that a reasonably prudent patient would
need in order to make an informed decision on whether to consent to or
reject a proposed course of treatment.
A material fact is one to which a reasonably prudent person in
the position of the patient would attach significance in deciding whether
or not to submit to the proposed course of treatment.'11
Instruction No. 10.
In connection with the plaintiffs [sic] claim of injury as a result of
the failure to obtain the patient's informed consent to the treatment
undertaken, the plaintiff has the burden of proving each of the following
propositions:
First, that the defendant failed to inform the patient of a material
fact or facts relating to the treatment;
Second, that the patient consented to the treatment without
being aware of or fully informed of such material fact or facts;
Third, that a reasonably prudent patient under similar
circumstances would not have consented to the treatment if informed of
such material fact or facts; and
1 Clerk's Papers (CP) at 399.
No. 72819-9-1/3
Fourth, that the treatment in question was a proximate cause of
injury to the patient.
If you find from your consideration of all of the evidence that
each of these propositions has been proved, your verdict should be for
the plaintiff. On the other hand, if any of these propositions has not
been proved, your verdict should be for the defendant.12'
Dunakin did not object to these instructions.
The special verdict form included:
QUESTION NO. 1: Did Maher M. Anous, M.D. fail to secure Lisa
Dunakin's informed consent related to the November 10, 2009 surgery?
Answer: (yes or no)
If you answer "no," please skip Question No. 2 and proceed to
answer Question No. 3. If you answer "yes," please answer
Question No. 2 below.
QUESTION NO. 2: Was such failure to obtain informed consent a
proximate cause of injury or damage to Lisa Dunakin?
Answer: (yes or no)[3]
Dunakin did not object to this special verdict form.
During deliberations, the jury submitted an inquiry to the trial court:
In regards to Instruction No. 10, if one of the four propositions is found
as cannot be proved, does that require or dictate an answer of 'no' for
Question one (1) of the verdict sheet?[4]
The trial court directed the jury to "re-read Instruction No. 10. "5
2 CP at 400.
3 CP at 262-63.
4 CP at 265.
5 CP at 266.
No. 72819-9-1/4
The jury answered "yes" to question 1, whether Dr. Anous failed to secure
Dunakin's informed consent before surgery. Because the jury answered "yes," the
special verdict form directed the jury to answer the second question. The jury
answered "no" to question 2, whether the failure to obtain informed consent
proximately caused Dunakin's injury. When the trial court polled the jury, Dunakin did
not object to any alleged inconsistency in the verdict.
Ten days after the jury rendered its verdict, Dunakin moved for a new trial.
The trial court denied Dunakin's motion, rejecting her argument that the special
verdict answers were inconsistent. The court also concluded she waived any alleged
inconsistency in the verdict by failing to timely raise the issue.
Dunakin appeals.
ANALYSIS
Inconsistent Verdict
Dunakin contends the jury returned an inconsistent verdict. We disagree.
If the special verdict "contains contradictory answers to interrogatories making
the jury's resolution of the ultimate issue impossible to determine, a new trial is
required."6 Answers to interrogatories in a special verdict should be read
harmoniously to support a judgment.7 "In harmonizing a verdict, the court does not
6 Estate of Stalkup v. Vancouver Clinic. Inc.. PS, 145 Wash. App. 572, 586, 187
P.3d 291 (2008).
7 Mingerv. Reinhard Distrib. Co.. Inc.. 87 Wash. App. 941, 945, 943 P.2d 400
(1997) (quoting Dep't of Highwavs v. Evans Engine Co., 22 Wash. App. 202, 204, 589
P.2d 290 (1978)).
No. 72819-9-1/5
read the special verdict in isolation, but as part of the whole verdict, including the jury
instruction^]."8
Dunakin argues the jury could only answer "yes" to question 1—that Dr. Anous
failed to secure informed consent—if the jury found that all four elements of informed
consent set forth in jury instruction 10 were established, including proximate cause.
Thus, according to Dunakin, itwas inconsistent for the jury to answer "yes" to
question 1 but "no" to question 2 that the failure to secure Dunakin's informed
consent did not proximately cause her injury.
Three Washington cases analyze a similar inconsistent verdict argument in
analogous settings.9 In these cases, the special verdict form asked whether the
defendant was negligent, defined in the jury instructions to include the elements of
duty, breach, proximate cause, and damages. Then, ifthe jury answered "yes," the
verdict form directed the jury to separately answer whether the defendant's
negligence proximately caused the plaintiff's injury. All three cases used the same
test for an alleged inconsistent verdict:
A jury verdict finding that a defendant is negligent but that the
negligence was not a proximate cause of the plaintiff's injuries is not
inconsistent if there is evidence in the record to support a finding of
negligence but also evidence to support a finding that the resulting
injury would have occurred regardless of the defendant's actions.'101
8 Guiiosa v. Wal-Mart Stores. Inc.. 101 Wash. App. 777, 797, 6 P.3d 583 (2000).
9 Brashear v. Puget Sound Power & Light Co.. 100 Wash. 2d 204, 667 P.2d 78
(1983) (negligence); Mears v. Bethel Sch. Dist. No. 403, 182 Wash. App. 919, 332 P.3d
1077 (2014) (negligence); Estate of Stalkup v. Vancouver Clinic, Inc., PS. 145 Wn.
App. 572, 187 P.3d 291 (2008) (medical negligence).
10 Estate of Stalkup. 145 Wash. App. at 586 (citing Brashear, 100 Wash. 2d at 209);
see, e.g., Mears, 182 Wash. App. at 933 ("[A]s long as the Mearses alleged that each
defendant committed some act or omission that the jury could properly have found to
No. 72819-9-1/6
The logic underlying this test is that there can be situations when the same evidence
offered to establish a breach of duty would necessarily establish that the breach
proximately caused injury. There could only be both breach and proximate cause or
neither. In such a setting, answering "yes" to negligence but "no" to proximate cause
would be inconsistent. But if the evidence supporting a breach of duty is separate
from the evidence that the breach was not the proximate cause of injury, then a jury
could find a breach of duty and also find no proximate cause without being
inconsistent.
Dunakin argues this test does not apply in the informed consent context
because an informed consent claim uses an objective, "reasonably prudent patient"
standard rather than a subjective, fact-based standard.11 Informed consent does use
an objective standard to determine whether a reasonably prudent patient would have
consented to treatment if informed of all material facts. But that difference does not
impact whether the special verdict is inconsistent. We conclude the same test for
inconsistency as used in the negligence context applies equally to the informed
consent context.
be negligent, but not a proximate cause of Mercedes's death, no inconsistency would
lie in the verdict.").
11 See, e.g.. Mohr v. Grantham. 172 Wash. 2d 844, 850, 262 P.3d 490 (2011) (to
establish proximate cause in a medical negligence case, the plaintiff must show that
"'he or she would not have been injured but for the health care provider's failure to
use reasonable care.'" (quoting Hill v. Sacred Heart Med. Ctr.. 143 Wash. App. 438,
448, 177 P.3d 1152 (2008))); Backlund v. Univ. of Wash., 137 Wash. 2d 651, 667, 975
P.2d 950 (1999) ("The Legislature has clearly stated what is required [for the third
element of an informed consent claim]: the plaintiff must establish that a reasonably
prudent patient under similar circumstances would not have consented to the
treatment if informed of such material fact or facts[.]'" (second alteration in original)
(internal quotation marks omitted) (citing RCW 7.70.050(1)(c))).
No. 72819-9-1/7
To apply that test, we must review the evidence regarding the alleged failure
to advise the patient of material facts, as well as evidence related to whether a
reasonably prudent patient would have undergone the surgery. Dunakin has the
burden to provide an adequate record on appeal.12 Here, we have only summaries
of parts of the record by counsel; we do not have the report of proceedings from the
10-day trial. We conclude the record is inadequate to determine if there is a true
inconsistency in the special verdict.
We also note the term "negligence" has both (1) a limited meaning of a breach
of the standard of care and (2) a broad meaning including all four elements of duty,
breach, proximate cause, and injury. Mears v. Bethel School District No. 403
expressly recognized that the bifurcation of negligence and proximate cause in the
special verdict form used "negligence" in the narrow, more limited meaning.13
Similar to Mears, the term "informed consent" has a limited meaning: a health
care provider's "duty to disclose relevant facts about the patient's condition and the
proposed course of treatment so that the patient may exercise the right to make an
informed health care decision."14 The bifurcation of "informed consent" and
"proximate cause" in the special verdict form can be harmonized if "informed consent"
in question 1 was a limited reference to the element of failure to "inform the patient of
12 Story v. Shelter Bay Co.. 52 Wash. App. 334, 345, 760 P.2d 368 (1988).
13182 Wash. App. 919, 931, 332 P.3d 1077 (2014) ("The word 'negligence,'
however, also has the more limited meaning of 'conduct that falls below the legal
standard established to protect others against unreasonable risk of harm.'" (quoting
Black's Law Dictionary 1133 (9th ed. 2009))).
14 Stewart-Graves v. Vaughn, 162 Wash. 2d 115, 122, 170 P.3d 1151 (2007).
No. 72819-9-1/8
a material fact or facts relating to the treatment."15 Because answers in a special
verdict should be read harmoniously to support a judgment, we conclude "informed
consent" as used in this special verdict form did not render the jury's answers
inconsistent.
Additionally, we view Dunakin's arguments as an indirect attack on the
directions contained in the special verdict form for the jury to answer question 2 if it
answered "yes" to question 1. Dunakin suggests question 2 should have never been
before the jury. But Dunakin agreed to the jury instructions and the special verdict
form and therefore did not preserve any direct or indirect challenge to them.16
Waiver
We also conclude Dunakin waived any alleged inconsistency by failing to
timely raise the issue when the jury returned its verdict.
The policy underlying waiver is that a party must timely raise a concern to
allow the trial court a reasonable opportunity to cure it.17 For alleged inconsistent
special verdict answers, the trial court should be given the opportunity to resolve any
15RCW7.70.050(1)(a).
16 Although similar informed consent special verdict forms have been used,
see, e.g., David K. DeWolf, 6B Washington Practice: Civil Jury Instruction
Handbook § 2:7, at 250-51 (2014-15), the special verdict form used here by the
agreement of the parties is not a model form. Dunakin's proposed special verdict
form for question 1 would have avoided any suggestion of inconsistency: "Did
defendant Dr. Anous fail to inform the plaintiff of material facts that a reasonably
prudent person in the position of the patient would attach significance in the deciding
whether or not to submit to the prosed [sic] course of treatment?" CP at 60. Or a
special verdict form asking the juryto answer "yes" or "no" to each of the four
elements of informed consent would also avoid the alleged inconsistency at issue
here.
17 State v. Scott, 110 Wash. 2d 682, 685, 757 P.2d 492 (1988); State v. Bertrand,
165 Wash. App. 393, 400, 267 P.3d 511 (2011).
8
No. 72819-9-1/9
inconsistency by polling the jury or reframing the questions to eliminate the
inconsistency. For example, if Dunakin had raised the alleged inconsistency when
the jury returned its verdict, the trial court could have requested the jurors to answer
four questions separately addressing the four elements of informed consent. A
series of cases have applied waiver in this setting.18
Dunakin argues we need not apply waiver in this setting. There may be
settings when an appellate court declines to apply waiver for the failure to object at
the time the jury returns an inconsistent verdict,19 but we conclude waiver applies
here. Notably, the jury here inquired whether all four elements for informed consent
were required to answer "yes" to question 1 in the special verdict form. This inquiry
alerted the parties that the jury was focused upon the same concerns that underlie
Dunakin's arguments on appeal. Dunakin had an opportunity below to clarify the
jury's determination as to each of the four elements of informed consent. Consistent
with the policy underlying waiver, Dunakin should have given the trial court an
opportunity to cure the alleged inconsistent verdict.
18 Mingerv. Reinhard Distrib. Co., Inc., 87 Wash. App. 941, 946, 943 P.2d 400
(1997) (appellants "waived any objection to the verdict based on the alleged
inconsistency by failing to bring it to the attention of the trial court at the time the jury
was polled and before the jury were discharged"); Gierde v. Fritzsche, 55 Wash. App.
387, 393, 777 P.2d 1072 (1989) (declining to consider on appeal a challenge to jury
interrogatories because appellant waived the issue "by failing to bring the
inconsistency in the answers to the interrogatories to the attention of the court at the
time the jury was polled.").
19 Malarkev Asphalt Co. v. Wvbornev. 62 Wash. App. 495, 510-11, 814 P.2d
1219,821 P.2d 1235 (1991) (failure to object not deemed a waiver): see also Mears.
182 Wash. App. at 929 (acknowledging the "divergent approaches to the waiver
question" but declining to analyze waiver).
No. 72819-9-1/10
CONCLUSION
We conclude that, on the record before us, Dunakin fails to establish that the
answers to the questions in the special verdict are inconsistent and that Dunakin
waived the ability to challenge any alleged inconsistency on appeal.
Affirmed.
WE CONCUR:
^&s
10