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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 52001-6-I
Title of Case: Lori Bundrick, et Al., App/Cross-Resps V
University of WA, et al., Resp/Cross-Apps
File Date: 05/02/2005
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 01-2-11679-7
Judgment or order under review
Date filed: 03/11/2003
Judge signing: Hon. Glenna S Hall
JUDGES
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Authored by Anne Ellington
Concurring: C. Kenneth Grosse
Mary Kay Becker
COUNSEL OF RECORD
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Counsel for Appellant/Cross-Respondent
Melton L. Crawford
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Timothy Kent Ford
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Counsel for Respondent/Cross-Appellant
Howard Mark Goodfriend
Edwards Sieh Smith & Goodfriend PS
1109 1st Ave Ste 500
Seattle, WA 98101-2988
Philip John Vanderhoef
Fain Sheldon Anderson & VanDerhoef PLLC
701 5th Ave Ste 4650
Seattle, WA 98104
Counsel for Minor(s)
Melton L. Crawford
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
Timothy Kent Ford
Attorney at Law
705 2nd Ave Ste 1500
Seattle, WA 98104-1796
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
LORI J. BUNDRICK, individually and ) No. 52001-6-I
as guardian of her minor children, )
NICHOLAS MULLAN and SHELBY )
MULLAN and MICHAEL BUNDRICK, )
)
Appellant/Cross-Respondent, )
)
v. )
)
BARRY C. STEWART, M.D., )
PACIFIC GYNECOLOGY )
SPECIALISTS, P.C.; SWEDISH )
MEDICAL CENTER, SWEDISH )
HEALTH SERVICES AND SWEDISH ) UNPUBLISHED OPINION
MEDICAL SERVICES, )
)
Defendants, )
)
THE UNIVERSITY OF WASHINGTON; ) FILED: May 2, 2005
THE STATE OF WASHINGTON, )
)
Respondents/Cross-Appellants. )
)
ELLINGTON, A.C.J. When a patient consents to treatment but wishes to
limit the individuals authorized to participate in her care, she must
communicate the limitations of her consent. Lori Bundrick sustained
serious injuries during surgery at Swedish Medical Center. Among other
claims, Bundrick asserted that a University of Washington medical school
resident participated in her surgery without her consent, and therefore
committed medical battery. Under the facts presented, we affirm dismissal
of this claim.
BACKGROUND
Lori Bundrick had had a tubal ligation to prevent pregnancy. When she
and her second husband wished to conceive a child naturally, she attempted
to reverse the tubal ligation through a procedure called tubal
reanastomosis. Dr. Barry Stewart of Pacific Gynecology Specialists was to
perform Bundrick's surgery at Swedish Hospital. Under an affiliation
agreement with the University of Washington Medical School, U.W. residents
in training are supervised by doctors at Swedish. Dr. Stewart is a member
of the University's clinical faculty, and was one of the physicians
responsible for supervising residents at Swedish.
About a week before the operation, Bundrick met with Stewart. Stewart told
her that a resident would be present during the surgery. According to
Bundrick, she asked, 'They are not going to do my surgery, are they?' and
Stewart told her, '{N}o, I will do it all. They are just there to
observe.' Clerk's Papers at 77.1
Bundrick then signed two consent forms. Neither form indicated that a
resident would participate in the surgery. One form, however, contains the
following broad statement:
VERIFICATION OF MEDICAL CONSENT: I, the undersigned, hereby consent to all
medical treatment or hospital services performed or prescribed by/or at the
direction of the attending physician, and the administration and
performance of any X-ray examinations, laboratory procedures, anesthesia or
other procedures which are considered necessary or advisable. I understand
that I or my authorized representative have the right to decide whether to
accept or refuse medical care. I will ask for any information I want to
have about my medical care and will make my wishes known to the attending
physicians and hospital staff.
Clerk's Papers at 91 (emphasis added).
Tarun Jain was a third year resident at the medical school. He assisted
Stewart during Bundrick's surgery. Jain testified in his deposition that
he performed several tasks during the surgery at Stewart's direction and
under Stewart's supervision.
During surgery, Stewart concluded Bundrick's fallopian tubes could not be
reattached, and after speaking with Bundrick's husband, aborted the
reanastomosis. Stewart then discovered a tear in the mesentery lining of
Bundrick's bowel, which he and Jain attempted to repair with sutures. The
sutures were improperly placed, compromising blood flow to the bowel. This
ultimately resulted in massive infection when part of the bowel necrotized
and perforated, spilling feculent fluid into the abdominal cavity.
Bundrick suffered extreme pain, several hospitalizations, and two
surgeries. She was unable to work in the business she owned with her
husband, and they were forced to sell the business.
Bundrick sued Stewart, Pacific Gynecology Specialists, Swedish Medical
Center, Swedish Health Services, Swedish Medical Services, the University
of Washington, and the State of Washington, alleging injuries resulting
from health care under chapter 7.70 RCW. She alleged the defendants were
liable for failure to follow the accepted standard of care, failure to
obtain consent (medical battery), and failure to obtain informed consent.
She did not sue Jain, but alleged that others had vicarious liability for
his negligence.
The University and the State (collectively, 'the University') filed a
motion for summary judgment. The court granted the motion in part,
dismissing all claims against the University for failure to obtain consent,
failure to obtain informed consent, and vicarious liability for Stewart's
acts and omissions. The court denied the University's motion insofar as it
related to vicarious liability for Jain's alleged failure to comply with
the standard of care.
The case was tried to a jury. At the close of plaintiff's case, the
University moved to dismiss the claim that Jain failed to comply with the
standard of care, and the court granted the motion. Thus, all claims
against the University were dismissed before the case went to the jury.
The jury returned a verdict against Stewart and Pacific Gynecology
Specialists, P.C. in the amount of $3.2 million. According to the special
verdict form, the verdict was based on Stewart's negligence, not his
failure to obtain Bundrick's informed consent to Jain's participation.
Stewart appealed. Bundrick filed a cross-appeal, and also appealed
dismissal of certain claims against the University. The University cross-
appealed. While these appeals were pending, Stewart and Bundrick settled
for an amount less than the full judgment, and Bundrick filed a
satisfaction of the judgment against Stewart.2
The issue remaining is Bundrick's appeal from the summary judgment ruling3
that neither the University nor its resident had a duty to obtain her
consent to the resident's participation in her surgery.
DISCUSSION
The University first contends the medical malpractice statute, chapter
7.70 RCW, supercedes the common law cause of action for medical battery and
replaces it with the statutory claim for failure to obtain informed
consent. We disagree.
The statute authorizes three causes of action: breach of the standard of
care, breach of promise that the injury suffered would not occur, and
injury resulting 'from health care to which the patient . . . did not
consent.' RCW 7.70.030(3). This section announces a general cause of
action for absence of consent. It makes no reference to informed consent,
and nothing in its language indicates the legislature intended to eliminate
claims for injuries arising from health care to which the patient gave no
consent. Elsewhere, the statute sets forth the requirements of informed
consent, again without suggesting any limitation on claims for complete
lack of consent. RCW 7.70.050.
An action for total lack of consent sounds in battery, while a claim for
lack of informed consent is a medical malpractice action sounding in
negligence.4 'The performance of an operation without first obtaining any
consent thereto may fall within the
concepts of assault and battery as an intentional tort, but the failure to
tell the patient about the perils he faces is the breach of a duty and is
appropriately considered under negligence concepts.' Miller v. Kennedy, 11
Wn. App. 272, 281-82, 522 P.2d 852 (1974). While Miller preceded the
enactment of chapter 7.70 RCW, the legislature is presumed to know the
existing state of case law, Price v. Kitsap Transit, 125 Wn.2d 456, 463,
886 P.2d 556 (1994), and nothing in the statute indicates the legislature
intended to eliminate the common law claim. Further, the two causes of
action protect entirely different values: 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 common law battery protects an
individual's right to privacy and bodily integrity. Keogan v. Holy Family
Hosp., 95 Wn.2d 306, 313-14, 622 P.2d 1246 (1980); Dan B. Dobbs, The Law of
Torts sec. 29, at 54 (2000). '{A} surgical operation is a technical
battery, regardless of its results, and is excusable only when there is
express or implied consent.' Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir.
1941). Chapter 7.70 RCW preserves actions for failure to obtain consent
(common law medical battery) where a health care provider fails to obtain
any consent, or where the patient refuses care by a particular provider.
Battery is an intentional tort; the tortfeasor must intend an offensive
touching, and the plaintiff must show there was no consent to the touching.
Garratt v. Dailey, 46 Wn.2d 197, 200-01, 279 P.2d 1091 (1955); Restatement
(Second) of Torts sec.13, cmt. d (1965); see also Dobbs, supra, at 57 ('in
the case of battery, the plaintiff's burden is to show that the defendant
intended to and did cause either harm or 'offense,' a burden that
ordinarily requires the plaintiff to show that the defendant's touching was
not apparently consented to.'). But where consent is given, limitations
upon it will be effective if communicated. See Dobbs, supra, sec. 104, at
244. Thus, where a patient has consented to a surgical procedure, but
contends she limited her consent to certain participants, she must
demonstrate she communicated that limitation.
The parties chiefly debate whose burden it was to obtain Bundrick's consent
to be treated by Dr. Jain. Bundrick contends the trial court erred in
relying on custom and practice to conclude that neither the University nor
Jain had a duty to obtain Bundrick's consent to Jain's participation. She
characterizes the issue as the right of a patient not to have her body used
for medical education without her consent. For its part, the University
contends the responsibility for obtaining consent lay solely with Stewart.5
Jain never met Bundrick before the operation, acted only at Stewart's
direction or request, and testified that as a resident, he was not allowed
to operate independently and that it was not within his discretion to
refuse to participate or reject Stewart's direction. He assumed that
Bundrick had consented to his assistance at surgery. But Bundrick
testified at her deposition she obtained Stewart's assurance that the
resident would observe but not participate. Jain had no right to
participate without Bundrick's consent. As to this issue, therefore, the
summary judgment record reflects a question of fact as to whether Bundrick
communicated the limitation of her consent. Summary judgment was improper.
We do not reverse, however, because the issue of informed consent to Jain's
participation was tried to the jury, and its special verdict on that
question is dispositive on the common law claim under the circumstances
here. The jury had the evidence of Bundrick's broad consent to 'all
medical treatment or . . . services performed or prescribed by/or at the
direction of the attending physician.' Clerk's Papers at 91 (emphasis
added). The jury was instructed that '{a} patient may refuse to consent to
a particular doctor . . . {and a} health care provider has a duty to honor
such a refusal of consent if the patient has informed the health care
provider of the refusal.' Clerk's Papers at 778. The jury found that
Bundrick did not refuse consent to the participation of Jain.
The University argues the battery issue is thus foreclosed by the doctrine
of collateral estoppel.6 Bundrick objects that the instruction improperly
shifted the burden of communicating a lack of consent to her, whereas it is
the physician's burden to obtain consent. This is so, but it ignores the
fact that Bundrick gave consent. Given the trial evidence, the question
for the jury was what effect to give to the broad consent signed by
Bundrick in light of her testimony that she did not consent to be treated
by Jain. The effect of the instruction was to tell the jury that once
broad consent is given, any limitations upon it must be communicated by the
patient. This is a correct statement of the law of medical battery. See
Dobbs, supra, sec. 104, at 244; Restatement (Second) of Torts sec.13,
cmt. d (1965). By its special verdict, the jury necessarily found that
Bundrick did not communicate any limitation as to participants in her care.
Under the circumstances here, this is exactly the question necessary to
decide the medical battery claim.
Bundrick points out that the University's own practice is to obtain
consent to participation by residents and students in procedures at
University Hospital. Bundrick also suggests several means by which the
University could have obtained the consent of patients such as Bundrick.
Doubtless any of these procedures would be feasible, and likely preferable.
Here, however, the jury's finding on the informed consent issue decided the
fact question dispositive of the common law claim. Although summary
judgment on this issue was improper, the verdict disposes of the claim.
Affirmed.
WE CONCUR:
1 We reference Bundrick's deposition testimony rather than her trial
testimony (which was similar) because the trial court dismissed this claim
on summary judgment.
2 Because the verdict compensated all Bundrick's damages and the judgment
has been satisfied, we asked the parties to submit supplemental briefs on
two questions: whether Bundrick is an aggrieved party under RAP 3.1, and
whether this matter is moot. (The amount of the settlement is
confidential, and disclosure of the actual amount is not necessary for
purposes of our analysis.)
The settlement does not discharge the University. See RCW 4.22.060(2)
(release does not discharge others liable on the same claim). Under
Nielson By and Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 135
Wn.2d 255, 264, 956 P.2d 312 (1988), Bundrick may seek the balance of the
judgment from another at-fault party. The satisfaction of judgment does
nothing to benefit the University because judgment was entered only against
Stewart. We conclude this matter is not moot and that Bundrick is
aggrieved under RAP 3.1.
3 We apply the usual de novo standard on review of summary judgment.
Anderson v. State Farm Mut. Ins. Co., 101 Wn. App. 323, 329, 2 P.3d 1029
(2000).
4 See 6 Am. Jur. 2d Assault and Battery sec. 6 (2004) ('Unlike an informed
consent case in which it must be shown that as a result of recommended
treatment, the patient actually suffers injury the risk of which was
undisclosed, or the patient actually suffers injury that would not have
occurred had the patient opted for one of the undisclosed methods of
treatment, it is not necessary for a plaintiff to prove such specific
medical findings under the theory of battery.').
5 The University relies exclusively on informed consent cases for the
proposition that not all health care providers involved in patient care are
subject to the same obligations to secure the patient's consent. See
Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 55, 785 P.2d
815 (1990) (refusing to impose 'equal informed consent obligations as to
every person and entity falling within the definition {of health care
provider}'); Alexander v. Gonser, 42 Wn. App. 234, 239, 711 P.2d 347 (1985)
(rejecting claim that a hospital has an independent duty to inform a
patient of test results administered at the request of the treating
physician). As informed consent cases, these decisions are inapposite.
Bundrick offers a New Jersey case, which provides a more pertinent
analysis. In Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983), a patient
specifically requested that a procedure be done by a particular surgeon,
but the surgery was in fact performed by others. The Perna court held the
patient had a cause of action in battery against the surgeons who performed
the procedure without her consent. Id., 457 A.2d at 439. Implicit in this
conclusion is the recognition that each surgeon participating in an
operation has a duty to secure the patient's consent: 'Any non-consensual
touching is a battery. Even more private than the decision who may touch
one's body is the decision who may cut it open and invade it with hands and
instruments. . . . A surgeon who operates without the patient's consent
engages in the unauthorized touching of another and, thus, commits a
battery.' Id. (citations omitted).
6 '{T}he doctrine of collateral estoppel, or issue preclusion, prevents
relitigation of an issue after the party against whom the doctrine is
applied has had a full and fair opportunity to litigate his or her case.'
Nielson By and Through Nielson v. Spanaway Gen. Med. Clinic, Inc., 135
Wn.2d 255, 262, 956 P.2d 312 (1998). Collateral estoppel applies when (1)
the issue decided in the prior adjudication is identical with the one
presented in the second action; (2) the prior adjudication must have ended
in a final judgment on the merits; (3) the party against whom the plea is
asserted was a party or in privity with the party to the prior
adjudication; and (4) application of the doctrine does not work an
injustice. Id. at 262-63.
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