On February 2, 2017, the Supreme Court of Washington issued a unanimous opinion in Dunnington v. Virginia Mason Med. Ctr., 91374-9, 2017 WL 449959 (Wash. Feb. 2, 2017), a medical malpractice case with major implications for two types of prominent healthcare cases going forward: (1) loss of a chance cases and (2) delayed diagnosis cases. With regard to loss of a chance, the Court provided a definitive answer as to what level of causation applies in the medical malpractice context, holding that “but for” causation is necessary. In delayed diagnosis cases, the Court resolved another long standing issue and held that a patient’s failure to properly follow up can constitute contributory negligence. Both of these issues constitute important and lasting wins for the defense bar and result from a well-reasoned decision from the Supreme Court.
A. Facts of the Case
In September 2011, Mr. Dunnington (the Plaintiff) saw his primary care provider in regard to a lesion that had developed after suffering a puncture wound to his left foot. The primary care provider referred Mr. Dunnington to a podiatrist at Virginia Mason Medical Center (“VMMC”), and the lesion was diagnosed as benign with two potential treatment options: (1) surgical excision or (2) cryotherapy (the more conservative treatment). Mr. Dunnington chose to undergo cryotherapy as the more conservative treatment and was instructed to return in 10 days.
In mid-September Mr. Dunnington returned, and the lesion had not improved. Again, Mr. Dunnington was informed of his options, including surgery and biopsy, which was the recommended course of treatment by the podiatrist. Mr. Dunnington chose not to follow the recommendation of the podiatrist and again opted for conservative treatment. He was again instructed to return in ten days; Mr. Dunnington did not do so.
In December 2011, several months after his cryotherapy treatment and failure to follow up with the podiatrist, Mr. Dunnington was seen regarding a separate medical issue. It was noted that the lesion had enlarged, and surgery and biopsy were recommended. Mr. Dunnington again refused and sought out a second opinion. An additional physician diagnosed the lesion as benign and also explained the options to Mr. Dunnington, again explaining that surgery and biopsy were an option. For a third time, Mr. Dunnington chose the conservative treatment and chose not to undergo surgery and biopsy.
At the end of January 2012, a biopsy was finally performed by a dermatologist and returned a positive finding of melanoma. Following other attempts to remove and treat the cancer, Mr. Dunnington’s leg was partially amputated.
Mr. Dunnington brought a medical malpractice action against VMMC alleging negligent diagnosis and loss of a chance for a better outcome. VMMC countered by alleging that Mr. Dunnington was correspondingly negligent in failing to follow up with his physicians as instructed.
B. Loss of a Chance Claims Require “But For” Causation
Loss of a chance is an approved method of recovery in Washington, which permits recovery for injuries which reduce the likelihood of a better outcome by less than the fifty-percent burden normally placed on negligence actions. However, none of the initial opinion in Herskovits garnered enough votes to clearly establish the applicable law, with different opinions arguing in favor of different standards of causation.
Traditional tort principals require plaintiffs who allege negligence to establish that their injuries would not have been caused “but for” the negligence of the defendant. However, an exception applies in cases where two or more causes have, together, created the injury:
the substantial factor test aids in the disposition of three types of cases. First, the test is used where either one of two causes would have produced the identical harm, thus making it impossible for plaintiff to prove the “but for” test… Second, the test is used where a similar, but not identical, result would have followed without the defendant’s act. Third, the test is used where one defendant has made a clearly proven but quite insignificant contribution to the result, as where he throws a lighted match into a forest fire.
Since the inception of “loss of a chance” claims in Washington, it has been unclear which standard of causation should be applied in medical malpractice cases where there is almost always an underlying injury or illness which has caused, at least in part, the plaintiff’s injuries.
In Dunnington, the Supreme Court held that “but for” causation is the appropriate standard. To distinguish the substantial factor test, the Court reiterated the limited application of the broader test, as was previously set out in Daugert (quoted above) and clarified that an injury caused by negligence does not cause an identical harm to an injury caused by an underlying medical condition. In doing so, the Court favorably cited the two Division Three opinions which have reached the same conclusion.
On a policy basis, the Supreme Court also opined on the negative impact that application of the substantial factor test could effect if applied to medical malpractice loss of chance cases.
A key distinction of loss of chance cases is that regardless of the negligence, the ultimate injury is likely to occur. Thus, if we held that the underlying medical condition, such as cancer, is also a cause of the lost chance, then we would essentially be holding that in every loss of chance case, the two causes, the negligence and the underlying medical condition, produce an identical harm. This would render a substantial factor test applicable in every loss of chance case involving medical malpractice—there will always be negligence and an underlying medical condition. Using a substantial factor test would be inconsistent with traditional tort law.
C. Patient’s Contributory Negligence for Failure to Follow Up
As is typical in medical malpractice cases where a plaintiff has failed to follow a doctor’s instructions, in Dunnington, VMMC alleged contributory negligence and plaintiff moved for summary judgment to dismiss. The trial court granted Mr. Dunnington’s motion for summary judgment and dismissed contributory negligence as an affirmative defense. In review, the Supreme Court reversed the trial court’s decision and held that it is up to the jury to determine whether a patient is negligent by choosing to go against his doctor’s recommendations:
Looking at the facts in the light most favorable to the defendant, there is an issue of material fact. On September 1, 2011, Dr. Ngan recommended two courses of possible treatment: Dunnington’s lesion could be surgically excised or conservatively treated with cryotherapy. Dunnington chose the conservative treatment. When Dunnington returned on September 15, 2011, the lesion appeared recalcitrant. Dr. Ngan once again informed Dunnington of his options, which included surgical excision and biopsy. Dr. Ngan favored surgical excision, but Dunnington chose conservative treatment once more. Dr. Ngan instructed Dunnington to return in two weeks; however, he did not. Instead, he returned in December, when Dr. Ngan instructed him that the next step was surgical excision and biopsy… There is a clear dispute as to whether Dr. Ngan would have again recommended an excision in October if Dunnington had returned. If he did, the melanoma would have been revealed.
By so holding, the Supreme Court has reinforced the duty that is owned by patients to maintain their own treatment. This should provide a favorable basis upon which future contributory negligence defenses can be based.
Both of these holdings from the Supreme Court should have lasting and beneficial impacts in medical malpractice cases. The heightened standard of causation in loss of a chance cases should help to prevent frivolous addition of loss of a chance claims into malpractice cases, and the reiteration of a patient’s duty to their own care should help to solidify a viable defense in applicable cases. Moreover, the unanimous nature of this decision indicates that the Supreme Court is firm on both of these positions and grants clarity on how to address these issues going forward.
If you have questions about this client alert or related topics, please feel free to contact either of the attorneys below:
 Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983) (plurality opinion).
 Dunnington, 2017 WL 449959, at *3.
 Daugert v. Pappas, 104 Wn.2d 254, 262, 704 P.2d 600 (1985).
 Dunnington, 2017 WL 449959, at *3 (“The two causes – the cancer and the negligence – would not have caused the identical harm.”).
 Id. at ¶ 8-9; Rash v. Providence Health & Servs., 183 Wn. App. 612, 634-35, 334 P.3d 1154 (2014); Christian v. Tohmeh, 191 Wn. App. 709, 730, 366 P.3d 16 (2015).
 Dunnington, 2017 WL 449959, at *3.
 Id. (emphasis added).
 Dunnington, 2017 WL 449959, at *3.