On April 2, 2020, a unanimous Division III of the Court of Appeals issued Fritz v. Rockwood Clinic, P.S., 2020 WL 1649817, addressing the long-standing rule in Washington that a claim based on alleged misdiagnosis or missed diagnosis is properly designated a claim for medical negligence and not a failure to secure the patient’s informed consent. Division III, in an unpublished opinion, affirmed the summary judgment dismissal of plaintiff’s informed consent claim under this principle.
- Factual and procedural background.
The plaintiff received medical care from defendant Christ Clinic from 2007 to 2014. In a visit in December 2007, an employee from the Clinic performed a blood draw to determine the patient’s thyroid function. Five days later, the laboratory sent the results of the test to the Clinic, which revealed an elevated thyroid stimulating hormone (TSH) level suggestive of an underactive thyroid gland. There are no records indicating any employee of the Clinic recognized the high TSH level or that the patient was informed of this result.
When the patient presented to the Clinic in October 2011 with symptoms, a physician suspected hypothyroidism as the cause and noted the patient’s abnormal TSH level from 2007. The subsequent treatment records suggested that the patient was prescribed medication to suppress high level of TSH at that time.
In February 2014, the patient presented to the Clinic with a large mass on the right side of her neck. It was later determined to be thyroid cancer. A surgeon removed the tumor, and the patient successfully underwent radiation therapy.
The patient then became a plaintiff, filing suit against the Clinic and other defendants for negligently failing to timely respond to her abnormal thyroid condition, by failing to secure her informed consent, and breaching their fiduciary duties, all allegedly causing the tumor to grow to a larger size, as well as causing an aggravation of her pre-existing mental and emotional conditions.
The defendants sought summary judgment dismissal on a variety of grounds, including that plaintiff lacked any exert support, and that her informed consent theory was not cognizable. The plaintiff responded by submitting a declaration by a neuropsychologist, who provided causation opinions.
The trial court granted summary judgment dismissal for the defendants, concluding: (1) the fiduciary duty claim failed as a matter of law because the plaintiff’s claims were controlled by ch. 7.70 RCW; (2) the informed consent claim failed when it conflicted with the medical negligence claim; and (3) the medical negligence claim failed when the neuropsychologist’s declaration lacked factual foundation and contained conclusory statements. The plaintiff appealed the dismissal of her informed consent claim after her request for reconsideration was denied.
- A claim for failure to secure informed consent assumes that the provider made a diagnosis and recommended a course of treatment.
Division III of the Court of Appeals affirmed the dismissal of the plaintiff’s informed consent claim. It noted initially that informed consent claims and medical negligence are distinct claims that apply to different situations, and that “[a]llegations supporting one claim normally will not support the other.” Fritz, 2020 WL 1649817 at *3. The court recited the elements for the claim set forth in RCW 7.70.050, but importantly, noted that “the statutory cause of action assumes that the healthcare provider formed a diagnosis, recommended a course of treatment based on the diagnosis, and the patient consented to the recommended treatment.” Id. If the healthcare provider failed to make a diagnosis and never recommend a course of treatment, “[t]hese assumptions are missing.” Id.
Citing prior Supreme Court jurisprudence, including the leading case of Backlund v. University of Washington, 137 Wn.2d 651, 975 P.2d 950 (1999), as well as lower appellate court case law, the Fritz court recognized the principle that the “duty to inform does not arise until the doctor becomes aware of the condition by diagnosing it.” 2020 WL 1649817 at *4.
Applied to the plaintiff’s allegations, the Fritz court rejected the theory that the providers “failed to inform” her in 2007 that her tests showed an abnormal TSH level and the suggestion that the provider formed a diagnosis because the tests established the high level. Id. at *5. The court noted that the plaintiff “misunderstands the nature of the informed consent claim,” concluding:
The claim redresses the failure of the health care provider to inform the patient, after an accurate diagnosis, of the ramifications of a course of treatment before executing the treatment. Riggs (an ARNP employee) never declared in the records that she discovered the high levels of TSH. Failing to grasp what records show is a failure to diagnose, not a diagnosis. Riggs never formed a diagnosis of an abnormal TSH level and thus never recommended a course of treatment for the ailment.
Id. at *5 (emphasis added). Similarly, the court rejected the argument that the physician “obviously” suspected a thyroid abnormality because she ordered testing for TSH level, holding “suspecting a condition exists is not the same as diagnosing the condition.” Id. (emphasis added). Dismissal of the informed consent claim was affirmed.
- Impact and import of Fritz’s holding.
Division III’s holding in Fritz reaffirms a principle that has been the subject of substantial jurisprudence, and confusion, in Washington law. While the Fritz court specifically declined to address the issue of whether medical negligence and informed consent claims are mutually exclusive, 2020 WL 1649817 at *5, prior jurisprudence suggests that, with limited exceptions, the claims are in fact mutually exclusive when the informed consent claim is premised on a missed diagnosis theory.
The court’s opinion emphasizes that, from the plaintiff’s perspective, and in light of Backlund, supra, and its progeny, it would have been more prudent to adhere to a medical negligence theory and secure testimony from a qualified expert in support of the same to avoid the risk of outright dismissal by the trial court.
It is unknown at this time whether the plaintiff in Fritz will seek discretionary review with the State Supreme Court pursuant to RAP 13.3 and 13.4 as the deadline for such relief has not passed. Although a currently unpublished opinion, under RAP 14.1(1), unpublished opinions filed after March 1, 2013 may be cited as nonbinding authorities and “may be accorded such persuasive value as the court deems appropriate.”
If you have additional questions regarding this decision, please contact attorney David Norman. 206-622-5511 or dnorman@bbllaw.com.