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COURT OF APPEALS DIV I

STATE OF WASHINGTON

2018 JUL 1 6 AM 8:31

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHELSEA KRICH and MICHAEL KRICH, )

husband and wife; WILLOW KRICH, a ) No. 76775-5-1

minor child; PAISLEY KRICH, a minor )

child; and TANNER KRICH, a minor child, ) DIVISION ONE

)

Appellants, ) UNPUBLISHED OPINION

)

v. )

)

MARY B. WITTMAN, M.D. and JOHN )

DOE WITTMAN, individually and their )

marital community comprised thereof; and )

EASTSIDE OB/GYN, PLLC, a Washington )

Corporation, )

)

Respondents. ) FILED: July 16, 2018

)

APPELWICK, C.J. — Krich appeals from summary judgment dismissing her

medical malpractice and lack of consent action against her doctor and the doctor's

medical group. She argues that she did not consent to continued labor after she

consented to a cesarean section delivery, and that the continued labor caused

injury to her daughter. Krich did not provide expert testimony establishing that the

continued labor caused temporary or permanent injuries. We affirm.

FACTS

Chelsea Krich's pregnancy with daughter Willow was complicated by

hypertension. Krich signed a consent form indicating that her doctor, Shannon

Bailey, recommended inducing labor because of the hypertension. The consent

form authorized the doctor to break Krich's water and to use the medications
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Oxytocin (Pitocin) and Cervidil. Dr. Mary Wittman assumed care of Krich and

induced her labor on June 26, 2014.

In the morning of June 26, Krich was put on Pitocin, and later that morning

Dr. Wittman ruptured Krich's membranes as part of the inducement process.

Around 1:00 p.m. that day, there was an abrupt drop in the baby's heart rate. The

baby's heart rate had recovered, but Dr. Wittman inserted an intrauterine pressure

catheter to put extra fluid around the baby, in an attempt to prevent future drops in

heart rate. Dr. Wittman raised the potential need for a cesarean section (Csection) with Krich. Krich signed a consent form for a C-section. Dr. Wittman

allowed the induced labor to proceed.

Around 10:00 p.m. the baby's heart rate dropped again, and Dr. Wittman

recommended amnio infusion and to prepare for a C-section. Dr. Wittman was

unable to find the baby's "heart tones," and called a "crash C-section." The baby,

Willow, was admitted at Swedish Medical Center six days later due to neurological

complications.

In a suit against Wittman and Eastside OB/GYN PLLC (hereafter collectively

referred to as Wittman), Krich alleged that the continued labor was without her

consent. She further alleged that Willow suffered severe and permanent injuries

because of the continued labor. Wittman moved for summary judgment. She

argued that Krich did not produce expert testimony establishing that a breach of

the doctor's standard of care caused the alleged injuries. Asserting that Krich

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could not establish this link, Wittman also argued that her informed consent claim

failed.

The trial court granted Wittman's motion for summary judgment. It found

on Krich's medical malpractice claim,

There is no witness who is expert in this case who is willing to

testify that Dr. Wittman fell below the standard of care. And more

importantly, there is no medical witness at all, including Dr. Wittman

herself, that her standard of care violation more likely than not cause

the damage to the plaintiff.

On the informed consent claim, the trial court found,

[I]t seems to be an argument that informed consent had been

withdrawn and nonetheless that the labor continued, the question is

whether or not that treatment, the continued labor, again, as opposed

to what the plaintiff -- patient consented to, proximately caused injury

to her. And here again, I have a complete gap in the testimony.

Yes, there is testimony from Dr. Wittman, and it's pretty

categorical, that there was a placental abruption here that she saw

signs of at the time of the emergency C-section, but when did it

happen and is that the cause of any of the plaintiffs' damage?

Certainly, there's no evidence at all that it's cause of permanent

injury here because there's a real absence of even clear evidence

here of permanent injury such as cerebral palsy. All three doctors

have opined otherwise.

But also, there's a complete absence of testimony from Dr.

Wittman or anybody else that the labor that continued until the

emergency C-section caused the temporary injuries either.

The court denied Krich's motion for reconsideration. Krich appeals.

DISCUSSION

Krich's sole argument on appeal is that she received treatment to which she

did not consent, and that this treatment proximately caused injury.

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We review summary judgment orders de novo, considering the evidence

and all reasonable inferences from the evidence in the light most favorable to the

nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

Summary judgment is appropriate only when no genuine issue exists as to any

material fact and the moving party is entitled to judgment as a matter of law. Id.

Krich contends that she did not consent to continued labor. She argues that

the continued labor caused three types of harm: (1) her emotional distress, (2) her

husband's bystander emotional distress, and (3) injuries to Willow, resulting in

medical bills around $160,000.

The relevant statute provides,

No award shall be made in any action or arbitration for damages for

injury occurring as the result of health care which is provided after

June 25, 1976, unless the plaintiff establishes one or more of the

following propositions:

(1) That injury resulted from the failure of a health care

provider to follow the accepted standard of care;

(2) That a health care provider promised the patient or his or

her representative that the injury suffered would not occur;

(3) That injury resulted from health care to which the patient

or his or her representative did not consent.

Unless otherwise provided in this chapter, the plaintiff shall

have the burden of proving each fact essential to an award by a

preponderance of the evidence.

ROW 7.70.030.

Under the statute, not only must Krich establish that she did not consent to

the treatment she received, but also that injury resulted from that treatment. ROW

7.70.030(3). In general, expert testimony is required when an essential element
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in the case is best established by an opinion which is beyond the expertise of a

layperson. Harris v. Robert C. Groth, M.D., Inc.,99 Wn.2d 438, 449, 663 P.2d 113

(1983). Medical facts in particular must be proven by expert testimony unless they

are observable by a layperson's senses and describable without medical training.

Id. Expert testimony is generally necessary to establish most aspects of causation.

Id.

Krich asserts that she did not consent to the continued labor, and

differentiates this claim from a claim of lack of informed consent. Krich relies on

Bundrick v. Stewart, 128 Wn. App. 11, 114 P.3d 1204 (2005).

In Bundrick,this court explained that an action for total lack of consent is a

claim of battery, while a claim for lack of informed consent is a medical malpractice

action of negligence. Id. at 17. 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 battery protects an individual's right to privacy and bodily integrity. Id.

Battery is an intentional tort, and the plaintiffs burden is to show that the defendant

intended to and caused either harm or offense. Id. at 18. The burden ordinarily

requires the plaintiff to show that she did not consent. Id. And, when she

consented to a surgical procedure, but contends she limited her consent to certain

participants, she must demonstrate she communicated that limitation. Id.

Here, Krich argues that the consent form she signed early in the afternoon

establishes that she sought a C-section at that time, and therefore did not consent

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to the continued labor that caused injury) The consent form she signed states, in

part,

I recognize that, during the course of the operation, post-operative

care, medical treatment, anesthesia or other procedure, unforeseen

conditions may necessitate additional or different procedures than

those set forth above. I therefore authorize my above-named

physician, and his or her assistants or designees, to perform such

surgical or other procedures as are in the exercise of their

professional judgment necessary and desirable. The authority

granted under this paragraph shall extend to the treatment of all

conditions that require treatment and are not known to my physician

at the time the medical or surgical procedure is commenced.

The consent form does not dictate a time for the C-section delivery. But, Krich's

deposition testimony does,

Q. So when she left, you understood from her perspective

that you weren't going to have the C-section at that point?

A. Yes, 1-- we stopped her. 1 stopped her at the door saying,

"I don't want to continue on with labor. I want to have a C-section. I

want to have a C-section now."

In the light most favorable to Krich, Krich communicated that she no longer

consented to the continued labor. But, even if Krich did not consent to the

continued labor, statutorily she must prove that the continued labor caused injury.

See RCW 7.70.030(3). A plaintiff who seeks recovery for injuries resulting from

medical treatment must, except under unusual circumstances, offer expert

testimony to establish"the essential elements of her claim. See Groth,99 Wn.2d

at 449.

Krich does not cite to any case law to support her assertion that a doctor

not performing a type of procedure immediately is a medical battery.

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In Krich's motion for reconsideration, she conceded that "no expert testified

directly that [a] C-section earlier in the day would have avoided the neurologic

depression that put Willow in the NICU [(neonatal intensive care unit)] for the

weeks following her birth." Krich also stated,

Indeed, though the treating neonatologist Dr. Menezes

declined to connect Willow's current problems to the events of her

birth, his note and deposition testimony seem to unambiguously

support that fetal distress "20-30 minutes prior to delivery" were the

direct cause of the "cooling protocol" that was initiated.

Plaintiff's expert Dr. Lin likewise declined to connect Willow's

current issues with the events of her birth, but he gave no testimony

on whether earlier C-section would, or would not have prevented the

"cooling protocol", defense counsel being (quite understandably)

more concerned with Dr. Lin's opinions on Willow's long-term

problems.

After acknowledging the lack of expert testimony, Krich asked the trial court

to reconsider summary judgment, arguing that "a jury could reasonably infer" from

the evidence that an earlier C-section would have avoided injury. Krich relied on

Douglas v. Freeman, 117 Wn.2d 242, 814 P.2d 1160 (1991). There, the Court

recognized,

Expert testimony usually is required to establish proximate cause in

medical malpractice cases. It is not always necessary, however, to

prove every element of causation by medical testimony. If, from the

facts and circumstances and the medical testimony given, a

reasonable person can infer that the causal connection exists, the

evidence is sufficient.

Id. at 252 (footnotes omitted).

Douglas is distinguishable from this case. In Douglas,the plaintiff charged

her doctor with negligence in extracting her teeth, and the clinic with negligence in

supervising him. Id. at 253. The doctor who performed the plaintiff's procedure

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stated that wisdom tooth extractions require an assistant. Id. at 253-54. And, two

expert witnesses testified that the lingual nerve could be damaged at stages where

the doctor stated he required an assistant. Id. at 254. Our Supreme Court held

that a jury could reasonably infer from the evidence that the assistant's absence

and the clinic's negligence in supervising the doctor proximately caused the

plaintiffs injuries. Id. at 254-55.

Here, in Krich's motion for reconsideration, she pointed to Dr. Wittman's

statement,

"You know, in the earlier part of the day, she had the

deceleration, the baby recovered, the baby did well, the baby was

having accelerations and good variability, and then, at the end, the

baby just wasn't tolerating labor at all, which is why we did the urgent

C-section, crash C-section."

Krich argues that had a C-section been performed when the baby recovered, the

injuries would have been avoided. Unlike Douglas, Krich did not provide any

expert testimony from which a jury could reasonably infer that allowing the labor to

continue from the early interventions until the C-section proximately caused injury.

And, the statements the experts made declined to connect the injuries to the birth.

The temporal inference that the injuries occurred before the C-section is not

sufficient standing alone to allow the jury to infer any injury occurred after consent

to the C-Section. The jury would have had to speculate about what caused any

injuries and when they were caused.
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We find that the trial court did not err in concluding that Krich did not present

evidence that the continued labor caused injury. The summary judgment was

properly granted.

We affirm.

WE CONCUR:

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