# FILE

This opinion was filed for record 

### at

### $~'2f>l'"l Ronald R. Carpenter Supreme Court Clerk 

### INTHE SUPREMECOURT OFTHE STATEOFWASHINGTON RODOLFO ANAYA GOMEZ, as Personal Representative ofthe Estate ofChristina PalmaAnaya, Petitioner, 

### v. MARKF. SAUERWEIN, M.D., and THEY AKIMA VALLEYFARM WORKERS CLINIC, a Washington Corporation, Respondents. No. 88307-6 EnBane Filed 

### JUN 1 9 2014

J.M. JOHNSON, J.*-This case asks whether Washington's informed consent statute, RCW 7.70.050, applies when a health care provider misdiagnoses the patient's condition. We mustdecide whetherthe legislature intended to provide recovery to plaintiffs who allege both negligence and informed consent violations based onthe same set offacts.

*Justice James M. Johnson is serving as ajusticepro tempore ofthe Supreme Court pursuant to Washington Constitution article IV, section 2(a).Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### We hold that when a health care provider rules out a particular diagnosis based on the patient's clinical condition-including test results, medical history, presentation upon physical examination, and any other circumstances surrounding the patient's condition that are available to the provider-theprovider may not be liable for informed consent claims arising from the ruled out diagnosis under RCW 7.70.050. We affirm the Court of Appeals. FACTS AND PROCEDURAL HISTORY 

### Christina Palma Anaya (Mrs. Anaya) suffered from uncontrolled diabetes, leaving her immunocompromised and susceptible to serious
Community Hospital complaining ofurinary tract infection (UTI) symptoms. Urine and blood samples were taken and sent to the laboratory at Yakima Regional Medical Center for analysis. She went home the next day. On August 23, Mrs. Anaya returned to the Toppenish emergency room still feeling ill from UTI symptoms and could not empty her bladder. After her bladder was drained, she felt better so was senthome. On August 24, the lab preliminarilydeterminedthatone ofMrs. Anaya'sbloodcultures waspositive for yeast. Following protocol, the lab called Mrs. Anaya's primary care
2Anaya Gomez v. Sauerwein, et al., No. 88307-6


### facility, the Yakima Valley Farm Workers Clinic (Clinic), where Dr. Sauerwein was covering for Mrs. Anaya's usual primary care provider. Dr. Sauerwein was concerned about the test result. He conferred with Dr. Moran, one ofMrs. Anaya's treating physicians at Toppenish on August 20 and 21. Dr. Moran, an internal medicine specialist, suggested contacting Mrs. Anayato obtain a fuller clinical picture ofMrs. Anaya's condition. Due to the serious nature ofa blood infection, the two physicians decided that if Mrs. Anayawas feeling ill, she should come in immediately for treatment. If Mrs. Anaya was feeling better, they determined that it was more likely that the test result was a false positive, a common occurrence in microbiology
feeling muchbetter since her second visit to Toppenish. Dr. Sauerwein used the complete clinical picture available to him to conclude that the lab result
was a false positive resulting from contamination but had the nurse contact

1Mr. Anayaasserts that false positive bloodcultures for yeast are nearly nonexistent. Pet. for Review at 4. The expert testimony appears to support this conclusion. Transcript of Proceedings (TP) (June 9, 2010) at 21. But, this fails to account for the fact that yeast in the bloodis such anunusual condition and no experttestifying attrial hadever seen a nonnosocomial case. The testimony regarding false positives in general reveals that they are quite common. TP (June 10, 2011) at 82-83; see also CorrectedBr. ofAmici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at 17 n.ll (citing Keri K. Hall & Jason A. Lyman, UpdatedReview of Blood Culture Contamination, 19 CLINICAL MICROBIOL. REv. 788 (2006), available at http:/ /www.ncbi.nlm.nih.gov/pmc/articles/PMC1592696/ (last viewed Mar. 12, 2014)). 3Anaya Gomez v. Sauerwein, et al., No. 88307-6



### Mrs. Anaya to move her next appointment up to the following week. Dr. Sauerwein did not tell Mrs. Anaya about the test result. OnAugust26, the labpositivelyidentifiedcandidaglabrataas the yeast in Mrs. Anaya's blood. An infection ofglabrata in the blood is serious and
can even be deadly. Lab microbiologists entered this information into Mrs. Anaya's medical record but did not notify Dr. Sauerwein, the Clinic, or anyone else about the positive test result. Before Mrs. Anaya's next visit to the Clinic occurred, her condition worsened. On August 29, Mrs. Anaya went to Yakima Memorial Hospital. There she was prescribed a general antifungal called fluconazol. Fluconazol

When the hospital positively identified glabrata, they discontinued using fluconazol and started using amphotericin B. While amphotericin B is effective against glabrata, it is highly toxic to the kidneys. Given the compromised state ofMrs. Anaya's kidneys from her diabetes, a health care provider would not normally prescribe amphotericin B until positively identifying glabrata. Unfortunately, the amphotericin B treatment came too late to stop the glabrata infection from spreading to the internal organs. Mrs. Anaya died at
4Anaya Gomez v. Sauerwein, etal., No. 88307-6

age 32 onNovember 17, 2006, ofcardiac arrest, deprivation ofoxygento the brain, and fungal sepsis; all stemming from type II diabetes mellitus. Mr. Anaya Gomez (Mr. Anaya), as personal representative of Mrs. Anaya's estate, brought an action in Yakima County Superior Court againstDr. Sauerwein andthe Clinic for malpractice. Three weeksbeforethe jury trial, the estate moved to add a claim for failure to obtain informed consent. The trialjudge took the motion under advisement. At the close of Mr. Anaya's case, the defense moved forjudgment as a matter oflaw on the informed consent claim. The judge granted the motion and dismissed the informed consent

975 P.2d 950 (1999), precluded an informed consent claim in misdiagnosis
cases. The defense then presented its case in chief, and thejury found that Dr. Sauerwein did not breach any duty owed to Mrs. Anaya. Finding that Dr. Sauerweindid notdeviate from the standard ofcare, thejurydidnotreach the issues ofproximate cause or damages. Onappeal,the CourtofAppealsDivisionThree affirmedthetrial court, holding that this case was indistinguishable from 

### Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), butthat 

### Gates was either overruled sub silentio by
5Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### Backlund or abrogated or limited to its facts by 

### Keogan v. Holy Family Hospital, 95 Wn.2d 306, 312-14, 622 P.2d 1246 (1980). 

### Anaya Gomez v. Sauerwein, 172 Wn. App. 370, 385 289 P.3d 755 (2012). The case was appealed to this court for discretionary review, which was accepted. 

### Anaya Gomez v. Sauerwein, 177 Wn.2d 1008,302P.3d 180 (2013). ISSUES 1. Whether Mr. Anaya could bring an informed consent claim based on the same facts giving rise to a medical negligence claim for misdiagnosis. 2. Whether any reasonable finder offact could, on the facts in this case taken in a light most favorable to Mr. Anaya, conclude that Dr. Sauerwein's

ANALYSIS This court reviews de novo a granted motion forjudgment as a matter of law. 

### Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126 (2003). The court will view the evidence in a light most favorable to Mr. Anaya, drawing all reasonable inferences in his favor. 

### Sing v. John L. 

### Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). Judgment as a matter of law will be sustained ifno rational, unbiased person could return a verdict in the nonmoving party's favor. 

### Davis, 149 Wn.2d at 531.

6Anaya Gomez v. Sauerwein, et al., No. 88307-6

A. Mr. Anaya Cannot Bring an Informed Consent Claim Based on the Same Facts That Gave Rise to His Misdiagnosis Malpractice Claim Informed consent and medical negligence are distinct claims that apply in different situations. While there is some overlap, they are two different theories ofrecoverywithindependentrationales. Indeterminingwhichtheory ofrecovery is available, the issue is whether this is a case ofmisdiagnosis subject only to negligence or ifthe facts also support an informed consent claim.
a. 

### Informed consent and medical negligence are separate theories of recovery Modernly cognizable claims for failure to provide informed consent
(discussing the history ofthe doctrine ofinformed consent). The legislature codified the common law elements of an informed consent claim in RCW 7.70.050. 

### Stewart-Graves v. Vaughn, 162 Wn.2d 115, 125, 170 P.3d 1151 (2007) (citing FINAL B. 

### REP. on Substitute H.B. 1470, at 23, 44th Leg, 1st Ex. Sess. (Wash. 1976)). The legislature intended to adopt the elements
as theyappearedin

### Miller v. Kennedy, 11 Wn. App. 272, 522P.2d 852 (1974), 

### affd, 85 Wn.2d 151, 530 P.2d 334 (1975) withminor changes to one element not relevant here. 

### Stewart-Graves, 162 Wn.2d at 122-23.

7Anaya Gomez v. Sauerwein, eta!., No. 88307-6

In certain circumstances, this court has held that the right to informed consent can include the process of diagnosis. 

### Gates, 92 Wn.2d at 250-51 ("Important decisions must frequently be made in many nontreatment situations in which medical care is given, including procedures leading to a diagnosis, as in this case."). But 

### Gates was decided on facts that predated codification ofinformed consent in RCW 7.70.050. The statute clearly uses the word "treatment," demonstrating the intent to limit informed consent claims to treatment situations. The doctrine of informed consent has been distinguished from malpractice as applyingto fundamentally different situations. As we stated in R.nrlrJ111,.,r! 11.7 'XTn ')rl at hh1 (1 000\·

-----.._. ...................... , ......... ,- -y,--_._..... __ .....,..,. v....,_.. \_a._,..,;_, J• A physician[2l who misdiagnoses the patient's condition, and is thereforeunaware ofan appropriate category oftreatments ortreatmentalternatives, mayproperlybe subjectto anegligence action where such misdiagnosis breaches the standard of care, but may not be subject to an action based on failure to secure informed consent. Simply put, a health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the

2 Most ofour older cases use the word "physician." Modernly, however, we use the term "health care provider" because the rule applies to other medical professionals such as physician assistants and nurse practitioners. This is also the term used inthe statute. See RCW 7.70.050(1)(a). 8Anaya Gomez v. Sauerwein, et al., No. 88307-6



### unknown disease orpossibletreatments for it. In such situations, anegligence claim for medical malpractice will provide the patient compensation if the provider failed to adhere to the standard ofcare in misdiagnosing or failing to diagnose the patient's condition. In misdiagnosis cases, this rule is necessary to avoid imposing double liability on the provider for the same alleged misconduct. !d. 

### at 661-62 n.2. The proposition that a provider cannot be liable for failure to inform in a misdiagnosis case has been referred to as "the Backlund rule." !d. 

### at 661. Backlundfollowed several Court ofAppeals opinions applyingthe same rule. See Thomas v. Wilfac, Inc., 65 Wn. App. 255, 261, 828 P.2d 597 (1992)

violation ofthe duty to inform apatient."); Burnetv. SpokaneAmbulance, 54 Wn. App. 162, 168-69, 772 P.2d, 1027 (1989) ("[T]he issues presented were confined to negligence and misdiagnosis rather than a violation of the informed consentlaw."); Bays v. St. Luke'sHasp., 63 Wn. App. 876,881,825 P.2d 319 (1992) ("[T]he duty to disclose does not arise until the physician becomes aware ofthe condition by diagnosing it."). This court cited all of these cases when it decidedBacklund. See 137 Wn.2d at 659-60.

9Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### · There are situations where a provider could be liable for failure to inform without negligence. The most obvious example would be a provider who knows about two alternative treatments but informs the patient ofonly
onetreatment, whichis subsequentlyperformedperfectly. 3 

### This casepresents
a different situation. b. This is a medicalmalpractice case, 

### notan informedconsentcase 

### While we allow plaintiffs to make multiple inconsistent claims, plaintiffs must proceed cautiously to trial on those claims or risk confusing the jury. CR 8(e)(2). In this case, Mr. Anaya's counsel made a tactical decision to add the failure to inform claim three weeks before trial. Counsel

claim attrial, butbased onthe facts presented attrial, thejudge concludedthis
was amisdiagnosis case. Applyingthe commonsenserule fromBacklund, 

### the judge found that this was a medical negligence case and not 

### an informed consent case. TP (June 9, 2011) at 69. Either Dr. Sauerwein knew that Mrs. Anaya had a yeast infection, giving rise to a failure to inform claim, or he failedtoknow she hadayeastinfection, givingriseto the negligence claim.

3 Of course, this example assumes that the plaintiffwill be able to prove the remaining elements ofa failure to inform claim. 10Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### On one set offacts the two theories are mutually exclusive. Based on the evidence and expert witnesses Mr. Anaya presented, he appears to have chosen to pursue the latter rather than the former. Mr. Anaya attempts to create a new duty in this case for providers to inform patients ofall positive test results. Butthat is not the rule. Corrected Br. ofAmici Curiae Wash. State Med. Ass'n & 

### Wash. State Hosp. Ass'n at 13-16. Proposing this rule stems from ignorance ofthe medical process. A lab test is one tool among many that a health care provider uses to form a diagnosis. Other tools include the history ofpresent illness, family history, social history, and past medical history, as well as findings from a physical

or she inform the patient about possible treatments and the risks associated with each. Mr. Anaya also ignores the fact that microbiology labs are not perfect. Mistakes can occur in identification. Contaminants can enter the culture at any step in the process rendering the culture inaccurate. Withblood samples, contaminants can come from a variety ofplaces, including the patient's skin, the phlebotomist, the needle, the test tube holding the sample, the lab

11Anaya Gomez v. Sauerwein, et al., No. 88307-6


### personnel, and any tools used in the streaking process. TP (June 7, 2011) at 59. In the case ofan aerobic sample-the type of culture at issue in this case-the culture is left open to the air so the contagion can breathe. Contaminants from the air can get into the sample. Dr. Sauerwein testified that in his practice he sees one false positive test result every week. 

### TP (June 10, 2011) at 83. The rule thatMr. Anaya suggests also ignores the importance oftaking the patient's condition into account while making a diagnosis. The lead opinion in Keogan 

### noted that

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### general physical condition actually presented by the patient. Review ofthe individual patient's overall condition may all but rule out diseases that might in the abstract be the cause of a symptom or symptoms presented by the patient. 95 Wn.2d at 318 n.3.4 

### In this case, Mrs. Anayatold the nurse from the Clinic that she was feeling much better after her bladder was drained at her second visit to Toppenish. TP (June 10, 2011) at 87. Because a patient actually

4 In Keogan, three judges signed the lead opinion and five judges signed Justice Hicks' concurrence/dissent. The dissenters outnumber the "majority" on the informed consent issue. Thus, five justices agreed that the duty to disclose does not arise "whenever [the provider] becomes aware ofa bodily abnormality which may indicate risk or danger," as stated in Gates, but rather turns on whether or not "the diagnosis has been completed." 95 Wn.2d at 329. 

### 12Anaya Gomez v. Sauerwein, eta!., No. 88307-6
suffering from a yeastinfection ofthe blood would continue to feel very sick, Dr. Sauerwein concluded that Mrs. Anaya was not actually suffering from such an infection. 

### !d.
c. 

### As a misdiagnosis case, Backlund, 

### not Gates, 

### controls Mr. Anayamakes much ofthe Court ofAppeals' opinionthatthis case is indistinguishable from 

### Gates. He repeatedly refers to Dr. Sauerwein's knowledge aboutthe "positivebloodtest." 5 Suppl. Br. ofPet'rat 5. However, this case is very different from 

### Gates for several reasons. In 

### Gates, the ophthalmologist had consistently high eye pressure readings that pointed to higher risk for glaucoma over a 

### two year period, whereas Dr. Sauerwein's

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- -- - --- ---•r - - ____, --- -- ----- ------- - -----,; -- · · --- -- r--------· ---- ----- ----r ---·- ··--- ------ --------- - - - -- - - - record. In 

### Gates, 92 Wn.2d at 248, it was a "significant fact[]" that the ophthalmologist had available "two additional diagnostic tests for glaucoma which are simple, inexpensive, andrisk free." Thechoicethe ophthalmologist

5 The blood test on the date in question was positive for yeast, not glabrata. This purposefully ambiguous statement confuses the difference between suspecting that a patient has a yeast infection in the blood and knowing that the patient has glabrata in the blood. In fact, the only thing that Dr. Sauerwein knew on August 24 was that Mrs. Anaya had one blood test that was inconsistent with her physical condition and other tests, rendering the positive blood test more likely to be a false positive resulting from contamination. Glabrata was not identified until two days later, onAugust 26. 13Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### could have putto Mrs. Gates was whetherto do the additional testing in light ofherborderline testresult. Giventhe small cost and effort ofthose tests, the decision was relatively easy. Dr. Sauerweinhad no additional tests available. He could eitherverify the patient's physical condition or wait until the lab results positively identified a contagion. 6 

### Using the information available to him onAugust 24 and lackingthe ability to obtainmore information, Dr. Sauerwein determined thatthere was nothing further to diagnose. Dr. Sauerwein ruled out a diagnosis ofyeast based on the "physical condition actuallypresentedby [Mrs. Anaya]." 

### Keogan, 95 Wn.2d at 318 n.3.

but did not present any indication ofhaving a blood infection. Indeed, her symptoms indicated that she did 

### not have a blood infection. This case is different from 

### Gates because there was nothing else thatDr. Sauerwein could have done. Informing a patient about a likely erroneous lab result gives the health care providernothingto "'putto the patient in the way ofan intelligent

6 Whether Dr. Sauerwein owed a duty to follow up two days later when the lab identified glabratais aninteresting questionbutnot oneraisedbythepartiesnor arguedbyMr. Anaya attrial. Such an argument might have been relevant to medical negligence, butthat is not the issue before this court. 

### 14Anaya Gomez v. Sauerwein, eta!., No. 88307-6

and informed choice."' 

### ld. at 330 (Hicks, J., concurring in part, dissenting in part) (quoting

### Keogan, 22 Wn. App. at 370). Mr. Anayapoints to no choice that was available to the treating physicians or Mrs. Anaya, instead inviting this court to ignore the medicalrealities surrounding the circumstances ofthe
case.7 We hold that when a health care provider rules out a particular diagnosis based on the circumstances surrounding a patient's condition, including the patient's own reports, there is no duty to inform the patient on treatment options pertaining to a ruled out diagnosis. To hold otherwise wouldrequire health careproviders andpatientsto spendhours goingthrough

7 At oral argument, counsel for Mr. Anaya argued that informing Mrs. Anaya about the test result would have allowed herto seek a second opinion. This is impractical. Mrs. Anayahad numerous diseases, making diagnosis particularly difficult. She was free at all times to seek a second opinion ofToppenish's UTI diagnosis. Patient's do not seek second opinions ontestresults, heart rates, or bloodpressure readings-all tools used in making a diagnosis-they seek second opinions onthe diagnosis itselfor treatment options. For example, a provider need nottell a patientthat a malfunctioning blood pressure cuffgave an erroneous reading. Ifthe provider subsequently fails to use a working cuffto obtain a correctblood pressure reading, he or she mightbe liable for medical negligence. Likewise, ifthe provider misdiagnosed hypertension as a result of the erroneous blood pressure reading, that might also give rise to a negligence claim. The blood pressure reading itselfhas no use apart from aiding the provider in making a diagnosis. 8 As Justice Hicks wisely noted in a case where the physician failed to diagnose a heart attack, "[there are] 200 different thingsthatmightcause chestpain, only 3 ofwhichrelated to the heart." Keogan, 95 Wn.2d at 331 (Hicks, J., concurring in part, dissenting in part). 15Anaya Gomez v. Sauerwein, eta!., No. 88307-6

ofAmici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at 13. The providermay be liable for negligence in failing to diagnose the condition if the mistaken diagnosis otherwise meets the elements of a medical malpractice claim. This is a misdiagnosis case. Accordingly, the 

### Backlund rule applies and the trial court properly dismissed the informed consent claim as a matter oflaw. Therefore, we affirm the Court ofAppeals but point out that 

### Gates has not been overruled. 

### SeeAnaya Gomez, 172 Wn. App. at 385. 

### Backlund and 

### Keogan state the general rule ofwhen a plaintiffcan make an informed consent claim. The 

### Gates court allowedthe informed consent claimbasedon

there may be instances where the duty to inform arises during the diagnostic process, but this case does not present such facts. The determining factor is whethertheprocess ofdiagnosis presents an informed decision for the patient to make about his or her care. Dr. Sauerwein's knowledge ofthe test result provided no treatment choice for Mrs. Anayato make.

A health care provider cannot possibly inform a patient about every disease that might be causing each ofhis orher symptoms. 16Anaya Gomez v. Sauerwein, eta!., No. 88307-6



### B. A Reasonable, Unbiased Finder of Fact Could Not Conclude That Dr. Sauerwein's Failure To Provide Informed Consent Proximately CausedMrs. Anaya'sDeath Proximate cause is a necessary element ofan informed consent claim. RCW 7.70.050(l)(d). While the jury in this case did not consider the proximate cause element, a trial court may properly dismiss a claim if no rational, unbiasedperson couldreturn averdictinthe plaintiffsfavor. 

### Davis, 149 Wn.2d at 531. "Proximate cause" means "(1) the cause produced the injury in a direct sequence, and (2) the injury would nothave happened in the absence of the cause." Clerk's Papers at 58 (Jury Instruction 13); 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL

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### Even if this was not a misdiagnosis case the trial court properly dismissed the failure to inform claim as a matter oflaw because there was no evidence ofproximate cause. Resp. to Pet. for Review at 14-19. Mr. Anaya's only response is that this issue is not properly before the court because the respondent failed to cross petition on the issue. 9 

### However, this court may

9 Mr. Anaya eventually made proximate cause arguments in his answer to briefofamicus curiae WSAJF, but this was improper under RAP 10.3(f). That rule limits the content of anamicus answerbriefto "newmattersraised inthebriefofamicus curiae." Dr. Sauerwein neverbacked down from his contentionthatthere was no proximate cause. Mr. Anayahad ample opportunityto address this argumentinproperbriefingbutdeclinedto do so, instead arguing thatthe issue is notproperly before the court. Suppl. Br. ofPet'r at 4 n.l. 

### 17Anaya Gomez v. Sauerwein, etal., No. 88307-6



### consider any 

### issues raised by the parties. Blaney v. Int 'lAss 'n of Machinists & Aerospace Workers, 

### 151 Wn.2d 203, 210 n.3, 87 P.3d 757 (2004). Dr. Sauerweinraised the issue ofproximate cause in his first brief; therefore, the issue is before this court. Resp. to Pet. for Review at 14-19. 10 

### The expert testimony at trial supports Dr. Sauerwein's position. The allegedly tortious cause in this case is Dr. Sauerwein's failure to inform Mrs. Anaya about apositivetestresult for yeastin herblood. Taking all facts in a light most favorable to Mr. Anaya, it is unclear what Mrs. Anaya could have done withthe knowledge ofthe testresultbecause there was nothing for Dr. Sauerwein to putbefore her in the form ofan informed choice.

a very general identification that, at best, might have resulted in treating Mrs. Anaya with a general antifungal drug, such as fluconazo1. 11 

### But,

10 Mr. Anayacontendedin alaterbriefthatthis case is distinguishablefromBlaneybecause in that case the issue was argued at trial. However, Dr. Sauerwein's counsel vehemently argued against finding proximate cause in closing argument at trial and renewed those argumentsbeforethe CourtofAppeals. See TP (June 14, 2011) at 33, 41-42; Br. ofResp'ts (Wash. Ct. App. No. 30098-6-III) at 33. While those arguments specifically address proximate cause in the context ofmedical negligence, the arguments are exactly the same with respect to informed consent because Mr. Anaya contends that the same allegedly tortious conduct supports both claims. 11 Mr. Anaya's assertion that amphotericin B is the "gold standard" antifungal is misleading. Answerto Br. ofAmicus WSAJF at 10. Plaintiff'sexpert, Dr. Dreyer, testified aboutthe efficacy ofother antifungal drugs assumingthatDr. Sauerweineitherknew about the glabrata or affirmatively believed that the test result was actually positive, rather than a false positive. See TP (June 9, 2011) at 29. Dr. Dreyer testified about the efficacy of 

### 18Anaya Gomez v. Sauerwein, etal., No. 88307-6



### fluconazol is ineffective against glabrata. The only drug effective against glabrata that was established at trial is amphotericin B. Mr. Anaya's experts concluded that ifMrs. Anaya would have been treated with amphotericin B starting on August 24, she likely would have survived. But, given Mrs. Anaya's kidney difficulties, even an infectious disease specialist would not have prescribed amphotericin B until glabrata was positively identified. The lab identified the yeast as glabrata on August 26. The only expert to testify about the hypothetical results of treatment with amphotericin B beginning on August 26 concluded that Mrs. Anaya still would have died because it was too late. Mr. Anaya never offered any evidence to rebut this

viewthese facts favorably for Mr. Anaya. 12

"broad spectrum" alternatives to fluconazol and amphotericinB. Id. However, Dr. Dreyer testified oncross examinationthatfluconazol, andnotthese alternatives, wasthe drugmost likely to be usedby "an [emergencyroom] doctor or an internist or a family practitioner." Id. at 49-50. Furthermore, glabrata has varying degrees ofresistance to voriconazole and caspofungin, the two alternative treatments discussed. Failing to present sufficient evidenceoftheefficacyofalternatetreatments and evidenceofwhether anyfamily practice provider would have used those alternatives leaves Mr. Anayawithoutproximate cause. 12 Mr. Anaya's strainedreading ofDr. Dreyer's testimony does not supporthis conclusionthat informing Mrs. Anaya aboutthe positive test result would have led to treatment with amphotericin B. A thorough review ofthe record reveals that nothing supports this assertion. 

### 19Anaya Gomez v. Sauerwein, et al., No. 88307-6



### Because the harm alleged would have occurred regardless ofinformed consent, there cannot be proximate cause. We have held on many occasions that when ajudgmentis correct, it will notbe reversed because the courtmay have given a wrong or insufficient reason. 

### Retail Clerks Local 629 v. Christiansen, 67 Wn.2d 29, 31, 406 P.2d 327 (1965). 13 

### Mr. Anaya's failure toprovide evidence ofan essential element ofhis claim would have giventhe trial court sufficientgroundsto dismissthe claim. Accordingly, we affirmthe Court ofAppeals. CONCLUSION 

### We affirm the Court ofAppeals' decision but clarify that 

### Gates is not

informed about a known or likely conditionthat canbe readily diagnosed and treated. 

### Backlund clarifies that 

### Gates is the exception and not the rule with regard to the overlap between medical negligence and informed consent. Giventheunique factual situationin 

### Gates, itisunlikely we will ever see such
a case again. The lead opinion in 

### Keogan has limited precedential value becausethe fivejusticeswho concurredand dissented outnumberedthosewho

13 We do not imply here that thetrial court was incorrect in dismissing the informed consent claim as inapplicable to this misdiagnosis claim. Inthis case, however, the lack ofproximate cause provides an independently sufficient ground for dismissal. 

### 20Anaya Gomez v. Sauerwein, eta!., No. 88307-6


### signed the lead opinion. But, the reasoning of the concurrence/dissent is sound. Therefore, under

### Backlundand

### Keogan, informedconsentis available only when there is something to inform the patient about. Given the vast number offalse positive testresults that occur in Washington on a daily basis, imposing a duty on health care providers to inform every patient about every test result wouldbe unduly burdensome, pointless, and unwise. We also affirm the Court ofAppeals because the evidence at trialeventaken in a lightmostfavorable to Mr. Anaya-couldnothave supported proximate cause.

21Anaya Gomez v. Sauerwein, et al., No. 88307-6

WE CONCUR:**..-·~···**



### 22Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only)

No. 88307-6 GONZALEZ, J. (concurring inresult only)-I agree withthe majoritythatthe trialjudgeproperly declined to instructthejury on informed consent because the evidence presented at trial did not support a finding ofproximate cause. I write separately to stress that a health care provider may be liable for both a negligence claim and an informed consent claim arising from the same set offacts. While the majority purports to agree with this view, it also suggests that RCW 7.70.050 does not permit a patientto bring an informed consent claim when a provider makes a**====~m~i~sd"""iaJznosis** and. inproceedingto treat the misdiagnosed ailment, does not disclose a material fact relating to treatment or nontreatment. 1 Compare majority at 2, 8, 9, 11, 16, with majority at 20. Because nothing in chapter 7.70 RCW suggests the legislature intended such a dichotomy, I concur in result only. Under Washington law, a patient claiming failure to secure informed consent must establish: (a) Thatthe health care provider failed to inform the patient ofa material fact or facts relating to the treatment;

1Nontreatment is a form oftreatment. See RCW 7.70.060; Backlundv. Univ. ofWash., 137 Wn.2d 651, 661n.2, 975 P.2d 950 (1999) (citing Brown v. Dahl, 41 Wn. App. 565, 570, 705 P.2d 781 (1985)). 1Anaya Gomez v. Sauerwin, et al., No. 88307-6 (Gonzalez, J. concurring in result only) (b) Thatthe patient consented to the treatment without being aware ofor fully informed ofsuch material fact or facts; (c) That a reasonably prudentpatientunder similar circumstances would not have consented to tqe treatment ifinformed ofsuch material fact or facts; (d) Thatthe treatment in question proximately caused injury to the patient. RCW 7.70.050(1). A material fact is one to which "areasonably prudentperson in the position ofthe patient or his orher representative would attach significance." RCW 7.70.050(2). To bring a negligence claim for failure to follow the standard of
care aplaintiffmust show that: (1) The health care provider failed to exercise that degree ofcare, skill, and learning expected ofa reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state ofWashington, acting in the same or similar circumstances; (2) Such failure was a proximate cause ofthe injury complained**======~of~.**======================================== RCW 7.70.040. These statutes do not conflict. Nor are they inconsistent withthe overarching goals ofchapter 7.70 RCW: to police the health care practice, foster patient autonomy, and have a patient-centric view when imposing liability onhealth
care providers. See, e.g.,Adairv. Weinberg, 79 Wn. App. 197, 203, 901 P.2d 340 (1995) (noting that "both the medical profession and society play a role in establishing what is expected ofa medical provider"); Burnetv. SpokaneAmbulance, 54 Wn. App. 162, 168, 772 P.2d 1027 (1989) ("Informed consent focuses onthe patient's right to know his bodily condition and to decide what should be done.").
2Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only) Our informed consent laws allow a patientto recover damages from a health
care provider who fails to obtain informed consent whether or notthe medical diagnosis and/or treatment was negligent. RCW 7.70.050; Backlundv. Univ. of Wash., 137 Wn.2d 651,659,975 P.2d 950 (1999). The majority states thatBacklund controls here. Majority at 13. I agree. As Backlundobserves, "Negligence and informed consent are alternative methods ofimposing liability on a health care practitioner." 137 Wn.2d at 659. The opinion goes on to say that [a] physician who misdiagnoses the patient's condition, and is therefore unaware ofan appropriate category oftreatments or treatment alternatives, may properly be subjectto a negligence action where such misdiagnosis breaches the standard ofcare, but may not be subjectto an action based onfailure to secure informed consent. 

### !d. at 661. Unfortunately, taken out ofcontext, this language seems to have led some commentators to believe a plaintiffcan bring only a negligence orinformed consent claim. See majority at 10. This is notthe case. Ifit were, we would not have analyzed whether the Backlunds had made a prima facie informed consent claim because, as a matter oflaw, they would have had no cause ofaction anyway. 137 Wn.2d at 663-69. Instead, we specifically rejected the provider's argument that "a
cause ofaction for failure to obtain informed consent is unavailable to the Backlunds
as a matter oflaw where thejury exoneratedDr. Jackson and the University from negligence." 

### !d. at 653-54. Backlundsets out a set offacts that would not support both a negligence claim and an informed consent claim: a health care provider misdiagnoses a headache as a 3Anaya Gomez v. Sauerwin, et al., No.**88307~6** (Gonzalez, J. concurring in result only) transitory problem, resulting in a failure to detect a braintumor. We stated accordingly that it would be "anomalous to hold the physician culpable under RCW 7.70.050 for failing to secure the patient's informed consent for treatment for the undetected tumor." 

### !d. at 661 n.2. This is certainly true. ButBlacklunddid not address the potential claim the patient would have ifthe provider had also failed to
secure informed consent before treating the transitory headache and an injury resulted. Under such a scenario, the facts support claims that the provider was bothnegligent and failed to secure informed consent and is potentially liable on eithertheory. Though a plaintiffin such a case may not be permittedto recover on both claims so as to avoid double damages, this does not mean these two theories ofrecovery are mutually exclusive. Providers must secure informed consent regardless ofwhether diagnosis rose to the proper standard ofcare. Also, I respectfully disagree withthe majority's characterization ofthe plaintiffs arguments. See, e.g., majority at 11. There is nothing startling or ridiculous about bringing both anegligence claim and an informed consent claim. Nor is it inappropriate to analogize Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), to the case at bar. The majority believes that Mr. Rodolpho Anaya Gomez's (Mr. Anaya) case is easily distinguishable from Gates because "there was nothing else that Dr. Sauerwein could have done," and because ofGates' unique facts "itis unlikely we will ever see such a case again." Majority at 14, 20. The record shows that no matter what Dr. Sauerwein did Mrs. ChristinaPalmaAnaya's outcome would 4Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only)
nothave changed,2butthat fact speaks solely to the issue ofproximate cause: it does not limit Mr. Anayato a claim ofnegligence. Bothhere and in Gates, the providers received information material to the treatment oftheir patients that they did not disclose and, in both cases, easy additional steps should have been takenbythe providers. ForMs. Gates, it was pupil dilation, for Mrs. Anaya, reculturing. Here, similar to Backlund, the provider did not believe his patient's positive bloodtestrequired treatmentbecause he believed it to be a false positive. But such a misdiagnosis does not automatically preclude an informed consent claim. That said, the trial courthere, in accord withBacklund, properly refused Mr. Anaya's motion for
an informed consent instructionbecause there was not sufficient evidence to support a prima facie case ofbreach ofinformed consent. Backlund, 137 Wn.2d at 654. Nonetheless, I take this occasion to reject a distortion ofthe "Backlundrule"- that aplaintiffcannotbring both an informed consent and a negligence claim. Instead, I reaffirm the Backlundrule-thatnegligence and informed consent are merely alternative methods ofimposing liability. While it may be rare thatthe same set offacts will support both claims, we should not foreclose the possibility that a single course ofevents or treatment could give rise to both. Concerns about double2Attrial, the experts agreed that even ifDr. Sauerwein had ordered treatment immediately after receiving the positive blood test it would not have prevented Mrs. Anaya's death because the standard treatment would have been completely ineffective against the specific strain ofyeast in her blood. Transcript ofProceedings (TP) (June 10, 2011) at 42-43. However, it was undisputed that there were steps Dr. Sauerwein could have taken: "[the standard ofcare required t]wo things; one re-culture the blood and two begin on medication that specifically is known to combat fungus infections." TP (June 7, 2011) at 86-88. 

### 5Anaya Gomez v. Sauerwin, etal., No. 88307-6 (Gonzalez, J. concurring in result only) damages may be well taken, but I am certain that our trial courts are capable of craftingjudgments that avoid such windfalls. With these observations, I respectfully concur.

6Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring)

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