FILE 

This opinion was filed for record 

at $~'2f>l'"l 

Ronald R. Carpenter 

Supreme Court Clerk 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

RODOLFO ANAYA GOMEZ, as 

Personal Representative of the Estate 

of Christina Palma Anaya, 

Petitioner, 

v. 

MARK F. SAUERWEIN, M.D., and 

THEY AKIMA VALLEY FARM 

WORKERS CLINIC, a Washington 

Corporation, 

Respondents. 

No. 88307-6 

En Bane 

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 must decide whether the legislature 

intended to provide recovery to plaintiffs who allege both negligence and 

informed consent violations based on the same set of facts. 

*Justice James M. Johnson is serving as a justice pro 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-the provider 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 of urinary 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 sent home. On August 24, the lab 

preliminarily determined that one ofMrs. Anaya's blood cultures was positive 

for yeast. Following protocol, the lab called Mrs. Anaya's primary care 

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Anaya 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 of Mrs. Anaya's treating physicians at Toppenish on August 

20 and 21. Dr. Moran, an internal medicine specialist, suggested contacting 

Mrs. Anaya to obtain a fuller clinical picture ofMrs. Anaya's condition. Due 

to the serious nature of a blood infection, the two physicians decided that if 

Mrs. Anaya was 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 much better 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 

1 Mr. Anaya asserts that false positive blood cultures 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 blood is such an unusual condition and no expert testifying at trial had ever 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 Corrected Br. of Amici Curiae Wash. 

State Med. Ass'n & Wash. State Hosp. Ass'n at 17 n.ll (citing Keri K. Hall & Jason A. 

Lyman, Updated Review of Blood Culture Contamination, 19 CLINICAL MICROBIOL. REv. 

788 (2006), available at http:/ /www.ncbi.nlm.nih.gov/pmc/articles/PMC 1592696/ (last 

viewed Mar. 12, 2014)). 

3 
Anaya 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. 

On August 26, the lab positively identified candida glabrata as the yeast 

in Mrs. Anaya's blood. An infection of glabrata 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 of Mrs. 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 

4 
Anaya Gomez v. Sauerwein, et al., No. 88307-6 

age 32 on November 17, 2006, of cardiac arrest, deprivation of oxygen to 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 

against Dr. Sauerwein and the Clinic for malpractice. Three weeks before the 

jury trial, the estate moved to add a claim for failure to obtain informed 

consent. The trial judge took the motion under advisement. At the close of 

Mr. Anaya's case, the defense moved for judgment as a matter of law 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 the jury found that 

Dr. Sauerwein did not breach any duty owed to Mrs. Anaya. Finding that 

Dr. Sauerwein did not deviate from the standard of care, the jury did not reach 

the issues of proximate cause or damages. 

On appeal, the Court of Appeals Division Three affirmed the trial court, 

holding that this case was indistinguishable from Gates v. Jensen, 92 Wn.2d 

246, 595 P.2d 919 (1979), but that Gates was either overruled sub silentio by 

5 
Anaya 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 1008,302 P.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 of fact 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 for judgment 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 if no rational, unbiased person could return a verdict in 

the nonmoving party's favor. Davis, 149 Wn.2d at 531. 

6 
Anaya 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 of recovery with independent rationales. In determining which theory 

of recovery is available, the issue is whether this is a case of misdiagnosis 

subject only to negligence or if the 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 of the doctrine of informed 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 they appeared in Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974), 

affd, 85 Wn.2d 151, 530 P.2d 334 (1975) with minor changes to one element 

not relevant here. Stewart-Graves, 162 Wn.2d at 122-23. 

7 
Anaya 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 of informed 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 applying to 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 therefore unaware of an appropriate category of treatments 

or treatment alternatives, may properly be subject to a negligence 

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 of our 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 in the statute. See 

RCW 7.70.050(1)(a). 

8 
Anaya Gomez v. Sauerwein, et al., No. 88307-6 

unknown disease or possible treatments for it. In such situations, a negligence 

claim for medical malpractice will provide the patient compensation if the 

provider failed to adhere to the standard of care 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. 

Backlund followed several Court of Appeals opinions applying the same rule. 

See Thomas v. Wilfac, Inc., 65 Wn. App. 255, 261, 828 P.2d 597 (1992) 

violation of the duty to inform a patient."); Burnet v. Spokane Ambulance, 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 consent law."); Bays v. St. Luke's Hasp., 63 Wn. App. 876,881,825 

P.2d 319 (1992) ("[T]he duty to disclose does not arise until the physician 

becomes aware of the condition by diagnosing it."). This court cited all of 

these cases when it decided Backlund. See 137 Wn.2d at 659-60. 

9 
Anaya 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 of only 

one treatment, which is subsequently performed perfectly.3 This case presents 

a different situation. 

b. This is a medical malpractice case, not an informed consent case 

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 at trial, but based on the facts presented at trial, the judge concluded this 

was a misdiagnosis case. Applying the commonsense rule from Backlund, 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 failed to know she had a yeast infection, giving rise to the negligence claim. 

3 Of course, this example assumes that the plaintiff will be able to prove the remaining 

elements of a failure to inform claim. 

10 
Anaya Gomez v. Sauerwein, eta!., No. 88307-6 

On one set of facts 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 of all positive test results. But that is not the rule. Corrected 

Br. of Amici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at 

13-16. Proposing this rule stems from ignorance of the 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 of present 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. With blood samples, 

contaminants can come from a variety of places, including the patient's skin, 

the phlebotomist, the needle, the test tube holding the sample, the lab 

11 
Anaya 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 of an 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 that Mr. Anaya suggests also ignores the importance of taking 

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 of the 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. Anaya told 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 of a 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. 

12 
Anaya Gomez v. Sauerwein, eta!., No. 88307-6 

suffering from a yeast infection of the 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. Anaya makes much of the Court of Appeals' opinion that this case 

is indistinguishable from Gates. He repeatedly refers to Dr. Sauerwein's 

knowledge about the "positive blood test."5 Suppl. Br. ofPet'r at 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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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, and risk free." The choice the 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, on August 26. 

13 
Anaya Gomez v. Sauerwein, eta!., No. 88307-6 

could have put to Mrs. Gates was whether to do the additional testing in light 

ofher borderline test result. Given the small cost and effort of those tests, the 

decision was relatively easy. 

Dr. Sauerwein had no additional tests available. He could either verify 

the patient's physical condition or wait until the lab results positively 

identified a contagion. 6 Using the information available to him on August 24 

and lacking the ability to obtain more information, Dr. Sauerwein determined 

that there was nothing further to diagnose. 

Dr. Sauerwein ruled out a diagnosis of yeast based on the "physical 

condition actually presented by [Mrs. Anaya]." Keogan, 95 Wn.2d at 318 n.3. 

but did not present any indication of having 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 that Dr. Sauerwein could 

have done. Informing a patient about a likely erroneous lab result gives the 

health care provider nothing to "'put to the patient in the way of an intelligent 

6 Whether Dr. Sauerwein owed a duty to follow up two days later when the lab identified 

glabrata is an interesting question but not one raised by the parties nor argued by Mr. Anaya 

at trial. Such an argument might have been relevant to medical negligence, but that is not 

the issue before this court. 

14 
Anaya 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. Anaya points to no choice 

that was available to the treating physicians or Mrs. Anaya, instead inviting 

this court to ignore the medical realities surrounding the circumstances of the 

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 

would require health care providers and patients to spend hours going through 

7 At oral argument, counsel for Mr. Anaya argued that informing Mrs. Anaya about the 

test result would have allowed her to seek a second opinion. This is impractical. 

Mrs. Anaya had numerous diseases, making diagnosis particularly difficult. She was free 

at all times to seek a second opinion of Toppenish's UTI diagnosis. Patient's do not seek 

second opinions on test results, heart rates, or blood pressure readings-all tools used in 

making a diagnosis-they seek second opinions on the diagnosis itself or treatment 

options. For example, a provider need not tell a patient that a malfunctioning blood 

pressure cuff gave an erroneous reading. If the provider subsequently fails to use a 

working cuff to obtain a correct blood pressure reading, he or she might be liable for 

medical negligence. Likewise, if the 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 itself has 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 things that might cause chest pain, only 3 of which related 

to the heart." Keogan, 95 Wn.2d at 331 (Hicks, J., concurring in part, dissenting in part). 

15 
Anaya Gomez v. Sauerwein, eta!., No. 88307-6 

of Amici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at 13. 

The provider may 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 

of law. Therefore, we affirm the Court of Appeals but point out that Gates 

has not been overruled. See Anaya Gomez, 172 Wn. App. at 385. Backlund 

and Keogan state the general rule of when a plaintiff can make an informed 

consent claim. The Gates court allowed the informed consent claim based on 

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 

whether the process of diagnosis presents an informed decision for the patient 

to make about his or her care. Dr. Sauerwein's knowledge of the test result 

provided no treatment choice for Mrs. Anaya to make. 

A health care provider cannot possibly inform a patient about every disease that might be 

causing each of his or her symptoms. 

16 
Anaya 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 

Caused Mrs. Anaya's Death 

Proximate cause is a necessary element of an 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, unbiased person could return a verdict in the plaintiffs favor. Davis, 

149 Wn.2d at 531. "Proximate cause" means "(1) the cause produced the 

injury in a direct sequence, and (2) the injury would not have happened in the 

absence of the cause." Clerk's Papers at 58 (Jury Instruction 13); 6 

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 

_________ 

------ --------------------7----------,----------------- 1_5_0_1_Q_l_aL1_&3_(_Jt_b_e:d_'200'/_\,~~~~~~=~~~ --7· 

Even if this was not a misdiagnosis case the trial court properly 

dismissed the failure to inform claim as a matter of law because there was no 

evidence of proximate 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 brief of amicus 

curiae WSAJF, but this was improper under RAP 10.3(f). That rule limits the content of 

an amicus answer brief to "new matters raised in the brief of amicus curiae." Dr. Sauerwein 

never backed down from his contention that there was no proximate cause. Mr. Anaya had 

ample opportunity to address this argument in proper briefing but declined to do so, instead 

arguing that the issue is not properly before the court. Suppl. Br. ofPet'r at 4 n.l. 

17 
Anaya Gomez v. Sauerwein, et al., 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. Sauerwein raised the issue of proximate 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 a positive test result for yeast in her blood. Taking all facts 

in a light most favorable to Mr. Anaya, it is unclear what Mrs. Anaya could 

have done with the knowledge of the test result because there was nothing for 

Dr. Sauerwein to put before her in the form of an 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. Anaya contended in a later brief that this case is distinguishable from Blaney because 

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 

arguments before the Court of Appeals. 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 of medical 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. Answer to Br. of Amicus WSAJF at 10. Plaintiff's expert, Dr. Dreyer, testified 

about the efficacy of other antifungal drugs assuming that Dr. Sauerwein either knew 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 

18 
Anaya Gomez v. Sauerwein, et al., 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 if Mrs. 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 

view these facts favorably for Mr. Anaya.12 

"broad spectrum" alternatives to fluconazol and amphotericin B. Id. However, Dr. Dreyer 

testified on cross examination that fluconazol, and not these alternatives, was the drug most 

likely to be used by "an [emergency room] doctor or an internist or a family practitioner." 

Id. at 49-50. Furthermore, glabrata has varying degrees of resistance to voriconazole and 

caspofungin, the two alternative treatments discussed. Failing to present sufficient 

evidence of the efficacy of alternate treatments and evidence of whether any family practice 

provider would have used those alternatives leaves Mr. Anaya without proximate cause. 

12 Mr. Anaya's strained reading of Dr. Dreyer's testimony does not support his 

conclusion that informing Mrs. Anaya about the positive test result would have led to 

treatment with amphotericin B. A thorough review of the record reveals that nothing 

supports this assertion. 

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

Because the harm alleged would have occurred regardless of informed 

consent, there cannot be proximate cause. We have held on many occasions 

that when a judgment is correct, it will not be reversed because the court may 

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 

to provide evidence of an essential element of his claim would have given the 

trial court sufficient grounds to dismiss the claim. Accordingly, we affirm the 

Court of Appeals. 

CONCLUSION 

We affirm the Court of Appeals' decision but clarify that Gates is not 

informed about a known or likely condition that can be 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. 

Given the unique factual situation in Gates, it is unlikely we will ever see such 

a case again. The lead opinion in Keogan has limited precedential value 

because the five justices who concurred and dissented outnumbered those who 

13 We do not imply here that the trial court was incorrect in dismissing the informed 

consent claim as inapplicable to this misdiagnosis claim. In this case, however, the lack 

of proximate cause provides an independently sufficient ground for dismissal. 

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

signed the lead opinion. But, the reasoning of the concurrence/dissent is 

sound. Therefore, under Backlund and Keogan, informed consent is available 

only when there is something to inform the patient about. Given the vast 

number of false positive test results that occur in Washington on a daily basis, 

imposing a duty on health care providers to inform every patient about every 

test result would be unduly burdensome, pointless, and unwise. 

We also affirm the Court of Appeals because the evidence at trialeven taken in a light most favorable to Mr. Anaya-could not have supported 

proximate cause. 

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

WE CONCUR: 

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

No. 88307-6 

GONZALEZ, J. (concurring in result only)-I agree with the majority that the 

trial judge properly declined to instruct the jury on informed consent because the 

evidence presented at trial did not support a finding of proximate 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 of facts. While the 

majority purports to agree with this view, it also suggests that RCW 7.70.050 does not 

permit a patient to bring an informed consent claim when a provider makes a 

====~m~i~sd"""iaJznosis and. in proceeding to 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) That the health care provider failed to inform the patient of a 

material fact or facts relating to the treatment; 

1 Nontreatment is a form of treatment. See RCW 7.70.060; Backlund v. Univ. of Wash., 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)). 

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Anaya Gomez v. Sauerwin, et al., No. 88307-6 (Gonzalez, J. concurring in result only) 

(b) That the patient consented to the treatment without being aware of or 

fully informed of such material fact or facts; 

(c) That a reasonably prudent patient under similar circumstances would 

not have consented to tqe treatment if informed of such material fact or facts; 

(d) That the treatment in question proximately caused injury to the 

patient. 

RCW 7.70.050(1). A material fact is one to which "a reasonably prudent person in 

the position of the patient or his or her representative would attach significance." 

RCW 7.70.050(2). To bring a negligence claim for failure to follow the standard of 

care a plaintiff must show that: 

( 1) The health care provider failed to exercise that degree of care, 

skill, and learning expected of a reasonably prudent health care provider 

at that time in the profession or class to which he or she belongs, in the 

state of Washington, acting in the same or similar circumstances; 

(2) Such failure was a proximate cause of the injury complained 

======~of~. ======================================== 

RCW 7.70.040. These statutes do not conflict. Nor are they inconsistent with the 

overarching goals of chapter 7.70 RCW: to police the health care practice, foster 

patient autonomy, and have a patient-centric view when imposing liability on health 

care providers. See, e.g., Adair v. 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 of a medical provider"); Burnet v. Spokane Ambulance, 54 Wn. App. 

162, 168, 772 P.2d 1027 (1989) ("Informed consent focuses on the patient's right to 

know his bodily condition and to decide what should be done."). 

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

Our informed consent laws allow a patient to recover damages from a health 

care provider who fails to obtain informed consent whether or not the medical 

diagnosis and/or treatment was negligent. RCW 7.70.050; Backlund v. Univ. of 

Wash., 137 Wn.2d 651,659,975 P.2d 950 (1999). The majority states that Backlund 

controls here. Majority at 13. I agree. As Backlund observes, "Negligence and 

informed consent are alternative methods of imposing 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 of an appropriate category of treatments or treatment alternatives, may 

properly be subject to a negligence action where such misdiagnosis breaches 

the standard of care, but may not be subject to an action based on failure to 

secure informed consent. 

!d. at 661. Unfortunately, taken out of context, this language seems to have led some 

commentators to believe a plaintiff can bring only a negligence or informed consent 

claim. See majority at 10. This is not the case. If it were, we would not have 

analyzed whether the Backlunds had made a prima facie informed consent claim 

because, as a matter of law, they would have had no cause of action anyway. 137 

Wn.2d at 663-69. Instead, we specifically rejected the provider's argument that "a 

cause of action for failure to obtain informed consent is unavailable to the Backlunds 

as a matter of law where the jury exonerated Dr. Jackson and the University from 

negligence." !d. at 653-54. 

Backlund sets out a set of facts that would not support both a negligence claim 

and an informed consent claim: a health care provider misdiagnoses a headache as a 

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Anaya Gomez v. Sauerwin, et al., No. 88307~6 (Gonzalez, J. concurring in result only) 

transitory problem, resulting in a failure to detect a brain tumor. 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. But Blacklund did not 

address the potential claim the patient would have if the 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 both negligent 

and failed to secure informed consent and is potentially liable on either theory. 

Though a plaintiff in such a case may not be permitted to recover on both claims so as 

to avoid double damages, this does not mean these two theories of recovery are 

mutually exclusive. Providers must secure informed consent regardless of whether 

diagnosis rose to the proper standard of care. 

Also, I respectfully disagree with the majority's characterization of the 

plaintiffs arguments. See, e.g., majority at 11. There is nothing startling or 

ridiculous about bringing both a negligence 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 of Gates' unique facts "it is 

unlikely we will ever see such a case again." Majority at 14, 20. The record shows 

that no matter what Dr. Sauerwein did Mrs. Christina Palma Anaya's outcome would 

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

not have changed,2 but that fact speaks solely to the issue of proximate cause: it does 

not limit Mr. Anaya to a claim of negligence. Both here and in Gates, the providers 

received information material to the treatment of their patients that they did not 

disclose and, in both cases, easy additional steps should have been taken by the 

providers. For Ms. Gates, it was pupil dilation, for Mrs. Anaya, reculturing. 

Here, similar to Backlund, the provider did not believe his patient's positive 

blood test required treatment because he believed it to be a false positive. But such a 

misdiagnosis does not automatically preclude an informed consent claim. That said, 

the trial court here, in accord with Backlund, properly refused Mr. Anaya's motion for 

an informed consent instruction because there was not sufficient evidence to support a 

prima facie case ofbreach of informed consent. Backlund, 137 Wn.2d at 654. 

Nonetheless, I take this occasion to reject a distortion of the "Backlund rule"-

that a plaintiff cannot bring both an informed consent and a negligence claim. 

Instead, I reaffirm the Backlund rule-that negligence and informed consent are 

merely alternative methods of imposing liability. While it may be rare that the same 

set of facts will support both claims, we should not foreclose the possibility that a 

single course of events or treatment could give rise to both. Concerns about double2 At trial, the experts agreed that even if Dr. 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 of yeast in 

her blood. Transcript of Proceedings (TP) (June 10, 2011) at 42-43. However, it was undisputed 

that there were steps Dr. Sauerwein could have taken: "[the standard of care 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. 

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Anaya Gomez v. Sauerwin, et al., 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 

crafting judgments that avoid such windfalls. 

With these observations, I respectfully concur. 

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

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