### FILED MARCH 8, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE JOSHUA DRIGGS, a single man, ) ) Appellant, ) ) v. ) ) ANDREW T.G. HOWLETT, M.D. and ) JANE DOEHOWLETT, and theirmarital ) community, PROVIDENCEPHYSICIAN ) SERVICES CO. aka Providence ) Orthopedic Specialties, a Washington ) Corporation, ) ) Respondents. ) No. 32381-1-111

UNPUBLISHED OPINION

FEARING, J. -Thisappeal primarily asks us to address conditionsprecedentto a medical expertrendering opinions during a medical malpracticetrial. The trial court excluded opinions ofplaintiffJoshuaDriggs' foremost medical expertbecausethe physician did not commit, when asked, to base opinions onreasonable medical probability, because he testified to a national standard ofcare, because he conceded in cross-examinationthathis opinions were personal, andbecause he did notprovide a percentage for the increasedrisk ofa fracture resulting from the lack offixation for an allograft. We agree with Driggs thatthe trial court committedharmful error, and we remand for a newtrial.

### No. 32381-1-111 Driggs v. Howlett, MD.

FACTS Joshua Driggs sues Providence Physician Services and its employee, Dr. Andrew Howlett. We refer to the respondents collectively as Providence Physician Services or Providence. Appellant Joshua Driggs asserts errors during the course oftrial. Therefore, we briefly outline the facts in this section ofthe opinion and laterprovide extended details of the facts when reviewing trial rulings. Joshua Driggs limits his suit for medical malpractice to claims ofnegligence by two employees ofProvidence Physician Services, Orthopedist Andrew Howlett and Physician's Assistant Brandi DeSaveur, during 2009. The story ofDriggs' medical care begins earlier. In 2004, health careprofessionals diagnosed fifteen-year-old Joshua Driggs with osteosarcoma above the ankle in his right distal tibia. Osteosarcoma is a common form ofbone cancer in children. Instead ofamputating the leg, Dr. Ernest Conrad removed the

cancerous fragment ofthe bone and inserted an allograft, orbone segment from a cadaver. Dr. Conrad attached the allograft to the remaining tibia by screwing a metal plate to the tibia and allograft. The plate supports the allograftbecause the cadaverbone lacks the strength ofa living bone. The metal plate is called fixation orhardware and

serves as a support for the allograft. In this suit, Joshua Driggs and his experts promote the need offixation to an allograft. The cadaver bone inserted into Joshua Driggs' tibia extended six and a one-half 2No. 32381-1-111 

### Driggs v. Howlett, MD. centimeters, which equates to three and one-halfto four inches. Driggs' surgeon, Dr. Ernest Conrad, would not remove the metal plate from a patient's allograft without substituting anotherplate or other form offixation unless the graft is "very small" and has vigorous growth around it. Conrad defines "very small" inthis context as "fouror five centimeters or smaller." Clerk's Papers (CP) at 1552. Althoughproperly aligned initially, Driggs' allograft latertwisted and required additional surgery. In January 2006, Dr. Andrew Howlett, ofProvidence Physician Services, assumed care ofJoshua Driggs' right leg. In January 2006, Dr. Howlett performed an ankle fusion and osteotomy on Driggs to correct malalignment in the leg, improve mechanics in the foot, and decrease arthritic pain. InNovember2006, Dr. Howlettperformed another surgery to alleviate pain in the ankle causedbytwo screws. In January 2008, JoshuaDriggs' right ankle painreturned. Dr. AndrewHowlett discussed with Driggs another surgeryto remove theplate insertedby Ernest Conrad and replace it with an intramedullary rod. A rod may substitute for a plate in supportingthe allograft. According to Howlett, he discussed with Driggs, before the surgery, the possibility ofnotreplacingtheplate with a rod, because ofdeleterious effects ofa rod. An intramedullary rod runs throughthe inside ofthe bone, andthe rod's installation requires destruction ofexisting allograft and live bone. During a March 6, 2009 surgery, Dr. Andrew Howlettremoved the plate and

screws from Joshua Driggs' cadaverbone. Dr. Howlett did not replace theplate with an 3No. 32381-1-111 

### Driggs v. Howlett, MD. intramedullary rod. Driggs claims Dr. Howlett violated the standard ofcare by failing to install fixation and breached his right to informed consentby failing to explain the riskto him ofthe omission offixation. After the March 2009 surgery, Joshua Driggs underwent physical therapy, but continued to sufferpain and swelling. In May, while crossing his yard, Driggs experienced a shooting pain in his right leg. On May 27, 2009, Joshua Driggs visited Dr. Howlett's office at Providence Physician Services and met with Physician's Assistant (PA) Brandi DeSaveur. Driggs reported the increased pain and swelling to DeSaveur. PA DeSauver X rayed the tibia and diagnosed apossible sprain. DeSaveur failed to note a subtle fracture. Driggs contends that DeSaveurviolated the standard ofcare by failing to identify the fracture and Andrew Howlett violated the standard ofcare by failing to properly supervise Brandi DeSaveur. Driggs posits that his condition worsened as the result ofthe failure to promptly diagnose the fracture. On May 27, DeSaveur instructed Driggs to discontinue physical therapy for one week. On June 7, 2009, Joshua Driggs visited a hospital emergency room due to pain in his right leg. He received a shot and a prescription for pain medication. On June 8, Driggs returned to Dr. Andrew Howlett's office. During the appointment, Howlett X rayed Driggs' tibia and noticed the bone fracture. On June 11, 2009, Dr. Andrew Howlettperformed another surgery and inserted a 4No. 32381-1-111 

### Driggs v. Howlett, MD.

tibial intramedullary rod into Joshua Driggs' right lower leg. Despite the rod, the cadaver bone failed to fuse with Driggs' live bone. On December 11, 2009, Dr. Howlett, during another surgery, placed a rod with intermittent screws through the entire tibia. The December 2009 surgery necessarily destroyed Driggs' subtalarjointin his ankle. The surgery also caused equinas, a condition by which Driggs' toes touch the floor buthis heel rests two and one-halfinches above the floor. Driggs thereafter walked on his right toes. In July 2010, Dr. Brian Padrtaperformed an operationto remove two remaining

screws and correct the equinas. Nevertheless, as ofMarch 25, 2013, Driggs continuedto suffer from severe equinas, numbness in his right foot, and a limp. PROCEDURE On January 17, 2012, Joshua Driggs sued Dr. Andrew Howlett and his employer, Providence Physician Services. Driggs asserted professional negligence and lack of informed consent. The complaint alleged: 2.8 On May 27, 2009, JOSHUA DRIGGS returned to DR. HOWLETT'S office with onset ofright ankle pain and swelling. X-rays were taken and read as negative for fracture. 2.9 On June 7, 2009, JOSHUA DRIGGS went due [sic] to Sacred Heart Medical Center due to extremepain in his right lower extremity. Images obtained showed an insufficiency fracture. 2.12 JOSHUA DRIGGS suffered an insufficiency fracture in his right lower extremity as a result ofDR. HOWLETT'S failure to install an intramedullary rod or other stabilization when he removed JOSHUA DRIGGS' medial compressionplate on March 9, 2009. 5No. 32381-1-111 

### Driggs v. Howlett, MD.

3.6 The Defendants, ANDREWT.G. HOWLETT, M.D. and JOHN DOE, breachedtheir duties owed to JOSHUA DRIGGS by failing to inform JOSHUA DRIGGS ofthe relative material risks ofremoving the stabilization hardware in his allogra[ft] and not replacing it. 3.7 Defendants PROVIDENCE PHYSICIAN SERVICES CO. was independently negligent and negligent by and through the acts and/or omissions ofdefendant Dr. ANDREW T.G. HOWLETT, M.D. in their capacities as employees, agents, principals, partners, shareholders, corporate officers, directors and/or members ofdefendants PROVIDENCE PHYSICIAN SERVICES CO. CP atl0-11, 13-14. The complaint did not specifically identify Physician's Assistant Brandi DeSaveur as a negligent actor. In their answer to the complaint, Dr. Andrew Howlett and Providence Physician Services admitted that Providence employed Dr. Howlett, Howlett acted within the scope ofhis employmentwhen treating Driggs, and Providence was vicariously liable for any negligence committed by Howlett. Both parties engaged expert medical witnesses. Joshua Driggs hired two witnesses, Ors. Steven Graboffand Lawrence Menendez. Providence engaged five experts, but only Ors. James Bruckner and Brian Padrtatestified at trial. On May 3 and September 20, 2013, JoshuaDriggs deposed Dr. AndrewHowlett. Driggs' counsel addressed, with Howlett, Brandi DeSaveur's failure to diagnose the tibia fracture on May 27, 2009. A portion ofthe September deposition ofDr. Howlett follows: Q. And did Brandi DeSaveurhave an occasion to interpret an x-ray that was taken, I believe, on May 27th, 2009? A. Ifthat would be the day that she was in clinic, I-thatwouldmore than likely, that was the day that she got an x-ray.

6No. 32381-1-III Driggs 

### v. Howlett, MD. Q. And she did notrecognize the start ofa fracture in the x-ray, correct? A. It was a very subtle finding at thattime. Correct. Q. It's something that you recognized immediately when you reviewed the x-ray, correct? A. I don'trememberthe exacttime when I reviewedthe x-ray and what I stated to her at thattime. Q. You were the one, when you reviewed the x-ray, that determined that the fracture had been missed, correct? MR. KING: Objectto the form as to the word "missed," butyou may go ahead and respond. A. I recognized the fracture upon reviewing the x-rays. Q. (BYMR. SWEETSER)Doyou agree that Brandi DeSaveur's failure to timely identify the fracture ledto the wrong instructions to the patientto continue to weight bear andparticipate inphysical therapy? MR. KING: Objectto the form. You may respond. A. Yeah, I think, at thattime, ifshe had recognized the fracture, we probably would have changed ourpostoperativeprotocol at thattime. CP at 1270-71. Theparties filed proposedjury instructions and a trial managementreport weeks before a January 6, 2014 trial. On December 9, 2013, JoshuaDriggs proposed ajury instruction that declared Brandi DeSaveurto be an agent ofProvidence and any act or omission ofDeSaveurwas an act or omission ofProvidence. On December 12, 2013, Driggs filed ajointtrial management report, which read in part: "[The Plaintiff also contents [sic 

## JthatDr. Howlett andcoemployees failed tofollow the standardof care in their follow up treatment under the circumstances. (The Defendant objects to this statement.)]." CP at 112 (alterations in original). The trial managementreport did not

name Brandi DeSaveur as a coemployee who breached the standard ofcare.

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### Driggs v. Howlett, MD.

Joshua Driggs' feature witness, Dr. Lawrence Menendez, has served on the University ofSouthern California Keck School ofMedicine staffsince 1985. He specializes in the care ofbone tumors. Heteaches orthopedic oncology to medical students. He has been board certified since 1987. Menendez is a member ofthe American Academy ofOrthopedic Surgeons, Musculoskeletal Tumor Society, and International Society on Limb Salvage and sometimes lectures at the respective organizations' meetings. Dr. Lawrence Menendez could not attend trial to testify. On December 12, 2013, Joshua Driggs conducted a video recorded perpetuation deposition ofMenendeztoplay to thejury. Nearthe beginning ofDr. Lawrence Menendez's deposition, Joshua Driggs' counsel remarked and asked: Q And, Doctor, again, I wantyou to base your opinions on reasonable degree ofmedical certainty based upon what's more likely than not likely as I ask you questions about your opinions in this regard. Did youhave a chance to look at X-rays after the surgery in March of2009? A Yes. CP at 1347. Note that Dr. Menendez did not respond to counsel's direction to base his opinions on reasonable medical certainty. Duringthe deposition, Dr. Lawrence Menendez spoke about failings ofallografts from weakness and incapacity to incorporate into the hostbone. He promoted the need to affix an allograft with plates and screws to promote strength in the allograft. He

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### Driggs v. Howlett, MD.

commented on holes orweak areas in the allograft called stress risers, which fracture withoutprotection from hardware. Dr. Menendez testified that when youtake the hardware out, for whateverreason it might be, you generally want to minimize the risk offracture

... you wanttoput something back in

...you wantto protect it so that you minimize the risk offracture. CP at 1343. During his deposition, Dr. Lawrence Menendeztestified that in 2009 the national standard ofcare for removing fixation from an allograft required replacement ofthe fixation. Joshua Driggs then questioned Dr. Menendez about whether a fracture will result from the lack offixation: A Yes. Q Okay. Is there a national standard ofcare with regards to removing a plate or a fixation ofthis nature, 2009, as to what you should do withregards to supporting the allograft-this allo--type ofallograft? MR. KING: Objection

.... BYMR. CASEY: Q Go ahead and answer, Doctor, as to the national standard ofcare. Is there a national standard ofcare? A Well, the majority ofpeople who use allografts on a routine bases are generally very concerned about protecting the allograft because ofthe problems that result when you don't. So in my experience and based on, again, presentations, reading and so forth, that it would be very unusual to notput fixation back into the allograft. That is, to leave it bare is risky. MR. KING: Move to strike as being nonresponsive

.... BYMR. CASEY: Q Okay. I'll reask it, Doctor.

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### Driggs v. Howlett, MD. 

### • Basically, Doctor, is there, nationally, a standard ofcare with regards to replacing or as to whatyou do ifyou're going to be removing fixation from a patient, 2009, similarto this type ofhardware? MR. KING: Same objection. THE WITNESS: So the standard ofcare is to put fixation in. BYMR. CASEY: Q Is that a national standard? MR. KING: Same objection

.... BYMR. CASEY: Go ahead, Doctor. A Yes. Q What was that? A Yes. Q Andwhen you say "put fixation in," what do you mean? A I mean, to put in, in the case oflong, structural allografts, either a plate and screws or a rod, metal rod, that's also affixed with screws. Q And, Doctor, again, I want you to base your opinions on reasonable degree ofmedical certainty based upon what's more likely than not likely as I ask you questions about your opinions in this regard. Did youhave a chance to look at X-rays afterthe surgery in March of2009? A Yes. 

### Q Doctor, do you have an opinion, based upon what's more probable than not-more likely than not as to whether ornot had there been a rod placed, it would nothave fractured when it did? MR. KING: Same objection. Go ahead, Doctor. THE WITNESS: So ifyouput internal fixation in in a form ofa rod, there's a likelihood that the allograft will fracture. So it's less likely that you'll get a fracture ifyouput fixation in to supportthe allograft. Ifyou don'tput fixation in, it's more likely that you'11 have a fracture for the reasons I discussed earlier. CP at 1343-47, 1350-51.

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### Driggs v. Howlett, MD.

Providence Physician Services also questioned Dr. Menendez during the perpetuation deposition: Q No. My question is: The opinions you've expressedhere today in response to my questions and Mr. Casey's questions are simply your personal opinions? THE WITNESS: Well, I mean, technically, I'm offering my opinion

...based on my knowledge and expertise and education and experience, but I haven't given you a specific article orpieces ofliterature, anything of that nature. So technically, it's my opinion, yes. CP at 1411. On December 20, 2013, Providence Physician Services movedto exclude evidence ofthe circumstances leading to Providence's termination ofBrandi DeSaveur. In response, Joshua Driggs commented that evidence established that DeSaveur should have, but failed to, discern fractures present on the May 27, 2009 X ray, and, as a result, Driggs' fractures worsened and complicated his treatment. On December 31, 2013, Providence Physician Services filed a supplemental motion in limine to preclude testimony by Dr. Lawrence Menendez regarding the standard ofcare, medical causation, and medical risk for informed consent. Providence underscored that Dr. Menendez is from California and he testified, during his deposition, to a "national standard ofcare" rather than a Washington standard ofcare. Joshua Driggs responded that an out-of-state expert may testify to the national standard ofcare as long

as other evidence shows the standard ofcare in Washington to be a national standard.

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### Driggs v. Howlett, MD. Driggs submitted a declaration by Dr. Menendez stating that he conferred with experts within Washington and determined that the Washington standard ofcare was equivalent to the national standard. In response, Providence argued that submission ofa supplemental declaration amounted to an ambush, did not allow for cross-examination,

was inadmissible, and should not be considered by the trial court whenruling on its motion. The trial court agreed with Providence's characterization ofthe declaration as an "ambush" and refused to consider it. Afterhearing the parties' arguments on January 2, 2014, the court reserved ruling on the motion. On January 7, 2014, Joshua Driggs began presenting his case to thejury. That day, Driggs submitted to the court an affidavit from Dr. Lawrence Menendez averring that he contacted medical colleagues in the state ofWashington to confirmthat the 

# I practices in Washington echoed the national standards ofthe American Orthopedic Association, that the standard ofcare applicable in this case is a national standard, and that he is aware ofthe standard ofcare in Washington. On January 9, 2014, orthopedic surgeon Steven Grabofftestified at trial as an expert for Joshua Driggs. When Dr. Grabofffirst sought entry into medical school, no United States school admitted him. He, therefore, began medical school in Guadalajara, Mexico. After four years and three months ofschooling in Mexico, Grabofftransferred to the University ofCalifornia at Irvine School ofMedicine, where he received a medical degree in 1980. Graboffis also board certified, although, according to Graboff, he has 12No. 32381~1-III 

### Driggs v. Howlett, MD.

encountered difficulty on occasion in retaining certification. Dr. Graboffis not a specialist in tumors, buthas experience with limb salvage through allografts. The American Academy ofOrthopedic Surgeons suspended Grabofffor two years for testimony he gave in a medical malpractice suit. Dr. Steven Graboffs trial testimony included: 

### Q Okay. Do you have-doyou know whetherthe national standard ofcare andthe Washington state standard ofcare is any different? A I do knowthatthe standard ofcare here is the same as the national standard ofcare. Q What's yourunderstanding ofhis [James Bruckner's] testimony? A Myreview ofDr. Bruckner's testimony is that he stated in his deposition that the Washington standard is a national standard. It's no different than anywhere else. Q You verified that with other orthopedic doctors in the state of Washington? A I did. Q Okay. Are you familiar then withthe national standard andthe standard ofcare in the state ofWashington? A lam. 3 Verbatim Report ofProceedings (VRP) (Jan. 9, 2014) at 376-77. Dr. Grabofflater testified that a physician violates the standard ofcare ifhe does not replace fixation for an allograft with other fixation. Concerning the care provided by PhysicianAssistant Brandi DeSaveur, Dr. Steven Grabofftestified: Q Okay. And, Doctor, Iwantyou to assume there's beentestimony yesterday that a Ms. Desaveurwas the one that interpretedthe May 27th xray, and you'vehad a chance to reviewthat? 13 

# I iNo. 32381-1-111 Driggs v. Howlett, MD.
A Yes. Q Doyou have an opinion as to whether ornot there was, from an orthopedic standpoint, a violation thatthe standard ofcare as to the interpretation ofthat? MR. KING: YourHonor, may we approach? THE COURT: Yes. MR. KING: There's neverbeen an allegationthatMs. DeSaveur did anything wrong in this case, and there's never been a disclosure in any pleadingthat there was a failure to supervise in this case. It came up onthe fly in his deposition in mid November ofthis year. So we object on thatbasis. It's not a pleadedtheory ofrecovery. THE COURT: Well, my understanding is this came out ofMr. Sweetser's opening statements, also. MR. KING: That doesn'tTHE COURT: Yeah, butyou didn't object. I assumedthatwas part ofthe theory ofthe case, so. MR. KING: Opening statement isn't evidence, and opening statement isn't a pleading. So I wanttopreserve myrecord, and I thinkthat he's going into an area that it is impermissible for those reasons. THE COURT: I'll note your objection for the record. (BENCH CONFERENCE CONCLUDED.) THE COURT: You mayproceed. Q (By Mr. Casey) Did you follow my question? Canyou still answer it, Doctor? A I can'trememberwhat it was. Q Doyou have an opinion as to whether or notthe x-ray ofMay 27th from an orthopedic standpoint as to whether ornotthere was a violation ofthe standard ofcare in interpreting that x-ray? A I do. Q What is your opinion? A My opinion is that the May 27, 2009 x-ray was negligently interpreted. The fracture was misdiagnosed, andthe orthopedic surgeon himselfnever actually sawthat film at that time, which was a breach inthe standard ofcare. Q Andwhat information did you see that may lead someone to a sprained ankle in that diagnosis? A Nothing. 14No. 32381-1-111 

### Driggs v. Howlett, MD. Q Okay. You have an opinion as to whetherthat diagnosis violated the standard ofcare? MR. KING: Your Honor, again, same objection. Now we've changed from orthopedics to PA, which is a distinctly different issue. THE COURT: I'll sustain it at thatpoint. Q (By Mr. Casey) Okay. Well, from the standpoint ofshouldthat have been delegated to a PAby an orthopedic surgeon as far as the management ofMr. Driggs considering his surgery? A No. Q And ifan orthopedic surgeon had considered it, what wouldthe standard ofcare require? A 

### Ifan orthopedic surgeon had considered the symptoms, the presentation and the x-ray, the standard ofcare would have required the diagnosis to be that ofa fracture through the screw hole post-operatively. 3 VRP (Jan. 9, 2014) at 399-402, 405. OnJanuary 13, 2014, the trial court entertained additional argument on Providence Physician Services' motion to exclude portions ofDr. Lawrence Menendez'stestimony. Providence contendedthatDr. Menendez mustknowthe Washington standard ofcare and may notrely on other experts to establish the foundation for his testimony. Also, Providence argued that all ofDr. Menendez's opinions werepersonal opinions and did not meetthe testimonial requirement that a medical expert's testimony bebased on a degree ofreasonable medical probability. Providence also asked to exclude Dr. Menendez's testimony on whether removing theplate without installing a rod was a material risk and required Joshua Driggs' informed consent. Providence argued thatDr. Menendez neverprovided any testimony as to the scientific nature ofthe risk andthe likelihood ofits occurrence.

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### Driggs v. 

### Howlett, MD.

The trial court granted Providence's motion to exclude Dr. Menendez's testimony about the standard ofcare, medical causation, and risk for informed consent. The court observed that no law supported Joshua Driggs' reliance on another physician's testimony to lay the foundation for Dr. Lawrence Menendez's opinion that the Washington and national standards ofcare correspond. In its ruling, the trial court noted that Lawrence Menendez never agreed, in response to counsel's direction, to base his opinion on reasonable medical probability. The trial court also noted that Dr. Menendez, in response to questioning by defense counsel, commented that his opinions are personal opinions. Providence Physician Services called to testify Orthopedic Surgeon James Bruckner, ofBellevue, Washington. Despite Dr. Steven Graboffearlier claiming to the contrary, Dr. Bruckner, at trial, denied testifying in his deposition thatthe national and Washington standards ofcare corresponded. Brucknertestified at trial that he had no knowledge ofwhether the state ofWashington standard equated withthe national standard. Dr. Brucknertestified that, under the standard applied in Washington, ifnot nationally, an orthopedist exercises discretion as to whether ornot fixation is needed for the allograft. In other words, fixation is not always demanded. Dr. Bruckner conceded, nonetheless, that he has never removed fixation for an allograft without substituting other fixation. On January 15, 2014, Joshua Driggs submitted additional and alternativejury instructions and a proposedjuryverdict form that allowed thejuryto find Providence 16No. 32381-1-111 

### Driggs v. Howlett, MD. Physician Services liable ifthejury found negligence by Dr. Andrew Howlett or Physician Assistant Brandi DeSaveur. On January 17, 2014, Driggs requested the trial court to reverse its decision to exclude Dr. Menendez's testimony. Driggs contemporaneously submitted supplemental declarations ofDr. Menendez stating the standard ofcare in Washington is equivalent to the national standard ofcare and that he based his testimony on a more probable than notbasis to a reasonable degree ofmedical certainty. The trial courtrefused to reverse its ruling. On January 23, 2014, the trial court hosted exceptions and objections to the proposedjury instructions. Providence Physician Services objected to Joshua Driggs' proposedjuryinstruction thirteen, which allowed thejuryto find Providence liable ifit found Brandi DeSaveur, as an agent ofProvidence, negligent. In tum, Driggs argued: You don'thave to name a specific agent when you sue a corporation, and our theory ofthe case is the corporation is negligent. Dr. Howlett is negligent. PAC Brandy [sic] Desaveur is negligent, and Janette Worley are negligent, and they're agents ofthe corporation, and we'veproventhat they're agents and acting within th~ scope oftheir employment. 10 VRP (Jan. 23, 2014) at 1597. The trial court rejected Joshua Driggs' instruction thirteen and approved ajury verdict form that identified only Dr. Andrew Howlett as an agent ofProvidence. During argument on the instruction, the trial court stated: So you can argue Brandy [sic] DeSaveur and Janette Worley, but to put them in the instruction, this is the law. The law is that you are accusing Dr. Howlett ofnot supervising. Therefore, Brandy DeSaveur and Janette Worley 17 

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should [sic] be on the instruction, but you can argue it because that's yourtheory ofthe ace [sic]. So I am going to let him argue that depending on how the argument comes, but the theory ofthe case is that Dr. Howlett was negligent by notreviewing it. Brandy [sic] DeSaveur didn'tbring it to his attention according to Dr. Howlett's own testimony, and that in retrospect, he sees she missed. Depending on how you tie it in, Ms. DeSaveur is notbeing sued herself. She isn't listed in the Complaint, but the original was that she failed to bring it to his attention, and he should have supervised it and checked it. So it ties Dr. Howlett and Providence together. Forthe record, on the instructions, I will take offBrandy [sic] DeSaveur and Janette Worley andjustleave Dr. Howlett. 10 VRP (Jan. 23, 2014) at 1598-99, 1604. During closing arguments, Providence Physician Services focused on the dearth of reliable expert testimony supporting Joshua Driggs' case. Providence attacked the credibility ofDr. Steven Graboffand emphasized the lack ofopinions from Dr. Lawrence Menendez on the standard ofcare, causation, and risks: So Mr. Casey [Joshua Driggs' counsel] wanted to talk to you about circumstantial evidence, and that's fine. That's totally appropriate. Does anybody remember Dr. Graboff? Mr. Casey must notbecause he spent an hour talking to you oftheir only witness on the standard ofcare in this case and didn't mention his name, didn't mention his name. You spent a day of your life listening to this expert on the standard ofcare, and apparently, Mr. Casey is so concernedthat someone may discuss whatDr. Graboffsays that he hopes it doesn't come to your attention and nobody will talk about him. This entire case on the standard ofcare theory rests on the very slender and very fragile and very unstable threat ofthe testimony ofone physician, Dr. Graboff. Ijustwantto talk for a minute about the plaintiffs case. The plaintiffs claim here there was a violation ofthe standard ofcare by Dr. Howlett in connection with this surgery. The reason that you're going to be asked to adjudicate that claim ofthe two claims thathave been 18 

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filed here is because they brought in an expert, Dr. Graboff, who said that it's a violation ofthe standard ofcare notto put fixation in after the hardware was removed from the allograft in this case. That was his testimony, okay?

. The other expertthey brought in who was mentioned twice in Mr. Casey's closing argument and only after 40 minutes oftalking about what he says is circumstantial evidence, is Dr. Menendez. Let'sjustimagine that the only case you had to adjudicate here was the standard ofcare case and the only witnesses you heard from were Dr. Graboffand Dr. Menendez because those are the two experts that the plaintiffcalledto prove that my client violated the standard ofcare. Putyourselfin thatposition. What do we know about how to evaluate that testimony? Well, the Judgejusttold you in the instructions whatyou can do to evaluate credibility, to evaluate bias, to evaluate whether ornotthey have adequate training and credentials. Let's stackup plaintiffstwo experts against each other. Dr. Graboffhasn'tdone surgery since 2005, was kicked out ofthe most prestigious organization for orthopedic surgeons in the country because he violated their ethical codes having to do with testimony. He makes in excess of$400,000 a year traveling around the country testifying against otherphysicians in medical malpractice litigation. He has not had hospital privileges since 2005. He has testified in more than 160 cases against healthcare providers on behalfofplaintiffs. He's given more than 500 depositions in medical-related claims and cases all on the side of or substantially on the side ofthe plaintiff. He's a hired gun. Is he well trained? We know his struggles to get into medical school to begin with. He applied to 16 schools throughout the country, was rejected by every one ofthem. He went to medical school in Mexico for four years, and at the end ofeachyear, applied to a medical school in the United States and was turned down. Finally was admitted to UC Irvine, finished his medical school, got into a decent residency program at UCLA, gothis credentials as an orthopedic surgeon in 1984 and quit doing surgery in 2005. Then he tried to recertify as an orthopedic surgeon, pass his boards again and he flunked twice. He is not Fellowship trained. He's never authored a single article in the peer-reviewed medical literature. He is for hire. That's whatthe evidence shows in this case. That's their expert. That's Dr. Graboff. Who is their other expert? Dr. Menendez. Well-qualified individual, Fellowship trained orthopedic oncologist, teaches at an 19No. 32381-1-111 

### Driggs v. Howlett, MD.

academic center. Remember the Musculoskeletal Tumor Society, the organizationthat kicked Dr. Dr. [sic] Graboffoff? He testified by videotape. Didhe say that Dr. Howlett violated the standard ofcare any way, shape or form in this case? No. Didhe say that fixation hardware ifput in place in March of'09 would havepreventedthis fracture? No. Did he provide any informationto you that there was a violation ofthe standard ofcare in the postoperative management ofthis patient after the March 6, 2009 surgerybyDr. Howlett? No. Did he say there was a violation ofthe standard ofcare having to do with the interpretation ofthe May 27, 2009 x-ray? No. Did he say that but for the failure to put in fixation hardware in this case, Mr. Driggs with his ankle fusion and his previously failed allograft would have no difficulty orproblem with his lower extremity? No. That's the plaintiffs case on the standard ofcare. That's the quality ofthe evidence that they put on, and the quality ofthe evidence that they put on as it relates to their standard ofcare claim rests entirely on an expert. who will, I think you could find, go anywhere at any time and say anything to support a claim against aphysician and has done it and apparently has no compunction about continuing to do it. That's their case on standard of care in their own case. 10 VRP (Jan. 23, 2014) at 1687-91. Thejury entered a verdict in favor ofProvidence Physician Services. LAWANDANALYSIS On appeal, Joshua Driggs contends that the trial court abused its discretion by excluding expert testimony ofDr. Lawrence Menendez. He also maintains that the trial court erred in refusing its proposedjuryinstruction naming Brandi DeSaveur as an employee accused ofnegligence. Driggs claims either error by itselfconstituted harm that requires remand for a new trial. We focus on the exclusion ofLawrence Menendez's testimony and opinions.

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# lNo. 32381-1-111 Driggs v. Howlett, MD.

Lawrence Menendez's Testimony The trial court excluded Dr. Lawrence Menendez's opinions regardingthe standard ofcare for fixation ofallografts, the absence offixation causing a fracture and other complications in Joshua Driggs's right leg, and the risks attendedto the absence of fixation. The trial court excludedtestimony onthe standard ofcare because Dr. Menendez did not testify to a Washington standard ofcare. The court barred testimony

on causation because Menendez never stated that he based his opinion onreasonable medical probability. The trial courtrejected testimony on the risk for purposes of informed consentbecause Menendez did notreferencepercentages ofthe risk. In its ruling, the trial court also mentioned that Menendez agreed with defense counsel thathis opinions were personal opinions. An expert's testimony as to his personal opinions could be a basis to reject all opinions stated, although the record does not showwhich ofthe opinions the trial court excluded on this basis. We review the decision to exclude an expert witness's testimony for abuse of discretion. Winkler v. Giddings, 146 Wn. App. 387, 392, 190 P.3d 117 (2008). Discretion is abused ifit is exercised on untenable grounds orfor untenable reasons. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). Important for this appeal is the rule that a decision is based on untenable grounds ormade for untenable reasons ifit

was reached by applying the wrong legal standard. Mitchell v. Wash. State Inst. of Pub.

21 

# t 

# I Policy, 153 Wn. App. 803, 821-22, 225 P.3d 280 (2009). A trial court that 

# tNo. 32381-1-111 Driggs v. Howlett, MD.

misunderstands or misapplies the law bases its decision on untenable grounds. Little v. King, 160 Wn.2d 696, 703, 161 P.3d 345 (2007). In reviewing a ruling for abuse of discretion, this court will often separate questions offact from the conclusions oflaw that they support and refuse to defer to the trial court on conclusions oflaw. Bartlettv. Betlach, 136 Wn. App. 8, 18, 146 P.3d 1235 (2006). State Standardof Care As apreliminary matter, the parties dispute whetherthe trial court correctly disallowed a supplemental declaration from Dr. Lawrence Menendez. Joshua Driggs filed the declaration after the perpetuation deposition ofDr. Menendez and in response to Providence Physician Services' motion to strike testimony ofMenendez. In the declaration, Dr. Menendez disclosed that he conferred with experts within Washington State and determined that the Washington standard ofcare was equivalentto the national standard concerning the need for fixation ofan allograft. We decline to resolve whether the trial court abused its discretion when refusing to considerthis additional testimony of Menendez. Even without the declaration testimony, we rule that Dr. Menendez's opinion

on the standard ofcare should have been heard by thejury. Principles of judicial restraint dictate that ifresolution ofanother issue effectively disposes ofa case, we should resolve the case onthatbasis withoutreaching the first issue presented. Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wn.2d 284, 307, 174 P.3d 1142 (2007); Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1P.3d 1167 (2000). 22No. 32381-1-111 Driggs v. Howlett, MD.

In a medical malpractice claim, a plaintiffmust showthat the health careprovider violated the relevant standard ofcare. A plaintiffmustprove the relevant standard of

care through the presentation ofexpert testimony, unless a limited exception applies. Volk v. Demeerleer, 184 Wn. App. 389, 430-31, 33·7 P.3d 372 (2014), reviewgranted, 183 Wn.2d 1007 (2015). In tum, the trialjudgemust make a preliminary finding offact under ER 104(a) as to whether an expert is qualified to express an opinion on the standard ofcare in Washington. Winkler v. Giddings, 146 Wn. App. at 392 (2008). By Washington statute, the standard ofcare is the degree of"care, skill, and learning expected ofa reasonably prudent health careprovider at that time in the profession or class to which he belongs, in the state ofWashington, acting in the same or similar circumstances." RCW 7.70.040 (emphasis added). One might question ifthe standard ofcare in Washington ever differs from the standard ofcare throughout the nation. Law changes from state to state, but medical care holds constant throughout America, at least outside rural areas. Increasingly, medical experts testify that Washington follows a national standard ofcare. We remain bound, however, by our legislature's declaration that the trier offact must find and apply a state standard ofcare. Joshua Driggs suggests that a trier offact may assume that the national standard of

care and the state standard ofcare coalesce unless one witness testifies to a differing standard. A lax reading of Winkler v. Giddings, 146 Wn. App. 387 (2008) andPon KwackEng v. Klein, 127 Wn. App. 171, 110 P.3d 844 (2005) could support such a rule. 23No. 32381-1-111 Driggs v. Howlett, MD.

In each decision, this court underlined the absence oftestimony from the defending physician that Washington retained a variant standard ofcare. Nevertheless, neither case expressly adopted such a rule. We need not decide whetherto adopt such a rule because

we may rest our decision on other grounds. A physician licensed in another state may provide admissible testimony that a national standard ofcare exists in this state and that the defendantphysicianviolated that standard. Elber v. Larson, 142 Wn. App. 243, 248, 173 P.3d 990 (2007); Pon KwockEng

v. Klein, 127 Wn. App. at 179. In his deposition, Dr. Lawrence Menendeztestified that Dr. Andrew Howlett violated the national standard ofcare ofan orthopedist oncologist by failing to affixthe allograft during the March 6, 2009 surgery. Menendez did not affirm that the Washington standard ofcare followed the national standard ofcare. Nevertheless, Dr. Steven Graboffat trial averred that the national and Washington standards ofcare are equivalent. We rule that Dr. Graboffs testimony lays a sufficient predicate for Dr. Menendez's opinion. Providence Physician Services contends thatthe only type ofexpert competentto testify as to the standard ofcare required ofa practitioner in the state ofWashington is an expert who knows the practice and standard ofcare in Washington. Providence cites McKee v. AmericanHome Products Corporation, 113 Wn.2d 701, 706-07, 782 P.2d 1045 (1989) for this proposition. McKee included a claim ofpharmacist malpractice. The only evidenceprovided by the plaintiffconcerning the standard ofcare ofa pharmacist 24No. 32381-1-111 Driggs v. Howlett, MD. practicing in Washington was an affidavit ofan Arizonaphysician. The Supreme Court disregarded the opinion ofthe physician because he was not a pharmacist. The Supreme Court also rejected the opinion because the physician did notreference the standard of

care ofa pharmacist in this state. McKee v. AmericanHome Products Corporation does not address ourissue: whether one physician may testify solely to a national standard of

care when anotherphysiciantestifies that the Washington standard echoes the national standard. Providence Physician Services argues that allowing a witness's familiarity with the applicable standard ofcare to be establishedthrough otherwitnesses would subvert the process ofexpert witness qualification. In otherwords, Providence advocates a rule that would require that an expert in a medical malpractice case know the standard ofcare in Washington State before the trial court accepts the witness as an expert. In so arguing, Providence may confusingly conflate the qualifications ofan expertwitness to testify with the opinions to whichthe witness may testify. No rule requires that an expert possess, within hispersonal knowledge, all information necessary to qualify him as an expert witness. No rule precludes a party from relying on one expertwitness for a portion ofneeded evidence and another expertwitness for another segment ofrequired testimony. RCW 7.70.040 does notpreclude a party from relying on more than one medical expertto establish thatthe defendant health careprovider violatedthe standard ofcare in Washington. Thus, based on Washington case law discussedbelow, wehold 25 

# i I 

# I INo. 32381-1-III Driggs v. Howlett, MD.

that a qualified medical expert may testify to a national standard ofcare alone ifanother qualified medical expert at the same trial testifies that the Washington standardparallels the national standard. One expert may rely on the opinions ofanother expert when formulating opinions. State v. Russell, 125 Wn.2d 24, 69, 882 P.2d 747 (1994); Volk v. Demeerleer, 184 Wn. App. at 430-31 (2014); Deep Water Brewing, LLCv. FairwayRes. Ltd., 152 Wn. App. 229, 271, 215 P.3d 990 (2009). This rule may assume that the testifying experthas contacted another expert and gained information from the second expert before testifying. Dr. Menendez did not learn, before his perpetuation deposition, from anotherphysician that the national standard ofcare and state standard coincided. We see no difference however, for practical purposes, ifthe litigant, ratherthan the expert witness, presents such information at trial through the second expert. In otherwords, we conclude the plaintiffmay call to the stand the second expertto notify thejurythat the state standard echoes the national standardparticularly when the first expert could have calledthe second expert on the phone to learn ofthe state standard and repeat the second expert's comments to thejury. Ifanything, the evidence for the plaintiffstrengthens ifthe second witness provides the foundation during trial testimony, since thejuryhears the additional information directly from the second expert rather than through the first witness's hearsay statement ofwhat another expert told him. The second expert's opinion that the Washington standard equates to the United States standard also then become subjectto 26No. 32381-1-111 Driggs v. Howlett, MD.

cross-examination by the defense. Joshua Driggs'juryheard first hand from Dr. Steven Graboffthatthe national standard ofcare and state standard ofcare conflate. Driggs accomplished directly whathe could have achieved indirectly through an earlierphone conversation between Dr. Lawrence Menendez and Dr. Steven Graboff. Thus, Lawrence Menendez's testimony as to the national standard was admissible. Three decisions, Hill v. SacredHeartMedical Center, 143 Wn. App. 438, 177 PJd 1152 (2008), Winkler v. Giddings, 146 Wn. App. 387 (2008), andElber v. Larson, 142 Wn. App. 243 (2007) discuss to varying extents the issue presented in this appeal. Providence Physician Services relies on Winkler v. Giddings. In Winkler, plaintiffs expert testified to an "educated assumption that the standard ofcare was the same across the country." 146 Wn. App. at 392. Plaintiffpresented no other evidence that the Washington standard ofcare followed the national standard. Dr. Neil Giddings presented testimony that the relevant standard ofcare differed depending on the area ofthe country. Winkler is easily distinguishable because Joshua Driggs presented the additional testimony from Steven Graboff. Dr. Andrew Howlettpresented no testimony ofa varying standard ofcare from one region to another. In Elber v. Larson, the physician in a medical malpractice suit moved for summaryjudgment. The physician contended that plaintiffswitness, Dr. Daniel Meub,

was not qualified as an expert witness because Meub lacked background, training or experience in Washington. The trial court granted summaryjudgment. This court 27No. 32381-1-III Driggs v. Howlett, MD.

reversed and held that a medical expert is qualified totestify to the Washington standard ofcare ifhe offers uncontradicted testimony that he is familiar withthe standard ofcare and that the standard is a national standard. A compelling decision is Hill v. SacredHeartMedical Center. PlaintiffJohn Hill presented testimony from twophysicians. Onephysician testifiedthatthe national standard ofcare controlled the conduct ofthe defendants, but did not expressly state that he knewthe Washington standard ofcare to coincide with the national standard. A second physician testified that she knewthe Washington standard toparallel the national standard. This courtrelied onbothphysicians' testimony whenreversing a summary judgment dismissal ofthe medical malpractice suit. We recognize that JoshuaDriggs presented attrial the deposition ofDr. Lawrence Menendezbefore presenting Dr. Steven Grabofftotestify. Nevertheless, an evidence rule allows testimony to be presented at trial when that testimony is admissible only on the assumptionthat latertestimony is presented. ER 104(b). We recognize the need to deferto the trial court in evidentiary rulings. Nevertheless, the trial court's exclusion ofDr. Lawrence Menendez's testimony resulted from a misapplication ofthe law. Thus, werule the trial court abused its discretion. Providence Physician Services distinguishesElber v. Larson andHill v. Sacred HeartMedical Center on the grm,md thatthe trial court disregarded expert opinions when addressing a summaryjudgment motion andthis court reviews evidentiaryrulings de 

# I I 

# I

28No. 32381-1-III Driggs v. Howlett, MD.

novo when examining a summaryjudgmentruling. We recognize this distinction, but we may still reverse a trial court evidentiary ruling at trial based on a misperception ofthe law. Reasonable MedicalProbability Joshua Driggs next challenges the trial court's decision to exclude Dr. Lawrence Menendez's testimony on medical causation. Dr. Menendez opined thatremoving aplate from a grafted cadaver bone withoutreplacing the plate with another plate or rod likely leads to a fracture. Thus, according to Menendez, the failure by Dr. Andrew Howlettto insert a rod caused Joshua Driggs' tibia to fracture and led to other complications. Providence Physician Services argues that Dr. Menendez's testimony is incompetent because he failed to affirmatively testify that his testimony was based on a reasonable degree ofmedical probability. Driggs argues that Menendez expressed an opinion on causation based on reasonable medical probability, even ifMenendez did not expressly acknowledge in his deposition that his testimony would do so. We concurwith Joshua Driggs. We repeat the relevant passage in Dr. Lawrence Menendez's perpetuation deposition: 

### Q And, Doctor, again, Iwantyou to base your opinions on reasonable degree ofmedical certainty based upon what's more likely than not likely as I ask you questions about your opinions in this regard. Did you have a chance to look at X-rays after the surgery in March of2009? 29No. 

### 32381-1-111 Driggs v. Howlett, MD.

A Yes. Q Doctor, do you have an opinion, based upon what's more probable than not-more likely than not as to whether ornothad there been a rod placed, it would nothave fractured when it did? MR. KING: Same objection. Go ahead, Doctor. THE WITNESS: So ifyou put internal fixation in in a form ofa rod, there's a likelihood that the allograft will fracture. So it's less likely that you'll get a fracture ifyouput fixation in to support the allograft. Ifyou don'tput fixation in, it's more likely that you'llhave a fracture for the reasons I discussed earlier. CP at 1347, 1350-51. Note that Dr. Menendez did notrespond, let alone affirmatively respond, to Joshua Driggs' counsel's instruction to base his opinions on a reasonable degree ofmedical certainty. Nevertheless, as to Menendez's opinion on causation, Menendez responded to

a question as to whetherhe held an opinion based on what's more probable than not. Litigation counsel would be wise to insist that a medical expert agree to expressly affirm that his opinions will be based on reasonable medical probability, before counsel asks questions. In the alternative, litigation counsel would be wise to phrase ever critical questions in terms ofreasonable medical probability based on the expert's experience and training. Nevertheless, we agree with JoshuaDriggs that, reviewing the deposition as a whole, Menendez formulated his opinion on causation based on reasonable medical probability. Generally, expert medical testimony onthe issue ofproximate cause is required in 

### 30No. 32381-1-111 Driggs v. Howlett, MD.

medical malpractice cases. McLaughlin v. Cooke, 112 Wn.2d 829, 837-38, 774 P.2d 1171 (1989); Hill v. SacredHeartMed. Ctr., 143 Wn. App. at 448 (2008). Evidence establishingproximate cause in medical malpractice cases must rise above speculation, 

# I conjecture, or mere possibility. Reese v. Stroh, 128 Wn.2d 300, 309, 907 P.2d 282 (1995). Instead, medical expert testimony mustbe based on a "reasonable degree of medical certainty." Reese v. Stroh, 128 Wn.2d at 305-06. Despite the use ofthe term "certainty" in some opinions, "probability" is sufficient. Reasonable medical probability and reasonable medical certainty are used interchangeably. Anderson v. AkzoNobel Coatings, Inc., 172 Wn.2d 593, 607, 260 P.3d 857 (2011). Whereas the plaintiffmust presenttestimony that the defending health care provider's breach ofthe standard ofcare resulted in injury, the law does notrequire the uttering ofany talismanic words. We do notrequire experts to testify in a particular format but instead look at the substance ofthe allegations and the substance ofwhatthe expertbrings to the discussion. Leaverton v. Cascade SurgicalPartners, PLLC, 160 Wn. App. 512, 520, 248 P.3d 136 (2011). To require experts to testify in a particular format would elevate form over substance. White v. KentMed. Ctr. Inc., 61 Wn. App. 163, 172, 810 P.2d 4 (1991). In excluding the testimony, the trial courtrelied on the absence ofDr. Lawrence Menendez's affirmative reply that he would ground his opinion on a reasonable degree of medical certainty. Nevertheless, when asked the key question with regard to causation, 31 

# INo. 32381-1-III Driggs v. Howlett, MD.

Dr. Menendezprovided an opinion based on probability. When questioned by Providence Physician Services, Dr. Menendez affirmed thathe grounded his opinions on his medical expertise, education, and experience. The beginnings ofDr. Menendez's deposition established him as a premier expert on orthopedic oncology and allografts. From the sum ofthe testimony, one must conclude that Dr. Menendez'stestimony of causation was based on reasonable medical probability. Conversely, Dr. Menendez rendered no speculative or conjectural opinions. White v. KentMedical CenterInc., 61 Wn. App. 163 (1991) is illustrative. Two doctors testified that a vocal cord examination is required for apatient with a four to six week history ofhoarseness. Neitherphysician expressly testified that the defendant physician violated the standard ofcare by failing to perform the examination. This court ruled that the two doctors' testimony sufficed to defeat a summaryjudgmentmotion in the medical malpractice suit. "Standard ofcare" language was not essential to the admissibility ofthe opinions. At issue in this appeal is whetherthe experttestified to reasonable medical probability not the standard ofcare. Nevertheless, the sameprinciple ofpromoting substance over form controls our decision. Materiality of Risk In addition to asserting a cause ofaction for professional negligence, Joshua 

# I Driggs alleges that Dr. Andrew Howlett failed to obtain his informed consentto the March 9, 2009 surgery. Driggs argues that Dr. Howlett should have warnedhim ofthe

, 32No. 32381-1-111 Driggs v. Howlett, MD.

risks ofleaving the allograft without hardware fixation. Howlett contends he warned Driggs ofthe risks, so thejuryneeded to decide who told the truth. To bolsterhis claim ofinformed consent, Joshua Driggs sought to introduce testimony ofDr. Lawrence Menendez about the risks ofomitting any fixation. The trial court disallowed the testimony on the ground that Dr. Menendez did not testify to any percentage ofthe risk and provided no statistics regarding fractures resulting from the absence offixation. The trial court nonetheless, presumably based on testimony ofDr. Steven Graboff, allowed thejuryto render a verdict on the informed consent claim. Driggs assigns error to the exclusion ofMenendez'stestimony. Dr. Lawrence Menendez testified little about the risk from no fixation for the allograft and the little testimony may have been targeted more to the claim ofmedical malpractice than the lack ofinformed consent. Lawrence Menendez testified that, when removing hardware from an allograft, the surgeon wants to insert new hardware to minimize the risk offracture. He further testified that "itis less likely" that the bone will fracture ifthe surgeon inserts fixation. Conversely, omitting fixation renders the bone "more likely" to fracture. We must decide whether this medical testimony is admissible for determining the materiality ofarisk for an informed consent cause ofaction. The doctrine ofinformed consent refers to the requirement that a physician, before obtaining the consent ofhis or her patientto treatment, inform the patient ofthe treatment's attendant risks. Smith v. Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983). 33No. 32381-1-111 Driggs v. Howlett, MD.

The doctrine is premised on the fundamental principle that every human being ofadult years and sound mind has a right to determine what shall be done with his own body. Smith v. Shannon, 100 Wn.2d at 29. A necessary corollary to this principle is that the individual be given sufficient information to make an intelligent decision. Smith v. Shannon, 100 Wn.2d at 29. RCW 7.70.050 codifies the elements ofa cause ofaction for informed consent. The statute defines a "material fact" as one to which

a reasonably prudent person in the position ofthe patient orhis or her representative would attach significance [in] deciding whether ornot to submit to the proposed treatment. RCW 7.70.050(2). "Material facts" include: (a) The nature and character ofthe treatmentproposed and administered; (b) The anticipatedresults ofthe treatmentproposed and administered; (c) The recognized possible alternative forms oftreatment; or (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognizedpossible alternative forms oftreatment, including nontreatment. RCW 7.70.050(3). Case law adds flesh to the cause ofaction for informed consent. Underthe doctrine ofinformed consent, a health care providerhas a fiduciary duty to disclose relevant facts about the patient's condition and the proposed course oftreatment so that the patient may exercise the right to make an informed health care decision. Stewart34No. 32381-1-111 

### Driggs v. Howlett, MD.

Gravesv. Vaughn, 162 Wn.2d 115, 122, 170P.3d 1151 

### (2007);Millerv. Kennedy, 11 Wn. App. 272, 282-83, 522 P.2d 852 (1974), 

### aff'd, 85 Wn.2d 151, 530 P.2d 334 (1975). Nevertheless, a physician need not disclose every risk that could be disclosed, ifonly because ofthe time required to disclose every remote risk. 

### Smith v. Shannon, 100 Wn.2d at 30 (1983); 

### Ruffer v. St. Frances CabriniHosp. of Seattle, 56 Wn. App. 625, 632, 784 P.2d 1288 (1990). A physician only has a duty to disclose material risks. RCW 7.70.050; 

### Smith v. Shannon, 100 Wn.2d at 31; 

### Seyboldv. N~u, 105 Wn. App. 666, 681, 19 P.3d 1068 (2001). The physician need only disclose risks ofserious harm that are reasonably foreseeable. 

### Smith v. Shannon, 100 Wn.2d at 31. The duty to disclose similarly attaches to recognized possible alternative forms oftreatment and to the anticipated results ofthe treatment proposed and administered. 

### Adams v. Richland Clinic, Inc., 37 Wn. App. 650, 657, 681 P.2d 1305 (1984). Parallel to the requirement ofexperttestimony in a medical malpractice suit, an informed consent action usually demands medical experttestimony. In an informed consent action, the patient must present expert testimony to prove the existence ofa risk, its likelihood ofoccurrence, and the type ofharm in question. 

### Smith v. Shannon, 100 Wn.2d at 34. To determine whether such a risk is material, courts engage in a two-step analysis. First, the scientific nature ofthe risk must be ascertained, i.e., the nature ofthe harm that may result and the probability ofits occurrence. 

### Smith v. Shannon, 100 Wn.2d at 33. Second, the trier offact must decide whether the probability ofthat type ofharm is 35No. 32381-1-III Driggs v. Howlett, MD.

a risk which a reasonable patient would consider in deciding on treatment. Smith v. Shannon, 100 Wn.2d at 33. Expert testimony is needed only for the first step ofthe informed consenttwo-step analysis. Smith v. Shannon, 100 Wn.2d at 33. The second step ofthis determination of materiality does not require expert testimony. Smith v. Shannon, 100 Wn.2d at 33. A jury armed with information as to the nature and materiality ofthe risk may determine whether a reasonable patient would desire such information. Thejury, as laymen and laywomen, are equipped to place themselves in the position ofa patient and decide whether, under the circumstances, the patient should have been told. Smith v. Shannon, 100 Wn.2d at 32; Miller v. Kennedy, 11 Wn. App. at 288-89 (1974); Keogan v. Holy Family Hosp., 95 Wn.2d 306, 318, 622 P.2d 1246 (1980). The trial court did not identify the rule ofevidence employed to exclude Dr. Lawrence Menendez's testimony on informed consent. Instead, the trial court noted that Lawrence Menendez failed to assign apercentage to the risk ofa fracture with the absence offixation. We assume the trial court deemed Menendez's testimony about the likelihood ofa fracture to be irrelevant to an informed consent cause ofaction. In tum,

we presume that the court concluded that Menendez's testimony provided no assistance to thejury. ER702 governs competency ofexpert testimony. The rule reads: Ifscientific, technical, or other specialized knowledge will assist the 36No. 32381-1-III Driggs v. Howlett, MD.

trier offact to understand the evidence orto determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the fonn ofan opinion or otherwise. Under ER 702, expert testimony is admissible if(1) the witness qualifies as an expert, and (2) the testimony is helpful to the trier offact. State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993). Dr. Menendez's qualifications are not in dispute. Thus, the question we resolve is whether the trial court abused its discretion when it determined Menendez's testimony would not help the trier offact. Expert testimony by a qualified expert is admissible ifit is helpful to the trier of fact. State v. Cauthron, 120 Wn.2d at 890. UnderER702, experttestimony will be deemed helpful to the trier offact only ifits relevance can be established. State v. Greene, 139 Wn.2d 64, 73, 984 P.2d 1024 (1999). Expert testimony assists ajury ifthe testimony concerns matters beyond the common knowledge ofthe average layperson and is not misleading. State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011). Courts generally interpret possible helpfulness to the trier offact broadly and will favor admissibility in doubtful cases. State v. Groth, 163 Wn. App. at 564; Moore v. Hagge, 158 Wn. App. 137, 155, 241 P.3d 787 (2010). We conclude that Dr. Lawrence Menendez's testimony, that the failure to replace the fixation would likely lead to a fracture, would help ajury in understanding the risk of Dr. Andrew Howlett's omission offixation afterthe March 9, 2009 surgery. The risk attended to the lack offixation for the allograft is not information known to the 37No. 32381-1-111 

### Driggs v. Howlett, MD. layperson. Providence Physician Services cites no case that holds a medical expert may not testify to a likelihood ofa risk reaching fruition because the expert fails to assign a percentage to the risk. Nor do we find any Washington decision addressing this precise question. In another context, this courtheld that whetherthe expertprovides statistical support for an opinion goes to the weight and not the admissibility ofthe testimony. 

### Reese v. 

### Stroh, 74 Wn. App. 550, 564, 874 P.2d 200 (1994), 

### aff'don othergrounds, 128 Wn.2d 300, 907 P.2d 282 (1995). In

### Reese, the defendantphysician, in a medical malpractice action, soughtto exclude testimony on causation from the patient's expert witness, under ER 702, on the ground that the expert failed to assign a percentageto the chance that the physician's negligence caused injury. A New Jersey intermediate appellate court, in 

### Frost v. 

### Brenner, 300 N.J. Super. 394, 693 A.2d 149 (App. Div. 1997), addressed the question ofwhether a patient in an informed consent claim mustpresentthe statistical risk ofa procedure. The appeals court reversed atrial court that dismissed the claim because the plaintifffailed to quantify the relevant risks. The New Jersey court reasoned that statistical evidence is not an indispensable requisite because the materiality ofa risk is based on significanceto the reasonable patient. 

### Frost, 300 N.J. Super. at 405. This ratiocination applies in Washington because the Washington standard for informed consent is likewise based on the significance ofa risk to a reasonable patient, rather than from the physician's 38 

# I 

# I lNo. 32381-1-III Driggs v. Howlett, MD. standpoint. Smith v. Shannon, 100 Wn.2d at 32; Miller v. Kennedy, 11 Wn. App. at 288- 89 (1974); Keogan v. Holy FamilyHosp., 95 Wn.2d at 318 (1980). Ifstatistical evidence is not aprerequisite for an informed consent claim, a medical expert should be allowed to testify without mentioningpercentages or statistics. Providence Physician Services faults Dr. Lawrence Menendez'stestimony because Menendez declares that omitting fixation renders the bone "more likely" to fracture, but he does not contrast the possibility orprobability ofa fracture even with fixation. We considerthis criticism to go to the weight ofMenendez'stestimony, not its admissibility. Joshua Driggs argues thatrequiring statistical evidence would create an impossible task in his suit because none ofthe testifying physicians had omitted replacement hardware when removing hardware from an allograft. Since none ofthe witnesses omitted replacement fixation, none could testify to the percentage ofcases when a lack of fixation resulted in a fracture. Ofcourse, Driggs' argument fails to note that scores of physicians unrelated to this suit could have omitted replacement hardware and that literature might address the percentage ofthe risk. Nevertheless, since we rule in favor of Driggs on the issue on other grounds, we need not rely on this contention. We note, however, that Driggs' contention highlights a problem demanding statistical evidence when no reliable data exists to establishthe risks ofa medical procedure. Reliable data may regularly be absent in medical malpractice cases where a physician completely ' 39 

# I

f 

# lNo. 32381-1-111 Driggs v. Howlett, MD.

deviated from common practices. Although informed consent requires physicians to inform patients ofmaterial risks before treatment, quantifying risks may require unreliable speculation when treatment is unique, even though the risks are material. Once again werecognize the trial court holds discretion in admitting and excluding evidence at trial. Nevertheless, the court abuses discretion when basing an evidentiary ruling on a misinterpretation oflaw. The law does notrequire an expertto assign a percentage to the risk ofwhich the patient claims the physician did not inform him. Thus, the trial court erred in excluding Lawrence Menendez's opinion on the likelihood ofthe risk ofomitting fixation. Personal Opinions The trial court mentioned that some or all ofDr. Lawrence Menendez's opinions

were personaljudgments. In its brief, Providence Physician Services does not seekto affirm the trial court's evidentiary rulings on the ground thatMenendez expressed personal views. We deem ourselves compelled to address the issue, nonetheless, in order to assist on remand. Dr. Lawrence Menendez agreed, in cross-examination, thathis opinions were his personal opinions. Providence Physician Services runs too far with the concession, however. The term "personal opinion" is fraught with ambiguity. Providence's position wrongly assumes that a professional opinion or an opinion shared widely by members of the medical community cannot also be the personal opinion ofa medical expert witness. 40No. 32381-1-111 Driggs v. Howlett, MD.

Some expert witnesses will not understand the distinction rendered bythe lawbetween a personal opinion and an admissible opinion based onthe witness's experience, training, and research. An effective cross-examiner, such as Providence Physician Services' counsel, could obtain an indulgence from most, ifnot all, expertwitnesses that opinions formulated based ontheir education, knowledge as a practitioner, andreading of literature constitute theirpersonal opinions. An expert's personal opinion is insufficientto establishthe recognized standard of

care. White v. KentMed. Ctr. Inc., 61 Wn. App. at 172 (1991). This principle mustbe read in context, however. Washington cases insinuate that an expert'spersonal opinion is admissible ifthe opinion is also a professional opinion. Thetest for admissibility is met

so long as the court may conclude from the testimonythatthe expert discussed general, ratherthanpersonal, professional standards and expectations. Adams v. Richland Clinic, 37 Wn. App. at 655-56 (1991). In the context ofstandard ofcare testimony, this court has allowed an expert's opinion as long as the opinion is "more than a personal opinion." White v. KentMed. Ctr., 61 Wn. App. at 172. It is only necessary that an expert's 

# I opinion on the standard ofcare bebased on general professional standards, ratherthan "mere"personal opinion. Leaverton v. Cascade SurgicalPartners PLLC, 160 Wn. App. at 520 (2011). Thus, a personal opinion maybe impermissible only ifidiosyncratic to the expert witness. A personal opinion may be inadmissible only ifnot sharedbythe expert'sprofessional community. 41 

# I I 

# lNo. 32381-1-III Driggs 

### v. Howlett, MD. Foreign cases referto "subjective opinions" ofthe expert as being impermissible. Boyd

### v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998); Russell

### v. Call/D, LLC, 122 A.3d 860, 867 (D.C. 2015); Padilla v. Loweree, 354 S.W.3d 856, 863 (Tex. App. 2011). Otherwise, so long as a physician with a medical degree has sufficient expertise to demonstrate familiarity with the procedure or medical problem at issue, ordinarily he

or she will be considered qualified to express an opinion on any sort ofmedical question. White, 61 Wn. App. at 173 (quoting 5A KARLB. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAWAND PRACTICE§ 290(2), at 386 (3d ed. 1989)). PopKwockEng

### v. Klein, 127 Wn. App. 171, 110 P.3d 844 (2005) is illustrative. The plaintiff's expertphysician testified: So mypersonalopinion would be that as a neurosurgeon, [Dr. Klein] should be very familiar withthe signs and symptoms, diagnosis and treatment ofmeningitis. Now, that's notto say thathe may not need to call in an expertto help him decide on exactly which antibiotics to choose and how long to treat them. That would be fine. Butas far as recognizing the possibility ofmeningitis and knowing that a lumbarpuncture is necessary to diagnose the meningitis, and to recognize thattimely treatment is necessary in orderto optimally improve the outcome ofthatpatient, he should be aware ofthat, in myopinion. 127 Wn. App. at 178-79 (emphasis added). This court did not directly address the expert's couching his testimony in the words ofa "personal opinion." We nonetheless accepted the testimony as admissible to showthe professional standard ofcare to which the defendantphysician was held.

42No. 32381-1-111 Driggs v. Howlett, MD.

The record shows that opinions formulated by Dr. Lawrence Menendez were not "mere personal" or "subjective" opinions. Menendez is an experienced and noted orthopedic oncologist who presents papers at professional meetings. He was conversant with the national standard ofcare concerning fixation for allografts. In answer to questions on the standard ofcare, he spoke ofhis experience and presentations. He delivered articulate explanations for his opinions. Providence Physician Services also reads too much into Dr. Menendez's concession. When asked ifthe opinions expressed were his personal opinions, Menendez responded, "technically, I'm offering my opinion." CP at 1411. He added thathe grounded his views on his "knowledge and expertise and education and experience." CP at 1411. A wealth ofAmerican case law supports a rule that only subjective or idiosyncratic personal opinions are impermissible and otherpersonal opinions ofan expert witness are admissible. Perhaps recognizing the ambiguity in the phrase "personal opinion," Texas law declares that an expert witness, as opposedto a lay or fact witness, may render a personal opinion. United Way of SanAntonio, Inc. v. HelpingHands Lifeline Found., Inc., 949 S.W.2d 707, 713 (Tex. App. 1997); Lum v. State, 903 S.W.2d 365, 369-70 (Tex. App. 1995);RegalPetrol. Corp. v. McClung, 608 S.W.2d 276, 278 (Tex. Civ. App. 1980); Williams v. Hemphill County, 254 S.W.2d 839, 842 (Tex. Civ. App. 1952). In Louisiana, an expert, who by education or experience has a unique 43No. 32381-1-111 Driggs v. Howlett, MD. knowledge ofthe subject matter at issue, is permittedto express personal opinions. Barrettv. T.L. James & Co., 28, 170 (La. App. 2 Cir. 4/3/96); 671 So. 2d 1186, 1194;
cert. denied, 96-1124 (La. 6/7/96); 674 So. 2d 973; Blitz

### v. Jefferson Parish Hosp. Serv. Dist. No. 2, 93-733 (La. App. 5 Cir. 4/14/94) 636 So. 2d 1059. In Florida, an expert's personal opinion need not meet the Frye test for admissibility. Rickgauerv. Sarkar, 804 So. 2d 502, 504 (Fla. Dist. Ct. App. 2001). 

### In Wardv. Dale CountyFarmers Co-op, Inc., 472 So. 2d 978, 978-79 (Ala. 1985), the reviewing court affirmed the trial court's admittance oftestimony ofa county agent concerning the cause ofa low quality ofcrop. The agent referenced his opinion as a personal opinion, but the opinion was based onhis experience as an agricultural agent. In Arkansas State Highway Commission 

### v. Union PlantersNationalBank, 231 Ark. 907, 915, 333 S.W.2d 904 (1960), the appellate court affirmed the trial court's admission ofan expert witness on land values, despite mention that the opinion was a personal opinion. The court wisely noted that the opinion ofany expert is ofcoursepersonal to that witness. This admissibility ofpersonal opinions ofan expert witness is not limited to southern states. In Joyce v. BoulevardPhysical Therapy & Rehabilitation Center, PC, 694 A.2d 648, 655 (Pa. Super. Ct. 1997), the trial court concludedthat the expert testimony provided by one physician did not address the course ofconductthat an average orthopedic surgeon would undertake during the course ofthe patient's treatment, 44No. 32381-1-III Driggs v. Howlett, MD.

but rather contained the witness' personal thoughts about the standard ofcare. The trial court excluded testimony because the plaintiffs experttestified in the first person when articulating the standard ofcare and he testified to his personal opinion, ratherthan an objective standard ofcare. The appeals court disagreed thatthe experttestifying in the first person transformed his elicitation ofthe standard ofcare into his personal opinion. The expert's opinion was admissible since it was based on his experience and training as

an orthopedic surgeon. Harmless Error Providence Physician Services contends that, assuming the trial court's exclusion ofDr. Lawrence Menendez's opinions is error, the errorwas harmless. Providence underscores the fact thatDr. Steven Grabofftestified to each opinion ofLawrence Menendez that the trial court excluded. Therefore, Providence argues the excluded · testimony ofMenendez would have been cumulative. When a trial court makes an erroneous evidentiary ruling, the question on appeal becomes whether the error was prejudicial, for error withoutprejudice is not grounds for reversal. Brown v. Spokane County Fire Prot. Dist. No. l, 100 Wn.2d 188, 196, 668 P.2d 571 (1983); Mut. of EnumclawIns. Co. v. GreggRoofing, Inc., 178 Wn. App. 702, 728- 29, 315 P.3d 1143 (2013). An error will be considered harmless unless it affects the outcome ofthe case. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984); Brown, 100 Wn.2d at 196. A harmless error is an errorwhich is trivial, or formal, or merely 45No. 32381-1-111 Driggs v. Howlett, MD. academic, and was notprejudicial to the substantial rights ofthe party assigning it, and in

no way affected the final outcome ofthe case. Anfinson v. FedEx GroundPackage Sys., Inc., 159 Wn. App. 35, 44, 244 P.3d 32 (2010), aff'd, 174 Wn.2d 851, 281 P.3d 289 (2012). Error will be consideredprejudicial ifit presumptively affects the outcome·ofthe trial. James 

### S. Black & Co. v. P&R Co., 12 Wn. App. 533, 537, 530 P.2d 722 (1975). When the reviewing court is unable to know what value thejuryplaced on the improperly admitted evidence, a new trial is necessary. Thomas v. French, 99 Wn.2d 95, 105, 659 P.2d 1097 (1983); Smith v. ErnstHardware Co., 61 Wn.2d 75, 80, 377 P.2d 258 (1962); State v. Murphy, 7 Wn. App. 505, 508-10, 500 P.2d 1276 (1972). The rule should be the

same when the appeals court may notjudgewhat value ajury may place on improperly excluded evidence. We agree with Providence Physician Services that normally exclusion of cumulative evidence is harmless. Improper admission ofevidence constitutes harmless

error ifthe evidence is cumulative. Hoskins v. Reich, 142 Wn. App. 557, 570, 174 P.3d 1250 (2008). A factor to consider when determining harmless error is whether excluded evidence involved cumulative evidence. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994); Kimball v. Otis Elevator Co., 89 Wn. App. 169, 178, 947 P.2d 1275 (1997). Probably all Americanjurisdictions follow this rule. People v. Fletcher, 328 Ill. App. 3d

46No. 32381-1-111 

### Driggs v. Howlett, MD. 1062, 1071-72, 768 N.E.2d 72, 263 Ill. Dec. 312 (2002); 

### Gonzalezv. Stevenson, 791 S.W.2d 250, 253 (Tex. App. 1990). We decline to follow the cumulative evidence rule in this appeal for three reasons. First, the excluded opinions ofDr. Lawrence Menendezprobedthe central issues in dispute in this case. Menendez's opinions included whether Dr. Andrew Howlett's treatment fell below the standard ofcare, whether that negligent treatmentproximately caused Driggs' harm, and whether the risk ofharm from the surgery was so material that

a reasonable patient would have wanted disclosure and would have chosen different treatment. Second, thejury garnered the misimpression that Dr. Lawrence Menendez lacked opinions on these key issues. During closing argument, Providence Physician Services highlighted that Lawrence Menendezprovided no opinions on these key issues. Of course, Providence did not disclose to thejurythat Menendez held opinions butthe opinions were excluded from their hearing. Third, in addition to noting the absence ofopinions from Dr. Menendez, Providence excoriated the credentials and credibility ofDr. Steven Graboff, the other physician who providedthe same favorable testimony as Lawrence Menendez. Providence's own words during closing argument concerning Graboffs character as an unqualified, disgraced, hired gun, whose opinions cannot be believed, illustrate the harm ofthe exclusion ofLawrence Menendez's opinions. None ofthe reported decisions, 47No. 32381-1-III Driggs v. Howlett, MD.

wherein the courtholds harmless exclusionary errorwith regard to cumulative evidence,

concern these three factors. One foreign decision oflimited relevance is Harper v. Roberts, 173 Ohio App. 3d 560, 2007-0hio-5726, 879 N.E.2d 264. Home owners sued roofcontractors for breach of contract in connection with the construction ofa new roofthat leaked during rainfall. Thejuryruled in favor ofthe contractors and the Court ofAppeals reversed and remanded for a new trial. The reviewing court held thatthe trial court committed error during a "biased" questioning ofthe owners and their expert witness. More importantly, the error was prejudicial because the case depended on the credibility ofthe witnesses. In this appeal, with the credibility ofSteven Graboffimpugned, Dr. Lawrence Menendez's testimony grew critical. The error in excluding Dr. Menendez'stestimony

was not harmless. On this basis, we reverse thejury'sverdict and remand for a newtrial consistent with this opinion. JuryInstructions Joshua Driggs also contends that he is entitled to a new trial because the trial court refused to instruct thejurythat Physician's Assistant Brandi DeSaveurwas an agent of Providence Physician Services. Providence argues that the instructions were proper because Driggs never alleged negligence by DeSaveur in his complaint. In tum, Driggs contends he placed Providence on notice ofhis protest about DeSaveur's performance. Providence Physician Services also contends the trial court committed no errorby 48No. 32381-1-111 Driggs v. Howlett, MD. denying use ofajury instruction naming Brandi DeSaveurbecause no competent expert testified that DeSaveur breached the duty ofcare ofaphysician's assistant. Joshua Driggs responds that Graboffwas competentto testify regarding Brandi DeSaveur's standard ofcare and he criticizedher for failure to notice the fracture. In tum, Providence contends that Dr. Graboff, as a physician, was not qualified to testify to the standard ofcare ofaphysician's assistant. Joshua Driggs argues that DeSaveur negligently performed a task that only an orthopedic surgeon shouldperform,and that Providence should not be able to disclaim DeSaveur's actions by holding herto a lower standard ofcare. Neitherparty cites a case that addresses whether a physician may testify to the standard ofcare ofaphysician's assistant or whether anyone otherthan a physician's assistant may testify to the standard ofcare ofa physician's assistant. We have granted Joshua Driggs a newtrial on other grounds. Therefore, we decline to address issues surrounding the assignment oferror concerning instructingthe jurywith regard to negligence ofBrandi DeSaveur. Principles of judicialrestraint dictate that ifresolution ofanother issue effectively disposes ofa case, we should resolve the

case on that basis withoutreaching the second issue presented. Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wn.2d at 307 (2007); Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d at 68 (2000). On remand, each party may request the trial court for instructions orreliefas to whether ornotthe question ofBrandi DeSaveur's conduct should be an issue for the 

### 49No. 32381-1-111 Driggs 

### v. Howlett, MD.

second trial and whether ornot Brandi DeSaveur should be listed on ajuryverdict as an actor ofProvidence Physician Services. We also decline to address what standard ofcare to impose on aphysician's assistant. The parties should first thoroughly briefand analyze this issue with the trial court. CONCLUSION We vacate thejudgmententered in favor ofProvidence Physician Services and Dr. Andrew Howlett. We remand for a new trial with directions to permitDr. Lawrence



# . Menendez to testify to his opinions ofthe standard ofcare, causation, and the extent of the riskin leaving the allograft unattached to fixation. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. 

## F~l(f.
WE CONCUR:

50