### FILED APRILll,2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE ESTATE OF LORRAINEP. HENSLEY, ) By andthrough its Personal ) Representative, JESSICA WILSON and ) LORRAINEHENSLEY, by and through ) her Personal Representative, ) ) Appellants, ) ) v. ) ) COMMUNITYHEALTH ) ASSOCIATION OF SPOKANE (CHAS); ) PROVIDENCE HOLYFAMILY ) HOSPITAL; SPOKANE EAR, NOSE ) AND THROAT CLINIC P.S., and ) MICHAEL CRUZ, M.D., ) ) Respondents. ) No. 32652-7-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J. -Theestate ofLorraine Hensley appeals several adverserulings before, during and following a four-week medical malpracticetrial that ended with defense verdicts in favor ofthree ofthe defendants and a hungjury as to the fourth. Three defendants cross appeal trial courtrulings.No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
We affirm all ofthe challenged rulings and remand for trial ofthe as yet unresolved claim. FACTUAL AND PROCEDURAL OVERVIEW Beginning on January 2, 2009, Lorraine Hensley, then 52 years old, sought medical care from Community Health Association ofSpokane (CHAS) for a recurrence ofsinus infection and dental problems CHAS had treated over a couple ofyears. She
was diagnosed this time with sinusitis-sinus inflammation-likelyrelated to an abscessed molar. The CHAS providers' initial recommendation was to use a steroid spray to decrease swelling anduse nasal rinses. On January 9, after Ms. Hensley complained ofincreasingpain, an odorous discharge, and swelling in the area ofher right eye, Ms. Hensley was prescribed oral antibiotics, prednisone to reduce inflammation, and
was referred for a CT1 scan. The CT scan revealed thatthe root ofthe abscessed molar was impinging into Ms. Hensley's lower maxillary sinus. Since the tooth was the source ofthe infection, CHAS providers gave Ms. Hensley a copy ofthe CT scan and told to see her dentist. In the weeks that followed, CHAS providers prescribed a different antibiotic and pain medication.

1 Computerized axial tomography. 2No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss'n.
Ms. Hensley saw her dentist on January 27, her dentist agreed that the molar needed to be removed, and an appointment was made to have itpulled on February 3. On February 1, Ms. Hensley went to the emergency room ofProvidence Holy Family Hospital (Holy Family) complaining ofcontinuing sinus pain, swelling and a headache. She was seen by John Hunter, a certified physician assistant, who reviewed the January 9 CT scan; obtained and reviewed another CT scan ofher brain; prescribed a different antibiotic and some pain medication; and referred her to see an ear, nose and throat specialistthe next day. On February 2, Ms. Hensley was examined at the Spokane Ear, Nose, and Throat Clinic (the ENT clinic) by Michael Cruz, M.D. She told him her abscessed molar was scheduledto be removed the next day. Dr. Cruz performed an endoscopic exam, took a culture for testing, prescribedprednisone for inflammation, a painkiller, and recommended a decongestant. On the late evening ofFebruary 3, 2009, Ms. Hensley returned to the Holy Family emergency room, complaining ofworsening pain, and was seen by Dr. Christopher Tullis, an emergency room physician. She told him abouther tooth removal earlier in the day. After taking herhistory and performing a physical examination, he administered intravenous antibiotics and pain medication (Dilaudid) before discharging her in the early morning hours ofFebruary 4.

3No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
On February 6, 2009, Ms. Hensley died. The cause ofdeath, identified at autopsy,
was brain herniation resulting from cerebral meningitis. A small hole was found in the back wall ofMs. Hensley's frontal sinus bone that was too small for the medical examinerto measure and an abnormal 4-millimeterhole was found in her dura (one of the meninges, the membranes that surroundthe brain). The two holes proved to be the pathway through which infection had reached the brain, causingMs. Hensley's death. In 2012, Ms. Hensley's estate broughtthis action against CHAS, Holy Family, the ENT clinic and Dr. Cruz, alleging medical negligence and lack ofinformed consent. The estate contended that the January 9 CT scan revealed Ms. Hensley was at high risk for intracranial complications. 

### It asserted that the standard ofcare required admitting Ms. Hensley to a hospital for continuous intravenous antibiotics, surgical intervention, and further testing. The estate also asserted lack ofinformed consentto the less aggressive treatment provided bythe defendants. Pretrial summaryjudgmentmotions and countermotions were all denied. The matter proceeded to trial in May 2014. During trial, the court denied several motions for judgment as a matter oflaw, including defense motions to dismiss the medical negligence claims for failure to establish a breach ofthe standard ofcare to the required degree of medical certainty, and for failing to establish that the independent contractors who treated ·Ms.Hensley in Holy Family's emergency room were the hospital's agents. In arriving at



### 4No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
finaljury instructions, the trial court agreed with the defense that there was insufficient evidence to submitthe estate's lack ofinformed consent claim to thejury. Defense verdicts were returned in favor ofCHAS, the ENT clinic, and Dr. Cruz. Although thejury found thatproviders at CHAS violated the standard ofcare, it found that the violation was not the proximate cause ofMs. Hensley's death. Thejury found no violation ofthe standard ofcare by Dr. Cruz orthe ENT clinic. Thejurywas unable to reach a verdict on the estate's claim against Holy Family, and the court declared a mistrial as to the hospital. In June 2014, the estate filed a motion for a new trial based on the court's refusal to instruct thejury on informed consent and on allegedjurormisconduct. It supported its allegation of jurormisconduct with the declaration ofone ofthejurors, who asserted that two otherjurors "shut[ ] down"jurors who spoke in favor ofthe estate, exhibited bias in favor ofmedical providers, made pejorative statements about the estate's attorney, discounted the court's instructions on causation, and offered evidence oftheir own experiences with medical treatment. Clerk's Papers (CP) at 937. The trial court denied the motion and enteredjudgment on thejuryverdicts. The estate appeals and three ofthe defendants cross appeal, presenting a total of six issues. A more detailed procedural history is provided in analyzing the respective issues.



### 5No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
ANALYSIS The following errors are assigned: Bythe estate:
• The trial court erred in denying the estate's motions for summaryjudgmentagainst Holy Family and CHAS on the elements ofmedical negligence liability and causation;
• The trial court erred in refusing to instruct thejury onthe estate's informed consentclaims; and
• The trial court erred in refusing to grant a new trial on the basis of jury misconduct. By Holy Family:
• The trial court erred in denying Holy Family's motions forjudgment as a matter of law that the estate failed to present evidence creating ajury issue ofagency; and
• The trial court erred in denying defense motions forjudgment as a matter oflaw that the estate failed to present evidence creating ajuryissue ofa violation ofthe applicable standard ofcare. By the ENT clinic and Dr. Cruz:
• BothjoinHoly Family in contending the trial court erred in denying defense motions forjudgment as a matter oflaw that the estate failed to present evidence sufficientto create ajuryissue ofa violation ofthe applicable standard ofcare. We address the issues in the order stated. I. APPEAL A. We willnotconsider the estate's assignment of error to the trial court's order denying its motions for summary judgment because following trial, the challenge to the sufficiency of evidence mustbe to the trial evidence

6 -~,No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
Within a few months afterthe estate's complaint was filed, the defendants moved for summaryjudgment on the basis that the estate had not demonstrated aprima facie
case. The estate responded with a counter motion for summaryjudgment, an accompanying declaration ofDr. Steven Kmucha alleging violations ofthe standard of
care and lack ofinformed consent on the part ofall defendants, and argument that a right to pointto deficiencies in the other side's evidence "works both ways." CP at 28. The defendants challengedthe sufficiency ofDr. Kmucha's declaration to raise a genuine issue ofmaterial fact, arguing that as an otolaryngologist,2 he could not testify to the standard ofcare ofthe emergency medical care providers contracted by Holy Family
or the family practitioners at CHAS, and thathe failed to provide evidence as to the standard ofcare in the State ofWashington.3 CHAS responded with only a conclusory declaration from its family practitioner denying that he violatedthe standard ofcare. Holy Family, reporting difficulty obtaining declarations from Mr. Hunter and Dr. Tullis, submitted only declarations from their

2An otolaryngologist is "[a] physician who specializes in" the "diseases ofthe ear, pharynx, and larynx, including the upperrespiratory tract and diseases ofthe head and neck, tracheobronchial tree, and esophagus." STEDMAN's MEDICAL DICTIONARY 1395 (28th ed. 2006) (combining the definitions ofotolaryngologist and otolaryngology). 3 RCW 7.70.040(1) provides that one ofthe elements a plaintiffmust establish for a claim ofmedical negligence is that the defendant health care provider "failed to exercise that degree ofcare, skill, and learning expected ofa reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state ofWashington, acting in the same or similar circumstances." 7No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. attorney, who claimedto have been told by both clients that they denied having violated the standard ofcare. Accordingto CHAS and Holy Family, the asserted deficiencies in Dr. Kmucha's declarationreduced their concern about the estate's counter motion. The ENT clinic and Dr. Cruz, whose standard ofcare Dr. Kmucha was more clearly qualified to address, submitted a detailed opposition declaration from Dr. Cruz. The estate does not contend it was entitled to summaryjudgment against them. On June 22, the trial court heard argument ofboth sides' motions. Itorally denied the estate's counter motion on two grounds. As to CHAS and Holy Family, it found a question offact whetherDr. Kmucha, as an otolaryngologist, could testify to the standard ofcare ofthe family practice and emergency medical care providers. As to all defendants, it found Dr. Kmucha's declaration to be statutorily deficient because he asserted that the standard ofcare in Washington was the national standard butwithout explaining his basis for that assertion. Denial ofthe estate's counter motion was reduced to a written order. 4

4 Rather than grant defense motions to dismiss the complaint on the basis ofDr. Kmucha's failure to provide a foundation for his knowledge ofthe Washington standard ofcare, the court gave the estate a deadline for obtaining a supplemental declaration from Dr. Kmucha that would cure that deficiency. The estate complied. Afterproviding Dr. Kmucha's supplemental declaration, the estate asked the court to allow the supplemental declaration to relate back, in effect, as a basis for reconsidering the court's denial ofits counter motion for summaryjudgment. The court refused, stating in its order, "Itwas never my intention to grant Plaintiffs' countermotion for summary judgment." CP at 301.
8No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
The estate's first assignment oferror is to this denial ofits motion for summary judgment against CHAS and Holy Family. It argues that evidence offered in opposition to its motion was conclusory in the case ofCHAS and inadmissible hearsay in the case of Holy Family. Itis well settledthat "[ w]hen a trial court denies summaryjudgment due to factual disputes
... and a trial is subsequently held on the issue, the losingparty must appeal from the sufficiency ofthe evidence presented at trial, not from the denial ofsummary judgment." Adcoxv. Children's OrthopedicHosp. &Med. Ctr., 123 Wn.2d 15, 35 n.9, 864 P.2d 921 (1993) (citingJohnson v. Rothstein, 52 Wn. App. 303, 759 P.2d 471 (1988)). The rule is supported by policy (we favor the decision that is based on the best record) and by the purpose ofsummaryjudgment (the objective ofavoiding useless trials is no longer served once trial takes place). Johnson, 52 Wn. App. at 306-07. The estate argues that a summaryjudgment denial is subjectto review ifthe facts
are not disputed and the decision turned solely on a substantive issue oflaw, citing Kaplan v. Northwestern MutualLifeInsurance Co., 115 Wn. App. 791, 799-800, 65 P.3d 16 (2003). In Kaplan, the issue oflaw decided incorrectly at summaryjudgmentwas whether an ambiguous disability insurance policy was required to be construed against the insurer. On facts that were sufficient and undisputed, the correct legal answer was yes, but the court said no and allowed the meaning ofthe policy to be determined by the Jury. The decision on thatpure legal issue was held appealable. 9No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
In this case, one basis for the trial court's denial ofthe estate's motion as it related to CHAS and Holy Family was that a question offact existed as to whetherDr. Kmucha

. could testify to the standard ofcare oftheir family practice and emergency medical care

providers. While Dr. Kmucha's declaration stated he was "well familiar with the national standards ofcare ofmedical professional treatment for processes such as acute sinusitis" and expressed his opinionthatproviders at CHAS and Holy Familyprovided medical
care belowthe standard "inthe profession or class to which that providerbelongs," he offered no explanation as to how he was familiar with the standard ofcare offamily practitioners and emergency medical care providers. CP at 42. CR 56(e) provides that a supporting affidavit such as that provided by Dr. Kmucha "shall show affirmatively that the affiant is competentto testify to the matters stated therein." Under the rule, declarations that contain conclusory statements unsupported by facts are insufficient for purposes ofsummaryjudgment. Davies v. Holy FamilyHosp., 144 Wn. App. 483, 495-96, 183 P.3d 283 (2008) (citing Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25,851 P.2d 689 (1993)). "Totestify thatthe defendant has breached the applicable standard ofcare, 'a physician must demonstrate that he or she has sufficient expertise in the relevant specialty."' Id. at 494 (quoting Young v. Key Pharm., Inc., 112 Wn.2d. 216,229, 770 P.2d 182 (1989)). In Davies, aplaintiffsubmitted declarations ofa Washington physician who was board certified in radiology, offering his opinion as to a breach ofthe 10No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
standard ofcare by members ofHoly Family's medical staff. This courtheld that because the expert's declarations failed to establish that he had sufficient expertise or familiarity with the standard ofcare applicable to nurses and otherhealth careproviders, he "[could not] be deemed competentto establish the standard ofcare orto testify regarding a breach ofthat standard." Id. at 496. The expert conclusorily claimed familiarity with the appropriate measures that should have been taken by hospital staffin treating the plaintiff, butthis courtheld thathis declarations did not affirmatively show that he "had sufficient expertise to be considered qualified to express an opinion regarding the standard ofcare applicable to nurses and other health care providers. In fact, [his] declarations fail to reference any education, medical training, or supervisory experience that could demonstrate his familiarity with the standard ofcare in otherhealth
care fields." Id. at 495. A party responding to summaryjudgment can show that genuine issues ofmaterial fact require trial in two ways: (1) with conflicting evidence, or (2) by argument alone, if the moving party's evidence is insufficient. "Ifthe moving party fails to sustain [its initial burden ofproduction], it is unnecessary for the nonmoving party to submit affidavits or other materials." Hash v. Children's OrthopedicHosp. &Med. Ctr., 49 Wn. App. 130, 132, 741 P.2d 584, (1987), ajf'd, 110 Wn.2d 912 (1988). In opposing the estate's early counter motion for summaryjudgment, CHAS and Holy Family persuaded the court that the estate's evidence was insufficient. 11No. 32652-7-111 

### Estate of Hensley v. Spokane Cmty. HealthAss 'n.
The trial court did not deny summaryjudgmentbased on an issue ofsubstantive law; it denied summaryjudgmentbecause the estate presentedtoo little evidencethatDr. Kmucha was qualified to express an opinion regarding the standard ofcare applicable to family practitioners or emergency medicine providers. The usual rule barringpost-trial appeal ofsummaryjudgmentdenial applies. 

### B. The trial courtproperly refusedto instruct thejuryon informedconsent The estate next assigns error to the trial court's refusal to instructthejury on its lack ofinformed consent claim. The court never limited the estate's effortto present evidence in support ofthat claim. The court reserved ruling on a defense motion in limine to exclude evidence and argument in support ofthe claim, and later denied a defense motion for a directed verdict dismissing the claim at the end ofthe estate's case. Ultimately, the court refused to instruct on the claim, however, stating "this, fundamentally, is not an informed consent case, this is a medical negligence case." Report ofProceedings (RP)5 at 3355. Itreiterated thatprimary reasoning in denying the estate's new trial motion, stating, "[M]y view is that this is a standard ofcare issue, a negligence issue." RP (July 11, 2015) at 56. Onboth occasions, the court also observed that the estate had notpresented experttestimony on the likelihood ofthe risk that a

5 Unless otherwise indicated by aparenthetical date, "RP"refers to the 3603 page report ofproceedings that begins with proceedings on May 2, 2014, continues through trial proceedings up until the conclusion ofclosing arguments, and includes, at 3554- 3603, hearings taking place on June 22 and July 20, 2012. 12No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n. patient diagnosed with sinusitis and exhibiting the condition reflected on the CT scans would suffer an intracranial infection and death. Judgment as a matter oflaw is appropriate only when, after construing all facts and reasonable inferences in favor ofthe nonmoving party, the court determines no competent and substantial evidence exists to support a verdict. Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wn.2d 842, 848, 348 P.3d 389 (2015). "Substantial evidence" is evidence sufficient "topersuade a rational, fair-minded person that the finding is true." Cantu v. Dep'tof Labor &Indus., 168 Wn. App. 14, 21,277 P.3d 685 (2012). Review is de novo. Paetsch, 182 Wn.2d at 848. The Washington Supreme Court first recognized the doctrine ofinformed consent in ZeBarth v. Swedish HospitalMedical Center, 81 Wn.2d 12, 499 P.2d 1 (1972). Three years later, the legislature adopted RCW 7.70.050 with the intent to codify the common law doctrine as set forth in Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974), aff'd percuriam, 85 Wn.2d 151, 152,530P.2d 334 (1975);Anaya Gomez v. Sauerwein, 180 Wn.2d 610,617,331 P.3d 19 (2014). Miller explainedthat the duty to warn and advise ofalternatives exists if"'(1) the risk ofinjury inherent in the treatment is material; (2) there are feasible alternative courses available; and (3) the plaintiffcan be advised of the risks and alternatives without detriment to his well-being.'" Miller, 11 Wn. App. at

13No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
286-87 (quoting Getchellv. Mansfield, 260 Ore. 174,182,489P.2d 953 (1971)). 6 The informed consent doctrine affirms an "individual's right to ultimately control what happens to [her] body." Keogan v. Holy FamilyHosp., 95 Wn.2d 306, 313-14, 622 P.2d 1246 (1980). In this case, the view ofthe estate's medical experts was not that this was a case in which (1) there were "feasible alternative courses available" one being the course of treatment followed by the defendant providers, (2) that each met the standard ofcare, and (3) the patienthad a right to know about each and its attendantrisks. They opined, instead, that the course oftreatment followed by the defendant providers fell far short of the standard ofcare. Arguably that alone demonstrates that this was a medical negligence case, not an informed case. Since RCW 7.70.050(1) does not clearly recognize that distinction, however, we examine the parties' positions further.

6 The statute requires proofofthe following four elements: (a) Thatthe health careprovider failed to inform thepatient ofa material fact or facts relating to the treatment; (b) Thatthe patient consented to the treatment withoutbeing aware ofor fully informed ofsuch material fact or facts; (c) That a reasonably prudentpatient under similar circumstances would not have consentedto the treatment ifinformed ofsuch material fact or facts; (d) Thatthe treatment in question proximately caused injury to the patient. RCW 7.70.050(l)(a)-(d).
14No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
The defendant providers rely on well settled Washington law that a health care provider who misdiagnoses apatient's condition is not subjectto an action based on failure to secure informed consent with respect to treatments for the undiagnosed condition. See, e.g., Backlundv. Univ. ofWash., 137 Wn.2d 651, 661, 975 P.2d 950 (1999). This is because "ahealth care providerwho believes the patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it." Anaya Gomez, 180 Wn.2d at 618. In such circumstances, it is
a medical negligence claim that compensates the patient for the provider's misdiagnosis and resulting failure to provide appropriate treatment. See id. The estate argues that this well settled law does not apply because this is not a misdiagnosis case. According to the estate, The conditionthat Ms. Hensley had (i.e., bony erosion and the frontal sinusitis), was not undiagnosed. It was present in living color on CT imaging. Theseproviders didn't fail to diagnose the condition, they simply minimized the risk ofthe known condition. They chose not to tell Mrs. Hensley about her condition, or alternative treatments. Appellant's Reply Br. at 26-27 (footnote omitted). The estate's experts agreed with the sinusitis diagnosis and the presence ofthe bony erosion in the maxillary sinus. The estate contends that Ms. Hensley acquiesced in the defendant providers' nonaggressive treatment plan without being informed ofthe risk ofintracranial complications and death, whose materiality it argues was supported by its experts' testimony and should have been
a question for thejury. 15No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss'n.
This case illustrates that it is a mistake to place too much emphasis on "diagnosis" when a patient's experts are prepared to agree with a diagnosis but espouse a completely divergent view offacts material to treatment and management giventhe patient's presentation.7 Washington cases hold that the doctrine ofimplied consentrequires only that health care providers disclose material facts and risk relating to treatment ofwhich they are subjectively aware. As the seminal decision inMiller8recognizes, the doctrine ofinformed consent is a "negligence doctrine." 11 Wn. App. at 282, 289. In Burnetv. SpokaneAmbulance, for example, there was evidence thatthe treating physician was unaware ofthe risk to his patient ofbrainherniation and subsequent injury. As the court observed, "[i]t is undisputed Mr. Graham was unaware ofTristen's condition which implicated risk to her, so he had no duty to disclose." 54 Wn. App. 162, 169, 772 P.2d 1027 (1989) (Burnet I). In Gustav v. Seattle UrologicalAssociates, 90 Wn. App. 785, 790-91, 954 P.2d 319 (1998), the court heldthat a lack ofinformed consent claim could not be based on a condition that had not been diagnosed but also could notbebased onthe treating physician's lack ofunderstanding ofdifferent assays

7 Defendants dispute whetherthe plaintiffs experts actually did agree with the diagnosis, pointing to testimony by a defense expertthat in substance, the plaintiffs experts were relying on a diagnosis of"complicated acute frontal sinusitis," which is different. See RP (July 11, 2015) at 39; RP at 2835 (stating "it's a bit ofsemantics"). 8See Smith v. Shannon, 100 Wn.2d 26, 30,666 P.2d 351 (1983) (citations omitted) ("The seminal case on informed consent in this case is Miller v. Kennedy
. . . . This Court ofAppeals opinion bears the strong stamp ofapproval by this court, which unanimously and unequivocally approved it."). 16No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
used in testing and failure to inform his patient ofmaterial facts on that score. Whether he should have understood the difference in the assays "raisedthe question ofnegligence

... , not informed consent." Id. at 791. No evidence was presented that any ofthe defendant providers subjectively knew, given the sinusitis diagnosis and Ms. Hensley'spresentation (including the CT scans), that anything approaching a serious risk ofintracranial infection and death existed. The estate contends that they should have recognized the risk and responded differently but that was the basis ofthe medical negligence claims. The estate presented those claims to thejury. The estate implies on appeal that the defendant providers did subjectively know of the risk and "simply minimized [it]" and "chose not to tell Mrs. Hensley." Appellant's Reply Br. at 27. It likens the estate's claim to the facts in Flyte v. Summit View Clinic, 183 Wn. App. 559, 579-80, 333 P.3d 566 (2014), in which a lack ofinformed consent claim was remanded for trial because the evidence raised ajury question about the defendant physician's subjective knowledge. The defendant physician in Flyte testified at trial that he had ruled out a diagnosis ofinfluenza, which was ultimately the cause ofhis patient's death. Havingruled it out, he argued that he had no obligation to inform the patient offacts material to treatment for that diagnosis. Id. at 579. Buthis chart notes did not support his trial testimony that he had ruled out influenza. The patient's father, who accompanied her into the exam room, 17No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
testified that the physiciansaidshe had influenza. Id. Where evidence supporting a health care provider's subjective knowledge ofa material fact is presentedbut disputed, the court should instructthejury on informed consent-includingthe limitation of informed consentto matters known by the health care provider. Thejurycan then decide whatthe health care provider knew. Matters that "should have been" known can be addressed by the patient's medical negligence claim. In this case, construing all facts and reasonable inferences in favor ofthe estate, no competent and substantial evidence at trial supported a claimthatthe defendantproviders knew that Ms. Hensley was at a material risk ofintracranial infection and death but minimized thatrisk or chose not to disclose it to her. Here, unlike in Flyte, there are no contradictory chart notes. There were no witnesses to damning admissions. The expert testimony as a whole demonstrated that the estate's medical experts did not speak for the entire profession. And the estate offered no evidence ofany reason or motive for the defendant providers to withhold subjective knowledge ofmaterial facts. The estate's evidence was, instead, that the defendantproviders failed to recognize and act on the asserted risk: its medical negligence claim. Like the trial court inAnaya Gomez, the trial courtbelow allowed the estate to present evidence butthen reasonably refused to instruct on the lack ofinformed consent claim.9 Because we may affirm the

9 In the trial court, the estate also argued thatthe facts ofits case were similarto those in Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), which our Supreme Court 18No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
trial court on this basis, we need notreach the estate's challenge to the court's secondary basis for its ruling: that the estatepresented insufficient evidence ofthe likelihood of intracranial infection and death. C. The trial courtdidnotabuse its discretion in denying the motion for a new trial on the basis of juror bias or misconduct The estate finally argues thatjurorbias or misconduct required a new trial. Juror bias We first address the distinct situation where ajuror'sbias is evidenced by dishonesty in voir dire, thereby depriving a party ofthe opportunity to challenge the prospectivejuror for cause. This type of jurormisconduct has been saidto deprive a
identified inAnaya Gomez as presenting the limited circumstance in which a misdiagnosis case can also present an issue ofinformed consent: "The determining factor is whether theprocess ofdiagnosis presents an informed decision for the patient to make about his or her care." 180 Wn.2d at 623 (emphasis added). In Gates, an ophthalmologist failed to diagnose a patient's glaucoma. The ophthalmologist had treated the patient for overtwo years, had seen consistently high eye pressure readings that pointedto her higher risk for glaucoma, had available two additional diagnostic tests that were simple, inexpensive and risk free, and yet not only did not employ the tests but did not tell the patientthey were an option. Id. at 621. Anaya Gomez limits Gates to its "unique set offacts" "aris[ing] during the diagnostic process." Id. at 623. 

### It observes that "Gates is the exception and not the rule with regard to the overlap between medical negligence and informed consent" and "[g]iven the unique factual situation in Gates, it is unlikely we will ever see such a case again." Id. at 626. The Gates exception would apply ifMs. Hensley had shown consistent signs of being at high risk ofhaving a pathway for the infection from her abscess to reach the brain; there were simple, inexpensive, and risk free diagnostic tests for determining whether such a pathway existed; and her treating providers failed to inform her ofthe option ofhaving those tests performed. There was no such evidence here.
19No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n. party ofa constitutional trial. E.g.,Allison v. Dep 't of Labor & Indus., 66 Wn.2d 263, 265,401 P.2d 982 (1965). Robinson v. SafewayStores, Inc., 113 Wn.2d 154, 776 P.2d 676 (1989), on which the estate relies, is such a case. 10 As the United States Supreme Court has observed: Demonstrated bias in the responses to questions on voir dire may result in ajuror'sbeing excused for cause; hints ofbias not sufficientto warrant challenge for cause may assistparties in exercisingtheirperemptory challenges. The necessity oftruthful answers by prospectivejurors ifthis process is to serve its purpose is obvious. McDonough PowerEquip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). Whether a party is entitledto a new trial forjurorbias is subjectto its owntest, recognized in McDonough and later adopted in Washington. In McDonough, the Supreme Courtheld that "to obtain a new trial in such a situation, a party must first demonstrate that ajurorfailed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556. 

### It added that "[t]he motives for concealing information may vary, but only those reasons that affect ajuror's impartiality can truly be saidto affect the fairness ofa trial." Id.

10 As observed in State v. Cho, 108 Wn. App. 315,323, 30 P.3d 496 (2001), Robinson applied a standard for challenging a verdict that was more lenientthan current Washington law. 20No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
The McDonough standard was adopted in Washington in a capital case, in which
our Supreme Court held that a prospectivejuror's incorrect responses to two questions asking ifhe had beenthe victim ofa crime or ofa sexual offense did not warrant a new trial. In re Elmore, 162 Wn.2d 236, 267-68, 172 P.3d 335 (2007) (citing the observation in In re Det. of Broten, 130 Wn. App. 326, 336, 122 P.3d 942 (2005) that Washington
cases are in accord with the McDonough standard for granting a new trial forjurorbias)). In this case, the estate contends thatbias on the part ofthepresidingjurorand another malejuroridentified as "Jay" deprived it ofa fair trial. Its opening brief summarily identifies theportions ofvoir dire on which it relies. Br. ofAppellant at 38- 40. We have set out in full, in an appendix, the lawyers' statements and questions that the estate identifies. The estate relies for the most part on the lawyers' general admonitions about the purpose ofvoir dire and the need for honest answers, butwithout identifying any question it contends was answered dishonestly by the presidingjuroror Jay. The estate also relies on Holy Family's questions aboutjurors' emergency room experiences, buthere again, it identifies no question that the presidingjuror or Jay answered dishonestly. Since there is no dishonestly answered question that, ifanswered honestly, would have been a basis for excluding thejurorfor cause, the trial court had no basis for

21No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. ordering a new trial. 11 Other misconduct The estate's remaining charges ofmisconduct rely on itsjuroraffiant's allegations that the presidingjuror and Jay advocated for the defense and "'shut[ ] down'"jurors who disagreed with them. CP at 937. The estate's affiant also claims the presidingjuror and Jay made the following statements during deliberations:
• That doctors should not be sued for trying to do theirjob; or ifthey only see a patient once; or if, like CHAS's providers, they deal with a lot ofpoorpeople and are not properly paid;
• Statements about Ms. Hensley's health condition delivered "in a pejorative fashion"· 

### ' • That it was well known the estate's lawyer only took "big money cases"; thejurors knew she could "twistthings around"; and that her argument that the "more probable than not" instruction applied to causation as well as to the standard of care was "spin"; and
• That Jay's mother had been administered Dilaudid at the emergency room and was discharged with slurring speech (like Ms. Hensley) but his mother was fine. CP at 938-39. The defendants responded with a declaration ofthe presidingjuror, who denied personally making the improper statements alleged by the estate's affiant, denied

11 In a statement ofadditional authority, the estate directs our attention to the recent United States Supreme Court decision in Pena-Rodriguezv. Colorado, _U.S._, 137 S. Ct. 855, 197 L. Ed. 2d 107, 125 (2017), which recognizes an exception to the federal no-impeachment rule for ajuror's "clear statementthat indicates he or she relied on racial stereotypes or animus to convict a criminal defendant." The decision was based on "unique historical, constitutional, and institutional concerns" implicated by racial bias. Id. at 124. It has no application to this case. 22No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.

or claimed not to recall otherjurors making the improper statements, asserted that no jurorwas shut down, and claimed thatjurors were encouragedto, and did, follow instructions. Professor Tegland has summarized the well settled two-step process by which a trial court decides a challenge to a verdictbased onjurymisconduct: First, the court determines whether the alleged misconduct is the sort of jurormisconduct that can be considered on a motion for new trial. Conduct that inheres in the verdict, or inheres in thejurors' thoughtprocesses, cannotbe considered, and the inquiry is at an end. Ifthe alleged misconduct is the sort [of] misconduct that can be considered, then, as the second step, the court determines whetherthe misconduct was sufficiently prejudicial to warrant a new trial. On this second step, the outcome is always fact-specific, and the trial court has considerable discretion. 14A KARLB. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE§ 32:29, at 377 (2d ed. 2009). Assuming for presentpurposes that the estate's affiant's allegations are true, most inhere in the verdict. Most deal with the affiant's or otherjurors' thoughtprocesses. The mental processes by which individualjurors reached their respective conclusions, their motives in arriving at their verdicts, the effectthe evidence may have had upon thejurors or the weightparticularjurors may have given to particular evidence, orthejurors' intentions and beliefs, are all factors inhering in thejury'sprocesses in arriving at its verdict, and, therefore, inhere in the verdict itself, and averments concerning them are inadmissible to impeach the verdict.
... A differentrule, one permittingjurors to impugn the verdicts which they have returned by asserting matters derogatory to the mental processes, motivations and purposes ofotherjurors orpurporting to explain how and why ajurorvoted as he did in arriving at his verdict, would inevitably open nearly all verdicts to attack by the losing party and thwartthe courts in 23No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. achieving a long held and cherished ambition, the rendering offinal and definitivejudgments. Cox v. Charles WrightAcad, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967) (citations omitted). A failure to understand or follow thejury instructions also inheres in the verdict. E.g., State v. McKenzie, 56 Wn.2d 897, 900, 355 P.2d 834 (1960) Uuror argued law was contrary to instruction); Ra/ton v. SherwoodLogging Co., 54 Wash. 254, 256, 103 P. 28 (1909) (ignored court's instructions). Whetherjurors feel threatened or pressured inheres in the verdict. State v. Standifer, 48 Wn. App. 121, 127-28, 737 P.2d 1308 (1987) Uuror sensedpeerpressure to decide the case in a particular way); State v. Aker, 54 Wash. 342, 346, 103 P. 420 (1909) Uuror's acquiescence after otherjurors threatenedto report the juror's connection to a party). What the estate characterizes as improper extrinsic evidence-Jay's mother's response to Dilaudid-fallswithin well settled law allowingjurors to use personal life experiences to evaluate the evidence presented at trial. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197,204, 75 P.3d 944 (2003). The estate's evidence of jurormisconduct fails at the first step ofthe verdict challenge analysis, because the misconduct alleged is not the sort that can be considered
on a motion for a new trial.

24No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n.
The trial court also considered prejudice, observing that the estate's "closest" case for a commentthat could have some impact on ajuryverdict was that "you shouldn't sue
a doctor ifthey only see a patient once"-butthe courtthen stated it was "really, really unclear" that the statement had any impact here. RP (July 11, 2015) at 63. Given the trial court's opportunity to observe the witnesses and its familiarity with the evidence, we give great deference to its determination that the complained ofconduct, ifit occurred, did not affect the verdict. See McCoy v. KentNursery, Inc., 163 Wn._App. 744,759,260 P.3d 967 (2011). II. CROSS APPEALS A. The trial courtdidnot err in denyingHoly Family's motions for a directed verdict on the basis of a

failure topresentevidence of agency Mr. Hunter and Dr. Tullis, who provided Ms. Hensley's care at Holy Family, are not employees ofthe hospital. The estate alleged that they were agents, for whose negligence Holy Family was vicariously liable. "Under apparent authority, an agent (e.g., a doctor) binds a principal (e.g., a hospital) ifobjective manifestations ofthe principal 'causethe one claiming apparent authority to actually, or subjectively, believe that the agent has authority to act for the principal' and such beliefis objectively reasonable." Mohr v. Grantham, 172 Wn.2d 844, 860, 262 P.3d 490 (2011) (quoting King v. Rive/and, 125 Wn.2d 500,507,886 P.2d 160 (1994)). "A finding ofapparent

25No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.
agency can subject a hospital to vicarious liability for the negligence ofcontractor physicians or staffworking atthe hospital." Id. at 860-61. Holy Family moved for a directed verdict at the close ofthe estate's case, arguing that the estate had presented no evidence ofMr. Hunter's and Dr. Tullis's ostensible agency for the hospital. The estate responded that agency "was not a disputed issue coming into this trial" and was not identified as such on thejointtrial report. RP at 1863. The court also expressed surprise that agency was an issue and stated it was "goingto deny the motion at this point." RP at 1869. Holy Family renewed its motion at the end ofthe evidence, arguing that the record still contained no evidence ofagency. The trial court not only denied the motion but instructed thejurythat Mr. Turner and Dr. Tullis were Holy Family's agents and it was vicariously liable for their conduct. At issue is whether Holy Family's conduct leading up to the trial amounted to a judicial admission ofagency on which the estate and trial court were entitledto rely. "Judicial admissions are not evidence
..... Rather, they are formal concessions in the pleadings in the case or stipulations by a party or counsel that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proofofthe fact. Thus, ajudicial admission, unless allowed by the courtto be withdrawn, is conclusive in the case." 2 KENNETH BROUN, McCORMICK ON EVIDENCE§ 254, 181 (6th ed. 2006) (footnote omitted). Factual stipulations are formal concessions that have the effect of 26No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n. withdrawing a fact from issue and dispensing wholly with the need for proofofthe fact. Christian LegalSoc

### yChapter ofUniv. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 677-78, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010); CfCR2A (stipulations will be recognized ifmade and assented to in open court or in writing and signed by the attorney disputing the stipulation). During the hearing on the parties' summaryjudgmentmotion on June 22, 2012, Holy Family's counsel stated: [COUNSEL FORHOLYFAMILY]:
...There's four causes ofaction here, yourHonor; corporate negligence, informed consent, res ipsa loquitur,
... and the vicarious liability, which would be the activities ofDr. Tullis and Mr. Hunter, represented by Bill Etter. [THE COURT]: Are they Holy Family staff? [COUNSEL FORHOLYFAMILY]: They are. They wouldbe, your Honor, ata minimum, ostensible agents. They are not employees, they are independent contractors. ButI think under Adamski. they are ostensible agents. Iam responsiblefor--it 's odd. I am responsiblefor their conduct butI don't represent them so it is a unique situation. Obviously the burden is onplaintiffs today to establish aprimafacie case. RP at 3572 (emphasis added). We agree with the estate that the underlined language appears to be an admission. The italicized language that is not underlined creates ambiguity, however. Atthe conclusion ofthe hearing, the court orally announced its ruling, in which it stated:

27No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. Everybody acknowledges that Holy Family
...would have vicarious liability for the actions ofthe medical providers involved who are not presently before the court so that is not an issue before me on summary judgment. RP at 3589. Holy Family did not object to or correctthis statement. The parties filed a trial managementjointreport in April 2014. The form indicates that it is filed pursuant to Spokane County LCR 16. That rule requires parties to cases governed by a civil case schedule ordertojointly prepare "aTrial Management Joint Report (form CI-06.0150)." LCR 16(a). The first page ofthe court form states, among other matters, Failure to fully disclose all items required on this report may result in exclusion orrestriction on use ofevidence at trial. This is ajointreport, requiring counsel to meet, confer, and attempt to resolve differences in the matter [sic] addressed in this report. CP at 1255. Section E ofthe court form reads: E. LIST EACH ISSUE THAT IS DISPUTED (Issues not identified here may not be raised at trial without leave ofcourt): CP at 1256. The parties completed section E by listing the following as "each issue that is disputed": 1. Standard ofCare; 2. Informed Consent; 3. Res IpsaLoquitor; 4. Wrongful Death; 28No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n.

5. Medical Causation; 6. Nature and extent ofany damages; 7. Comparative fault. Id. The report was signed or electronically approved by lawyers for all parties. Onthe same day the trial managementjointreport was filed, Holy Family filed its trial brief. A section was devoted to argument that evidence would show that Mr. Hunter and Dr. Tullis did not violate the standard ofcare. There was no discussion ofagency. The Washington Constitutionprovidesjudges ofthe superior courts with authority to adopt "uniformrules for the government ofthe superior courts." CONST. ART. IV, § 24. The superior courts also have the authority to adopt rules ofprocedure that are supplementary and do not conflict with statewide rules adopted by the Washington Supreme Court. RCW 2.04.210; RCW 2.08.230. The Washington Supreme Court has adopted a rule that authorizes each superior courtto "make and amend local rules governing its practice not inconsistent with these rules." CR 83(a). "Courtrules are inconsistent under CR 83(a) only when they are 'so antithetical that it is impossible as a matter oflaw that they can both be effective."' Sorenson v. Dahlen, 136 Wn. App. 844, 853, 149 P.3d 394 (2006) (quotingHeaney v. Seattle Mun. Ct., 35 Wn. App. 150, 155, 665 P.2d 918 (1983)). We address the validity and application ofa courtrule de novo. Id. at 850. Ifa courtrule is valid and applies, we review a trial court's exercise ofdiscretion recognized by the rule for abuse ofdiscretion. 29No. 32652-7-III 

### Estate of Hensley v. 

### Spokane Cmty. HealthAss 'n. Spokane County's LCR 16 is not inconsistent with the civil rules. A principal purpose ofthe parallel civil rule, CR 16, whichprovides for pretrial conferences participated in by the court, is to "compel the parties to disclose their claims and defenses." 

### Burnet v. 

### SpokaneAmbulance, 131 Wn.2d 484, 503, 933 P.2d 1036 (1997) 

### (Burnet II). Spokane County's LCR 16 simply extends this valuable pretrial exercise to
cases where courttime does notpermit, or the issues do not require, courtparticipation. Underboth the civil rule and the local rule, the identification ofdisputed issues is by agreement. A trial management report should not be construed as including an admission where surrounding circumstances suggest that it was merely drafted unartfully or is incomplete. Here however, there had been other indications that agency was not in dispute. The trial court did not err in treating the identification ofdisputed issues in the April 2014 trial managementjointreport as ajudicial admission for purposes ofthe May 2014 trial. 

### It therefore did not err in instructing thejurythat Mr. Hunter and Dr. Tullis
were Holy Family's agents and that Holy Family was vicariously liable for their conduct. 

### B. The trial courtdidnot err in denyingHoly Family's and the ENTclinic's motion to dismiss the estate's medicalnegligence claimfor a lack of adequate expert testimony Finally, Holy Family and the ENT clinic argue that the court erred in denying their motions forjudgment as a matter oflaw on the basis that the estate's medical experts did not testify to opinions based on a reasonable degree ofmedical certainty. "Expert 30No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. testimony is necessary to prove whether aparticularpractice is reasonably prudentunder the applicable standard ofcare." McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). This experttestimony must be based on a reasonable degree ofmedical certainty. Id. 12 The trial court denied the motion because it was confident from its trial notes that the estate's lawyerhad posed opinion questions to experts in the required form. 13 With the benefit ofthe transcript, we can see that while the estate's lawyer sometimes asked a preliminary question as to whether an expert's opinion was based on a reasonable degree ofmedical certainty, the "reasonable degree ofmedical certainty" mantra was not repeated every time a question about the expert's opinion was asked. We
can also see, however, that the defense attorneys never objected to such questions for lack offoundation nor did they move to exclude the witnesses. The failure to raise a timely foundation objection precludes aparty from moving for a newtrial on the basis ofan

12 TheRestatement (Third) of Torts observes that "[t]o an expert witness, virtually any proposition may be 'possible,' butthe law demands proofby a preponderance ofthe evidence in civil cases," so "[i]n an effort to screen expert opinions that are speculative, some courts have employed a requirement that an expert testify that an opinion is held to a 'reasonable degree ofmedical [or scientific] certainty' for it to be admissible." RESTATEMENT (THIRD) OF TORTS: LIABILITY FORPHYSICAL &EMOTIONALHARM§ 28 cmt. e (AM. LAw INST. 2010). Nonetheless, "the vast majority ofthose courts state that the standard is equivalentto the usual preponderance requirement" whenproviding a definition or defining thephrase. Id. 13 We can affirm the trial court's ruling on any basis supported by the record. LaMon v. Butler, 112 Wn.2d 193, 200-1, 770 P.2d 1027 (1989). 31No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. inadequate foundation. Estate of Stalkup 

### v. Vancouver Clinic, Inc., P.S., 145 Wn. App. 572, 584, 187 P.3d 291 (2008) (failure to objectthatphysician did nottestify to a reasonable medical certainty waived the foundation challenge). Nothaving objected to the foundation for the plaintiffs' experts' opinions, Holy Family and the ENT clinic were not entitled tojudgment as a matter oflaw. Affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. 

# 7?tlJotu~

# ·6' Siddoway, J. WE CONCUR:


## j
Pennell, J.

32No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n. Appendix
APPENDIX The estate identifies the following statements made or questions posed during voir dire as relevant to its claim that the presidingjurorand Jay were biased: The estate's voir dire: [T]he purpose ofthis process at this point is to allow me to talk with you a little bit about some ofthe things that we learn through life and through experience thatbecome prejudices, thatbecome biases, thatbecome the way that we think aboutthings, sometimes without even knowing that we think about things that way. So what I wantto do is, I want to talk with you a little bit about some ofthe things that may come up in this trial, some of the beliefs you may have, about things that may come up in this trial that might interfere with your ability to listen fairly to both sides ofthe equation. In order for us to do that I'm going to hope that you'll share with me freely, as best as you can in a group, some ofthe [sic] yourbeliefs on some ofthese issues. RP at 125. CHAS's voir dire: You all realize that that rule, is all we want to know, is can the panel that sits here, canthey be impartial to both sides, truly, to both sides. I think that's the goal ofthis process, thejury selectionprocess, is that we want an impartial panel who will listen to the evidence and then listen to the law as thejudge instructs you on it, and then come to your decision based upon that law. RP at 146-47. Holy Family's voir dire (questions about experiences in the emergency room) questions only:

33No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. Appendix

... [J]uror number 15. I wrote down that you had treatment at the Holy Family emergency room, is that right?

... Okay. Can you tell me a little bit about, first ofall, when this was?

... Okay. And ifyou're comfortable, what broughtyou to the emergency room?

...All right. Were you admitted to the hospital orjusttreated in the emergency room?

... Did you feel that you were listened to and cared for properly in the emergency room?

...Andwould anything about yourprevious emergency room experience at Holy Family impactyour ability to listen to all the evidence in this case?

... [T]hank you. Mr. [],Ithink you said that your children had been treated, ifI wrote this down wrong correct me, maybe once at Holy Family and once at Sacred Heart in the emergency room department.

...And hospital admission orjusttreated in the emergency department?

... Did you feel that your family's concerns wereproperly listened to and addressed by the emergencyphysicians or nurses?

...Anything about yourprevious experience withthe emergency departments, understanding it wasn'tHoly Family, that would impactyour ability to listen to the evidence in this case?

...Juror number 30, I wrote down that Holy Family and then three question marks so maybe you can fill it in
.

. . .Thanks. Tell me about Holy Family
.

. . . When was that?

...All right. Were any ofyour children admitted afterbeingtreated in the emergency room?

... Did you think thatyour concerns were listened to and you were treated fairly by the emergency room staff?

... What do you mean by slow?

... Did you have any experience where you thought you were in the waiting room longer than you needed to be?

... Pretty fair pointthere, yeah. I got it. My daughter's crying, it becomes an emergency situation. And anything about your experiences at the emergency room that would cause to you [sic] have trouble listening to go [sic] all the evidence in this case?

34No. 32652-7-III Estate of Hensley v. Spokane Cmty. HealthAss 'n. Appendix

... Thank you. And then lastly number 48, can you stand for me? I don't wantto hazard a guess at your name is so I'lljustgo with 48. I think you said you had kids in the ERtwice within the last six months, is that right?

...And was that at Holy Family?

...And what was the nature ofthe ER visits?

... Bones or scrapes or bruises, that type ofthing?

... Were either ofyour children admitted to the hospital?

... Did you think you were treated fairly and equitably andpeople listento your concerns at the emergency room?

... So someone close to you that you're familiar with hadpassed away based upon an infection they acquired at Holy Family, is that right.

...How did that impactyou?

... Sure. And how long ago did this church memberpass away?

...And you still have feelings about what happened to thatperson?

... You thinkthat they probably shouldn'thave caught an infection at the hospital and passed away, right?

...And you still have those feelings about what happened at Holy Family. And based upon the experience you had, orthose close to you you've had, would it impact your ability to listen to the record regarding Holy Family, in particularthe emergency department?

... Based upon the experience that you'vehad and those close to you.

. . .Those feelings aren't likely to change in the nextthree to four weeks as I [sic] you sit here, correct?

...Absolutely. Thankyou, I appreciate your candor. And I'll finish up real quick by way ofshow ofhands. I'm gonna ask some general questions and try to follow up in the time that I have left. So ifyou can keep your hands up in the air long enough for me to countthem. Anybody here, separate and apart from what thejudge asked you, a bad medical experience, I wantto know, in particular, ifanyone's had a bad experience, you or a loved one, in the emergency room.

. . .Anywhere. You're number 13, is that right?

...Number49, okay. RP at 149-57.

35No. 32652-7-111 Estate of Hensley v. Spokane Cmty. HealthAss 'n. Appendix
ENT clinic voir dire:

... Do you have any problems setting aside sympathy that anyone would have for someone that's lost a loved one, and to be objective as you listen to the facts in this case? PROSPECTIVE JURORNO. 12: No. I think with any court case you should be objective. RP at 164-65.

36