### FILED DEC 26,2013 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE PHYLLIS PAETSCH, ) ) No.30688-7-III Appellant, ) ) 

### v. ) ) SPOKANEDERMATOLOGY CLINIC, ) UNPUBLISHED OPINION P.S., as a Washington Corporation; and ) WILLIAM P. WERSCHLER M.D., ) individually, ) ) Respondents. )
KORSMO, C.J. Phyllis Paetsch was injured by cosmetic injections inher forehead that caused necrosis. The trial court dismissedpart ofherclaim and ajury found for the defense onthe remainder ofthe case. Concludingthatthere was no reversible error, we affirm. FACTS Ms. Paetsch contacted SpokaneDermatology Clinic, P.S., for cosmetic services in early 2007. She sought elective cosmetic facial injections tohelp her lookmore rested. The clinic'sreceptionistrecommended a mix ofBotox and "filler," and set up an appointment forher.No.30688-7-II1 Paetsch 

### v. Spokane Dermatology Clinic
On the day ofthe appointment the clinic informed Ms. Paetsch that she would be seeing Dan Rhoads for her procedures. Mr. Rhoads is a certified physician's assistant (PA-C), butMs. Paetsch was not informed ofhis provider status. Ms. Paetsch also filled outpatient forms that identified the clinic's owner, Dr. William Werschler, as her doctor. She admittedly never had any expectation ofseeing Dr. Werschler and did not know who he was until days after her injections. The clinic also gave Ms. Paetsch forms that were intended to obtain her informed consent to have Botox and the filler-Restylane-injected into her face. The Restylane form mentioned several common complications and side effects associated with the product, but did not mention the complication that Ms. Paetsch eventually suffered: necrosis/impending necrosis. The Restylane form also seemedto suggest that the Restylane would only be putto Federal Drug Administration (FDA)-approved uses. The forms made no mention ofwhere Ms. Paetsch would receive the injections. However, the receptionist and Mr. Rhoads led Ms. Paetschto believe that she would be receiving the Botox in the glabeUar region (lower forehead) and the Restylane around her naso-labial folds (laugh lines around the mouth). When Mr. Rhoads came into the treatment room he answered some questions for Ms. Paetsch about Botox and then started into the procedure. Midway through, Rhoads announced that he had extraRestylane left over and made a decision to inject it into Ms. Paetsch's glabellar region. He did not seek additional permission to use the remaining 2No. 30688-7-111 Paetsch v. Spokane Dermatology Clinic Restylane in this manner and did not inform Ms. Paetsch ofthe increased risk ofnecrosis associated with injecting Restylane into the glabellar region. Mr. Rhoads did not inform Ms. Paetsch ofthis additional riskbecause it was unknown to him at the time and also largely unknown to most providers ofcosmetic injections. Mr. Rhoads was also unaware that Restylane was not FDA-approved for use in the glabellarregion. 1 Shortly afterreturning home she began to experience redness and tightness in her glabellar region. This adverse reaction quickly progressedto blistering sores and green pustules. Ms. Paetschreturned for treatment ofthis adverse reaction. Mr. Rhoads diagnosed the reaction as an infection and provided follow-up care consistentwith treating an infection. The care did not work and Ms. Paetsch looked elsewhere for treatment. She eventually found a providerwho correctly diagnosedthe complication as a necrosis. The Restylane had expanded to such a degree that it constricted the only source ofblood flowing to the skin on Ms. Paetsch's forehead. By that time the necrosis had left deep scarring and hadprogressed to the point that it was too late toreduce the scarring. Ms. Paetsch thereafter sued the clinic and Dr. Werschler for failure to obtain informed consent and for medical negligence by both Dr. Werschler and Mr. Rhoads. Dr.

1Restylane was still fairly new in 2007, buttoday carries a warning on its label against its use in the glabellarregion. 3No. 30688-7-111 Paetsch 

### v. Spokane Dermatology Clinic
Werschler brought a pretrial CR 56 motion for summaryjudgment. The motion was denied, but the rulinghadthe effect ofclarifying the claims so thatDr. Werschlerwas relieved from any direct liability stemming from the cosmeticprocedures. Followingthe presentation ofthe evidence, Dr. Werschler brought a CR 50 motion forjudgment as a matter oflaw. The court granted the motion. Although the court's ruling precluded the jury from holding Dr. Werschlerpersonally liable, the instructions permittedthejury to hold the clinic liable for any medical negligence byDr. Werschler. Afterruling on the CR 50 motion, the court selectedthejury instructions. Over Ms. Paetsch's objection, the court chose to use the standard ofcare and exercise of judgmentinstructions drafted by the clinic. The court alsoprohibited any mention ofthe CR 50 ruling during the parties' closing arguments. Defense counsel failed to abide by this ruling, butthe court declined to declare a mistrial based on the error. Thejurythen entered deliberations and returned
a defense verdict. Afterward, Ms. Paetsch brought a motion for new trial, which the court denied. She then timely appealed to this court. ANALYSIS Ms. Paetschpresents a number ofissues for review. First, she argues thatthe trial court erred as a matter oflaw by releasing Dr. Werschler from the case. Second, she argues that the court erred while instructing thejury on the applicable standard ofcare. Third, she argues that the court abused its discretion by giving an exercise of judgment 4No.30688-7-III Paetsch v. Spokane Dermatology Clinic
instruction. Fourth, she argues the court abused its discretion by not declaring a mistrial after defense counsel violated the orderprohibiting mention ofDr. Werschler's release from liability. Fifth, she argues the court abused its discretion by not granting a new trial
on the issues ofinformed consent. We address each ofthese issues in tum. CR 50 and 56 Rulings The superior court dismissed Dr. Werschler from direct liability because Ms. Paetsch failed to establish a legal duty arising from the existence ofa doctor-patient relationship. The existence ofa physician's duty ofcare is a question oflaw that we review de novo. Lam v. GlobalMed. Sys., Inc., 127 Wn. App. 657, 664, III P.3d 1258 (2005). This court also reviews rulings on CR 50 and 56 motions de novo. Faust v. Albertson, 167 Wn.2d 531, 539 n.2, 222 P.3d 1208 (2009). We agree thatthere was no evidence to support a finding that Dr. Werschler had a doctor-patientrelationship with Ms. Paetsch orthat she contracted with him to personally perform her cosmetic injections. The record shows that all the material terms ofthe agreement that Ms. Paetsch had with the clinic were oral, including the identity ofMr. Rhoads as hertreatmentprovider. All contract negotiations were conductedby clinic staff, not Dr. Werschler. Furthermore, Ms. Paetsch's failure to object to having someone who was notDr. Werschlerperform herprocedure was an objective manifestation ofher intentto acceptthe clinic's offerto have Mr. Rhoads perform the procedure.



### 5No.30688-7-II1 Paetsch v. Spokane Dermatology Clinic
Ms. Paetsch argues that medical and other professional services contracts are personal and nonassignable; thus, Dr. Werschler could not delegate performance to Mr. Rhoads. Deaton v. Lawson, 40 Wash. 486, 490, 82 P. 879 (1905). This argument ignores the fact that Ms. Paetsch contracted with the clinic, not Dr. Werschler. While Deaton suggests that a business cannot contractto provide medical services, any argumentto that effect was abrogated when the legislature enacted chapter 18.100 RCW. See Columbia Physical Therapy, Inc., PSv. Benton Franklin OrthopedicAssoc., PLLC, 168 Wn.2d421, 430, 228 P3d 1260 (2010) (observing that the corporate practice ofmedicine doctrine
was abrogated in part by RCW 18.100.030(1)). Ms. Paetsch also argues that a duty existed for Dr. Werschler to provide Ms. Paetsch with appropriate follow-up care, relying onLam. There a seaman fell 

### illwhile underway, but died despite the boat's medical officer's attempts to assist him. Lam, 127 Wn. App. at 660. To help Mr. Lam, the medical officer contactedtwophysicians employed by Global Medical Systems. Id. Thesephysicians gave the medical officer a diagnosis and treatment advice tailored to Lam's ailment-a diagnosis and advice which eventually proved erroneous. Id. at 660-61. The doctors later tried to escape liability by arguing that a doctor-patient relationship and resulting duty ofcare cannot arise when the doctors have never met the patient orprovided any direct care. Id. at 664. This court disagreed, holding thatphysical contact is not a prerequisite to triggering a physician's

6No. 30688-7-111 Paetsch v. Spokane Dermatology Clinic duty ofcare; it was enough that the doctors hadbeen intimately involved in directing Lam's diagnosis and treatmentpriorto his death. 

### ld. at 665. This case is unlikeLam. Dr. Werschler never provided Mr. Rhoads with a diagnosis, treatment advice, or any other consultation relatingto Ms. Paetsch's care. The record shows that at some point during the follow-up period

### Mr. Rhoads made a remark to Dr. Werschler aboutthe strange case he had in Ms. Paetsch, but nothing else. There is nothing to suggestthat Dr. Werschler gave any response to the comment or otherwise involved himselfin a way that wouldhave triggered a legal duty on his part. Furthermore, Dr. Werschler had no supervisory responsibility overMr. Rhoads. That duty belonged to Dr. Smith who was never made a party to this case. Standard ofCare Instruction "Wereview the court's choice of jury instructions for abuse ofdiscretion." State
v. Butler, 165 Wn. App. 820, 835,269 P.3d 315 (2012). Discretion is abused when it is exercised onuntenable grounds or for untenable reasons. State ex reI. Carroll 

### v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). The legal accuracy ofan instruction is reviewed de novo; "an erroneous statement ofthe law is reversible error where itprejudices a party." Gregoire v. City o/OakHarbor, 170 Wn.2d 628,635,244 P.3d 924 (2010). "Jury instructions are sufficient ifthey allow the parties to argue their theories ofthe case, do not mislead thejury and, whentaken as a whole, properly inform thejury ofthe lawto be applied." 

### ld. (quotation marks omitted). 7No.**30688~ 7~III**  Paetsch v. Spokane Dermatology Clinic
Because Dr. Werschler did not owe a duty ofcare the trial court could not have erred by inadequately instructing on a**physician~s** standard ofcare. Even ifthe court neededto instruct thejury on a**physician~** s standard ofcare, instruction 9, patterned off6 WASHINGTONPRACTICE: WASHINGTON PATTERNJURY INSTRUCTIONS: CIVIL 105.02 at 589 (2012) (WPI), adequately informed thejury on the applicable standard ofcare for both physicians and certified physician's assistants who holdthemselves out as dermatology specialists. Althoughthe court's instruction was not as detailed as Ms. Paetsch desired, she does notexplainhow she was prevented from arguing her theory of the case.2 Thus, we have no basis for finding an abuse ofdiscretion. Exercise ofJudgment Instruction The court's instruction number 11, patterned offWPI 105.08, informedthejury that a physician or**PA~C** is not liable for selecting one oftwo or more alternative courses of treatments. Ms. Paetsch argues that this instruction should not have been given because Mr. Rhoads did not have more than one acceptable alternative diagnosis for the complication that she suffered. We decline to address this argument because Ms. Paetsch failed topreserve it for review.

2 Ms. Paetsch also argues that she was denied an instruction onthePA-C standard ofcare. We disagree. Instruction 9 held both physicians and P A**~Cs** tothe same standard-that ofa dermatological specialist. She does not suggestthat some lesser standardwas appropriate. 

### 8No.30688-7-III Paetsch v. Spokane Dermatology Clinic
The court gave the alternative courses oftreatment version ofthe instruction, not the alternative diagnoses version. While defense counsel argued in closing as though the instruction given was the alternative diagnoses version, Ms. Paetsch waived this argument because she did not object. See, e.g., State v. Thompson, 169 Wn. App. 436, 484-85,290 P.3d 996 (2012) (holding that a party's failure to object to improper closing argument waives the issue on appeal). ImproperRemarks During Closing Ms. Paetsch next challenges defense counsel's improper remarks during closing. We agree that defense counsel's reference to the clinic being the only defendant remaining violated the court'sprior orderprohibiting mention ofthe CR 50 motion. However, the error was harmless. The clinic could not have been held responsible for Dr. Werschler's failure to act because as a matter oflaw he did not owe her a duty ofcare. The only way that thejury could have found for Ms. Paetschwas by finding that 

### Mr. Rhoads was negligent, but the fact that Dr. Werschler did not owe her a duty ofcare had no bearing on whether Mr. Rhoads was negligent. Furthermore, any observantjurorwould have noticed O,r. Werschler's excusal from the case. Throughoutthe trial thejurors were told ofthe negligence oftheplural "defendants." When it came time to instruct thejury, the verdict forms referred only to the singular "defendant." Accordingly, the comment could not have had any discernible effect. 9No.30688-7-III Paetsch 

### v. Spokane Dermatology Clinic
Motion for New Trial Finally, Ms. Paetsch argues that the court erred by not ordering a new trial based
on failure to obtain informed consent. We review a court'srefusal to grant a newtrial for
an abuse ofdiscretion. Riley v. Dep 't of Labor & Indus., 51 Wn.2d 438,444,319 P.2d 549 (1957). However, we review the decision de novo when the order is predicated on a question oflaw. Tarabochia v. Johnson Line, Inc., 73 Wn.2d 751,757,440 P.2d 187 (1968). Ms. Paetsch's arguments focus on the lack ofevidence to support a finding that she gave informed consentto be treated by Mr. Rhoads and to the offlabeluse of Restylane in her glabellarregion. Assuming that Ms. Paetsch did not give such consent, her argument still fails. A claimpremised on failure to obtain informed consent requires proofthat offlabel use ofthe product and the identity ofher treatment provider as a PAC versus a physician were material facts that wouldhave caused a reasonably prudent person under similar circumstances to not consent to the treatment. RCW 7.70.050(l)(a),(c). Ms. Paetsch points to no evidence in the record that would suggest that a person in February 2007 would have attached significance to these facts orbased theirtreatment decision on knowledge ofthem. Accordingly, the trial court did noterrin refusing to grant the motion for newtrial.

10No.30688-7-II1 Paetsch v. Spokane Dermatology Clinic
Affirmed. A majority ofthe panel has determinedthis opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.
Korsmo, C-I. WE CONCUR:

Brown, ,.

11