Dunnington v. Virginia Mason Medical Center
187 Wash. 2d 629
| Wash. | 2017Background
- Dunnington presented with a foot lesion in Sept. 2011; podiatrist Dr. Ngan diagnosed a pyogenic granuloma and offered excision or cryotherapy; patient repeatedly chose conservative treatment.
- Dunnington missed a two-week follow-up after Sept. 15, 2011; he returned in December when lesion had enlarged; biopsy in Jan. 2012 revealed melanoma; subsequent treatment failed and he later required partial amputation.
- Dunnington sued Virginia Mason alleging misdiagnosis caused a 40% lost chance of nonrecurrence (a lost-chance medical malpractice claim).
- Virginia Mason asserted contributory negligence based on Dunnington’s delayed follow-up and seeking second opinions; trial court struck that defense and instructed jurors using a but-for causation standard (denying a substantial-factor instruction).
- Parties sought discretionary review of: (1) whether loss-of-chance causation requires but-for or substantial-factor proof; and (2) whether the contributory-negligence defense should be dismissed as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper causation standard in loss-of-chance claims | Mohr and Herskovits concurrence permit reliance on relaxed/substantial-factor in some loss-of-chance cases; here facts fit that exception | But-for causation is the default in torts; substantial-factor would swallow traditional causation and apply to all lost-chance cases | But-for causation governs here; substantial-factor not appropriate under these facts |
| Whether underlying disease and alleged negligence are both causes making substantial-factor test applicable | The two causes (cancer + negligence) produced the lost chance, fitting Daugert exception | Underlying disease is the injury’s origin, not a parallel cause producing identical harm; applying substantial-factor would collapse traditional tort causation | Rejected plaintiff’s argument; holding that disease vs. negligence do not create the Daugert situation here |
| Whether contributory negligence defense should be stricken as a matter of law | The defense fails because the physician testified that an earlier return would not have led to a diagnosis (no proximate causation from delay) | Dunnington’s missed follow-up and delay in accepting excision are factual bases for contributory negligence and create a triable issue | Defense not barred as a matter of law; reversed partial summary judgment and remanded for factfinding |
| Whether contributory negligence, if proved, bars recovery | Plaintiff relied on rule that some older cases treated patient noncompliance as a bar | Defendant argued patient’s conduct can reduce recovery under modern comparative-fault scheme | Court: contributory negligence does not automatically bar recovery (RCW 4.22.005); it may reduce damages if proven |
Key Cases Cited
- Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609 (1983) (recognized lost-chance cause of action; multiple opinions with differing characterizations)
- Mohr v. Grantham, 172 Wn.2d 844 (2011) (adopted Herskovits concurrence; explained loss-of-chance fits within traditional tort elements and causation principles)
- Daugert v. Pappas, 104 Wn.2d 254 (1985) (explains limited categories where substantial-factor test displaces but-for causation)
- Rash v. Providence Health & Servs., 183 Wn. App. 612 (2014) (Court of Appeals applied but-for causation in a loss-of-chance malpractice case)
- Christian v. Tohmeh, 191 Wn. App. 709 (2015) (reiterated Rash and affirmed requirement of physician opinion linking negligence to lost chance)
- Hartley v. State, 103 Wn.2d 768 (1985) (defines cause in fact as the but-for connection between act and injury)