313 P.3d 431
Wash. Ct. App.2013Background
- Ruth Dormaier (79) underwent anesthesia by CRNA Robert Misasi at Samaritan Hospital for elbow surgery; she suffered fatal pulmonary embolism during surgery. Autopsy showed pelvic DVT with multiple emboli and a final fatal embolus.
- Plaintiffs (estate and husband Lourence Dormaier) sued Misasi and Samaritan Hospital and originally named Drs. Canfield and Hart; the physicians were later dismissed on unopposed summary judgment. Misasi and the hospital pleaded nonparty fault but consistently stated at trial they would not allocate fault to the physicians.
- Plaintiffs presented expert testimony that, if properly diagnosed and anticoagulated, Mrs. Dormaier would have had an ~80–90% chance of survival; experts estimated negligence reduced her chance by roughly 50–70%.
- The trial court instructed the jury on the lost-chance doctrine (including that losses >50% equate to proximate cause of death under traditional tort rules). Special verdicts: (1) Misasi negligent (yes); (2) negligence did not proximately cause death (no); (3–4) negligence did cause loss of chance (yes) and percentage loss = 70%; (5) damages awarded (estate ~$20k; husband $1.3M); (6) Misasi was hospital’s apparent agent (yes).
- Appellants challenged: lost-chance instruction; inability to allocate fault to physicians (res judicata/waiver); denial of JMOL; purported inconsistency between verdict answers; and whether recovery should be limited to estate damages or reduced proportionally by 70%.
- The court affirmed, holding the lost-chance instruction was proper, appellants waived nonparty-fault allocation, JMOL was properly denied, the special verdicts were harmonizable, and full damages were recoverable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Lost-chance instruction admissibility | Lost-chance is part of wrongful-death damages and instruction appropriate given expert evidence | Instruction improper where loss exceeds 50% or not pleaded separately | Court: Lost-chance instruction proper; doctrine applies when loss ≤50%; where loss >50% death is the injury under traditional rules; here evidence supported instruction and alternatives were harmonizable |
| Fault allocation to dismissed physicians | N/A (plaintiffs opposed allocation) | Misasi & hospital: could allocate fault to Drs. Canfield/Hart as nonparties under RCW 4.22.070 | Court: Defendants waived nonparty-fault defense by consistently electing trial theory that physicians were not negligent; any error harmless |
| Judgment as a matter of law (causation) | Experts showed but-for nexus: negligence reduced survival chance substantially | Misasi: expert testimony speculative; no proof "more likely than not" causation | Court: Denial affirmed—expert testimony was substantial and permissible; evidence supported 50–70% reduction, satisfying either lost-chance or traditional causation standards |
| Special verdict inconsistency (death vs. 70% lost chance) | Verdicts irreconcilable; "no" to proximate cause of death conflicts with 70% lost-chance finding | Jury properly answered distinct questions about death and loss of chance; instruction tied >50% loss to proximate cause of death | Court: Answers harmonizable; finding 70% loss had same legal effect as proximate cause of death; no entry of judgment for defendants |
| Damages: limitation to estate or proportional reduction | Damages should be limited to estate or reduced to 70% proportionate recovery for lost chance | Plaintiffs: lost chance (or traditional proximate-cause result) entitles full damages; measure-of-damages instruction permits husband’s recovery | Court: Full recovery allowed; measure of damages construed to permit husband’s individual recovery for lost chance; where jury effectively found traditional proximate cause, full damages apply |
Key Cases Cited
- Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609 (Wash. 1983) (recognized loss-of-a-less-than-even-chance as actionable injury under wrongful-death statute)
- Mohr v. Grantham, 172 Wn.2d 844 (Wash. 2011) (adopted Herskovits reasoning and extended lost-chance analysis to medical-malpractice outcomes)
- Daugert v. Pappas, 104 Wn.2d 254 (Wash. 1985) (discusses distinction between distinct injuries and overlapping causation)
- Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15 (Wash. 1994) (fault-allocation procedure requires proper invocation; not self-executing)
- King v. Snohomish County, 146 Wn.2d 420 (Wash. 2002) (discusses waiver of affirmative defenses and pleading requirements)
- Lybbert v. Grant County, 141 Wn.2d 29 (Wash. 2000) (affirmative-defense waiver where defense inconsistent with prior conduct)
- Sing v. John L. Scott, Inc., 134 Wn.2d 24 (Wash. 1997) (standard for reviewing motions for judgment as a matter of law)
- Helman v. Sacred Heart Hosp., 62 Wn.2d 136 (Wash. 1963) (definition of "substantial evidence")