Estate of Lorraine P. Hensley v. Community Health Association
32652-7
| Wash. Ct. App. | Apr 11, 2017Background
- Lorraine Hensley developed sinusitis related to an abscessed molar; CT showed tooth root impinging the maxillary sinus. She was treated at CHAS, Providence Holy Family Hospital (ER visits), and an ENT clinic in January–February 2009; the tooth was extracted Feb 3. She returned to the ER that night and was discharged early Feb 4. She died Feb 6 of meningitis caused by infection that tracked intracranially through small bony/dural defects.
- Estate sued CHAS, Holy Family, Spokane ENT Clinic, and Dr. Cruz (2012) for medical negligence and lack of informed consent; pretrial summary judgment motions were denied and case proceeded to a four‑week jury trial (May 2014).
- Jury returned defense verdicts for CHAS, ENT clinic, and Dr. Cruz (though jury found CHAS breached the standard of care but not the proximate cause). The jury was hung as to Holy Family; mistrial declared as to the hospital.
- Estate moved for new trial arguing refusal to instruct on informed consent and juror misconduct; court denied motion and entered judgment. Estate appealed; three defendants cross‑appealed several trial rulings.
- Appellate court affirmed: refused to review pretrial summary judgment denial post‑trial on sufficiency grounds, affirmed refusal to give informed consent instruction, denied new trial for juror misconduct, and rejected defendants’ JMOL/agency challenges (remanded only for retrial of unresolved claim against Holy Family).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reviewability of denial of estate's summary judgment motion against CHAS/Holy Family | Denial was erroneous because opposing evidence was conclusory/hearsay; summary denial should be reviewable | Once a trial occurs, challenges must be to trial evidence; pretrial denials not reviewable unless pure legal issue | Denial not reviewable post‑trial; factual dispute about expert qualification defeated summary judgment and estate must appeal sufficiency of trial evidence instead |
| Refusal to instruct jury on informed consent (RCW 7.70.050) | Providers knew of material risk shown on CT and withheld alternatives; jury should decide informed consent | Providers did not subjectively know a material risk of intracranial infection; claim is really negligence/misdiagnosis not informed consent | Affirmed: no competent/substantial evidence that providers subjectively knew and concealed the specific material risk; informed consent instruction properly refused |
| Motion for new trial based on juror misconduct/bias | Juror affidavit alleged presiding juror and another juror pressured others, expressed bias for doctors, and introduced extrinsic facts — warranting new trial | Allegations largely concern jurors’ thought processes or permissible deliberative remarks/personal experience; no dishonest voir dire answers shown | Denied: McDonough test not met (no dishonest voir dire); most allegations inhere in verdict or are inadmissible to impeach verdict; trial court’s factual finding of no prejudice affirmed |
| Holy Family's JMOL re: agency and defendants’ JMOL re: expert opinion sufficiency | Estate contends ostensible agency was established (judicial admission in pretrial filings); experts met reasonable‑certainty standard | Holy Family argued no evidence of agency; defendants argued plaintiff experts lacked foundation/medical‑certainty opinions | Court held trial management report and prior statements functioned as judicial admission of agency; agency instruction proper. Defendants waived foundation challenge by not objecting at trial, so JMOL denied |
Key Cases Cited
- ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wn.2d 12 (1972) (recognition of informed consent doctrine in Washington)
- Miller v. Kennedy, 11 Wn. App. 272 (1974) (formulation of informed consent elements and duty to disclose material risks)
- Anaya Gomez v. Sauerwein, 180 Wn.2d 610 (2014) (limits on overlap between misdiagnosis/negligence and informed consent; Gates is a narrow exception)
- Gates v. Jensen, 92 Wn.2d 246 (1979) (unique diagnostic‑process facts where failure to offer simple tests supported informed consent claim)
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) (two‑part test for new trial based on dishonest voir dire: dishonesty plus correct answer would have supported a challenge for cause)
- Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wn.2d 842 (2015) (standard for judgment as a matter of law; de novo review on sufficiency of evidence)