 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BERNARDO FIGUEROA and ROSA
FIGUEROA, husband and wife,                       No. 68272-5-


                    Respondents,                  DIVISION ONE


             v.                                   UNPUBLISHED OPINION
                                                                                  £^        <S> ©
                                                                                  2         —-^
HIGHLINE MEDICAL CENTER, a                                                         —,       """•—4

Washington non-profit corporation,

                    Defendant,
                                                                                      3iL    —      ».
THOMAS RYAN, M.D.,
                                                                                       "      —IO


                    Appellant,

and HIGHLINE EMERGENCY
PHYSICIANS, PLLC, a Washington
Professional Limited Liability Company,           FILED: October 14, 2013

                    Defendant.



      Grosse, J. — Generally, all relevant evidence is admissible except as

limited by constitution, statute, or other evidentiary rule.1          In a medical
malpractice suit, physicians may testify as to their professional conduct that is

repeatedly and consistently performed when treating persons with similar

symptoms so long as it is relevant.        Here, the trial court did not abuse its

discretion in excluding certain evidence offered by defendant-physician because

the conduct described did not meet the standard for habit evidence.

       Nor did the trial court abuse its discretion in its other evidentiary rulings or

in declining to give an instruction proffered by the defendant-physician,

particularly here, where the jury received proper standard of care instructions and

1SeeER401.
No. 68272-5-1 / 2


was accurately instructed on the law and permitted the defendant-physician to

argue his theory of the case. The trial court is affirmed.


                                       FACTS

      At approximately 3:00 p.m., on October 3, 2005, Bernardo Figueroa's wife,

Rosa, drove him to Highland Hospital's emergency room because he was

experiencing abdominal pain. Dr. Thomas Ryan examined Figueroa and ordered

a computed tomography (CT) scan to rule out appendicitis. An intravenous (IV)

needle was attached to Figueroa's right hand. When contrast dye was injected,

Figueroa experienced a great deal of pain. Approximately 60 milliliters of the IV

fluid with the contrast dye escaped from the vein. The medical term for this event

is extravasation.   Usually extravasation results in swelling and pain, which is

treated by ice, elevation, and observation. In rare instances, extravasation can

result in compartment syndrome, which, if left untreated, can result in the

collapse of the veins.2 The treatment for compartment syndrome is a fasciotomy,
a surgery in which the fascia (connective tissue) surrounding the veins is cut until

the pressure decreases and the affected vessels can re-expand. If not treated in

a timely manner, compartment syndrome can cause partial paralysis.

       After the IV was removed, Figueroa returned to the emergency room with

extravasation, still experiencing pain and swelling in his arm.       His arm was

elevated and ice was applied to reduce swelling. Dr. Ryan ordered a Demerol

injection for pain, after which Figueroa experienced less pain. The CT scan

result was negative for appendicitis and Figueroa was discharged at 5:28 p.m.


 Compartment is a part of the body that is enclosed by thick connective tissue.
No. 68272-5-1 / 3


         Figueroa continued to experience pain at home and when it became

unbearable, he returned to the emergency room at 9:40 p.m.                 Figueroa

presented with forearm pain, numbness, and swelling. Figueroa was diagnosed

with compartment syndrome and was immediately transferred to the Burien

Hospital campus for surgery, where Dr. Vincent Muoneke performed an

emergency fasciotomy approximately eight hours after the extravasation.

         In the following days, Figueroa continued to experience problems with his

arm and was referred to Dr. Clark for a second opinion. Dr. Clark observed that,

because the operation took place over six hours after the extravasation, the

operation did not totally repair the damage from the compartment syndrome.

Because of this injury, Figueroa continues to experience "decreased motion,

significant stiffness and continued pain as well as parathesia in the median nerve

distribution


         At trial, the defense sought to impeach Figueroa's description of his

inability to perform certain actions by showing a video recording of Figueroa

performing some operations with his arm that he claimed he was unable to do.

Figueroa offered rebuttal testimony explaining some of those actions. The matter

went to the jury who found for Figueroa and awarded him $122,000.00.

         Dr. Ryan appeals, raising a variety of evidentiary rulings and instructional

error.


                                     ANALYSIS

         Dr. Ryan contends the trial court's rulings on a variety of evidentiary

issues resulted in a one-sided presentation of evidence and prevented him from
No. 68272-5-1 / 4


defending the suit.    A trial court's decisions to admit or exclude evidence are

reviewed for abuse of discretion.3 "A trial court abuses its discretion when its

decision 'is manifestly unreasonable or based on untenable grounds or

reasons.'"4

Evidence of Habit

       Dr. Ryan argues that the trial court improperly precluded him from

testifying as to his habit and routine practice of orally instructing patients with

compartment syndrome.         Evidence of the habit of a person, whether

corroborated or not and regardless of the presence of eyewitnesses, is relevant

to prove that the conduct of the person on a particular occasion conformed to

habit or routine.5    Under ER 406, relevant evidence is admissible to prove

behavior in conformity with habit on a particular occasion.6 Washington courts
have found a broad range of conduct to rise to the level of habit. Courts consider

the regularity of the behavior and the surrounding circumstances in determining

whether particular conduct rises to the level of habit, as it is "'the notion of the

invariable regularity that gives habit evidence its probative force.'"7 In Meyers v.


3 Salas v. Hi-Tech Erectors. 168 Wn.2d 664, 668, 230 P.3d 583 (2010).
4 Salas, 168 Wn.2d at 668-69 (quoting State v. Stenson, 132 Wn.2d 668, 701,
940P.2d 1239(1997)).
5 ER 406.
6 ER 406 provides:
       Evidence of the habit of a person or of the routine practice of an
       organization, whether corroborated or not and regardless of the
       presence of eyewitnesses, is relevant to prove that the conduct of
       the person or organization on a particular occasion was in
       conformity with the habit or routine practice.
See also Mevers v. Meyers. 81 Wn.2d 533, 503 P.2d 59 (1972).
7 State v. Thompson, 73 Wn. App. 654, 659 n.4, 870 P.2d 1022 (1994) (quoting
comment to ER 406); see also State v. Young, 48 Wn. App. 406, 739 P.2d 1170
No. 68272-5-1 / 5


Meyers, the Supreme Court found testimony offered by a defendant about her

standard business practices admissible, even though such behavior required

some degree of conscious action as opposed to being a nearly involuntary or

automatic response to given stimuli.8 Meyers involved a notary public who was
permitted to testify it was her professional habit to always ask for identification

before notarizing a document.          Moreover, the Meyers court held that the

exclusion ofsuch testimony would be reversible error.9
       However, not all behavior claimed as regular and consistent in similar

circumstances is admissible as habit evidence under ER 406. For example, in

Washington State Physicians Insurance Exchange & Ass'n v. Fisons Corp., a

case cited by the trial court in its ruling, the Supreme Court upheld the exclusion

of a drug company sales representative's testimony regarding his typical

business-related conversations with physicians, determining that such conduct

did not rise to the level of habit.10 The Supreme Court defined habitual behavior

in Fisons as "semi-automatic, almost involuntary and invariabl[y] specific

responses to fairly specific stimuli."11


(1987) (citing Breimon v. General Motors Corp.. 8 Wn. App. 747, 752-54, 509
P.2d 398 (1973)).
881 Wn.2d 533, 503 P.2d 59 (1972).
9 Meyers, 81 Wn.2d at 538-39; see also Heigis v. Cepeda, 71 Wn. App. 626, 862
P.2d 129 (1993) (upholding evidence from insurance claims adjuster that it was
her habit to advise claimants in double-claim situations that she represented an
adverse party even though the adjuster had no memory of the particular
transaction in dispute); State v. Maule. 35 Wn. App. 287, 291-92, 667 P.2d 96
(1983) (upholding admission of testimony from a child abuse expert regarding
her usual interviewing habits offered to prove that her interviews with victims in
the case conformed to her usual professional practices).
10 122 Wn.2d 299, 325, 858 P.2d 1054 (1993).
11 Fisons. 122 Wn.2d at 325 (internal quotation marks and citations omitted).
No. 68272-5-1 / 6


       Here, Dr. Ryan's actions were not similar to those at issue in Meyers

because the actions were not consistent and automatic.          Nor do Dr. Ryan's

actions fit within the definition of habitual behavior in Fisons. Dr. Ryan and his

expert both testified that compartment syndrome is              rare   in cases of

extravasation. This indicates that his practice of orally instructing patients with

extravasation was not routine or habitual. Indeed, Dr. Ryan testified that he had

not seen compartment syndrome caused by extravasation either before or since

Figueroa. Moreover, Dr. Ryan's testimony revealed that he did not remember

Figueroa and could not recall treating him.      Nevertheless, Dr. Ryan testified,

without objection, that he was surprised that Figueroa came back with a swollen

hand from an extravasation. Further, in response to a question of what he would

have done if he had found something significantly abnormal, Dr. Ryan stated he

would have admitted him. His remaining testimony about what he would have

done differently was not indicative of his habit or routine. For example, Dr. Ryan

further testified that if Figueroa had compartment syndrome, he would have

consulted a hand surgeon and had him admitted; but did not do so because he

was confident that there was no compartment syndrome. The record reveals that

Dr. Ryan was permitted to testify that he routinely orally advises patients to return

to the emergency room ifthey experience increased pain. Dr. Ryan also testified

that he gave Figueroa compartment syndrome warnings or instructions because

of the swelling even though he did not have compartment syndrome when he left.

Because this evidence was placed before the jury, Dr. Ryan fails to establish that
No. 68272-5-1 / 7


he was unduly prejudiced by the evidentiary ruling to which he does object.

There was no abuse of discretion.

Excluded Alias

        Under ER 403, relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice.12 The trial court has
"broad discretion to balance probative value versus prejudice under ER 403."13
"When evidence is likely to stimulate an emotional response rather than a

rational decision, a danger of unfair prejudice exists."14
        When Figueroa arrived in the emergency room, he identified himself as

Seku Montana-Linares and provided a driver's license with his picture and the

Seku Montana-Linares name. He signed both his consent to treatment and his

discharge from the emergency room with that alias.            In his deposition, he

revealed that he did this because he had an outstanding bill at the hospital and

was worried that they would not treat him. He also stated that he used the false

driving license because his license had been suspended for driving under the

influence of an intoxicant. Figueroa moved in limine to exclude any evidence of

this alias.

         Figueroa argued that the evidence had marginal relevance and was

unfairly prejudicial and would focus the jury on issues other than those being

12
     Salas, 168 Wn.2d at 671. ER 403 provides:
         Although relevant, evidence may be excluded if its probative value
         is substantially outweighed by the danger of unfair prejudice,
         confusion of the issues, or misleading the jury, or by considerations
         of undue delay, waste of time, or needless presentation of
         cumulative evidence.
13 Lodis v. Corbis Holdings. Inc., 172 Wn. App. 835, 863, 292 P.3d 779 (2013).
14 Salas, 168Wn.2dat671.
No. 68272-5-1 / 8



litigated. The trial court granted the motion in limine and redacted Figueroa's

signature from the two medical records.15
      At trial, Figueroa testified that the signature on the medical records at the

time of discharge was similar to the signature he signed on the admission record.

Dr. Ryan moved to reconsider the trial court's decision redacting the signatures,

arguing that the similarity of the signatures constituted objective evidence directly

negating Figueroa's testimony regarding the swelling in his hand and his inability

to use his fingers. Dr. Ryan argued that even though Figueroa admitted that his

signature on the admitting and discharge papers were identical, it was still

necessary to introduce the signature evidence.         Figueroa contended that the

admission of the signatures was duplicative of the testimony regarding the

similarity of signatures and that the testimony itself was sufficient for Dr. Ryan to

argue that the similarities of the signatures was contrary to Figueroa's testimony

that his hand was significantly swollen. The court found that there was still

substantial prejudice to the admission of these documents that outweighed any

incremental additional probative value that these documents might have had.

The court, without objection from Figueroa, permitted Dr. Ryan to elicit testimony

from Rosa that the signatures look substantially the same.

       Nor is there any merit to Dr. Ryan's argument that the jury's request for

missing medical records was specifically directed at the missing signatures.

After the court initially responded that the jury had all the records, both counsel

discovered that some medical records were indeed missing. This was corrected



15 The exclusion of the driver's license is not at issue in this appeal.
No. 68272-5-1 / 9



and those records were sent back to the jury room. Dr. Ryan's assertion that the

jury's request was related to the missing signatures is speculative and not

supported by the record. The court's rationale for excluding the evidence was

reasonable.


       Dr. Ryan also asserts that the missing signatures violated the rule of

completeness as set forth in ER 106.16 Under ER 106, if a party introduces a
statement, an adverse party may require the party to introduce any other part of

that statement, "which ought in fairness to be considered contemporaneously

with it." However, the evidence must be relevant to the issues in the case, and

"the trial judge need only admit the remaining portions of the statement which are

needed to clarify or explain the portion already received."17 Here, whether or not
there is a signature on the medical records is not necessarily needed to explain

or complete the documents.

Expert Testimony

       Dr. Ryan argues that the trial court improperly admitted Dr. Ken Zafren's

opinion testimony on the standard of care and proximate cause. The admission

or exclusion of expert testimony is discretionary with the trial court.    Expert

testimony is generally required to establish proximate cause in a medical




16 ER 106 provides:
       When a writing or recorded statement or part thereof is introduced
       by a party, an adverse party may require the party at that time to
       introduce any other part, or any other writing or recorded statement,
       which ought in fairness to be considered contemporaneously with it.
17 State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001) (citing United
States v. Velasco. 953 F.2d 1467, 1475 (7th Cir. 1992)).
No. 68272-5-1/10


malpractice suit.18 Here, the trial court permitted Dr. Zafren to testify regarding
causation.


       Dr. Zafren testified that Dr. Ryan breached the standard of care by not

diagnosing the compartment syndrome,            by not giving     proper discharge

instructions, and by not requesting a surgical consult. In reaching his decision,

Dr. Zafren testified that he relied on the medical records, and the depositions of

the Figueroas, Dr. Ryan, and Dr. Ryan's expert, Dr. Ronald Dobson.

       Dr. Zafren testified that in cases of extravasations, adverse outcomes

resulting in compartment syndrome occurred in instances where the amount of

fluid released was 50 to 60 milliliters.    Here, the nurse's notes indicated that

approximately 60 milliliters of intravenous contrast dye infiltrated during the test.

The nurse observed swelling in the right hand and notated that Figueroa

complained of pain radiating to the mid-forearm and that continued monitoring

would be done. These notes were made at 3:40 p.m. Figueroa returned to the

emergency room from the radiology department still experiencing a great deal of

pain for which he was given 125 milligrams of Demerol at 4:20 p.m. Dr. Zafren

testified that this dosage was significant and would decrease pain from any

cause, yet Figueroa was still experiencing some pain. Dr. Zafren testified that his

review of the medical charts did not show anything that would suggest that the

doctor had conducted an examination of Figueroa's arm.            The only medical

notation, regarding the arm, was made by a nurse indicating that at 4:45 p.m.,

Figueroa experienced relief from the injection and that swelling was decreasing


18 Harris v. Robert C. Groth. M.D.. Inc., P.S., 99 Wn.2d 438, 449, 663 P.2d 113
(1983).


                                           10
No. 68272-5-1 /11


in the fingers with Figueroa stating that he could move his fingers. Dr. Zafren

testified that one reason a person does not move their fingers is because it

causes pain.       Because Figueroa had received a significant dose of pain

medication, his ability to move his fingers was related to less pain, not

necessarily because the swelling was going down. Figueroa was discharged at

5:28 p.m., an hour after having received the Demerol. Dr. Zafren opined than an

hour was an insufficient amount of time to observe an extravasation injury

because compartment syndrome evolves over a period of time.                Further

observation should have occurred because the golden time within which to treat

compartment syndrome is six hours before irreversible tissue damage would

occur. Here, the surgery was not performed until eight hours after the original

injury.

          In reviewing the discharge instructions, Dr. Zafren opined that the

instruction that "your symptoms should improve within 24-hours of treatment"

was intended for the abdominal pain. Dr. Zafren testified that a more appropriate

instruction would inform the patient that he should return to the emergency room

within a certain amount of time "if not improved and immediately if your condition

is getting worse." Dr. Zafren testified that the written discharge instructions did

not meet the standard of care because there was nothing in them relating to the

treatment for extravasation, should complications occur.

          Outside the presence of the jury, the court addressed whether Dr. Zafren

was sufficiently qualified to render an opinion on the issue of proximate cause.

Dr. Zafren testified that he reviewed the records of Dr. Muoneke, who performed




                                         11
No. 68272-5-1/12


the fasciotomy and follow-up care for Figueroa.            Dr. Zafren testified to a

reasonable degree of medical certainty that Figueroa might not have experienced

the problems that were documented in Dr. Muoneke's medical records had he

received the appropriate care within the six hour time frame.

       In its ruling permitting the testimony, the court stated:

      My ruling is I am going to allow the testimony. I think that the points
      made by the defense primarily go to the weight of the testimony. I
      recognize at this time is a close call. I would also note that there is
      no claim of unfair surprise, because he did testify to this at his
      deposition, even though that the defense didn't concede that he
      was competent to give that testimony.

Both parties stipulated to the admission of Dr. Muoneke's medical records on his

treatment of Figueroa. Those records indicated that Dr. Clark's observations of

Figueroa were in agreement with Dr. Muoneke that the lapse of time between the

extravasation when compartment syndrome began and when Figueroa went into

surgery to correct the problem. This was sufficient to establish causation. There

was no error.


Jury Instruction

       Dr. Ryan argues that the trial court erred in not giving WPI 105.08.19 As
noted in Ezell v. Hutson, "Jury instructions are sufficient if they allow the parties

to argue their theories of the case, do not mislead the jury and, when taken as a

whole, properly inform the jury of the law to be applied."20 We review de novo




19 6 Washington Pattern Jury Instructions: Civil 105.08 (6th ed. 2012).
20105 Wn. App. 485, 488, 20 P.3d 975 (2001) (internal quotation marks and
citations omitted).


                                          12
No. 68272-5-1/13


whether an instruction is an error of law.21       But, the giving of a particular
instruction is reviewed for an abuse of discretion.22

       The "error of judgment" instruction found at WPI 105.08 is used to

supplement the standard of care instruction and should be given with caution and

"be limited to situations where the doctor is confronted with a choice among

competing therapeutic techniques or among medical diagnoses."23                The
instruction proposed by Dr. Ryan reads as follows:

      A physician is not liable for selecting one of two or more alternative
      courses of treatment and/or diagnoses, if, in arriving at the
      judgment to follow a particular course of treatment and/or make a
      particular diagnosis the physician exercised reasonable care and
      skill within the standard of care the physician was obliged to follow.

Dr. Ryan argues that this instruction was proper because he and his expert both

testified that the exercise in judgment in deciding to discharge Figueroa under

the circumstances was reasonable because of the symptoms presented upon

return from the radiology department. But this is different from a situation where

the physician has a choice among different therapeutic techniques. The issue

was whether Figueroa had acquired compartment syndrome and whether Dr.

Ryan exercised reasonable care in his diagnosis or discharge instructions. Here,

no written discharge instructions were given relating to extravasation or the need

to immediately return if continued or worsening pain occurred.        There is no

dispute about which discharge instruction should have been given.




21 Ezell. 105 Wn. App. at 488.
22 Thomas v. Wilfac. Inc.. 65 Wn. App. 255, 264, 828 P.2d 597 (1992).
23 Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986).

                                         13
No. 68272-5-1 /14


       The jury instructions as given informed the jury of the applicable law and

presented Dr. Ryan with the opportunity to argue his theory of the case.       Dr.

Ryan's instruction does not fit the facts presented in this case and would have

confused the jury because it is not clear that the treatments advocated by the

experts were alternative choices or that there were only two choices available to

administer to the patient.24
       The instructions set forth the burden of proof that Figueroa needed to

establish, including whether Dr. Ryan failed to follow the applicable standard of

care.25 Thus, Dr. Ryan was able to argue that he gave the appropriate standard

of care in this situation. There was no error.

New Trial

       Dr. Ryan argues that the court erred in not granting a new trial because of

alleged juror and attorney misconduct.    Dr. Ryan further argues that the trial
court abused its discretion when it denied his motion for a new trial after a juror

posted comments regarding the case on Facebook. A juror's communication

with a third party about a case constitutes misconduct.26 The trial court may
grant a new trial only where such juror misconduct has prejudiced the

defendant.27




24 Nelson v. Mueller, 85 Wn.2d 234, 238-39, 533 P.2d 383 (1975) (There is no
error in refusing to give an instruction where the proponent of such instruction
adequately argued their theory to the jury.)
25 Ezell. 105 Wn. App. at 488.
26 State v. Depaz, 165 Wn.2d 842, 858-59, 204 P.3d 217 (2009).
27 State v. Earl, 142 Wn. App. 768, 774, 177 P.3d 132 (2008).

                                         14
No. 68272-5-1/15


       Here, no such prejudice was shown. The juror's comments were limited

and innocuous. They were nothing more than a description of the juror's day

interspersed with the following related comments on her jury duty:

   •   Spent the day in Superior Court doing my civic duty. On jury duty
       for next 2 weeks.
   •   Day 3 of jury duty. Very difficult to listen to a translator during the
       questioning. I can pick out some words.
   •   Day 4 of jury duty, off on Friday, and back to the jury on Monday.
       Hope to finish by noon on Thursday. It's been interesting. Love the
       1 1/iz hour lunches.
   •   My civic duty, jury duty ended today with a negligent claim on the
       doctor. This was tough to decided $s to the plaintiffs. Mentally
       exhausting!

While it was inappropriate for the juror to post anything on Facebook regarding

the case, these comments were not prejudicial to Dr. Ryan.28
       During closing argument, Figueroa's counsel referred to the facts of an

unrelated case in which a physician, Dr. Charles Momah, sexually abused

patients while they were under anesthetic. Dr. Ryan objected and the court

sustained, striking any reference to the unrelated sex abuse case. A jury is

presumed to follow a court's instruction.

       On appeal, Dr. Ryan also objects to additional comments of Figueroa's

counsel, but failed to make any objections thereto.            Dr. Ryan takes the

statements out of context and mischaracterizes those comments as racist,

picking and choosing certain portions of the argument. When the argument is
read in its entirety, it does not convey racist overtones.



28 See State v. Theobald, 78 Wn.2d 184, 186, 470 P.2d 188 (1970) (juror's
question to a witness on a trip to the crime scene, held not to be prejudicial,
where such question and answer were unrelated to an important issue in the
case and produced no evidence different from the in-court testimony).

                                            15
No. 68272-5-1/16


       The trial court did not abuse its discretion in any of its rulings. We affirm

the judgment of the trial court.




                                                          vy^*-     \

WE CONCUR:




                                                                 VT




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