 FILE

                                                         This opinion was filed for record
                                                          at $~'2f>l'"l

                                                                Ronald R. Carpenter
                                                                Supreme Court Clerk


  IN THE SUPREME COURT OF THE STATE OF WASHINGTON


RODOLFO ANAYA GOMEZ, as
Personal Representative of the Estate
of Christina Palma Anaya,                                   No. 88307-6

         Petitioner,                                           En Bane

    v.                                                   Filed JUN 1 9 2014

MARK F. SAUERWEIN, M.D., and
THEYAKIMA VALLEY FARM
WORKERS CLINIC, a Washington
Corporation,

         Respondents.


         J.M. JOHNSON, J.*-This case asks whether Washington's informed

consent statute, RCW 7.70.050, applies when a health care provider

misdiagnoses the patient's condition. We must decide whether the legislature

intended to provide recovery to plaintiffs who allege both negligence and

informed consent violations based on the same set of facts.



*Justice James M. Johnson is serving as a justice pro tempore ofthe Supreme Court
pursuant to Washington Constitution article IV, section 2(a).
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




       We hold that when a health care provider rules out a particular

diagnosis based on the patient's clinical condition-including test results,

medical history, presentation upon physical examination, and any other

circumstances surrounding the patient's condition that are available to the

provider-the provider may not be liable for informed consent claims arising

from the ruled out diagnosis under RCW 7.70.050. We affirm the Court of

Appeals.

                       FACTS AND PROCEDURAL HISTORY

       Christina Palma Anaya (Mrs. Anaya) suffered from uncontrolled

diabetes, leaving her immunocompromised and susceptible to serious



Community Hospital complaining of urinary tract infection (UTI) symptoms.

Urine and blood samples were taken and sent to the laboratory at Yakima

Regional Medical Center for analysis. She went home the next day. On

August 23, Mrs. Anaya returned to the Toppenish emergency room still

feeling ill from UTI symptoms and could not empty her bladder. After her

bladder was drained, she felt better so was sent home. On August 24, the lab

preliminarily determined that one ofMrs. Anaya's blood cultures was positive

for yeast. Following protocol, the lab called Mrs. Anaya's primary care


                                               2
Anaya Gomez v. Sauerwein, et al., No. 88307-6




facility, the Yakima Valley Farm Workers Clinic (Clinic), where

Dr. Sauerwein was covering for Mrs. Anaya's usual primary care provider.

       Dr. Sauerwein was concerned about the test result. He conferred with

Dr. Moran, one of Mrs. Anaya's treating physicians at Toppenish on August

20 and 21. Dr. Moran, an internal medicine specialist, suggested contacting

Mrs. Anaya to obtain a fuller clinical picture ofMrs. Anaya's condition. Due

to the serious nature of a blood infection, the two physicians decided that if

Mrs. Anaya was feeling ill, she should come in immediately for treatment. If

Mrs. Anaya was feeling better, they determined that it was more likely that

the test result was a false positive, a common occurrence in microbiology



feeling much better since her second visit to Toppenish. Dr. Sauerwein used

the complete clinical picture available to him to conclude that the lab result

was a false positive resulting from contamination but had the nurse contact


1
  Mr. Anaya asserts that false positive blood cultures for yeast are nearly nonexistent. Pet.
for Review at 4. The expert testimony appears to support this conclusion. Transcript of
Proceedings (TP) (June 9, 2010) at 21. But, this fails to account for the fact that yeast in
the blood is such an unusual condition and no expert testifying at trial had ever seen a non-
nosocomial case. The testimony regarding false positives in general reveals that they are
quite common. TP (June 10, 2011) at 82-83; see also Corrected Br. of Amici Curiae Wash.
State Med. Ass'n & Wash. State Hosp. Ass'n at 17 n.ll (citing Keri K. Hall & Jason A.
Lyman, Updated Review of Blood Culture Contamination, 19 CLINICAL MICROBIOL. REv.
788 (2006), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC 1592696/ (last
viewed Mar. 12, 2014)).


                                                 3
Anaya Gomez v. Sauerwein, et al., No. 88307-6




Mrs. Anaya to move her next appointment up to the following week.

Dr. Sauerwein did not tell Mrs. Anaya about the test result.

       On August 26, the lab positively identified candida glabrata as the yeast

in Mrs. Anaya's blood. An infection of glabrata in the blood is serious and

can even be deadly.        Lab microbiologists entered this information into

Mrs. Anaya's medical record but did not notify Dr. Sauerwein, the Clinic, or

anyone else about the positive test result.

       Before Mrs. Anaya's next visit to the Clinic occurred, her condition

worsened. On August 29, Mrs. Anaya went to Yakima Memorial Hospital.

There she was prescribed a general antifungal called fluconazol. Fluconazol



When the hospital positively identified glabrata, they discontinued using

fluconazol and started using amphotericin B.         While amphotericin B is

effective against glabrata, it is highly toxic to the kidneys.       Given the

compromised state of Mrs. Anaya's kidneys from her diabetes, a health care

provider would not normally prescribe amphotericin B until positively

identifying glabrata.

       Unfortunately, the amphotericin B treatment came too late to stop the

glabrata infection from spreading to the internal organs. Mrs. Anaya died at



                                                4
Anaya Gomez v. Sauerwein, et al., No. 88307-6




age 32 on November 17, 2006, of cardiac arrest, deprivation of oxygen to the

brain, and fungal sepsis; all stemming from type II diabetes mellitus.

       Mr. Anaya Gomez (Mr. Anaya), as personal representative of

Mrs. Anaya's estate, brought an action in Yakima County Superior Court

against Dr. Sauerwein and the Clinic for malpractice. Three weeks before the

jury trial, the estate moved to add a claim for failure to obtain informed

consent. The trial judge took the motion under advisement. At the close of

Mr. Anaya's case, the defense moved for judgment as a matter of law on the

informed consent claim.

       The judge granted the motion and dismissed the informed consent



975 P.2d 950 (1999), precluded an informed consent claim in misdiagnosis

cases. The defense then presented its case in chief, and the jury found that

Dr. Sauerwein did not breach any duty owed to Mrs. Anaya. Finding that

Dr. Sauerwein did not deviate from the standard of care, the jury did not reach

the issues of proximate cause or damages.

       On appeal, the Court of Appeals Division Three affirmed the trial court,

holding that this case was indistinguishable from Gates v. Jensen, 92 Wn.2d

246, 595 P.2d 919 (1979), but that Gates was either overruled sub silentio by



                                                5
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




Backlund or abrogated or limited to its facts by Keogan v. Holy Family

Hospital, 95 Wn.2d 306, 312-14, 622 P.2d 1246 (1980). Anaya Gomez v.

Sauerwein, 172 Wn. App. 370, 385 289 P.3d 755 (2012). The case was

appealed to this court for discretionary review, which was accepted. Anaya

Gomez v. Sauerwein, 177 Wn.2d 1008,302 P.3d 180 (2013).

                                         ISSUES

    1. Whether Mr. Anaya could bring an informed consent claim based on

the same facts giving rise to a medical negligence claim for misdiagnosis.

   2. Whether any reasonable finder of fact could, on the facts in this case

taken in a light most favorable to Mr. Anaya, conclude that Dr. Sauerwein's



                                        ANALYSIS

       This court reviews de novo a granted motion for judgment as a matter

of law. Davis v. Microsoft Corp., 149 Wn.2d 521, 530-31, 70 P.3d 126

(2003).    The court will view the evidence in a light most favorable to

Mr. Anaya, drawing all reasonable inferences in his favor. Sing v. John L.

Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997). Judgment as a matter of

law will be sustained if no rational, unbiased person could return a verdict in

the nonmoving party's favor. Davis, 149 Wn.2d at 531.



                                               6
Anaya Gomez v. Sauerwein, et al., No. 88307-6




A.       Mr. Anaya Cannot Bring an Informed Consent Claim Based on the
         Same Facts That Gave Rise to His Misdiagnosis Malpractice Claim

         Informed consent and medical negligence are distinct claims that apply

in different situations. While there is some overlap, they are two different

theories of recovery with independent rationales. In determining which theory

of recovery is available, the issue is whether this is a case of misdiagnosis

subject only to negligence or if the facts also support an informed consent

claim.

         a.    Informed consent and medical negligence are separate theories
               of recovery

         Modernly cognizable claims for failure to provide informed consent



(discussing the history of the doctrine of informed consent). The legislature

codified the common law elements of an informed consent claim in RCW

7.70.050.      Stewart-Graves v. Vaughn, 162 Wn.2d 115, 125, 170 P.3d

1151 (2007) (citing FINAL B. REP. on Substitute H.B. 1470, at 23, 44th Leg,

1st Ex. Sess. (Wash. 1976)). The legislature intended to adopt the elements

as they appeared in Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974),

affd, 85 Wn.2d 151, 530 P.2d 334 (1975) with minor changes to one element

not relevant here. Stewart-Graves, 162 Wn.2d at 122-23.



                                                7
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




                      In certain circumstances, this court has held that the right to informed

consent can include the process of diagnosis. Gates, 92 Wn.2d at 250-51

("Important decisions must frequently be made in many nontreatment

situations in which medical care is given, including procedures leading to a

diagnosis, as in this case."). But Gates was decided on facts that predated

codification of informed consent in RCW 7.70.050. The statute clearly uses

the word "treatment," demonstrating the intent to limit informed consent

claims to treatment situations.

                       The doctrine of informed consent has been distinguished from

malpractice as applying to fundamentally different situations. As we stated in

 R.nrlrJ111,.,r! 11.7 'XTn ')rl .....,..,. hh1 (1 000\·
                 ......... ,- -y,--_._ ..... _ _ at v....,_.. \_a._,..,;_, J•
----- .. _. ...................... ,




                              A physician[2l who misdiagnoses the patient's condition,
                       and is therefore unaware of an appropriate category of treatments
                       or treatment alternatives, may properly be subject to a negligence
                       action where such misdiagnosis breaches the standard of care,
                       but may not be subject to an action based on failure to secure
                       informed consent.

                        Simply put, a health care provider who believes the patient does not

have a particular disease cannot be expected to inform the patient about the



 2
  Most of our older cases use the word "physician." Modernly, however, we use the term
 "health care provider" because the rule applies to other medical professionals such as
 physician assistants and nurse practitioners. This is also the term used in the statute. See
 RCW 7.70.050(1)(a).


                                                                                8
Anaya Gomez v. Sauerwein, et al., No. 88307-6




unknown disease or possible treatments for it. In such situations, a negligence

claim for medical malpractice will provide the patient compensation if the

provider failed to adhere to the standard of care in misdiagnosing or failing to

diagnose the patient's condition.

       In misdiagnosis cases, this rule is necessary to avoid imposing double

liability on the provider for the same alleged misconduct. !d. at 661-62 n.2.

The proposition that a provider cannot be liable for failure to inform in a

misdiagnosis case has been referred to as "the Backlund rule." !d. at 661.

Backlund followed several Court of Appeals opinions applying the same rule.

See Thomas v. Wilfac, Inc., 65 Wn. App. 255, 261, 828 P.2d 597 (1992)



violation of the duty to inform a patient."); Burnet v. Spokane Ambulance, 54

Wn. App. 162, 168-69, 772 P.2d, 1027 (1989) ("[T]he issues presented were

confined to negligence and misdiagnosis rather than a violation of the

informed consent law."); Bays v. St. Luke's Hasp., 63 Wn. App. 876,881,825

P.2d 319 (1992) ("[T]he duty to disclose does not arise until the physician

becomes aware of the condition by diagnosing it."). This court cited all of

these cases when it decided Backlund. See 137 Wn.2d at 659-60.




                                                9
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




     · There are situations where a provider could be liable for failure to

inform without negligence. The most obvious example would be a provider

who knows about two alternative treatments but informs the patient of only

one treatment, which is subsequently performed perfectly. 3 This case presents

a different situation.

       b.     This is a medical malpractice case, not an informed consent case

       While we allow plaintiffs to make multiple inconsistent claims,

plaintiffs must proceed cautiously to trial on those claims or risk confusing

the jury. CR 8(e)(2). In this case, Mr. Anaya's counsel made a tactical

decision to add the failure to inform claim three weeks before trial. Counsel



claim at trial, but based on the facts presented at trial, the judge concluded this

was a misdiagnosis case. Applying the commonsense rule from Backlund, the

judge found that this was a medical negligence case and not an informed

consent case. TP (June 9, 2011) at 69. Either Dr. Sauerwein knew that

Mrs. Anaya had a yeast infection, giving rise to a failure to inform claim, or

he failed to know she had a yeast infection, giving rise to the negligence claim.



3
  Of course, this example assumes that the plaintiff will be able to prove the remaining
elements of a failure to inform claim.


                                               10
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




On one set of facts the two theories are mutually exclusive. Based on the

evidence and expert witnesses Mr. Anaya presented, he appears to have

chosen to pursue the latter rather than the former.

       Mr. Anaya attempts to create a new duty in this case for providers to

inform patients of all positive test results. But that is not the rule. Corrected

Br. of Amici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at

13-16. Proposing this rule stems from ignorance of the medical process. A

lab test is one tool among many that a health care provider uses to form a

diagnosis. Other tools include the history of present illness, family history,

social history, and past medical history, as well as findings from a physical



or she inform the patient about possible treatments and the risks associated

with each.

       Mr. Anaya also ignores the fact that microbiology labs are not perfect.

Mistakes can occur in identification. Contaminants can enter the culture at

any step in the process rendering the culture inaccurate. With blood samples,

contaminants can come from a variety of places, including the patient's skin,

the phlebotomist, the needle, the test tube holding the sample, the lab




                                               11
   Anaya Gomez v. Sauerwein, et al., No. 88307-6




   personnel, and any tools used in the streaking process. TP (June 7, 2011) at

    59.

                 In the case of an aerobic sample-the type of culture at issue in this

    case-the culture is left open to the air so the contagion can breathe.

    Contaminants from the air can get into the sample. Dr. Sauerwein testified

    that in his practice he sees one false positive test result every week. TP

    (June 10, 2011) at 83.

                 The rule that Mr. Anaya suggests also ignores the importance of taking

    the patient's condition into account while making a diagnosis. The lead

    opinion in Keogan noted that

----- - - -- __---·-----   -~--------·   --
                 th~_f>Ytf>nt ofd1~cJn~llt'f>
                                              --~------·--   -. ·-----
                                                             ur_11l_rlf>nf>nd_1n tv;:u•t on_thf> cumntn:t:n"'- and __
                                                                  ---r------~~-~ r-~ ~   ~~~   ~~~--~;~ ~~~_.~~~~~~ -~~-
                                                                                                                           _

                 general physical condition actually presented by the patient.
                 Review of the individual patient's overall condition may all but
                 rule out diseases that might in the abstract be the cause of a
                 symptom or symptoms presented by the patient.

    95 Wn.2d at 318 n.3. 4 In this case, Mrs. Anaya told the nurse from the Clinic

    that she was feeling much better after her bladder was drained at her second

    visit to Toppenish. TP (June 10, 2011) at 87. Because a patient actually


    4
      In Keogan, three judges signed the lead opinion and five judges signed Justice Hicks'
    concurrence/dissent. The dissenters outnumber the "majority" on the informed consent
    issue. Thus, five justices agreed that the duty to disclose does not arise "whenever [the
    provider] becomes aware of a bodily abnormality which may indicate risk or danger," as
    stated in Gates, but rather turns on whether or not "the diagnosis has been completed." 95
    Wn.2d at 329.


                                                                           12
          Anaya Gomez v. Sauerwein, eta!., No. 88307-6




          suffering from a yeast infection of the blood would continue to feel very sick,

          Dr. Sauerwein concluded that Mrs. Anaya was not actually suffering from

          such an infection. !d.

                   c.       As a misdiagnosis case, Backlund, not Gates, controls

                   Mr. Anaya makes much of the Court of Appeals' opinion that this case

          is indistinguishable from Gates. He repeatedly refers to Dr. Sauerwein's

          knowledge about the "positive blood test." 5 Suppl. Br. ofPet'r at 5. However,

          this case is very different from Gates for several reasons. In Gates, the

          ophthalmologist had consistently high eye pressure readings that pointed to

          higher risk for glaucoma over a two year period, whereas Dr. Sauerwein's

_______ onhLcouJgc.Luritb_MrSl __ -Anmm __urgs_g __nhoned-in_lgh_ rennrt__ ··--- ------ --------- __________-
- -- - --- ---•r - - ____ , --- -- ----- ------- -----,; -- · · --- -- r--------· ---- ----- ----r ---·-
                                                                                                         gnd _hf>r_med1c<::lL - - - -- - - _


          record.

                    In Gates, 92 Wn.2d at 248, it was a "significant fact[]" that the

           ophthalmologist had available "two additional diagnostic tests for glaucoma

           which are simple, inexpensive, and risk free." The choice the ophthalmologist



           5
             The blood test on the date in question was positive for yeast, not glabrata. This
           purposefully ambiguous statement confuses the difference between suspecting that a
           patient has a yeast infection in the blood and knowing that the patient has glabrata in the
           blood. In fact, the only thing that Dr. Sauerwein knew on August 24 was that Mrs. Anaya
           had one blood test that was inconsistent with her physical condition and other tests,
           rendering the positive blood test more likely to be a false positive resulting from
           contamination. Glabrata was not identified until two days later, on August 26.

                                                                    13
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




could have put to Mrs. Gates was whether to do the additional testing in light

ofher borderline test result. Given the small cost and effort of those tests, the

decision was relatively easy.

       Dr. Sauerwein had no additional tests available. He could either verify

the patient's physical condition or wait until the lab results positively

identified a contagion. 6 Using the information available to him on August 24

and lacking the ability to obtain more information, Dr. Sauerwein determined

that there was nothing further to diagnose.

       Dr. Sauerwein ruled out a diagnosis of yeast based on the "physical

condition actually presented by [Mrs. Anaya]." Keogan, 95 Wn.2d at 318 n.3.



but did not present any indication of having a blood infection. Indeed, her

symptoms indicated that she did not have a blood infection. This case is

different from Gates because there was nothing else that Dr. Sauerwein could

have done. Informing a patient about a likely erroneous lab result gives the

health care provider nothing to "'put to the patient in the way of an intelligent




6
  Whether Dr. Sauerwein owed a duty to follow up two days later when the lab identified
glabrata is an interesting question but not one raised by the parties nor argued by Mr. Anaya
at trial. Such an argument might have been relevant to medical negligence, but that is not
the issue before this court.


                                                 14
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




and informed choice."' ld. at 330 (Hicks, J., concurring in part, dissenting in

part) (quoting Keogan, 22 Wn. App. at 370). Mr. Anaya points to no choice

that was available to the treating physicians or Mrs. Anaya, instead inviting

this court to ignore the medical realities surrounding the circumstances of the

case. 7

          We hold that when a health care provider rules out a particular

diagnosis based on the circumstances surrounding a patient's condition,

including the patient's own reports, there is no duty to inform the patient on

treatment options pertaining to a ruled out diagnosis. To hold otherwise

would require health care providers and patients to spend hours going through




7
  At oral argument, counsel for Mr. Anaya argued that informing Mrs. Anaya about the
test result would have allowed her to seek a second opinion. This is impractical.
Mrs. Anaya had numerous diseases, making diagnosis particularly difficult. She was free
at all times to seek a second opinion of Toppenish's UTI diagnosis. Patient's do not seek
second opinions on test results, heart rates, or blood pressure readings-all tools used in
making a diagnosis-they seek second opinions on the diagnosis itself or treatment
options. For example, a provider need not tell a patient that a malfunctioning blood
pressure cuff gave an erroneous reading. If the provider subsequently fails to use a
working cuff to obtain a correct blood pressure reading, he or she might be liable for
medical negligence. Likewise, if the provider misdiagnosed hypertension as a result of
the erroneous blood pressure reading, that might also give rise to a negligence claim. The
blood pressure reading itself has no use apart from aiding the provider in making a
diagnosis.
8
  As Justice Hicks wisely noted in a case where the physician failed to diagnose a heart
attack, "[there are] 200 different things that might cause chest pain, only 3 of which related
to the heart." Keogan, 95 Wn.2d at 331 (Hicks, J., concurring in part, dissenting in part).


                                                 15
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




of Amici Curiae Wash. State Med. Ass'n & Wash. State Hosp. Ass'n at 13.

The provider may be liable for negligence in failing to diagnose the condition

if the mistaken diagnosis otherwise meets the elements of a medical

malpractice claim.

       This is a misdiagnosis case. Accordingly, the Backlund rule applies

and the trial court properly dismissed the informed consent claim as a matter

of law. Therefore, we affirm the Court of Appeals but point out that Gates

has not been overruled. See Anaya Gomez, 172 Wn. App. at 385. Backlund

and Keogan state the general rule of when a plaintiff can make an informed

consent claim. The Gates court allowed the informed consent claim based on



there may be instances where the duty to inform arises during the diagnostic

process, but this case does not present such facts. The determining factor is

whether the process of diagnosis presents an informed decision for the patient

to make about his or her care. Dr. Sauerwein's knowledge of the test result

provided no treatment choice for Mrs. Anaya to make.




A health care provider cannot possibly inform a patient about every disease that might be
causing each of his or her symptoms.


                                               16
             Anaya Gomez v. Sauerwein, eta!., No. 88307-6




              B.     A Reasonable, Unbiased Finder of Fact Could Not Conclude That
                     Dr. Sauerwein's Failure To Provide Informed Consent Proximately
                     Caused Mrs. Anaya's Death

                     Proximate cause is a necessary element of an informed consent claim.

              RCW 7.70.050(l)(d).         While the jury in this case did not consider the

              proximate cause element, a trial court may properly dismiss a claim if no

              rational, unbiased person could return a verdict in the plaintiffs favor. Davis,

              149 Wn.2d at 531. "Proximate cause" means "(1) the cause produced the

              injury in a direct sequence, and (2) the injury would not have happened in the

              absence of the cause."          Clerk's Papers at 58 (Jury Instruction 13); 6

              WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL

_________1_5_0_1_Q_l_aL1_&3_(_Jt_b_e:d_'200'/_\,~~~~~~=~~~
------ --------------------7----------,----------------- - - 7 ·




                     Even if this was not a misdiagnosis case the trial court properly

              dismissed the failure to inform claim as a matter of law because there was no

              evidence of proximate cause. Resp. to Pet. for Review at 14-19. Mr. Anaya's

              only response is that this issue is not properly before the court because the

              respondent failed to cross petition on the issue. 9 However, this court may


              9
               Mr. Anaya eventually made proximate cause arguments in his answer to brief of amicus
              curiae WSAJF, but this was improper under RAP 10.3(f). That rule limits the content of
              an amicus answer brief to "new matters raised in the brief of amicus curiae." Dr. Sauerwein
              never backed down from his contention that there was no proximate cause. Mr. Anaya had
              ample opportunity to address this argument in proper briefing but declined to do so, instead
              arguing that the issue is not properly before the court. Suppl. Br. ofPet'r at 4 n.l.


                                                              17
Anaya Gomez v. Sauerwein, et al., No. 88307-6




consider any issues raised by the parties. Blaney v. Int 'lAss 'n of Machinists

& Aerospace Workers, 151 Wn.2d 203, 210 n.3, 87 P.3d 757 (2004).

Dr. Sauerwein raised the issue of proximate cause in his first brief; therefore,

the issue is before this court. Resp. to Pet. for Review at 14-19. 10

       The expert testimony at trial supports Dr. Sauerwein's position. The

allegedly tortious cause in this case is Dr. Sauerwein's failure to inform

Mrs. Anaya about a positive test result for yeast in her blood. Taking all facts

in a light most favorable to Mr. Anaya, it is unclear what Mrs. Anaya could

have done with the knowledge of the test result because there was nothing for

Dr. Sauerwein to put before her in the form of an informed choice.



a very general identification that, at best, might have resulted in treating

Mrs. Anaya with a general antifungal drug, such as fluconazo1. 11                       But,


10
   Mr. Anaya contended in a later brief that this case is distinguishable from Blaney because
in that case the issue was argued at trial. However, Dr. Sauerwein's counsel vehemently
argued against finding proximate cause in closing argument at trial and renewed those
arguments before the Court of Appeals. See TP (June 14, 2011) at 33, 41-42; Br. ofResp'ts
(Wash. Ct. App. No. 30098-6-III) at 33. While those arguments specifically address
proximate cause in the context of medical negligence, the arguments are exactly the same
with respect to informed consent because Mr. Anaya contends that the same allegedly
tortious conduct supports both claims.
11
    Mr. Anaya's assertion that amphotericin B is the "gold standard" antifungal is
misleading. Answer to Br. of Amicus WSAJF at 10. Plaintiff's expert, Dr. Dreyer, testified
about the efficacy of other antifungal drugs assuming that Dr. Sauerwein either knew about
the glabrata or affirmatively believed that the test result was actually positive, rather than
a false positive. See TP (June 9, 2011) at 29. Dr. Dreyer testified about the efficacy of


                                                 18
Anaya Gomez v. Sauerwein, et al., No. 88307-6




fluconazol is ineffective against glabrata. The only drug effective against

glabrata that was established at trial is amphotericin B. Mr. Anaya's experts

concluded that if Mrs. Anaya would have been treated with amphotericin B

starting on August 24, she likely would have survived. But, given

Mrs. Anaya's kidney difficulties, even an infectious disease specialist would

not have prescribed amphotericin B until glabrata was positively identified.

The lab identified the yeast as glabrata on August 26. The only expert to

testify about the hypothetical results of treatment with amphotericin B

beginning on August 26 concluded that Mrs. Anaya still would have died

because it was too late. Mr. Anaya never offered any evidence to rebut this



view these facts favorably for Mr. Anaya. 12




"broad spectrum" alternatives to fluconazol and amphotericin B. Id. However, Dr. Dreyer
testified on cross examination that fluconazol, and not these alternatives, was the drug most
likely to be used by "an [emergency room] doctor or an internist or a family practitioner."
Id. at 49-50. Furthermore, glabrata has varying degrees of resistance to voriconazole and
caspofungin, the two alternative treatments discussed. Failing to present sufficient
evidence of the efficacy of alternate treatments and evidence of whether any family practice
provider would have used those alternatives leaves Mr. Anaya without proximate cause.
12
   Mr. Anaya's strained reading of Dr. Dreyer's testimony does not support his
conclusion that informing Mrs. Anaya about the positive test result would have led to
treatment with amphotericin B. A thorough review of the record reveals that nothing
supports this assertion.


                                                 19
Anaya Gomez v. Sauerwein, et al., No. 88307-6




       Because the harm alleged would have occurred regardless of informed

consent, there cannot be proximate cause. We have held on many occasions

that when a judgment is correct, it will not be reversed because the court may

have given a wrong or insufficient reason.              Retail Clerks Local 629 v.

Christiansen, 67 Wn.2d 29, 31, 406 P.2d 327 (1965). 13 Mr. Anaya's failure

to provide evidence of an essential element of his claim would have given the

trial court sufficient grounds to dismiss the claim. Accordingly, we affirm the

Court of Appeals.

                                     CONCLUSION

       We affirm the Court of Appeals' decision but clarify that Gates is not



informed about a known or likely condition that can be readily diagnosed and

treated. Backlund clarifies that Gates is the exception and not the rule with

regard to the overlap between medical negligence and informed consent.

Given the unique factual situation in Gates, it is unlikely we will ever see such

a case again. The lead opinion in Keogan has limited precedential value

because the five justices who concurred and dissented outnumbered those who


13
  We do not imply here that the trial court was incorrect in dismissing the informed
consent claim as inapplicable to this misdiagnosis claim. In this case, however, the lack
of proximate cause provides an independently sufficient ground for dismissal.


                                                20
Anaya Gomez v. Sauerwein, eta!., No. 88307-6




signed the lead opinion. But, the reasoning of the concurrence/dissent is

sound. Therefore, under Backlund and Keogan, informed consent is available

only when there is something to inform the patient about. Given the vast

number of false positive test results that occur in Washington on a daily basis,

imposing a duty on health care providers to inform every patient about every

test result would be unduly burdensome, pointless, and unwise.

       We also affirm the Court of Appeals because the evidence at trial-

even taken in a light most favorable to Mr. Anaya-could not have supported

proximate cause.




                                               21
Anaya Gomez v. Sauerwein, et al., No. 88307-6




       WE CONCUR:




                                   ..-·~···




                                                22
            Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only)




                                                    No. 88307-6

                   GONZALEZ, J. (concurring in result only)-I agree with the majority that the

            trial judge properly declined to instruct the jury on informed consent because the

            evidence presented at trial did not support a finding of proximate cause. I write

            separately to stress that a health care provider may be liable for both a negligence

            claim and an informed consent claim arising from the same set of facts. While the

            majority purports to agree with this view, it also suggests that RCW 7.70.050 does not

            permit a patient to bring an informed consent claim when a provider makes a

====~m~i~sd"""iaJznosis and. in proceeding to treat the misdiagnosed ailment, does not disclose a

            material fact relating to treatment or nontreatment. 1 Compare majority at 2, 8, 9, 11,

             16, with majority at 20. Because nothing in chapter 7.70 RCW suggests the

            legislature intended such a dichotomy, I concur in result only.

                    Under Washington law, a patient claiming failure to secure informed consent

             must establish:

                          (a) That the health care provider failed to inform the patient of a
                    material fact or facts relating to the treatment;


             1Nontreatment is a form of treatment. See RCW 7.70.060; Backlund v. Univ. of Wash., 137
             Wn.2d 651, 661n.2, 975 P.2d 950 (1999) (citing Brown v. Dahl, 41 Wn. App. 565, 570, 705
             P.2d 781 (1985)).
                                                            1
   Anaya Gomez v. Sauerwin, et al., No. 88307-6 (Gonzalez, J. concurring in result only)


                 (b) That the patient consented to the treatment without being aware of or
          fully informed of such material fact or facts;

                (c) That a reasonably prudent patient under similar circumstances would
          not have consented to tqe treatment if informed of such material fact or facts;

                 (d) That the treatment in question proximately caused injury to the
          patient.

   RCW 7.70.050(1). A material fact is one to which "a reasonably prudent person in

   the position of the patient or his or her representative would attach significance."

   RCW 7.70.050(2). To bring a negligence claim for failure to follow the standard of

   care a plaintiff must show that:

                  ( 1) The health care provider failed to exercise that degree of care,
          skill, and learning expected of a reasonably prudent health care provider
          at that time in the profession or class to which he or she belongs, in the
          state of Washington, acting in the same or similar circumstances;

                  (2) Such failure was a proximate cause of the injury complained
======~of~.========================================


   RCW 7.70.040. These statutes do not conflict. Nor are they inconsistent with the

   overarching goals of chapter 7.70 RCW: to police the health care practice, foster

   patient autonomy, and have a patient-centric view when imposing liability on health

   care providers. See, e.g., Adair v. Weinberg, 79 Wn. App. 197, 203, 901 P.2d 340

   (1995) (noting that "both the medical profession and society play a role in establishing

   what is expected of a medical provider"); Burnet v. Spokane Ambulance, 54 Wn. App.

   162, 168, 772 P.2d 1027 (1989) ("Informed consent focuses on the patient's right to

   know his bodily condition and to decide what should be done.").


                                                   2
Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only)


       Our informed consent laws allow a patient to recover damages from a health

care provider who fails to obtain informed consent whether or not the medical

diagnosis and/or treatment was negligent. RCW 7.70.050; Backlund v. Univ. of

Wash., 137 Wn.2d 651,659,975 P.2d 950 (1999). The majority states that Backlund

controls here. Majority at 13. I agree. As Backlund observes, "Negligence and

informed consent are alternative methods of imposing liability on a health care

practitioner." 137 Wn.2d at 659. The opinion goes on to say that

              [a] physician who misdiagnoses the patient's condition, and is therefore
       unaware of an appropriate category of treatments or treatment alternatives, may
       properly be subject to a negligence action where such misdiagnosis breaches
       the standard of care, but may not be subject to an action based on failure to
       secure informed consent.

!d. at 661. Unfortunately, taken out of context, this language seems to have led some

commentators to believe a plaintiff can bring only a negligence or informed consent

claim. See majority at 10. This is not the case. If it were, we would not have

analyzed whether the Backlunds had made a prima facie informed consent claim

because, as a matter of law, they would have had no cause of action anyway. 137

Wn.2d at 663-69. Instead, we specifically rejected the provider's argument that "a

cause of action for failure to obtain informed consent is unavailable to the Backlunds

 as a matter of law where the jury exonerated Dr. Jackson and the University from

 negligence." !d. at 653-54.

        Backlund sets out a set of facts that would not support both a negligence claim

 and an informed consent claim: a health care provider misdiagnoses a headache as a

                                               3
Anaya Gomez v. Sauerwin, et al., No.   88307~6   (Gonzalez, J. concurring in result only)


transitory problem, resulting in a failure to detect a brain tumor. We stated

accordingly that it would be "anomalous to hold the physician culpable under RCW

7.70.050 for failing to secure the patient's informed consent for treatment for the

undetected tumor." !d. at 661 n.2. This is certainly true. But Blacklund did not

address the potential claim the patient would have if the provider had also failed to

secure informed consent before treating the transitory headache and an injury resulted.

Under such a scenario, the facts support claims that the provider was both negligent

and failed to secure informed consent and is potentially liable on either theory.

Though a plaintiff in such a case may not be permitted to recover on both claims so as

to avoid double damages, this does not mean these two theories of recovery are

mutually exclusive. Providers must secure informed consent regardless of whether

diagnosis rose to the proper standard of care.

       Also, I respectfully disagree with the majority's characterization of the

plaintiffs arguments. See, e.g., majority at 11. There is nothing startling or

ridiculous about bringing both a negligence claim and an informed consent claim.

Nor is it inappropriate to analogize Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919

(1979), to the case at bar. The majority believes that Mr. Rodolpho Anaya Gomez's

 (Mr. Anaya) case is easily distinguishable from Gates because "there was nothing else

 that Dr. Sauerwein could have done," and because of Gates' unique facts "it is

 unlikely we will ever see such a case again." Majority at 14, 20. The record shows

 that no matter what Dr. Sauerwein did Mrs. Christina Palma Anaya's outcome would

                                                  4
Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring in result only)


not have changed, 2 but that fact speaks solely to the issue of proximate cause: it does

not limit Mr. Anaya to a claim of negligence. Both here and in Gates, the providers

received information material to the treatment of their patients that they did not

disclose and, in both cases, easy additional steps should have been taken by the

providers. For Ms. Gates, it was pupil dilation, for Mrs. Anaya, reculturing.

       Here, similar to Backlund, the provider did not believe his patient's positive

blood test required treatment because he believed it to be a false positive. But such a

misdiagnosis does not automatically preclude an informed consent claim. That said,

the trial court here, in accord with Backlund, properly refused Mr. Anaya's motion for

an informed consent instruction because there was not sufficient evidence to support a

prima facie case ofbreach of informed consent. Backlund, 137 Wn.2d at 654.

        Nonetheless, I take this occasion to reject a distortion of the "Backlund rule"-

that a plaintiff cannot bring both an informed consent and a negligence claim.

Instead, I reaffirm the Backlund rule-that negligence and informed consent are

merely alternative methods of imposing liability. While it may be rare that the same

set of facts will support both claims, we should not foreclose the possibility that a

single course of events or treatment could give rise to both. Concerns about double-


2 At trial, the experts agreed that even if Dr. Sauerwein had ordered treatment immediately after
 receiving the positive blood test it would not have prevented Mrs. Anaya's death because the
 standard treatment would have been completely ineffective against the specific strain of yeast in
 her blood. Transcript of Proceedings (TP) (June 10, 2011) at 42-43. However, it was undisputed
 that there were steps Dr. Sauerwein could have taken: "[the standard of care required t]wo
 things; one re-culture the blood and two begin on medication that specifically is known to
 combat fungus infections." TP (June 7, 2011) at 86-88.
                                                 5
Anaya Gomez v. Sauerwin, et al., No. 88307-6 (Gonzalez, J. concurring in result only)


damages may be well taken, but I am certain that our trial courts are capable of

crafting judgments that avoid such windfalls.

       With these observations, I respectfully concur.




                                                6
Anaya Gomez v. Sauerwin, eta!., No. 88307-6 (Gonzalez, J. concurring)




                                              7
