                                                                            FILED 

                                                                          NOV. 20,2014 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


PAMELA CLONINGER, individually, and             )
as Personal Representative of the ESTATE        )         No. 31833-8-III
OF GLEN CLONINGER,                              )
                                                )
                     Appellant,                 )
                                                )
       v.                                       )         UNPUBLISHED OPINION
                                                )
KIM CHEN, D.O. and JANE DOE CHEN,               )
husband and wife; ANESTHESIA                    )
ASSOCIATES OF SPOKANE, P.S.; and                )
DEACONESS MEDICAL CENTER,                       )
                                                )
                     Respondents.               )

       KORSMO, J.      The sole issue in this tragic medical malpractice case concerns

the trial court's refusal to give the jury a spoliation instruction. Concluding that the

appellant did not establish that any evidence existed that the defendants could have had

a duty to preserve, we affirm.

                                          FACTS

       Glen Cloninger went to Deaconess Medical Center (Deaconess) for a routine

lithotripsy procedure to address a kidney stone problem. He did not survive the

procedure.

       Although the kidney stone treatment was unremarkable, problems arose after

defendant anesthesiologist Dr. Kim Chen attempted to revive Mr. Cloninger from the
No. 31833-8-111
Cloninger v. Anesthesia Assoc.


general anesthetic used for the procedure. Dr. Chen had used a Datascope machine to

monitor vital signs, including blood pressure, heart rate, oxygen saturation, and

temperature. The machine had been set to its factory default setting-the readings were

displayed in "real time" but not recorded by the device.

       After the procedure, Dr. Chen began to reverse the anesthesia and wake Mr.

Cloninger. While still intubated, Mr. Cloninger became combative; nurses had to calm

and restrain him. He was eventually extubated. A short time thereafter, a laryngospasm l

blocked Mr. Cloninger's airway and caused him to asphyxiate. Dr. Chen attempted to

ventilate Mr. Cloninger with a positive pressure face mask. However, Mr. Cloninger

became bradycardic 2 and the medical staff called a "code" and began chest compressions.

Dr. Chen twice attempted to reintubate Mr. Cloninger, but was unsuccessful. Another

anesthesiologist, Dr. King, responded to the "code" and was able to reintubate Mr.

Cloninger. Dr. Chen later testified that it took 60 to 90 seconds from when the "code"

was declared until Dr. King was able to reintubate Mr. Cloninger.

      Mr. Cloninger's vital signs were restored by the chest compressions and a

ventilator between 73 and 77 minutes after the "code" was called. He was disconnected

from the surgery room Datascope and connected to another Datascope machine for a

transfer to the Intensive Care Unit. The surgery room was then "turned over" for the


      1   A laryngospasm is a spasm of the vocal cords that blocks access to the trachea.
      2   A bradycardic heart rate is less than 60 beats per minute in an adult human.

                                             2

No. 31833-8-III
Cloninger v. Anesthesia Assoc.


next procedure. As part of that routine, the Datascope originally used on Mr. Cloninger

was reset, effectively erasing any infonnation that may have been in the machine. That

occurred roughly 42 minutes after Mr. Cloninger was moved to ICU.

       Mr. Cloninger suffered brain damage during the fight to revive him and was

rendered pennanently vegetative. He died four days later when life support measures

were tenninated.

       Mr. Cloninger's widow and children sued Dr. Chen 3 and Deaconess Medical

Center. The suit focused on the actions of Dr. Chen from the attempt to revive Mr.

Cloninger after the lithotripsy until the "code" was called. Dr. Chen spent significant

time creating and editing his narrative of the event. The plaintiffs sought the records of

the Datascope machine in order to address the doctor's narrative and expected testimony.

Discovery revealed that no records from the machine existed.

       Pretrial, the plaintiffs indicated that they would be seeking a spoliation instruction

based on a theory of negligent failure to preserve evidence. The proposed instruction

would have pennitted the jury to infer that the machine's evidence was unfavorable to

the hospita1. 4 Plaintiffs viewed the hospital's actions in routinely resetting the device as


       3 Dr. Chen's practice group, Anesthesia Association of Spokane, P.S., was also a
defendant. We refer to Dr. Chen and the practice group collectively as Dr. Chen.
       4 Plaintiff s Proposed Instruction A read: "If Deaconess Medical Center failed to
produce evidence which was under their control and reasonably available to them and not
reasonably available to plaintiff, then you may infer that the evidence was unfavorable to
the defendant who could have produced it and did not." Clerk's Papers at 576.

                                              3

No. 31833-8-II1
Cloninger v. Anesthesia Assoc.


negligent in light of its sentinel event policy and knowledge of the "code" call. The

veteran trial judge indicated that she believed spoliation instructions were only proper

when evidence was intentionally destroyed; she was open to giving the instruction if that

foundation was satisfied.

       At trial, the evidence was unclear about the capabilities of the Datascope used

on Mr. Cloninger, in part because the machine could not be identified and probably

had been disposed of by the hospital. There was testimony indicating that many of the

Datascope machines could be programmed to record the machine's readings for up to

two hours. However, Dr. Chen did testify that the machine used on Mr. Cloninger was

set to the default "display only" setting and that he did not print out any readings

because he did not know that the machine had the ability to print the information.

There was no evidence that the machine recorded any information while used on Mr.

Cloninger.

       At the conclusion of testimony, the trial court declined to give plaintiffs'

proposed instruction. The jury returned verdicts in favor of Dr. Chen and the medical

center. The plaintiffs then timely appealed to this court.

                                       ANALYSIS

       The sole issue presented by this appeal is whether the court erred in failing to

give the proposed spoliation instruction. Plaintiffs admit they are asking this court to

expand Washington law to permit spoliation instructions when evidence is negligently

                                              4

No. 31833-8-111 

Cloninger v. Anesthesia Assoc. 



destroyed or not preserved. Defendants raise several joint arguments, including

contentions that spoliation instructions are appropriate only when evidence is

intentionally destroyed, there was no duty to preserve the evidence, and no evidence

was destroyed. Separately, Dr. Chen argues that any error in failing to give the

instruction was harmless in his case since the proposed instruction applied only to

Deaconess.

       We decline the opportunity to decide whether negligence is a sufficient basis to

give a spoliation instruction because, even if we accept the plaintiffs' argument, they

failed to establish an entitlement to the instruction because they cannot show that any

evidence was destroyed.

       The plaintiffs' argument has its genesis in our decision in Henderson v. Tyrrell,

80 Wn. App. 592, 910 P.2d 522 (1996). That case involved an action for personal

injuries brought by the four occupants of a car involved in a single vehicle accident.

The three plaintiffs alleged that the car was driven by its owner, defendant Tyrrell, and

presented expert testimony supporting their position. Tyrrell, who sustained a head

injury in the accident, claimed one of the plaintiffs was driving and presented expert

testimony suggesting that was the case. Id. at 596-99. The automobile had been

preserved for approximately 22 months after the accident, but had been sent to salvage

before any experts examined it. Id. at 603-04. The plaintiffs sought to dismiss the

defendant's counterclaim or limit his evidence as a sanction for the destruction of the

                                             5

No. 31833-8-111 

Cloninger v. Anesthesia Assoc. 



car. Id. at 604. Finding no willful destruction of evidence, the trial court declined to

instruct the jury on spoliation. Id.

       This court affirmed after giving the issue significant consideration. Id. at

604-11. The court concluded that there was no evidence of bad faith by the defendant,

there was no duty to preserve the wrecked vehicle, and the evidence was available to

both parties over the 22 month period. Id. at 609-11. In the course of its analysis, this

court relied upon a legal dictionary to define spoliation as the intentional destruction of

evidence. Id. at 605. Citing to an Alaska decision, this court determined that whether

or not a sanction should be imposed was dependent upon the importance of the

evidence and the culpability of the party that destroyed the evidence. Id. at 607 (citing

Sweet v. Sisters ofProvidence, 895 P.2d 484 (Alaska 1995)). It was in this context that

this court concluded that Mr. Tyrrell had not acted in bad faith. Id. at 609-10.

       The appellants urge this court to clarify Henderson and conclude that Washington

permits a spoliation claim when a party has a duty to preserve evidence and negligently

fails to do so. Henderson had begun its discussion of the spoliation issue by

acknowledging that there were various approaches to addressing such claims. Id. at

604-06. One approach was that adopted by Sweet, where Alaska decided that the failure

of the medical defendant to preserve necessary records resulted in a shift of the burden




                                             6

No. 31833-8-III
Cloninger v. Anesthesia Assoc.


of the medical malpractice action from the plaintiff to the defendant. Id. at 605. 5 As

noted, even though it defined spoliation as the intentional destruction of evidence, the

Henderson court used Sweet's two-step duty and culpability analysis for determining

whether a sanction was appropriate. Id. at 607-11.

       In light of the fact that Henderson essentially used a negligence standard for

determining that no sanction was required and that Henderson has been repeatedly cited

and followed in subsequent Washington cases, appellants ask that we confirm that

Washington recognizes a claim for negligent failure to preserve evidence. We decline

to do so because it would not aid appellants in this case.

       There is no evidence in this record that the Datascope used on Mr. Cloninger in

surgery retained any information that could have been printed in a timely fashion. Dr.

Chen used the machine on a "display only" setting and did not even know that it could

record and print data. The hospital's policy was to reset the machines to a factory default

setting that did not record information. Although the Datascope could be programmed to

retain information for two hours, there simply was no evidence that the machine used on

Mr. Cloninger was ever recording any information. It is mere speculation to believe that




      5 Sweet also involved a claim for negligent spoliation, a tort that the Alaska
Supreme Court did not then adopt after concluding that its burden shift in the underlying
malpractice action was sufficient remedy for the hospital's failure to preserve its records.
895 P.2d at 492-93.

                                             7

No. 31833-8-111
Cloninger v. Anesthesia Assoc.


any information would have been obtained if Deaconess personnel had sought to print the

machine before "turning over" the surgery room.

      In the absence of any evidence that could have been preserved, there is no basis

for determining whether the defendants had a duty to preserve the evidence or that the

failure to do so should be actionable via a spoliation instruction. Under these facts, we

would be doing nothing more than rendering an advisory opinion.

      Accordingly, the trial court did not err in declining the requested instruction. The·

judgment is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR: 





      Lawrence-Be




                                             8

