                                                                        FILED 

                                                                      NOV. 14,2013 

                                                              In the Office of the Clerk of Court 

                                                             WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


In re the Estate of RUTH M. DORMAIER,         )       No. 30864-2-111
Deceased, by and through LOURENCE             )       Consolidated with
C. DORMAIER, Personal Representative;         )       No. 30865-1-111 

and LOURENCE C. DORMAIER,                     )

individually, and as the Beneficiary of his   )

wife's Estate,                                )

                                              )

                     Respondents,             )

                                              )

             v.                               )       PUBLISHED OPINION
                                              )
COLUMBIA BASIN ANESTHESIA,                    )
P.L.L.C., A Professional Limited Liability    )
Company; ROBERT MISASI, C.R.N.A.,             )
and JANE DOE MISASI, individually, and        )
as husband and wife; GRANT COUNTY             )
HOSPITAL DISTRICT #1, d/b/a                   )
SAMARITAN HEALTHCARE, a/k1a                   )
SAMARITAN HOSPITAL, a Washington              )
non-profit organization,                      )
                                              )

                    Appellants.               )


       BROWN, J. - Appellants Robert Misasi, CRNA; his employer, Columbia Basin

Anesthesia PLLC (collectively Mr. Misasi); and the hospital where he worked, Grant

County Hospital District No. 1 (Samaritan Hospital), appeal a verdict for respondents

Lourence C. Dormaier and the estate of Ruth M. Dormaier on their wrongful death claim

based on medical negligence. Appellants contend the trial court erred in:
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       (1) instructing the jury on a medical patient's lost chance of survival;
       (2) ruling res judicata precluded them from allocating fault to the physicians;
       (3) denying their motion for judgment as a matter of law;
       (4) denying their request for entry of judgment in their favor upon the special
           verdict; and
       (5) denying their request for a judgment award limited to the estate's damages or
           alternatively, 70 percent of both respondents' damages.

We reject all of appellants' contentions, and affirm.

                                          FACTS

       On September 15, 2007, Mrs. Dormaier, age 79, fractured her elbow in a fall. At

Samaritan Hospital in Moses Lake, she received emergency care and discharge

instructions to follow up at Wenatchee Valley Medical Center. Orthopedist Daniel W.

Canfield, MD scheduled her for surgery to cornmence on September 20,2007 and

ordered a preoperative evaluation. Internist K. Craig Hart, MD determined she was fit

for surgery as of September 18, 2007. The next day, Dr. Canfield visited her and noted

she had chest and hip pain, shortness of breath, and low blood oxygen saturation. He

ordered chest x-rays, which showed either patchy infiltrate 1 or atelectasis2 in the lower

lobe of her left lung, and hip x-rays, which later showed no fractures. He conferred with

Dr. Hart, who concluded her chest x-rays probably showed atelectasis resulting from

her splinted breathing. 3 The physicians decided to attempt surgery before her condition

deteriorated further.



        1 Patchy infiltrate is the displacement of air space by an infiltrating substance in
the lung. It is a nonspecific chest x-ray finding that could indicate, for example,
atelectasis, pneumonia, or pulmonary embolism.
       2 Atelectasis is the collapse of tiny air sacs in the lung.
       3 Splinted breathing is a pattern of shallow breaths minimizing movement of and
pain from an injured area ofthe body.

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       Around 10:00 a.m. on September 20,2007, Mrs. Dormaier checked in for surgery

at Samaritan Hospital. Mr. Misasi served as her nurse anesthetist. She had wheezy

breathing, shortness of breath, low blood oxygen saturation, and excruciating pain. He

ordered oxygen, a drug to open her airways, and a drug to alleviate her pain. Then,

after examining her and conferring with Drs. Canfield and Hart, Mr. Misasi anesthetized

Mrs. Dormaier for surgery at 12:10 p.m. Mrs. Dormaier suffered a terminal cardiac

arrest during surgery, around 3:00 p.m. An autopsy revealed a large blood clot caused

her death when, within seconds, it detached from her hip veins, migrated through her

heart, and blocked her lung arteries; as a prelude, many smaller blood clots had been

lodging in her lung arteries in the hours or days leading up to her death. In medical

terms, a pelvic deep venous thrombosis initially released many smaller emboli, which

caused survivable pulmonary embolisms, but finally released a large embolus, which

caused a fatal pulmonary embolism. 4

       In April 2009, respondents sued Dr. Canfield, Dr. Hart, and Wenatchee Valley

Medical Center (collectively Drs. Canfield and Hart) as well as Mr. Misasi and Samaritan

Hospital. The complaint alleged Mrs. Dormaier "died as a proximate result of the

negligence of the Defendants" and "sustained injuries and damages and died due to the

negligence of Defendants." Clerk's Papers (CP) at 9. Stating medical negligence and

wrongful death claims, the complaint specified Mr. Misasi's decision to anesthetize Mrs.

Dormaier instead of refer her for proper care "was a proximate cause of the injury and



     4 A blood clot is a thrombus when attached to a blood vessel wall and an
embolus when detached and migrating through the bloodstream. A pelvic deep venous

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death to [her]." CP at 10. The estate alleged its wrongful death damages included

"pain and suffering, anxiety, emotional distress and humiliation that [Mrs. Dormaier] may

have endured prior to her death"; "disabilities, loss of enjoyment of life, cost of medical,

hospital, and funeral expenses"; "loss of love, affection and companionship to the

beneficiaries"; and "any future economic losses in support and care of [Mr. DormaierJ."

CP at 13. Mr. Dormaier alleged his wrongful death damages included "[e]motional

damages," "[p]ast and future economic damages," "[I]oss of support," "[I]oss of care,"

«[I]oss of services," "[I]oss of society," and «[I]oss of consortium." CP at 12. The

complaint prayed for judgment compensating these damages and other "general and

special damages as may be proven by the Plaintiff at the time of trial." CP at 13-14.

       Mr. Misasi and Samaritan Hospital each pleaded nonparty fault as an affirmative

defense in their answers, but Drs. Canfield and Hart moved successfully for summary

judgment dismissal of respondents' claims against them. No party opposed the motion.

Consistent with their non-opposition, appellants' trial briefs introduced their case theory

that Drs. Canfield and Hart were not negligent and, because Mr. Misasi relied on them

and acted jointly with them as part of a team, he was equally not negligent.

       Through motions in limine 1 and 14, respondents sought to prohibit appellants

from allocating fault to Drs. Canfield and Hart. Appellants mainly responded by asking

the trial court to defer ruling on the motions, stating an immediate ruling was

unnecessary because they did not intend to allocate fault to Drs. Canfield and Hart and



thrombosis is the formation of a thrombus in the hip's deep veins. A pulmonary
embolism is the lodging of an embolus in the lung's arteries.

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would instead advance their previously declared case theory. The trial court eventually

granted both motions.

       At trial, respondents elicited expert testimony from Erik R. Swenson, MD, Steven

Hattamer, MD, Jeffrey McBride Reynolds, MD, and Lloyd Halpern, MD. Dr. Swenson

partly testified,

       Q. Doctor, looking at this case and taking into account all of the records
       that you reviewed, do you have an opinion as to whether or not had Mrs.
       Dormaier been properly diagnosed with pulmonary embolus and treated
       with anticoagulation, whether she would have survived?
       A. It's been my experience over the entire time of my career that if we can
       diagnose this, we have a good chance once beginning therapy to take a
       mortality rate of possibly 70 to 80 percent and bring it down into the ten to
       20 percent rate.

       Q. So based upon your earlier testimony, Doctor, if you factor out
       cardiopulmonary function people and the terminal illness people, my
       understanding is that the percentage of people that survive from this
       treatment is approximately 90 percent?
       A. Right. When you strip away the people who have very, very bad
       chronic medical conditions which lead them to have no reserve or people
       with cancers and other much more rare conditions that are life­
       threatening.
       Q. And in your opinion, would Mrs. Dormaier, if appropriately treated,
       have had a 90 percent chance of survival?
       A. I believe so.

Report of Proceedings (RP) at 258-60.

       The parties revisited motions in limine 1 and 14 several times throughout trial.

Appellants consistently reiterated they would not allocate fault to Drs. Canfield and Hart.

Respondents requested the trial court instruct the jury not to consider whether Drs.

Canfield and Hart were negligent. The trial court eventually decided to give the




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instruction. Mr. Misasi objected, arguing the instruction was unnecessary. The

instruction reads,

           In this case, there is no issue for you to consider regarding the
       negligence, if any, of Daniel Canfield, MD or of Kenneth Hart, MD. You
       must not speculate regarding any such negligence, or the absence
       thereof, and must resolve the claims of the parties in this case based upon
       the evidence admitted, without regard to whether or not Dr. Canfield or Dr.
       Hart were negligent. You may consider the evidence regarding the
       conduct of Dr. Canfield and Dr. Hart, along with all other evidence in the
       case, in determining whether or not Mr. Misasi complied with the
       applicable standard of care.

CP at 266; RP at 1433-34.

       After respondents rested their case, appellants moved unsuccessfully for

judgment as a matter of law, arguing the expert testimony did not prove factual cause.

After the close of evidence, respondents requested the trial court instruct the jury on a

medical patient's lost chance of survival. Respondents argued they did not have to

plead a lost chance of survival as a cause of action because it was merely an element

of damages in their wrongful death claim based on medical negligence.

       The trial court ruled bye-mail, "In the context of this evidence, a loss of chance

instruction is appropriate." CP at 233. The court partly reasoned, "When viewed as an

element of damages, ... it was not necessary to plead loss of chance as a cause of

action, and ... the parties addressed the [lost chance] issue (if under other terminology)

on both sides of the case." CP at 233. Later, the court orally adhered to this e-mail,

explaining the lost chance doctrine applies where the chance lost is less than or equal

to 50 percent but traditional tort principles apply where the chance lost is greater than

50 percent.


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      The lost chance instruction reads,

          If you find that Defendant Robert Masasi [sic] failed to comply with the
      applicable standard of care and was therefore negligent, you may
      consider whether or not his negligence proximately caused damages to
      Ruth Dormaier in the nature of loss or diminution of a chance to survive
      the condition which caused her death.
          If you find that such negligence proximately caused a loss or
      diminution of a chance to survive, then you will determine the magnitude
      of the loss or diminution by comparing two percentages: (1) Ruth
      Dormaier's chance of surviving the condition which caused her death as it
      would have been had defendant not been negligent. and (2) the chance of
      surviving as affected by any negligence you find on the part of defendant.
          The difference in the two percentages, if any you find, is the
      percentage of loss or diminution in the chance of survival. If you find that
      the loss or diminution of a chance to survive was in excess of 50%, then
      you have found that such negligence was a proximate cause of the death.
          On the other hand, if you find that the loss or diminution of a chance to
      survive was less than 50%, then any damages you find to have been
      experienced because of the death of Ruth Dormaier will be reduced by
      multiplying the total damages by the percentage of loss or diminution in
      the chance of survival.

CP at 273; RP at 1438-39.

      The jury returned the following special verdict:

      QUES1'ION 1: Was defendant Robert Misasi negligent? 

        ANSWER:     Yes    (write "yes" or "no") 


         INSTRUCTION: If you answered "no" to Question 1, do not answer
         any other questions; sign this verdict form and notify the bailiff. If you
         answered "yes" to Question 1, proceed to Question 2.

      QUESTION 2: Was the defendant's negligence a proximate cause of
      the death of Ruth M. Dormaier?
         ANSWER:       No   (write "yes" or "no")

         INSTRUCTION: If you answered "no" to Question 2, proceed to
         Question 3. If you answered 'yes" to Question 2, do not answer
         Question 3 or 4; proceed to Question 5.




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       QUESTION 3: Was the defendant's negligence a proximate cause of
       a loss or diminution of Ruth M. Dormaier's chance to survive the
       condition which caused her death?
           ANSWER:      Yes (write "yes" or "no")

           INSTRUCTION: If you answered "no" to Question 3, do not answer
           any other questions; sign this verdict form and notify the bailiff. If you
           answered "yes" to Question 3, proceed to Question 4.

       QUESTION 4: What do you find to be the percentage of loss or
       diminution in Ruth M. Dormaier's chance to survive proximately
       caused by the negligence of defendant?
          ANSWER:      70%    (write a percentage)

           INSTRUCTION: Proceed to Question 5.

       QUESTION 5: What do you find to be the plaintiffs' amount of
       damages?
         ANSWER:      Estate of Ruth M. Dormaier:         $ 20.481.22

                            Lourence C. Dormaier:                 $    1,300,000.00

           INSTRUCTION: Proceed to Question 6.

       QUESTION 6: Was Robert Misasi the apparent agent of Samaritan
       Hospital?
         ANSWER:    Yes  (write "yes" or "no")

           INSTRUCTION: Sign this verdict form and notify the bailiff.

CP at 357-58. At least 10 polled jurors ratified each answer. Appellants unsuccessfully

requested a favorable judgment or limited judgment award. 5

       First, appellants sought entry of judgment in their favor upon the special verdict,

arguing that in light of the lost chance instruction, an irreconcilable inconsistency existed

between answer 2, which found Mr. Misasi's negligence did not proximately cause Mrs.



       5 The trial court later noted, "Defendants did not expressly move for judgment as
a matter of law." CP at 1257.

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Dormaier'sdeath, and answer 4, which found Mr. Misasi's negligence proximately

caused Mrs. Dormaier a 70 percent loss in her chance of survival. The trial court

concluded that because a IQst chance of survival was a different injury from death, "It

was ... not inconsistent with the jury's rejection of negligence as a proximate cause of

the death itself, for the jury to consider the percentage by which negligence diminished

Mrs. Dormaier's chance to survive the death-causing event." CP at 1257.

       Second, appellants sought a judgment award limited to the estate's damages,

arguing Mr. Dormaier could not recover individual damages for Mrs. Dormaier's lost

chance of survival because the measure of damages instruction limited his individual

compensation to damages resulting from her death. The trial court concluded the

special verdict "entitles the plaintiff to a judgment for the full amount of the jury's award."

RP (Apr. 6, 2012) at 14.

       Finally, appellants sought a judgment award limited to 70 percent of both

respondents' damages, arguing that because Mrs. Dormaier sustained a 70 percent

loss in her chance of survival, respondents could recover no more than a proportional

percentage of damages as compensation. The trial court concluded,

           Had the jury found that the diminution of chance to survive was less
       than 50%, then the court would have been required to reduce the jury's
       finding of damages by that figure. However, where the reduction in
       chance to survive is itself found to be greater than 50%, it becomes, as a
       matter of law, a concurrent proximate cause of the death (or, of the "failure
       to survive").




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CP at 1257-58. Accordingly, the trial court entered a $1,320,481.22 judgment for

respondents without applying a 30 percent reduction. Mr. Misasi and Samaritan

Hospital appealed.

                                         ANALYSIS

                                  A Lost Chance Instruction

      The issue is whether the trial court erred in instructing the jury on a medical

patient's lost chance of survival. We consider this instruction's historical background

and our review standards before considering three questions:

      (1) Maya plaintiff argue the lost chance doctrine where the defendant's
          negligence reduced the decedent's chance of survival by greater than 50
          percent?
      (2) Does substantial evidence support a lost chance instruction here?
      (3) Did respondents need to plead a lost chance of survival as a separate cause
          of action?

      In Herskovits   V.   Group Health Cooperative of Puget Sound, 99 Wn.2d 609, 634,

664 P.2d 474 (1983) (Pearson, J., concurring), a plurality of our Supreme Court

recognized a medical patient's lost chance of survival as an actionable injury under the

wrongful death statute, RCW 4.20.010. The plaintiff alleged the defendant's negligent

failure to diagnose the decedent's lung cancer "led to and caused his death."

Herskovits, 99 Wn.2d at 620 (Pearson, J., concurring). But the plaintiff could not prove

the decedent probably would have survived but for the defendant's negligence. Id. at

621. Rather, expert testimony merely showed the defendant's negligence reduced the

decedent's chance of survival from 39 to 25 percent. Id. at 621-22. Our Supreme Court

reversed summary judgment dismissal, id. at 619 (Dore, J., lead opinion); id. at 634,



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636 (Pearson, J., concurring), with a plurality concluding "the loss of a less than even

chance is a loss worthy of redress," id. at 634 (Pearson, J., concurring).

       In Mohr V. Grantham, 172 Wn.2d 844, 850, 856-57, 859,262 P.3d 490 (2011),

our Supreme Court formally adopted the Herskovits plurality's reasoning and extended

it to a lost chance of a better outcome under the medical malpractice statutes, chapter

7.70 RCW. The plaintiffs alleged the defendants' negligent treatment reduced the

patient's chance of recovering from a stroke. Id. at 849. Expert testimony showed if the

defendants had followed the applicable standard of care, the patient probably would

have had a 50 to 60 percent chance of less or no disability. Id. at 849, 859-60. Our

Supreme Court reversed summary judgment dismissal, finding "on this evidence, a

prima facie showing of duty, breach, injury in the form of a lost chance, and causation."

Id. at 860, 862.

       Herskovits and Mohr establish a medical patient's lost chance of survival or a

better outcome as an injury distinct from' death or disability but nonetheless actionable

under the wrongful death and .medical malpractice statutes. See 99 Wn.2d at 634-35

(Pearson, J., concurring); 172 Wn.2d at 852,857,859. Consistent with traditional tort

principles, the lost chance doctrine requires the plaintiff to prove the defendant

breached a duty owed to the patient and, thereby, proximately caused the patient to

lose a chance of survival or a better outcome. Herskovits, 99 Wn.2d at 631-32,634-35

(Pearson, J., concurring); Mohr, 172 Wn.2d at 857. But the lost chance doctrine allows      r


some recovery even where traditional tort principles would not. RESTATEMENT (THIRD)

OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. n (2010); Joseph H.


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King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving

Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353, 1363-64, 1376-78

(1981).

       Because a plaintiff must prove proximate cause by a '''probably' or 'more likely

than not'" standard, traditional tort principles would require the plaintiff to prove loss of a

chance greater than 50 percent. Herskovits, 99 Wn.2d at 623,631-33 (Pearson, J.,

concurring); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL

HARM § 26 cmt. n; King, supra, 90 YALE L.J. at 1367. Where the plaintiff proved this

percentage, he or she recovered all damages and where the plaintiff did not prove this

percentage, he or she recovered nothing. Herskovits, 99 Wn.2d at 633 (Pearson, J.,

concurring); RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL

HARM § 26. cmt. n; King, supra, 90 YALE L.J. at 1367.

       Under the lost chance doctrine, however, a plaintiff may recover something even

if he or she proves loss of a chance less than or equal to 50 percent. Herskovits, 99

Wn.2d at 634-35 (Pearson, J., concurring); RESTATEMENT (THIRD) OF TORTS: LIABILITY

FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. n; King, supra, 90 YALE L.J. at 1363-64,

1376-78. Specifically, the plaintiff may recover solely a percentage of total damages

proportional to the chance lost:

       "Rather than full damages for the adverse outcome, the plaintiff is only
       compensated for the lost opportunity. The lost opportunity may be thought
       of as the adverse outcome discounted by the difference between the ex
       ante probability of the outcome in light of the defendant's negligence and
       the probability of the outcome absent the defendant's negligence."




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Mohr, 172 Wn.2d at 858 (quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR

PHYSICAL AND EMOTIONAL HARM § 26 cmt. n; see also Herskovits, 99 Wn.2d at 635

(Pearson, J., concurring) (quoting King, supra, 90 YALE L.J. at 1382).

       Here, the trial court instructed the jury on a medical patient's lost chance of

survival after deciding:

       (1) where the defendant's negligence reduced the decedent's chance of survival
           by less than or equal to 50 percent, the loss of a chance is the injury and the
           plaintiff receives proportional compensation under the lost chance doctrine,
           but where the defendant's negligence reduced the decedent's chance of
           survival by greater than 50 percent, as a matter of law, the death remains the
           injury and the plaintiff receives all-or-nothing recovery under traditional tort
           principles;
       (2) the evidence supported a lost chance instruction; and
       (3) respondents did not have to plead a lost chance of survival as a separate
           cause of action because it was part of their wrongful death claim based on
           medical negligence.

       We review a decision on whether to give a requested jury instruction for abuse of

discretion if based on the trial court's view of the facts and de novo if based on the trial

court's view of the law. 6 State   V.   Lucky, 128 Wn.2d 727,731,912 P.2d 483 (1996),

overruled on other grounds by State        V.   Berlin, 133 Wn.2d 541, 544, 947 P.2d 700

(1997). Therefore, we review the trial court's first and third decisions de novo, and

second decision for abl,lse of discretion. See id. The sections below address each

decision separately.



          6 A trial court abuses its discretion if its decision is "manifestly unreasonable,"
based on "untenable grounds," or made for "untenable reasons." State ex rei. Carroll V.
Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see also In re Marriage ofUttlefield, 133
Wn.2d 39,46-47,940 P.2d 1362 (1997) (UA court's decision is manifestly unreasonable
if it is outside the range of acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual findings are unsupported by the

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                               1. Lost Chance Percentage

       Appellants contend where the defendant's negligence reduced the decedent's

chance of survival by greater than 50 percent, the plaintiff may not argue the lost

chance doctrine because traditional tort principles provide exclusive relief in these

cases? Alternatively, appellants contend a plaintiff who proves such a loss may recover

no more than a proportional percentage of damages compensating the chance lost.

Respondents contend a plaintiff may argue the lost chance doctrine in these cases and

recover all damages otherwise available under traditional tort principles. The dispute

turns on the effect of Herskovits and Mohr. We interpret and apply judicial opinions de

novo. State v. Willis, 151 Wn.2d 255, 261, 87 P.3d 1164 (2004).

       First, the parties dispute the meaning of the Herskovits plurality's holding that

"the best resolution of the issue before us is to recognize the loss of a less than even

chance as an actionable injury." 99 Wn.2d at 634 (Pearson, J., concurring). Context

indicates the plurality limited the lost chance doctrine to cases where the defendant's

negligence reduced the decedent's chance of survival by less than or equal to 50


record; it is based on untenable reasons if it is based on an incorrect standard or the
facts do not meet the requirements of the correct standard."}.
       7 Similarly, appellants contend where the defendant's negligence reduced the
decedent's chance of survival to zero, the plaintiff may not argue the lost chance
doctrine because traditional tort principles provide exclusive relief in these cases as
well. We dismiss appellants' contention because it overemphasizes the ending
percentage. For example, in Herskov;ts, it would have made no legal difference
whether the defendant's negligence had reduced the decedent's chance of survival from
14 to zero percent instead of from 39 to 25 percent. Either way, the decedent lost a 14
percent chance of survival and our Supreme Court has emphatically declared this loss
merits redress. See Herskovits, 99 Wn.2d at 634-35 (Pearson, J., concurring); Mohr,
172 Wn.2d at 852,857,859. Because each loss is just as quantifiable as the other, any
purported distinction between them is artificial.

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percent. The plurality began with the dilemma that the plaintiff could not prove wrongful

death causation by a 'probably' or 'more likely than not' standard because the

defendant's negligence reduced the decedent's chance of survival by just 14 percent,

not 51 percent. Id. at 622-23, 633. For the plurality, the solution turned on whether it

defined the decedent's injury as his death or as a reduction in his chance to survive his

death-causing condition. Id. at 623-24. After reviewing judicial opinions from other

jurisdictions, the plurality noted,

          The three cases where the chance of survival was greater than 50
       percent ... are unexceptional in that they focus on the death of the
       decedent as the injury, and they require proximate cause to be shown
       beyond the balance of probabilities. Such a result is consistent with
       existing principles in this state . ...

Id. at 631 (emphasis added). Thus, the plurality thought a greater than 50 percent

reduction in the decedent's chance of survival was the same as proximate cause of the

decedent's death under traditional tort principles. See id.

       Finally, rejecting all-or-nothing recovery in favor of proportional compensation,

the Herskovits plurality held 'the best resolution of the issue before us is to recognize

the loss of a less than even chance as an actionable injury." Id. at 632-34. By

reconceptualizing the decedent's injury as a reduction in his chance to survive his

death-causing condition, the plurality concluded the plaintiff could now prove wrongful

death causation in the form of a reduced chance of survival by a 'probably' or 'more

likely that not' standard. Id. The plurality noted it derived this reconceptualization from

a "liberal construction" of the wrongful death statute. Id. at 635 n.1. "Under this

interpretation," the plurality explained, "a person will 'cause' the death of another person


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(within the meaning of RCW 4.20.010) whenever he causes a substantial reduction in

that person's chance of survival." Id. at 634-35.

       Second, the parties dispute the meaning of the Mohr court's holding that

"Herskovits applies to lost chance claims where the ultimate harm is some serious injury

short of death." 172 Wn.2d at 857. Context indicates the court did not expand the lost

chance doctrine to losses greater than 50 percent. The court began by formally

adopting the Herskovits plurality's reasoning and extending it to a lost chance of a better

outcome under the medical malpractice statutes. Id. at 850,856-57. Then, the court

reversed summary judgment upon expert testimony showing if the defendants had

followed the applicable standard of care, the patient probably would have had a 50 to 60

percent chance of less or no disability. Id. at 849, 859-60, 862. The court reasoned this

evidence established a prima facie medical malpractice claim, including causation. Id.

at 860,862.

       But the Mohr court did not specify whether the plaintiff could argue the lost

chance doctrine upon the 51 to 60 percent figures as well as the 50 percent figure.

Because the 51 to 60 percent figures rose above the balance of probabilities, they

constituted prima facie evidence of causation under traditional tort principles. Because

the 50 percent figure fell below the balance of probabilities, it constituted prima facie

evidence of causation under the lost chance doctrine.

       We conclude the Herskovits plurality and Mohr court intended the lost chance

doctrine to reconceptualize the decedent's injury and aid the plaintiff in proving wrongful

death causation solely where the plaintiff cannot do so under traditional tort principles,


                                             16 

No. 30864-2-111, consol. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

that is, where the defendant's negligence reduced the decedent's chance of slJrvival by

less than or equal to 50 percent. Logic compels our conclusion because where the loss

is greater than 50 percent, no "separate and distinguishable harm" exists. Daugert V.

Pappas, 104 Wn.2d 254, 261,704 P.2d 600 (1985). As a matter of law, a greater than

50 percent reduction in the decedent's chance of survival is the same as proximate

cause of the decedent's death under traditional tort principles. See Herskovits, 99

Wn.2d at 631 (Pearson, J., concurring).

       Our conclusion preserves what we believe has become common understanding.

See Kokerv. Armstrong Cork, Inc., 60 Wn. App. 466, 482,804 P.2d 659 (1991) (stating

the lost chance doctrine applies where the plaintiff "lost an opportunity and has no other

redress"); Sorenson v. Raymark Indus., Inc., 51 Wn. App. 954, 957, 756 P.2d 740

(1988) (same); 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT

LAw AND PRACTICE § 4.10, at 156 (3d ed. 2006) (stating the lost chance doctrine should

apply solely where the plaintiff "has no other means of redress for his condition"). Many

commentators have argued cogently for completely supplanting the all-or-nothing

recovery of traditional tort principles with the proportional compensation of the lost

chance doctrine, even where the chance lost is greater than 50 percent. E.g., King,

supra, 90 YALE L.J. at 1387; Joseph H. King, Jr., "Reduction of Likelihood"

Reformulation and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. MEM. L.         I
                                                                                             I
REV. 491, 556-57 (1998); David A. Fischer, Tort Recovery for Loss of a Chance, 36

WAKE FOREST L. REV. 605, 619 (2001). While logical, such a task is best left to our

Supreme COlJrt or legislature.                                                               I
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       Considering all, we adopt the trial court's reasoning and hold where the

defendant's negligence reduced the decedent's chance of survival by less than or equal

to 50 percent, the loss of a chance is the injury and the plaintiff receives proportional

compensation under the lost chance doctrine, but where the defendant's negligence

reduced the decedent's chance of survival by greater than 50 percent, as a matter of

law, the death remains the injury and the plaintiff receives all-or-nothing recovery under

traditional tort principles. Thus, a plaintiff may not argue the lost chance doctrine where

the defendant's negligence reduced the decedent's chance of survival by greater than

50 percent. We next apply this holding to our facts.

                                     2. Substantial Evidence

      Appellants contend the trial court erred in finding the evidence supported

instructing the jury on a medical patient's lost chance of survival. We review a trial

court's decision on whether evidence supports a jury instruction for abuse of discretion.

See State   V.   Walker, 136 Wn.2d 767,771-72,777,966 P.2d 883 (1998).

      A trial court must instruct the jury on a party's case theory if substantial evidence

supports it. Kelsey    V.   Pollock, 59 Wn.2d 796, 798-99, 370 P.2d 598 (1962). Substantial

evidence is a "sufficient quantum to persuade a fair-minded, rational person of the truth

of a declared premise." Helman        V.   Sacred Heart Hosp., 62 Wn.2d 136, 147,381 P.2d

605 (1963). Evidence supporting a party's case theory "must rise above speculation

and conjecture" to be substantial. Bd~ of Regents of Univ. of Wash.     V.   Frederick &

Nelson, 90 Wn.2d 82, 86, 579 P.2d 346 (1978).




                                                 18 

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       As analyzed above, a trial court may instruct the jury on a medical patient's lost

chance of survival if the evidence shows the defendant's negligence reduced the

decedent's chance of survival by less than or equal to 50 percent. See also Zueger v.

Pub. Hosp. Dist.No. 2 of Snohomish County, 57 Wn. App. 584, 591, 789 P.2d 326

(1990); Herskovits, 99 Wn.2d at 631-32,634-35 (Pearson, J., concurring). This lost

chance '''may be thought of as the adverse outcome discounted by the difference

between the ex ante probability of the outcome in light of the defendant's negligence

and the probability of the outcome absent the defendant's negligence.'" Mohr, 172

Wn.2d at 858 (quoting RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND

EMOTIONAL HARM § 26 cmt. n). And, this calculation "is based on expert testimony,

which in turn is based on significant practical experience and 'on data obtained and

analyzed scientifically ... as part of the repertoire of diagnosis and treatment, as

applied to the specific facts of the plaintiffs case.'" Id. at 857-58 (omission in original)

(quoting Matsuyama v. Birnbaum, 452 Mass. 1, 17,890 N.E.2d 819 (2008».

       Appellants argue the expert testimony dealt solely with death, omitted

percentages showing Mrs. Dormaier's chance of survival with and without Mr. Misasi's            I
negligence, or was too abstract. However, Dr. Swenson testified a patient presenting            I
symptoms of a pulmonary embolus and no complicating terminal illness will have about            I   t
                                                                                                    ~




                                                                                                I
a 90 percent chance of survival if properly diagnosed and treated. He explained

properly diagnosing and treating a pulmonary embolus may reduce patient mortality
                                                                                                t
                                                                                                !
from 70 or 80 percent to 1Ocr 20 percent, which the jury could reasonably infer                     f
increases patient survival from 20 or 30 percent to 80 or 90 percent. Then, noting Mrs.


                                              19
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Dormaier presented symptoms of a pulmonary embolus and no complicating terminal

illness, Dr. Swenson concluded she would have had a 90 percent chance of survival if

properly diagnosed and treated. From this conclusion, the jury could reasonably infer

all previously stated percentages applied to Mrs. Dormaier.

       The expert testimony rises above speculation and conjecture, and is sufficient to

persuade a fair-minded, rational person that Mr. Misasi's negligent decision to

anesthetize Mrs. Dormaier instead of refer her for proper care reduced her chance of

survival by 50 to 70 percent. Because the 51 to 70 percent figures rise above the

balance of probabilities, they constitute substantial evidence to support respondents'

case theory under traditional tort principles. Because the 50 percent figure falls below

the balance of probabilities, -it constitutes substantial evidence to support respondents'

case theory under the lost chance doctrine. Therefore, the trial court did not abuse its

discretion in finding the evidence supported a lost chance instruction.

                                3. Pleading Requirements

       Appellants contend tne trial court erred in concluding respondents did not have to

plead a lost chance of survival as a separate cause of action because it was part of their

wrongful death claim based on medical negligence. We interpret and apply CR 8

pleading requirements de novo. See Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947

P.2d 721 (1997); In re Firestorm 1991, 129 Wn.2d 130,135,916 P.2d 411 (1996).

      A complaint must contain "a short and plain statement of the claim showing that

the pleader is entitled to relief." CR 8(a). We construe a complaint liberally so as to do

substantial justice. CR 8(f); State v. Adams, 107 Wn.2d 611,620.732 P.2d 149 (1987).


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"If a complaint states facts entitling the plaintiff to some relief, it is immaterial by what

name the action is called." Adams, 107 Wn.2d at 620. But a complaint should

adequately alert the defendant of the claim's general nature. State v. Ralph Williams'

Nw. Chrysler Plymouth, Inc., 87 Wn.2d 298, 315, 553 P.2d 423 (1976). While a

complaint may contain inexpert pleading, it may not contain insufficient pleading. Lewis

v. Bell, 45 Wn. App. 192, 197,724 P.2d 425 (1986). A complaint is insufficient if it does

not give the defendant "fair notice of what the claim is and the ground upon which it

rests." Williams v. W. Sur. Co., 6 Wn. App. 300, 305-06, 492 P.2d 596 (1972). Thus, a

complaint must identify the legal theory upon which the plaintiff seeks relief. Dewey v.

Tacoma Sch. Dist. No. 10,95 Wn. App. 18,23,25-26,974 P.2d 847 (1999).

       Appellants argue the Mohr court intended to set the loss of a chance apart as an

autonomous cause of action, claim, or other ground for relief. We disagree. The

Herskovits plurality recognized a lost chance of survival as an "actionable injury"a under

the wrongful death statute, actionable through a wrongful death claim based on medical

negligence. 99 Wn.2d at 634 (Pearson, J., concurring). Our Supreme Court soon

called the loss of a chance an "analysis." Daugert, 104 Wn.2d at 262. Then, the Mohr

court equivocally labeled the loss of a chance as a "cause of action,,,g "claim,,,1o "case,"



       a An injury is "[t]he violation of another's legal right, for which the law provides a
remedy; ... an actionable invasion of a legally protected interest." BLACK'S LAw
DICTIONARY 856 (9th ed. 2009).
       9 A cause of action is "[a] legal theory of a lawsuit" or "[a] group of operative facts
giving rise to one or more bases for suing; a factual situation that entitles one person to
obtain a remedy in court from another person." Id. at 251.
       10 A claim is "[t]he aggregate of operative facts giving rise to a right enforceable
by a court." Id. at 281-82.

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"doctrine," "theory," and "rule." 172 Wn.2d 844 passim.

       While confusing, the Mohr court's labels are not determinative because that case

did not decide how to classify a lost chance of survival for CR 8 pleading purposes. Id.

at 850. Overall, the Mohr court reaffirmed a lost chance of survival is fundamentally an

alternative manner of proving wrongful death causation, available solely where the

defendant's negligence reduced the decedent's chance of survival by less than or equal

to 50 percent. See id. at 850-57; see also Herskovits, 99 Wn.2d at 634-35 (Pearson, J.,

concurring) ("[T]he best resolution of the issue before us is to recognize the loss of a

less than even chance as an actionable injury. . .. [A] person will 'cause' the death of

another person (within the meaning of RCW 4.20.01 O) whenever he causes a

substantial reduction in that person's chance of survival."). Indeed, recovery for a lost

chance of survival is endemic in a wrongful death claim based on medical negligence.

See Herskovits, 99 Wn.2d at 623-24,631-35 (Pearson, J., concurring).

       Nothing suggests the Mohr court intended to set the loss of a chance apart as an

autonomous cause of action, claim, or ground for relief. And, two considerations

suggest our Supreme Court could not or would not do so anyway. First, the right to sue

for damages resulting from death did not exist at common law and is strictly statutory.

Huntington v. Samaritan Hosp., 101 Wn.2d 466, 470 & n.1, 680 P.2d 58 (1984); Hedrick

v. Ilwaco Ry. & Navigation Co., 4 Wash. 400, 402,30 P. 714 (1892), overruled on other

grounds by Lockhart v. Besel, 71 Wn.2d 112,426 P.2d 605 (1967). Second, the

wrongful death statute created a single cause of action. Mills v. Inter Island Tel. Co., 68

Wn.2d 820,831,416 P.2d 115 (1966); Riggs v. N. Pac. Ry., 60 Wash. 292,294,111 P.


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Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

162 (1910). 'The formulation of a new policy with regard to this statutory cause of

action is the responsibility of the Legislature, not a task for this court." Huntington, 101

Wn.2d at 470; accord Atchison    V.   Great W Malting Co., 161 Wn.2d 372, 381, 166 P.3d

662 (2007); Philippides v. Bernard, 151 Wn.2d 376, 390, 88 P.3d 939 (2004).

       Respondents' "COMPLAINT FOR WRONGFUL DEATH" alleged Mrs. Dormaier

"died as a proximate result of the negligence of the Defendants" and "sustained injuries

and damages and died due to the negligence of Defendants." CP at 4, 9. The

complaint stated a wrongful death claim based on medical negligence, specifying Mr.

Misasi's decision to anesthetize Mrs. Dormaier instead of refer her for proper care "was

a proximate cause of the injury and death to [her]." CP at 10. These facts, if proved,

would entitle respondents to some relief under the wrongful death statute, through either

the lost chance doctrine or traditional tort principles. See Herskovits, 99 Wn.2d at 620

(Pearson, J., concurring) (quoting the complaint's allegation that the defendant's

negligent failure to diagnose the decedent's lung cancer "led to and caused his death");

Adams, 107 Wn.2d at 620.

       But wrongful death remained the legal theory upon which respondents sought

relief. See Dewey, 95 Wn. App. at 23, 25-26. Thus, it is immaterial whether the

complaint expressly named the lost chance injury. See Adams, 107 Wn.2d at 620.

Even so, the complaint noti'fied appellants of the wrongful death claim based on medical

negligence and related various resulting injuries. See Ralph Williams', 87 Wn.2d at

315. Therefore, the complaint gave appellants fair notice of the claim and its grounds.

See Williams, 6 Wn. App. at 305-06; Lewis, 45 Wn. App. at 197.


                                             23 

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 Estate of Dormaier v. Columbia Basin Anesthesia, PLLC

        Our conclusion is bolstered by decisions from other jurisdictions that have

 followed Herskovits and adopted a lost chance as the law of the state. None of these

 other courts have held a lost chance is a new cause of action. To the contrary, in Baer

 v. Regents of the University of California, 126 N.M. 508, 513, 972 P.2d 9 (1998), the

 New Mexico Court of Appeals declared the lost chance doctrine "does not require

 recognition of a new cause of action." In Poulin v. Yasner, 64 Conn. App. 730, 744, 781

A.2d 422 (2001), the Connecticut Appellate Court agreed with the trial court that the

 plaintiff did not need to expressly plead a lost chance injury. In Roberts v. Ohio

 Permanente Medical Group, Inc., 76 Ohio S1. 3d 483,668 N.E.2d 480 (1996), the Ohio

. Supreme Court concluded recovery for a lost chance of survival was viable where the

 plaintiff pleaded only wrongful death based on medical malpractice. See also Wendland

 v. Sparks, 574 N.W.2d 327,329 (Iowa C1. App. 1998) (concluding a plaintiff need not

 plead a lost chance theory to avail himself or herself of such a claim in a wrongful death

 action based on medical malpractice); Powell v. St. John Hosp., 241 Mich. App. 64, 76,

 614 N.W.2d 666 (2000) (concluding the plaintiff was not required to plead the lost

chance doctrine because it was not a separate theory of recovery from the plaintiffs

medical malpractice claim alleging wrongful death).

       Accordingly, the trial court properly concluded respondents did not have to plead

a lost chance of survival as a separate cause of action because it was part of their




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Estate of Dormaier v. Columbia Basin Anesthesia, PLLC

wrongful death claim based on medical negllgence. 11 In sum, the trial court did not err

in instructing the jury on a medical patient's lost chance of sUNival.

                                B. Fault Allocation Rulings

       The issue is whether appellants preseNed their error claims regarding the trial

court's fault allocation rulings or, alternatively, whether any such error was harmless.

Appellants contend the court erred in ruling res judicata precluded them from allocating

fault to Drs. Canfield and Hart as non parties previously dismissed on summary

judgment. Respondents contend appellants did not preseNe their error claims but,

even so, any error was harmless. We may affirm on any ground the record is

"sufficiently developed to fairly consider." RAP 2.5(a). We will not reverse unless an

error prejudiced a party because it "affects, or presumptively affects, the outcome of the

triaL" Brown v. Spokane County Fire Prot. Dist. No.1, 100 Wn.2d 188, 196,668 P.2d

571 (1983), We review de novo whether a defendant improperly invoked the fault

allocation procedure or waived a pleaded affirmative defense. See King v. Snohomish

County, 146 Wn.2d 420,424-25,47 P.3d 563 (2002); Adcox v. Children's Orthopedic

Hosp. & Med. Ctr., 123 Wn.2d 15, 24-29, 864 P.2d 921 (1993).


         11 Moreover, by finding "the parties addressed the [lost chance] issue (if under
other terminology) on both sides of the case," CP at 233, the trial court apparently
treated the pleadings as amended to conform to the lost chance evidence presented at
trial, see Stueckle v. Sceva Steel Bldgs., Inc., 1 Wn. App. 391,392,461 P.2d 555
(1969). The court did not abuse its discretion in doing so because appellants failed to
object to the lost chance evidence for raising an issue outside the pleadings, failed to
request a trial continuance, and failed to request a reopening of the evidence before the
jury began deliberating. See CR 15(b); ER 103(a)(1); Reichelt v. Johns-Manville Corp.,
107 Wn.2d 761,766-67,733 P.2d 530 (1987); Daves v. Nastos, 105 Wn.2d 24,27,711
P.2d 314 (1985) (citing V.C. Edwards Contracting Co. v. Port of Tacoma, 83 Wn.2d 7,
 14,514 P.2d 1381 (1973».

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Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

          As amended, the Tort Reform Act of 1986 partly provides, "In all actions involving

fault of more than one entity, the trier of fact shall determine the percentage of the total

fault which is attributable to every entity which caused the claimant's damages ...."

RCW 4.22.070(1). Entities include "defendants," such as Mr. Misasi and Samaritan

Hospital, and non parties with "any other individual defense against the claimant," such

as Drs. Canfield and Hart. Id. Fault means "acts or omissions ... that are in any

measure negligent or reckless." RCW 4.22.015.

       A defendant must properly invoke RCW 4.22.070(1)'s fault allocation procedure

because it "is not self-executing" and "does not automatically apply to each case where

more than one entity could theoretically be at fault." Adcox, 123 Wn.2d at 25-26. Thus,

a defendant must plead nonparty fault as an affirmative defense. CR 8{c), 12(i);

Henderson     V.   Tyrrell, 80 Wn. App. 592, 623-24, 910 P.2d 522 (1996). But a defendant

may waive a pleaded affirmative defense under some circumstances. See King, 146

Wn.2d at 424-25; 14 KARL B. TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE §

12:17, at 489 (2d ed. 2009). Specifically, a defendant may waive an affirmative defense

as a matter of law if "the defendant's assertion of the defense is inconsistent with the
                                            "




defendant's previous behavior" or "the defendant's counsel has been dilatory in

asserting the defense." Lybbert v. Grant County, 141 Wn.2d 29, 38-39, 1 P.3d 1124

(2000).

       Respondents' complaint originally named Drs. Canfield and Hart as defendants

while Mr. Misasi and Samaritan Hospital's answers each pleaded nonparty fault as an

affirmative defense. But when Drs. Canfield and Hart moved for summary judgment


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    No. 30864-2-111, consol. with No. 30865-1-111
    Estate of Dormaier v. Columbia Basin Anesthesia, PLLC

    dismissal of respondents' claims against them, no party opposed the motion. Then, in

    their trial briefs, appellants introduced their case theory that Drs. Canfield and Hart were

    not negligent and, because Mr. Misasi relied on them and acted jointly with them as part
J
1
!   of a team, he was not negligent either. Through motions in limine 1 and 14,
1


    respondents sought to prohibit appellants from allocating fault to Drs. Canfield and Hart.

    While appellants asked the trial court to defer ruling on the motions, our record shows

    numerous instances where they specifically and consistently stated their intent not to

    paint Drs. Hart and Canfield as negligent, in other words, not to allocate fault to them.

           For example, in a joint memorandum, appellants said, "At this juncture,

    Defendants do not intend to paint the care of Drs. Hart and Canfield as negligent. On

    the contrary, Defendants contend that no party was negligent." CP at 748. At a

    hearing, appellants said,

           I suspect that it's about a 99 percent chance we're not going to apportion
           fault.

           · .. I don't think I'm going to apportion fault to either of these
           gentlemen ....
           · .. I don't think I'm going to apportion fault to Dr. Hart and Dr. Canfield.
           On the contrary, I think the position of Mr. Misasi, of the hospital is that
           none of the people involved in this case were negligent, including Mr.
           Misasi.

           · .. I don't anticipate anyone on the defense side saying that there was
           negligence committed by Dr. Hart ... or by Dr. Canfield ... because it is
           our position that the defendant, that all of the originally named defendants,
           none of them were negligent.

    RP at 82, 105, 108-10. After the trial court granted motions in limine 1 and 14, the

    parties revisited the ruling several times during trial, when appellants said,



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Estate of Dorrnaier V. Columbia Basin Anesthesia, PLLC

       I believe I stood up when we were arguing your ruling and said, I will ­
       defendants will not apportion fault, we're not going to try to put Dr. Hart 

       and Dr. Canfield on the verdict form. 


       · .. I don't know that it makes a difference whether Dr. Hart and Dr. 

       Canfield were negligent or not. I'm not going to apportion fault to them. 


       · .. I'm not going to say they were negl~gent.

       · .. [M]y recollection of the ruling of the court was we could not apportion 

       fault, we certainly aren't going to, we never were as to Dr. Canfield or Dr. 

       Hart. 


RP at 670-71, 678, 962. When the trial court decided to instruct the jury not to consider

whether Drs. Canfield and Hart were negligent, Mr. Misasi objected, arguing the

instruction was irrelevant.

       Appellants' case theory argued Drs. Canfield and Hart were not negligent and,

because he relied on them and acted jointly with them as part of a team, Mr. Misasi was

not negligent either. Appellants elected this theory independently of the trial court's fault

allocation rulings by introducing it in their trial briefs, which they filed 17 and 18 days,

respectively, before the court granted motions in limine 1 and 14. Throughout the entire

case, appellants deliberately avoided allocating fault to Drs. Canfield or Hart because

doing so would undermine this theory. See Adcox, 123 Wn.2d at 28-29. Thus, after

they pleaded nonparty fault as an affirmative defense in May and July 2009,

respectively, appellants did not assert it again until filing their opening brief to this court

in November 2012.

       Asserting nonparty fault here is both dilatory and inconsistent with appellants'

trial court behavior. See King, 146 Wn.2d at 424-25; Lybbert, 141 Wn.2d at 38-45.



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Appellants' course of conduct as a whole waived the affirmative defense of nonparty

fault. See King, 146 Wn.2d at 424-25; Lybbert, 141 Wn.2d at 38-45. Therefore, they

did not properly invoke RCW 4.22.070(1)'s fault allocation procedure. See CR 8(c),

12(i); Adcox, 123 Wn.2d at 25-26; Henderson, 80 Wn. App. at 623-24. Even if we

concluded otherwise, any error in the trial court's fault allocation rulings was harmless

because, as the analysis above indicates, it did not affect or presumptively affect the

trial outcome and, thus, did not prejudice appellants. See Brown, 100 Wn.2d at 196. In

sum, appellants did not preserve their error claims regarding the trial court's fault

allocation rulings and, alternatively, any error was harmless.

                             C. Judgment as a Matter of Law

       The issue is whether-the trial court erred in denying appellants' motion for

judgment as a matter of law. 12 Appellants contend the expert testimony did not prove

proximate cause, speCifically factual cause. We review a decision on a motion for

judgment as a matter of law de novo, applying the same standard as the trial court.

Sing v. John L. Scott, Inc., 134 Wn.2d 24,29,948 P.2d 816 (1997); Hill v. BCT/lncome

Fund-I, 144 Wn.2d 172, 187,23 P.3d 440 (2001), overruled on other grounds by

McClarty v. Totem Elec., 157 Wn.2d 214,137 P.3d 844 (2006).

      Judgment as a matter of law is proper if "viewing the evidence most favorable to

the nonmoving party, the court can say, as a matter of law, there is no substantial



      12 Appellants additionally characterize this as a motion to dismiss for insufficient
evidence under RCW 4.56.150. But the characterization does not alter our ana.lysis.
See 14A TEGLAND, supra, § 23:14, at 49-50 (stating a motion to dismiss for insufficient
evidence under RCW 4.56.150 is "for all practical purposes, the equivalent of a motion

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evidence or reasonable inference to sustain a verdict for the nonmoving party." Sing,

134 Wn.2d at 29 (citing Indus. Indem. Co. of the Nw.      V.   Kallevig, 114 Wn.2d 907, 915­

16,792 P.2d 520 (1990)); see CR 50(a)(1). Substantial evidence is a "sufficient

quantum to persuade a fair-minded, rational person of the truth of a declared premise."

Helman, 62 Wn.2d at 147. Evidence sustaining a verdict for the nonmoving party must

"convince 'an unprejudiced, thinking mind'" to be substantial. Indus. Indem., 114 Wn.2d

at 916 (quoting Hojem   V.   Kelly, 93 Wn.2d 143, 145,606 P.2d 275 (1980». A motion for

judgment as a matter of law "admits the truth of the [nonmoving party's] evidence and

all inferences which can reasonably be drawn therefrom, and requires that the evidence

be interpreted most strongly against the moving party and in a light most favorable to

the [nonmoving party]." Davis v. Early Constr. Co., 63 Wn.2d 252, 254, 386 P.2d 958

(1963). We, like the trial court, defer to the jury in matters of witness credibility and

evidence weight or persuasiveness. Faust      V.   Albertson, 167 Wn.2d 531,538,222 P.3d

1208 (2009).

       A wrongful death claim requires the plaintiff to prove the defendant breached a

duty owed to the decedent and, thereby, proximately caused the decedent's death or

lost chance of survival. See RCW 4.20.010; Herskovits, 99 Wn.2d at 631-32,634-35

(Pearson, J., concurring); Mohr, 172 Wn.2d at 857. Under traditional tort principles, the

death is the injury and the plaintiff must prove causation by a greater than 50 percent

reduction in the decedent's chance of survival. Supra Part A.1. But under the lost

chance doctrine, the loss ofa chance is the injury and the plaintiff may prove causation


for judgment as a matter of law under CR 50" because U[t]he test ... is the same" for

                                             30
No. 30864-2-111, consol. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

by a less than or equal to 50 percent reduction in the decedent's chance of survival.

Supra Part A.1.

         Standard proximate cause principles require the plaintiff to prove the defendant's

breach of duty "was a cause in fact of the injury" and "as a matter of law liability should

attach." Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 475-76,656 P.2d 483 (1983)

(citing King   V.   City of Seattle, 84 Wn.2d 239, 249, 525 P.2d 228 (1974»; see also

Hartley V. State, 103 Wn.2d 768,777,698 P.2d 77 (1985). This case concerns factual

cause solely. "Cause in fact refers to the 'but for' consequences of an act-the physical

connection between an act and an injury." Hartley, 103 Wn.2d at 778. Thus, the

plaintiff may prove factual cause by showing "but for the [defendant's] breach of duty,

the injury would not have occurred." Harbeson, 98 Wn.2d at 476.

         In an action for injury resulting from healthcare, the plaintiff generally must prove

proximate cause by expert testimony. McLaughlin        V.   Cooke, 112 Wn.2d 829, 837, 774

P.2d 1171 (1989); see RCW 7.70.010, .040; Harris v. Robert C. Groth, MD, Inc., 99

Wn.2d 438, 449, 663 P.2d 113 (1983). Expert testimony is insufficient to support a

finding of proximate cause if, as a whole, it requires the jury to "resort to speculation and

conjecture in determining [a] causal relationship." O'Donoghue v. Riggs, 73 Wn.2d 814,

824,440 P.2d 823 (1968). Thus, expert testimony "must at least be sufficiently definite

to establish that the act complained of 'probably' or 'more likely than not' caused the

subsequent [injury]." Id. But expert testimony "is deemed based on speculation and




each).

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Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

conjecture if [it] does not go beyond the expression of an opinion that the [injury] 'might

have' or 'possibly did' result from the hypothesized cause." Id.

         Appellants argue the expert testimony merely established Mr. Misasi's

negligence might have or possibly did cause Mrs. Dormaier's death or lost chance of

survival. They complain the expert testimony lacked any opinion that, but for Mr.

Misasi's negligent decision to anesthetize Mrs. Dormaier instead of refer her for proper

care, Samaritan Hospital probably or more likely than not would have prevented her

fatal pulmonary embolism. They emphasize the expert testimony did not say Samaritan

Hospital would have had enough time or resources to diagnose and treat Mrs.

Dormaier's pulmonary emboli or pelvic deep venous thrombosis if Mr. Misasi had

followed the applicable standard of care.

      We disagree because, viewing the opinions of Drs. Swenson, Hattamer,

Reynolds, and Halpern in a light most favorable to respondents, the expert testimony

shows:

      • 	 If a patient presents symptoms of a pulmonary embolus, performing a
          computed tomography (CT) scan can show the blood clot in the lungs' blood
          vessels. A CT scan is the most common method of revealing a pulmonary
          embolus. It has a 90 percent success rate and takes about an hour.
      • 	 Mrs. Dormaier presented symptoms of a pulmonary embolus and pelvic pain.
      • 	 Samaritan Hospital had a CT scanner and Mrs. Dormaier's medical records
          indicate she could have undergone a CT scan.
      • 	 Performing a CT scan would have revealed Mrs. Dormaier's pulmonary
          emboli or pelvic deep venous thrombosis.
      • 	 If a patient presents a confirmed blood clot, administering Heparin, an
          anticoagulant, can prevent additional clots from forming, prevent existing clots
          from growing and detaching, and promote dissolution of existing clots by
          allowing the body's natural mechanisms to operate unimpeded. Heparin is
          the fastest acting and most commonly used anticoagulant. It has a 90
          percent success rate and takes hours or days.

                                            32 

No. 30864-2-111, con sol. with No. 30865-1-111
Estate of Dormaier v. Columbia Basin Anesthesia, PLLC

       • 	 Administering Heparin would have significantly reduced Mrs. Dormaier's risk
           of a fatal pulmonary embolism.
       • 	 A patient presenting symptoms of a pulmonary embolus and no complicating
           terminal illness will have about a 90 percent chance of survival if properly
           diagnosed and treated. Properly diagnosing and treating a pulmonary
           embolus may reduce patient mortality from 70 or 80 percent to 10 or 20
           percent, which the jury could reasonably infer increases patient survival from
           20 or 30 percent to 80 or 90 percent.
       • 	 Mrs. Dormaier presented symptoms of a pulmonary embolus and no 

           complicating terminal illness. She would have had a 90 percent chance of 

           survival if properly diagnosed and treated. From this conclusion, the jury 

           could reasonably infer all previously stated percentages applied to Mrs. 

           Dormaier. 

       • 	 Mrs. Dormaier's last pulmonary embolism was survivable and her death was
           preventable; the key was proper diagnosis and treatment. But "[tlaking her to
           the operating room was almost euthanizing her." RP at 395.
       • 	 Respondents' expert witnesses rendered each of the opinions above "to a 

           reasonable degree of medical probability or certainty." RP at 260,398,604, 

           646, 925-26, 1166. 


       In sum, appellants' arguments mainly concern witness credibility and evidence 	
                                                                                            I
                                                                                            I
                                                                                            I
weight or persuasiveness. We, like the trial court, defer to the jury on these matters.
                                                                                            I
                                                                                            I
The expert testimony shows if Mr. Misasi had followed the applicable standard of care 	     I
and referred Mrs. Dormaier for proper care, Samaritan Hospital would have diagnosed

and treated her blood clot, and she would have had a chance of survival between 80          I
and 90 percent. Additionally, the expert testimony shows because Mr. Misasi

negligently anesthetized Mr~. Dormaier, Samaritan Hospital did not diagnose and treat       !
her blood clot, and she had a chance of survival between 20 and 30 percent. The             I
expert testimony rises above speculation and conjecture, and is sufficient to persuade a

fair-minded, rational person that Mr. Misasi's negligence probably or more likely than 	
                                                                                            I
                                                                                            i
not caused Mrs. Dormaier a 50 to 70 loss in her chance of survival. Because the 51 to       I
                                                                                            l
70 percent figures rise above the balance of probabilities, they constitute substantial 	   t
                                                                                            I
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No. 30864-2-111, consol. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

evidence to support a proximate cause finding under traditional tort principles. Because

the 50 percent figure falls below the balance of probabilities, it constitutes substantial

evidence to support a proximate cause finding under the lost chance doctrine.

Therefo~e, the trial court did not err in denying appellants' motion for judgment as a

matter of law.

                                D. Special Verdict Answers

       The issue is whether the trial court erred by denying appellants' request for entry

of judgment in their favor upon the special verdict. Appellants contend an irreconcilable

inconsistency exists between answers 2 and 4 in light of the lost chance instruction.

Because the trial court based its decision on its view of the special verdict's legal effect,

we apply the de novo review standard. See In re Registration of Elec. Lightwave, Inc.,

123 Wn.2d 530, 536, 869 P.2d 1045 (1994) (stating an appellate court applies the de

novo review standard to a decision upon a legal issue); cf. Sing, 134 Wn.2d at 29.

       Once a jury renders a verdict, the trial court must declare its legal effect. State V.

Evans Engine & Equip. Co., 22 Wn. App. 202, 205-06, 589 P.2d 290 (1978); Mingerv.

Reinhard Distrib. Co., 87 Wn. App. 941,946,943 P.2d 400 (1997); see CR 49,58. A

court liberally construes a verdict so as to discern and implement the jury's intent, if

consistent with the law. Wright v. Safeway Stores, Inc., 7 Wn.2d 341,344,109 P.2d

542 (1941) (citing Cameron v. Stack-Gibbs Lumber Co., 68 Wash. 539, 544,123 P.

1001 (1912}). A court may view a verdict in light of the jury instructions and trial

evidence. Meenach v. Triple "E" Meats, Inc., 39 Wn. App. 635, 639,694 P.2d 1125

(1985); Evans Engine & Equip., 22 Wn. App. at 206.


                                             34


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No. 30864-2-111. conso/. with No. 30865-1-111
Estate of Dormaier v. Columbia Basin Anesthesia, PLLC

       If special verdict answers conflict with each other, a court must attempt to

harmonize them; where the answers are reconcilable, the trial court must enter

judgment accordingly and where the answers are irreconcilable. the trial court must

order further deliberations or a new trial. Tincani v. Inland Empire Zoological Soc'y, 124

Wn.2d 121,136,875 P.2d 621 (1994) (quoting Blue Chelan, Inc. v. Dep'tofLabor&

Indus., 101 Wn.2d 512, 515, 681 P.2d 233 (1984)); 14A TEGLAND, supra, § 32:16, at 362

& n.2 (quoting Haney v. Cheatham, 8 Wn.2d 310, 325-26, 111 P.2d 1003 (1941)); cf.

CR 49(b). But a court must not "substitute its judgment for that which is within the

province of the jury." Blue Chelan, 101 Wn.2d at 515. Until a party proves otherwise, a

court must presume the jury properly followed the instructions it received. State v. Gay,

82 Wash. 423, 428, 144 P. 711 (1914); Bordynoski v. Bergner, 97 Wn.2d 335, 342, 644

P.2d 1173 (1982). A court must order a new trial if a verdict indicates the jury

disregarded its instructions. Tincani, 124 Wn.2d at 136 (citing Nichols v. Lackie, 58 Wn.

App. 904, 907, 795 P.2d 722 (1990)).

       In special verdict answer 4, the jury found Mr. Misasi's negligence proximately

caused Mrs. Dormaier a 70 percent loss in her chance of survival. The lost chance

instruction stated, "If you find that the loss or diminution of a chance to survive was in

excess of 50%, then you have found that such negligence was a proximate cause of the         I
                                                                                             t
death." CP at 273; RP at 1439. In special verdict answer 2, the jury wrote "No," finding

Mr. Misasi's negligence did not proximately cause Mrs. Dormaier's death. Thus,

answers 2 and 4 conflict with each other in light of the lost chance instruction.




                                             35
No. 30864-2-111, consol. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

       Appellants argue this conflict is irreconcilable because the lost chance instruction

prohibited the jury from finding a lost chance greater than 50 percent in answer 4 and

required the jury to instead write "Yes" in answer 2. But the instruction used descriptive

rather than prescriptive language. It did not expressly limit the scope of potential

'findings. It merely announced that finding a lost chance of survival greater than 50

percent would have the same legal effect as finding proximate cause of death. Because

a lost chance of survival is an actionable injury distinct from death, see Herskovits, 99 .

Wn.2d at 634-35 (Pearson, J., concurring); Mohr, 172 Wn.2d at 852,857,859, the jury

could generally find proximate cause of the former without finding proximate cause of

the latter. Though the jury based respondents' recovery on the sole area of potential

overlap between the lost chance doctrine and traditional tort principles, the lost chance

instruction provides a workable basis for discerning and implementing the jury's intent.

Thus, we can harmonize special verdict answers 2 and 4 in light of the lost chance

instruction. 13 We agree with the trial court that writing "70%" in answer 4 had the same

legal effect as writing "Yes" in answer 2. Therefore, the court did not err by denying

appellants' request for entry of judgment in their favor upon the special verdict.



        13 Regardless, appellants waived their objection to the special verdict answers
by failing to assert it before the trial court discharged the jury. See Gjerde v. Fritzsche,
55 Wn. App. 387, 393-94, 777 P.2d 1072 (1989); Minger, 87 Wn. App. at 946. To the
extent appellants argue an inconsistency exists in the special verdict questions
themselves, they waived this objection too by failing to assert it before the trial court
discharged the jury. See Lahmann V. Sisters of St. Francis of Phi/a., 55 Wn. App. 716,
723,780 P.2d 868 (1989); Queen City Farms, Inc. V. Cent. Nat'llns. Co. of Omaha, 126
Wn.2d 50, 63, 882 P.2d 703, 891 P.2d 718 (1994). And, to the extent appellants argue
the jury misunderstood or misapplied the lost chance instruction during deliberations,
any misconduct or procedural irregularity inhered in the verdict after the trial court polled

                                             36 

No. 30864-2-111, conso/. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

                                        E. Damages

       The issue is whether the trial court erred by denying appellants' request for a

judgment award limited to the estate's damages or alternatively, 70 percent of both

respondents'damages. Our review standard remains de novo. See Elec. Lightwave,

123 Wn.2d at 536; cf. Sing, .134 Wn.2d at 29.

       First, appellants argue Mr. Dormaier may not recover individual damages for Mrs.

Dormaier's lost chance of survival because the measure of damages instruction limited

his individual compensation to damages resulting from her death. Indeed, the measure

of damages instruction required the jury to award Mr. Dormaier individual compensation

for "such damages as you find were proximately caused by the death of [Mrs.]

Dormaier." CP at 274; RP at 1440. And indeed, a lost chance of survival is an

actionable injury distinct from death. See Herskovits, 99 Wn.2d at 634-35 (Pearson, J.,

concurring); Mohr, 172 Wn.2d at 852,857,859. But we decline to read the measure of

damages instruction hypertechnically.

      Construing the relevant language along with the lost chance instruction, "death"

here means the general fact Mrs. Dormaier has died. This fact underlies the lost

chance doctrine as well as traditional tort principles. Damages for a lost chance of

survival are partly defined and measured in terms of "death," specifically, "what would   I
be compensable under the ultimate harm of death," Mohr, 172 Wn.2d at 858, or "'the

compensable value of the victim's life had he survived,'" Herskovits, 99 Wn.2d at 635

(quoting King, supra, 90 YALE L.J. at 1382). Thus, the jury properly concluded the


the jury in open court. See Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d

                                           37
No. 30864-2-111, consol. with No. 30865-1-111
Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

measure of damages instruction allowed it to award Mr. Dormaier individual

compensation for damages resulting from Mrs. Dormaier's lost chance of survival. This

award creates no redundancy because the lost chance doctrine is alternative to and

provides different relief than traditional tort principles. Therefore, the trial court did not

err by denying appellants' request for a judgment award limited to the estate's

damages.

       Second, appellants argue that because the jury found a 70 percent loss in Mrs.

Dormaier's chance of survival, respondents may recover no more than that proportional

percentage of damages as compensation. But considering our analysis in the section

above, the special verdict had the same legal effect as if the jury based respondents'

recovery on traditional tort principles instead of the lost chance doctrine. The special

verdict entitled respondents to full recovery.

       To determine if proportionate recovery is proper in a case where the lost chance

of survival exceeds 50 percent, we should review the reasons our Supreme Court

adopted the lost chance doctrine in Herskovits. We identify at least two rationales.

First, according to Justice Dore's lead opinion, we do not want "a blanket release from

liability for doctors and hospitals any time there was less than a 50 percent chance of

survival, regardless of how flagrant the negligence." Herskovits, 99 Wn.2d at 614

(Dore, J., lead opinion). Second, the health care provider's own negligence has

rendered it difficult to predict the chances of survival, since the trier of fact cannot

review how the patient would have fared without negligent treatment. As Justice Dore


747,768-71,818 P.2d 1337 (1991).

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Estate of Dormaier V. Columbia Basin Anesthesia, PLLC

noted, ''The underlying reason is that it is not for the wrongdoer, who put the possibility

of recovery beyond realization, to say afterward that the result was inevitable." Id. at

614. Restated: '''an actor is not completely insulated because of uncertainties as to the

consequences of his negligent conduct.'" Id. at 616 (quoting Hamil    V.   Bashline, 481 Pa.

256, 271, 392 A.2d 1280 (1978». Justice Pearson's plurality opinion echoes this

second rationale where he writes:

         When a defendant's negligent action or inaction has effectively
      terminated a person's chance of survival, it does not lie in the defendant's
      mouth to raise conjectures as to the measure of the chances that he has
      put beyond the possibility of realization. If there was any substantial
      possibility of survival and the defendant has destroyed it, he is
      answerable.

Id. at 625-26 (Pearson, J., concurring) (quoting Hicks v. United States, 368 F.2d 626,

632 (4th Cir. 1966». Neither rationale is furthered by reducing recovery where the

defendant's negligence proximately caused the decedent's death.

      The trial court did not err by denying appellants' request for a judgment award

limited to 70 percent of both respondents' damages.

      Affirmed.
                                                                                               I
                                                   Brown, J.
WE CONCUR: 





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