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                                                                                                2D14 SEP - 3 PH 9: 21
       IN THE COURT OF APPEALS OF THE STATE OF WASHINq O
                                                      DIVISION IIlY''\

KENNETH FLYTE, as Personal                                                   No. 43964 -6 -II
Representative of THE ESTATE OF
KATHRYN FLYTE, on behalf of their son
 JACOB FLYTE, and as Personal
 Representative of THE ESTATE OF
ABBIGAIL FLYTE,


                                          Appellants;                    PUBLISHED OPINION


           v.



    SUMMIT         VIEW         CLINIC,         a   Washington
    corporation,




                                           Respondents.


          BJORGEN, A. C. J. —           Kenneth Flyte sued Summit View Clinic ( Clinic) following the death

of his wife Kathryn and their infant daughter Abbigail. 1 Kathryn had visited the Clinic while

feeling ill during pregnancy and died shortly after from the H1N12 influenza virus. Abbigail,

delivered by caesarean section while Kathryn lay comatose, died some months later. Kenneth

based his claim primarily on the fact that the Clinic staff did not inform Kathryn about H1N1 or

offer her Tamiflu, a drug often effective in treating the illness. A jury found by special verdict

that the Clinic and its staff were not negligent and did not fail to provide informed consent, and


the trial court denied Kenneth' s subsequent CR 59 motion for a new trial.




1 We refer to the Flytes by their first names for clarity. We intend no disrespect.
2
    Also known     as   the "   swine   flu."
No. 43964 -6 -II



        Kenneth appeals, arguing that the trial court erred in denying the CR 59 motion because it

improperly ( 1)    admitted evidence of       Kenneth'   s prior settlement with a    different party, ( 2)


instructed the jury concerning the prior settlement, (3) considered a juror' s declaration

concerning deliberations, and ( 4) instructed the jury as to the duty of informed consent. Because

the trial court erred in admitting evidence of and instructing the jury about the prior settlement,

and because its instruction on informed consent misstated the law, we reverse.

                                                        FACTS


        Kathryn began feeling ill on the evening of June 23, 2009, and visited the Clinic the

morning of June 26. She was seven months pregnant. In the preceding months, the Clinic had

received public    health   alerts   from   various authorities about a global pandemic of "swine         flu,"   a




potentially fatal illness caused by the H1N1 influenza virus. Although many of Kathryn' s

symptoms were consistent with influenza, and the public health alerts recommended treating

pregnant women       prophylactically       with a
                                                     drug known   as "   Tamiflu," the Clinic staff did not


inform Kathryn about the pandemic or the available treatment. Ex. 5; Verbatim Report of

Proceedings ( VRP) ( July      30, 2012) at 116 -20, 129.

        Kathryn' s condition progressively deteriorated, and she received treatment from a

number of different providers, including St. Joseph' s Medical Center, part of the Franciscan

Health System ( Franciscan).          Abbigail was delivered by caesarean section on June 30, after

Kathryn had been placed in a medically induced coma. Kathryn died on August 11, 2009, and

Abbigail died on February 21, 2010.

        Kenneth sued the Clinic personally, as representative of the estates of Kathryn and

Abbigail, and as guardian of his son, Jacob, alleging ( 1) medical negligence for failing to test for


                                                           2
No. 43964 -6 -II



H1N1 or administer Tamiflu prophylactically and ( 2) breach of the duty of informed consent for

failing to inform Kathryn about the pandemic and the available treatment. During discovery, the

Clinic learned that Kenneth had already settled with Franciscan for $3. 5 million. The Clinic

moved in limine for a ruling that evidence of the Franciscan settlement was admissible,

requesting an instruction that the jury could use the evidence for the purpose of considering only

whether Kenneth had already been fully compensated for his injuries. The trial court granted the

motion.




             During voir dire, a venire member disclosed that she worked in management at

Franciscan. Kenneth sought to question the venire member about the settlement, but the Clinic


objected and the court did not allow the question. Kenneth did not challenge the individual for


cause, and she ultimately served on the jury as foreperson.

              At trial, the physician who saw Kathryn the day she visited the Clinic, William Marsh,

M.D., testified that " influenza wasn' t something I had been concerned about clinically [ because]

I' d   ruled   that   out."    VRP (July 30, 2012) at 85. Marsh admitted, however, that he had no

recollection of the events independent of the notes he had made shortly after the exam. The

notes reflect that Marsh' s " assessment" after the visit was that Kathryn had an upper respiratory

infection. Ex. 14; VRP ( July 26, 2012)                  at   53. Marsh testified that the " assessment" that appears


on     the   exam notes, which          he   also called a "   working     diagnosis," represents " what I think the most


likely       diagnosis is for the   reason       they   carne   in."   VRP ( July 26, 2012) at 47, 52. Marsh' s notes

also contain          the   following   caveat: "    Chills    and sweats[:]    not sure where com[]   ing from[.   E] xam


normal[.]        If   gets worse   to   go   to ER."    Ex. 14.




                                                                       3
No. 43964 -6 -II



         At the close of the trial, over Kenneth' s objection, the trial court instructed the jury that

  a] physician has no duty to disclose treatments for a condition that may indicate a risk to the

patient' s   health   until   the   physician   diagnoses that      condition."   Clerk' s Papers ( CP) at 159. Also


over Kenneth' s objection, the court gave the Clinic' s proposed limiting instruction concerning

Kenneth' s settlement with Franciscan. Both parties' counsel discussed the Franciscan settlement


in opening statements and closing arguments, and the Clinic cross -examined Kenneth concerning

it. The jury found by special verdict that the Clinic was not negligent and did not fail to provide

informed consent.


         Kenneth moved for a new trial under CR 59, based largely on the trial court' s admission

of   the Franciscan     settlement evidence and        the   challenged    jury   instructions.   After considering

argument from the parties and a declaration submitted by the jury foreperson, the court denied

the motion. Kenneth appeals.


                                                       ANALYSIS


         Kenneth argues that the trial court erred in denying his motion for a new trial for three

reasons: (    1) it erroneously admitted evidence of Kenneth' s settlement with Franciscan and

issued   an   improper    limiting     instruction to the    jury   regarding that   settlement, ( 2)   it erred in


considering declarations from jurors concerning the deliberations in ruling on the motion for a

new trial, and ( 3) the jury instruction concerning informed consent misstated the law, effectively

preventing Kenneth from arguing his theory of the case. Concluding that the trial court erred by

admitting evidence of and instructing the jury concerning the Franciscan settlement and by

incorrectly instructing the jury on the law of informed consent, we reverse. Resolving the appeal

on these grounds, we decline to address Kenneth' s remaining claims of error.


                                                               4
No. 43964 -6 -II



                                                I. STANDARD OF REVIEW


        Under CR 59( a) the court may vacate a verdict and grant a new trial for any one of the

nine reasons listed in the rule, as long as it materially affects the substantial rights of a party.

Among the nine reasons listed in CR 59( a) are:

                 1)
                  Irregularity in the proceedings of the court, jury or adverse party, or any order
        of the court, or abuse of discretion, by which such party was prevented from having a fair
        trial;


                 8)    Error in law occurring at the trial and objected to at the time by the party
        making the application; or
                 9)    That substantial justice has not been done.


          We generally will not reverse an order denying a motion for new trial absent abuse of

discretion   by the    trial   court.   See Aluminum Co. of Am.           v.   Aetna Cas. & Sur. Co. ( ALCOA), 140


Wn.2d 517, 537, 998 P. 2d 856 ( 2000). However, when,, as here, the denial of a new trial is


challenged based on an error of law, we review the denial de novo. See Ayers v. Johnson, 117

Wn. 2d 747, 768, 818 P. 2d 1337 ( 1991); CR 59( a).


        We also review jury instructions for errors of law de novo. Anfinson v. FedEx Ground

Package Sys., Inc., 174 Wn. 2d 851, 860, 281 P. 3d 289 ( 2012). Instructions                    are sufficient "' when




they allow counsel to argue their theory of the case, are not misleading, and when read as a

whole   properly inform the trier         of   fact   of   the   applicable   law.'" Anfinson, 174 Wn.2d at 860


 quoting Bodin        v.   City   of Stanwood, 130 Wn.2d 726, 732, 927 P. 2d 240 ( 1996)).. The absence of


any of these elements establishes error in the instruction. Anfinson, 174 Wn.2d at 860. An

erroneous instruction requires reversal, however, only if it prejudices a party. Anfinson, 174

Wn.2d at 860. If the instruction contains a clear misstatement of law, the reviewing court must




                                                                    5
No. 43964 -6 -II



presume prejudice, while the appellant must demonstrate prejudice if the instruction is merely

misleading. Anfinson, 174 Wn.2d at 860.

               II. ADMISSION OF EVIDENCE OF THE SETTLEMENT WITH FRANCISCAN


        The trial court admitted evidence concerning Kenneth' s settlement with Franciscan based

on an opinion in which Division One of our court interpreted RCW 7. 70. 080 to allow such

evidence.   Diaz   v.   State, 161 Wn.   App.   500, 251 P. 3d 249 ( 2011),    aff'd on other grounds, 175

Wn.2d 457 ( 2012).       On review, our Supreme Court held such evidence inadmissible in an


opinion issued in Diaz six days after the trial court denied Kenneth' s motion for a new trial.

Diaz, 175 Wn.2d 457. Thus, the parties do not dispute that the trial court erred in admitting the

evidence and giving the accompanying instruction. The Clinic instead argues that the error did

not prejudice Kenneth as a matter of law because the jury did not find negligence.

        Kenneth     makes     two independent      arguments   regarding   prejudice: (   1) the settlement


evidence was inherently prejudicial, particularly because a management -level employee of

Franciscan served on the jury as foreperson; and ( 2) the trial court' s limiting instruction

effectively commented on the evidence by suggesting that Kenneth may have already received

sufficient compensation for the death of his wife and daughter. The Clinic counters that ( 1)


Kenneth has waived any claim concerning the Franciscan employee by not challenging the juror

for cause or making an adequate record of the reasons for a potential challenge; and ( 2) the

erroneous admission of settlement evidence could not have prejudiced Kenneth because the trial


court instructed the jury to consider only the evidence as to the amount of compensation, and the

jury, having found no negligence, did not reach the issue of damages. We hold that the limiting

instruction did    not cure   the   prejudice we   must   presume   from the   erroneous admission of    the
No. 43964 -6 -II



settlement evidence and that this error, consequently, was not harmless. With this holding, it is

not necessary to reach the claimed improper comment on the evidence or the issue concerning

the jury foreperson. -

         Both parties base their arguments on our Supreme Court' s decision in Diaz, 175 Wn.2d


457. Diaz sued Dr. Neal Futran and Futran' s employer, the University of Washington Medical

Center, as well as Dr. Jayanthi Kini and the Medical Center Laboratory, for medical malpractice.

Futran and the University settled. The Diaz court, after holding evidence of such a settlement

inadmissible, affirmed Division One of our court on the ground that " a detailed examination of


the   record reveals    that there   was no prejudice as a matter of    law." 175 Wn.2d at 474. The court


reasoned that



          t]here are only two possible ways the settlement evidence could have affected the
         outcome of this trial, and we can categorically rule out both of them. First, the jury
         could have used settlement evidence to change its assessment of damages.
         However, we can be certain that this did not occur here because the jury returned a
          defense   verdict and      did   not even reach   damages.   Thus, as a matter of law,•there
         was no prejudice        based     on   damages. Second, the evidence could have affected the
          outcome if the jury used it to change its assessment of liability. But as a matter of
          law, this did not occur either. Washington courts have, for years, firmly presumed
         that   jurors follow the     court' s    instructions. [ Bordynoski v. Bergner, 97 Wn.2d 335,
          342, 644 P. 2d 1173 ( 1982)];            Gardner v. Spalt, 86 Wash. 146, 149, 149 P. 647
           1915)....   Here, the jury was specifically instructed not to consider settlement
          evidence    determining liability: " This evidence should not be used to either ( a)
                       in
          assume the University of Washington or Dr. Futran acted negligently to cause
          damage to the plaintiffs, ( b) excuse any liability you find on the part of Dr. Kini or
          MCL....           As a matter of law, we presume the jurors in this case followed this
          instruction.       Accordingly, we hold that the settlement evidence here did not
          prejudice the jury' s assessment of liability.

Diaz, 175 Wn.2d at 474 -75. At first glance, this reasoning would appear to apply equally to the

facts of this case: finding no negligence, the jury did not reach the damages issue, and the trial

court   instructed the      jury that "[ t] his evidence should not be used to assume that either Summit


                                                             7
No. 43964 -6 -I1



View Clinic     or    St. Joseph Medical Center / ranciscan Medical
                                                F                             Group     acted   negligently."   Clerk' s


Papers ( CP) at 163.


          The circumstances here, however, differ from those in Diaz in a number of crucial ways.


The Diaz court based its holding in part on the force of ER 408, which provides that

          evidence of (1) furnishing or offering or promising to furnish, or ( 2) accepting or
          offering or promising to accept a valuable consideration in compromising or
          attempting to compromise a claim which was disputed as to either validity or
          amount, is not admissible to prove liability for or invalidity of the claim or its
          amount.



175 Wn.2d 470 -71.         This rule aims in part to avoid the " potentially corrosive effect settlement

evidence    may have      on   a jury."      Northington v. Sivo, 102 Wn. App. 545, 550, 8 P. 3d 1067 ( 2000).

          After pointing out that the court in Northington had also ultimately found the evidence

improperly admitted there harmless, the Diaz court rejected Diaz' s claim that the settlement

evidence had such a corrosive effect:


           T] he "    corrosive"    argument makes even less sense because the evidence was
          mentioned      only   once at   trial ( even then   by the plaintiffs   attorney),   no evidence was

          admitted, and the jury was instructed not to consider the evidence by an instruction
          that the plaintiff specifically requested.

Diaz, 175 Wn.2d at 475.


          Under each possible source of "corrosion ".relied on in Diaz, the instruction below


threatens prejudice much more emphatically than did the instruction in that case. First, the Diaz

court   found it     significant   that "[   t]he error was an evidentiary ruling and no evidence was ever

actually   admitted under       the ruling."      175 Wn.2d at 474. Diaz' s counsel referred to the settlement


in opening statement, but the defense never sought to admit any evidence of it. Diaz, 175 Wn.2d

at 461.




                                                               8
No. 43964 -6 -II



          Here, in contrast, Kenneth' s counsel initially mentioned the settlement in opening

statement, but the Clinic' s counsel also mentioned it in its opening statement, cross -examined

Kenneth about it, and discussed it at the end of closing argument. Unlike in Diaz, the trial court

actually admitted the evidence, and that evidence played a significant role in the proceeding.

          Next, the Diaz court expressly recognized that the settlement evidence could have

affected   the outcome if the      jury used it to   change   its   assessment of   liability. 175 Wn.2d at 474.

The court held that this source of prejudice was adequately addressed by the instructions in Diaz,

though, specifically noting clause ( b) in the following instruction:

          You have heard evidence that the University of Washington and Dr. Neal Futran
          were once parties to this litigation and later entered into a settlement with the
          plaintiffs, paying the plaintiffs $400, 000. This evidence should not be used to either
           a) assume the University of Washington or Dr. Futran acted negligently to cause
          damage to the plaintiffs, ( b) excuse any liability you find on the part of Dr. Kini or
          MCL, or (c) reduce the amount of any damages you find were caused by Dr. Kini
          or MCL. By giving you this instruction, the court does not mean to instruct you for
          which party your verdict should be rendered.

175 Wn.2d 473.


           The corresponding instruction given here, however, wholly lacks this curative muscle. It

reads in full:


                    You have heard        evidence     that       St. Joseph Medical     Center /
                                                                                                Franciscan

           Medical Group entered into a settlement with the plaintiff, agreeing to pay the
           plaintiff $ 3,   500, 000.   This evidence is admissible for the limited purpose of
           demonstrating that the plaintiff may have already been compensated for the injury
           complained of      from   another source.    This evidence should not be used to assume
           that either Summit View Clinic or St. Joseph Medical Center / ranciscan Medical
                                                                       F
           Group acted negligently to cause damage to plaintiff.

CP   at   163.   This instruction differs from the instruction in Diaz in two significant ways. First,

unlike in Diaz, the instruction states that the settlement could be used to show that Kenneth




                                                              9
No. 43964 -6 -I1



already had been compensated. This created a risk that the jury would find no liability because it

believed that Kenneth needed no additional compensation.


           Second, the instruction admonishes the jury not to use the settlement evidence to assume

negligence on the part of Franciscan or the Clinic, but does not prevent the jury from using the

settlement evidence to excuse liability by the Clinic. The instruction in Diaz expressly stated that

the settlement evidence could not be used to excuse the remaining defendants' liability. The

failure to include that language here created a risk that the settlement evidence would change the


jury' s assessment of liability.

           The Clinic contends that certain other instructions cured any potential prejudice caused
                                         3
by the     instruction     at   issue.       Specifically, it argues that the standard instruction on multiple

proximate causes, which informs the jury that " it is not a defense that the act of some other

person or entity who is not a party to this lawsuit may also have been a proximate cause" of the

injury, and instructions 18 and 21, which informed the jury that in the event it returned a verdict

for Kenneth, damages must include certain undisputed amounts, dispelled any threat of

prejudice. CP at 162. These instructions do not necessarily help the Clinic, however, because

they also show that, in the event the jurors concluded that Kenneth had established his claim but


3 The Clinic contends that
              a] s a matter of law, settlement evidence cannot have been prejudicial if a jury,
            instructed to consider settlement evidence only on the issue of damages, returns a
            defense verdict based on a finding of no negligence and does not reach the issue of
            proximate causation much less the issue of damages."
Br.   of   Resp' t   at   16 ( quoting Diaz, 175 Wn.2d          at   474).   This mischaracterizes the holding in Diaz.
As set forth above, the Diaz court relied on the fact that the jury did not reach damages only for
the   question of whether           the      improper   settlement evidence prejudiced     Diaz   as   to   damages. 175
Wn.2d at 474. As also noted above, the court also considered whether the evidence prejudiced
Diaz as to negligence, relying on Diaz' s limiting instruction, a much broader instruction than that
given here, to hold that it did not. 175 Wn.2d at 474 -75.

                                                                     10
No. 43964 -6 -II



did not deserve any further compensation, the most straightforward way they could answer the

verdict questions, according to the court' s instructions, and still award Kenneth nothing would be

to answer " no" to the questions concerning negligence.

          By allowing consideration of the settlement, the trial court' s instruction set out above

contained .a clear misstatement of law under Diaz. With that, Anfinson, 174 Wn.2d at 860,


requires us to presume prejudice. That prejudice is the same as that recognized in Diaz, that the

settlement evidence could            lead   a   jury to   excuse negligence on   the   part of   the defendant.   175


Wn.2d at 474 -75. None of the reasons for rejecting the claim of prejudice in Diaz appear in

Kenneth' s case. Here the evidence was admitted and referred to repeatedly, including at the end

of the Clinic' s closing argument; and, most importantly, the instruction given did not include one

of the key provisions that the Diaz court found to have cured any prejudice. The limiting

instruction, unlike the instruction proposed by Diaz, did not cure the prejudice, and the error in

allowing consideration of the settlement therefore merits reversal.

                            III. THE TRIAL COURT' S DUTY TO DISCLOSE INSTRUCTION


           Kenneth also assigns error to the trial court' s jury instruction 11, which informed the jury

that "[   a] physician has no duty to disclose treatments for a condition that may indicate a risk to

the   patient' s   health   until   the   physician   diagnoses that   condition."     CP at 159. Kenneth contends


that this instruction misstated the law and " grafted an extra burden of proof upon the Flyte family

with respect       to the informed        consent claim."      Br. of Appellant at 29 -30. The Clinic maintains


that the instruction correctly stated the law and argues that Kenneth bases his argument on

outdated case law.


           The dispute centers on the following holding of our Supreme Court:


                                                                 11
No. 43964 -6 -II



          The patient' s right to know is not confined to the choice oftreatment once a disease
          is    present   and     has been conclusively diagnosed.                    Important decisions must
          frequently be made in many nontreatment situations in which medical care is given,
          including    procedures     leading   to   a   diagnosis,   as   in this   case.   These decisions must
          all    be taken   with    the   full knowledge        and    participation         of   the   patient.   The

          physician' s duty is to tell the patient what he or she needs to know in order to make
          them. The existence of an abnormal condition in one' s body, the presence of a high
          risk    of   disease,    and the existence of alternative                   diagnostic procedures to
          conclusively determine the presence or absence of that disease are all facts which a
          patient must know in order to make an informed decision on the course which future
          medical care will take.


Gates    v.   Jensen, 92 Wn.2d 246, 250 -51, 595 P. 2d 919 ( 1979) (                 emphasis added).        As Kenneth


points out, this holding directly contradicts the trial court' s instruction and has never been

overruled.




          The Clinic is also correct, however, that the Gates court based its holding on law that

predated the legislature' s codification of informed consent law and that a number of subsequent


opinions appear to have limited its holding. We first address the effect of the informed consent

statute, then consider the Gates holding in light of subsequent decisions.

          The informed consent statute prescribes four necessary elements of proof for a successful

claim:



              a) That the health care provider failed to inform the patient of a material fact or
          facts relating to the treatment;
              b) That the patient consented to the treatment without being aware of or fully
          informed of such material fact or facts;
              c) That a reasonably prudent patient under similar circumstances would not have
          consented to the treatment if informed of such material fact or facts;
              d) That the treatment in question proximately caused injury to the patient.

RCW 7. 70. 050( 1).       The statute defines material facts as those " a reasonably prudent person in

the position of the patient or his or her representative would attach significance to [ in] deciding




                                                               12
No. 43964 -6 -II


                                                                    4
whether or not      to   submit   to the   proposed   treatment. "      RCW 7. 70. 050( 2). This statute, on its


face, does not impose the requirement at the heart of instruction 11, that the duty to disclose

arises only after the provider has diagnosed a particular condition.

          Also of significance, the requirements of RCW 7. 70. 050( 1) expanded the duty to disclose

from that fixed by prior law. Under the statute, the provider must have failed to inform the

patient of a material       fact relating to the treatment. RCW 7. 70. 050( 1)(          a).    Under the law prior to


its   adoption,   the   duty to   disclose   extended   only to "   grave risks of   injury."    ZeBarth v. Swedish


Hosp.    Med. Ctr., 81 Wn.2d 12, 23, 499 P. 2d 1 ( 1972). If the legislature had intended to impose


the additional requirement that no duty to disclose arises absent a health care provider' s

diagnosis of a particular condition, it would not likely have done so through a bill that expanded

the scope of the duty to disclose without mentioning such a requirement.5 Therefore, we reject

the Clinic' s contention that the adoption of the informed consent statute limited the duty to

disclose to situations where a health care provider has conclusively diagnosed an illness.

          As for the continuing viability of the Gates holding in light of subsequent precedents,

Division Three of our court discussed the question extensively in a recent case, Anaya Gomez v.




4 The absence of treatment qualifies as " treatment" within the meaning of the statute. RCW
7. 70. 050( 3)( d); see also Keogan v. Holy Family Hosp., 95 Wn.2d 306, 318 -19, 622 P. 2d 1246
 1980) ( noting that "` treatment'
                               encompasses all aspects of patient care, including the doctor' s
resolve to do nothing about medical abnormalities in the patient' s condition ").

5 For a scholarly discussion of Washington' s informed consent law shortly after the enactment of
RCW 7. 70. 050, including the apparent inconsistency between Gates and subsequent cases, see
Edwin Rauzi, Informed Consent in Washington: Expanded Scope ofMaterial Facts That the
Physician Must Disclose to His Patient, 55 WASH. L. REV. 655 ( 1980).


                                                             13
No. 43964 -6 -II



Sauerwein, 172 Wn.     App. 370,   381 - 85, 289 P. 3d 755 ( 2012), aff'd, 180 Wn.2d 610, - -- P. 3d --


  2014), 2014 WL 2815779 ( Wash. June 19, 2014),                 ultimately concluding that

         Gates has either been abrogated or limited to its facts by Keogan [ v. Holy Family
        Hospital, 95 Wn.2d 306, 622 P. 2d 1246 ( 1980)], or has been overruled sub silentio
         in light of the Supreme Court' s decision in Backlund [v. University of Washington,
         137 Wn.2d 651, 975 P. 2d 950 ( 1999)] and its denial of review of [Thomas v. Wilfac,
        Inc., 65 Wn.   App.   255, 828 P. 2d 597 ( 1992)], Burnet [ v. Spokane Ambulance, 54
         Wn. App. 162, 772 P. 2d 1027 ( 1989)], and Bays [ v. St. Luke' s Hospital, 63 Wn.
         App. 876, 825 P. 2d 319 ( 1992)].

In affirming that decision, however, our Supreme Court expressly rejected the view that

subsequent decisions had overruled Gates: 6

         W] e affirm the Court of Appeals but point out that Gates has not been overruled.
         See Anaya Gomez, 172 Wn.          App.   at   385.     Backlund and Keogan state the general
         rule   of when a plaintiff can make an           informed   consent claim.      The Gates court
         allowed the informed consent claim based on a unique set of facts that are
         distinguishable from this case. Under Gates, there may be instances where the duty
         to inform arises during the diagnostic process, but this case does not present such.
         facts. The determining factor is whether the process of diagnosis presents an •
         informed decision for the patient to make about his or her care.


Anaya Gomez, 180 Wn.2d at If 37. Thus, even a health care provider who has not conclusively

diagnosed a particular illness may have a duty to disclose information related to the treatment of

that illness if the information is reasonably needed by the patient to make an informed decision

about   treatment. The   categorical statement         in instruction 11 that "[   a] physician has no duty to

disclose treatments for a condition that may indicate a risk to the patient' s health until the

physician   diagnoses that   condition,"   not only flatly contradicts the holding in Gates, it misstates

the law as clarified by our Supreme Court in Anaya Gomez. CP at 159




6 The Supreme Court decided Anaya Gomez after the parties had filed their briefs in this appeal.
We ordered the parties to submit supplemental briefing addressing the effect of the Anaya Gomez
decision.

                                                           14
No. 43964- 6- 11



        Backlund, a precedent on which our Supreme Court relied in Anaya Gomez, provides


perhaps the strongest support for the Clinic' s position:


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


Backlund, 137 Wn.2d           at   661 ( footnote   omitted).    In a footnote, the Backlund court added that


         i]n the traditional informed consent case, a physician diagnoses the patient' s
        condition and recommends a course of                    treatment.    The physician is liable under
        RCW 7. 70. 050, however, if the physician fails to disclose the attendant risks of
        such   treatment. Similarly, the physician is liable if the physician fails to disclose
        other courses of treatment, including no treatment at all, as options upon which the
        patient makes the ultimate choice.


                   Where a physician arguably misdiagnoses the patient' s condition and
        recommends a course of treatment for the patient based on that misdiagnosis, the
        physician is properly liable in negligence for the misdiagnosis if such diagnosis
        breaches the standard of care. But the physician should not be additionally liable
        under    RCW 7. 70. 050 for          a condition unknown          to the   physician.   For example, a

        physician who misdiagnosed a headache as a transitory problem and failed to detect
        a brain tumor may be guilty of negligence for the misdiagnosis, but it seems
        anomalous to hold the physician culpable under RCW 7. 70. 050 for failing to secure
        the patient' s informed consent for treatment for the undetected tumor.

137 Wn.2d   at   661   n. 2   ( citations   omitted).   The Backlund court, however, expressly declined to

rest its decision on this reasoning because in that case the defendant physician had correctly

diagnosed the    problem and          knew   about   the   alternative   treatment   not   disclosed. 137 Wn.2d at


662.


        The Backlund dictum supplies little guidance in the resolution of this appeal. To begin

with, Kenneth never argued that the Clinic breached the standard of care by failing to diagnose

H1N1.    Kenneth contended that the Clinic failed to provide informed consent by not telling

Kathryn about the H1N1 epidemic and Tamiflu and that it breached the standard of care by not

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considering the possibility of H1N1 and offering Tamiflu as a prophylactic measure. Indeed,

undisputed expert testimony at trial indicated that no test could detect H1N1 within the time that

Tamiflu could most effectively treat the disease.

          Backlund, furthermore, involved facts that differed in important respects from those


presented here. As noted, the doctor in Backlund correctly diagnosed the condition and was

aware of the treatment not disclosed, but thought that the alternative treatment posed too great a


risk   to the   patient.    The Supreme Court'             s   decision turned   on whether "[   a] reasonably prudent


patient would not          have   opted     for the [    alternative   treatment],    even if the reasonably prudent

patient   had been informed              of all   the   pertinent risks of no    treatment."   Backlund, 137 Wn.2d at


668.


          Here, in contrast, Kathryn showed symptoms arguably consistent with H1N1, and she

was pregnant. The Clinic had received public health alerts warning of H1N1 and recommending

that pregnant women with symptoms of it be immediately treated with Tamiflu as a prophylactic

measure. The Clinic' s failure to inform Kathryn about the pandemic or the available treatment


has little in common with the actions of the doctor in Backlund.

          The Anaya Gomez court also relied on its prior decision in Keogan, 95 Wn.2d 306.


Justice Hicks' s separate opinion in Keogan, signed by five justices and controlling on the

informed        consent    issue,   see   Anaya Gomez, 180 Wn. 2d            at ¶    25 n.4, addressed the relevant holding

from Gates as follows:


                   By thereafter focusing on the diseased heart to the exclusion of everything
          else, the majority seizes upon a suspicion by Dr. Snyder of a possibility that Keogan
          may have had angina pectoris to decree that the informed consent doctrine as
          applied    in Gates       v.   Jensen, 92 Wn.2d 246, 595 P. 2d 919 ( 1979), controls here. In
          Gates, the court held that a physician has a duty ofdisclosure whenever he becomes


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No. 43964 -6 -II



        aware of a bodily abnormality which may indicate risk or danger, whether or not
        the diagnosis has been completed.
                The Court of Appeals held that no duty to inform had yet arisen in this case
        because when " there is no diagnosis nor diagnostic procedure involving risk to the
        patient, there is nothing the doctor can put to the patient in the way of an intelligent
        and informed choice."     Keogan v. Holy Family Hosp., 22 Wn. App. 366, 370, 589
        P. 2d 310 ( 1979). Under the circumstances of this case, I agree with the Court of
        Appeals.


Keogan, 95 Wn.2d       at   329 -30 ( emphasis   added).    The opinion of the Court of Appeals, with


which Justice Hicks' s opinion expressly agreed, treated the question as follows:

                   The crucial factor involved in the doctrine of informed consent is the
        reasonably foreseeable risk to the patient of a proposed course of treatment.
        Respondent contends that since Dr. Snyder had not yet made a diagnosis, there was
        no
          duty to inform. We disagree. Even ifa doctor has not specifically diagnosed a
        medical problem, if the doctor embarks on a diagnostic procedure which entails a
        reasonably foreseeable risk to the patient, the patient must be informed ofthe risk
        and possible alternatives.      See Mason     v.   Ellsworth, [ 3   Wn. App. 298, 474 P. 2d 909
         1970)].   Conversely, if there is no diagnosis nor diagnostic procedure involving
        risk to the patient, there is nothing the doctor can put to the patient in the way of an
        intelligent and informed choice. Meeks v. Marx, 15 Wn. App. 571, 550 P. 2d 1158
         1976).


Keogan, 22 Wn. App. at 369 -70 ( emphasis added).

        Thus, the controlling opinion in Keogan acknowledged the Gates holding and rejected

the proposition that no duty to disclose arises until a diagnosis has been made. Justice Hicks' s

opinion establishes that, where the situation presents an " intelligent and informed choice" to put

to the patient, such as " a diagnostic    procedure    involving    risk    to the   patient,"   health care


providers have a duty to disclose material facts. Keogan, 22 Wn. App. at 369 -70. Keogan thus

confirms the error in instruction 11.


        The question remains whether the error merits reversal. As discussed, because the


challenged instruction contains a clear misstatement of the law, we must presume prejudice.




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No. 43964 -6 -II



Anfinson, 174 Wn.2d at 860. If Kenneth had no valid informed consent claim, however, then the

erroneous instruction could not have prejudiced him.


        Kathryn' s medical situation arguably presented an informed choice for her to make

within the meaning of Anaya Gomez, 180 Wn.2d at if 29. That is, she had to decide whether to

submit to the proposed course of treatment, specifically, to wait for further developments and go

to the emergency room if the symptoms worsened. The jury could reasonably have concluded

that, in light of her symptoms, a reasonable person in Kathryn' s position would, in making that

decision, have attached significance to information regarding the extreme danger H1N1 posed to

pregnant women and the availability of suitable prophylactic measures. Indeed, without the

information contained in the public health alerts, Kathryn had no way of knowing that she had

any option other than to wait and see or that she faced potentially serious consequences by so

doing. Thus, on their face these facts would appear to give rise to a legitimate informed consent

claim under RCW 7. 70. 050.


          In Anaya Gomez, however, our Supreme Court specified that " when a health care


provider rules out a particular diagnosis based on the circumstances surrounding a patient' s

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

options   pertaining to   a ruled out   diagnosis."   180 Wn.2d   at ¶   30. The Clinic contends that this


holding forecloses Kenneth' s informed consent claim because Marsh, the doctor who saw

Kathryn, testified that he had ruled out any type of influenza, let alone H1N1, as a diagnosis. We

disagree.


          Although Marsh did say he had ruled out influenza, he also testified that he had no

independent memory of seeing Kathryn the day she went to the Clinic and admitted that he based


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No. 43964 -6 -II



his testimony entirely on the progress notes he had made following her visit. Those notes do not

establish that Marsh had definitively ruled out influenza as a possible diagnosis. On the

contrary, the terms "     assessment" or "         working diagnosis," together     with     the    notation "[   c] hills and


sweats[:]   not sure where com[]          ing [ from[.   E] xam    normal[.]   If gets   worse     to   go   to ER,"   give




rise to a reasonable inference that Marsh had only tentatively settled on an upper respiratory

infection as the cause of Kathryn' s complaints and that he remained open to the possibility that

she in fact suffered from a more serious illness. VRP (July 26, 2012) at 47, 52; Ex. 14. Kenneth,

furthermore, presented testimony from Kathryn' s father, John Brehan, who had accompanied

Kathryn into the    exam room and who recalled               Marsh saying that     she   had " influenza."        VRP (July

16, 2012) at 22.


        Whether Marsh had ruled out influenza thus presented a disputed question of fact. If the


jury believed that Marsh had not ruled out influenza, it could properly have considered

Kenneth' s informed consent claim under the rule articulated in Anaya Gomez. Under the trial


court' s erroneous instruction 11, however, the jury could only have considered the informed

consent claim if it found that Marsh had conclusively diagnosed influenza as the cause of

Kathryn' s distress, something that Kenneth had never alleged.

        Under the informed consent statute, a key question for the finder of fact was whether the

Clinic failed to disclose " material         ...    facts relating to the treatment,"     namely, facts to which a

reasonably prudent person in Kathryn' s position would have attached significance in deciding

whether or not     to   submit   to the   proposed     treatment.    RCW 7. 70. 050( 1), (    2).       Under Gates and


Anaya Gomez, this duty to disclose is not confined to the period after a conclusive diagnosis has




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No. 43964 -6 -II



been   made.    Gates, 92 Wn.2d      at   250 -51; Anaya Gomez, 180 Wn.2d            at ¶   29. Case law after Gates


does not question the application of its rule to the circumstances presented here.


          A trial court errs by giving an instruction that removes a disputed issue of fact from the

jury' s   consideration.   Sewell   v.   MacRae, 52 Wn.2d 103, 106, 323 P. 2d 236 ( 1958).             Instruction


11 did precisely that in a manner contradicting both RCW 7.70. 050 and Gates. As noted, when

an instruction contains a clear misstatement of law, we must presume prejudice. Anfinson, 174


Wn.2d at 860. We hardly need to apply this presumption in this case because the instruction

given plainly prejudiced Kenneth by foreclosing his primary theory of the case. Thus, this

instructional error also merits reversal.


           Because the trial court erred in admitting evidence of and instructing the jury about the

prior settlement, and because its instruction on informed consent misstated the law, we reverse.




                                                                                      lT       tJ,

                                                                   N,   A.. C..J .
  We concur:




  HUNT, J.




Maw J




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