WPI 105.04 Informed Consent—Health Care Provider

Use this instruction for a cause of action based on RCW 7.70.050, which deals with failure to secure informed consent. Use WPI 105.05 (Burden of Proof—Informed Consent—Health Care Provider) with this instruction.

Use bracketed material as applicable. The bracketed phrase “patient's representative” should be used if the patient was legally incompetent to consent. See RCW 7.70.060.

RCW 7.70.030(3); RCW 7.70.050.

RCW 7.70.030(3) provides in relevant part: “No award shall be made in any action … for damages for injury occurring as the result of health care, unless the plaintiff establishes … [t]hat injury resulted from health care to which the patient or his representative did not consent.”

Scope of duty. The elements required to prove an action based on the lack of informed consent are set forth in RCW 7.70.050(1). See Bertsch v. Brewer, 97 Wn.2d 83, 90, 640 P.2d 711, 715 (1982); Alexander v. Gonser, 42 Wn.App. 234, 711 P.2d 347 (1985); WPI 105.05 (Burden of Proof—Informed Consent—Health Care Provider). Pursuant to RCW 7.70.030, a patient may have a cause of action under this theory independent of any claim, or lack of claim, of negligence. See Miller v. Kennedy, 11 Wn.App. 272, 522 P.2d 852 (1974), affirmed at 85 Wn.2d 151, 530 P.2d 334 (per curiam); Holt v. Nelson, 11 Wn.App. 230, 523 P.2d 211, 69 A.L.R.3d 1235 (1974).

The doctrine of informed consent is based on the premise that a competent patient has the right to determine what should or should not be done with his or her body. For a discussion of the duty imposed on physicians under this doctrine, see Smith v. Shannon, 100 Wn.2d 26, 666 P.2d 351 (1983). For a discussion of the informed consent obligation of a hospital, see Alexander v. Gonser, 42 Wn.App. 234, 711 P.2d 347 (1985).

The test for disclosure is whether the risk is material. RCW 7.70.050(1)(a) and (c); Smith v. Shannon, 42 Wn.App. 234, 711 P.2d 347 (1985); Miller v. Kennedy, 11 Wn.App. 272, 522 P.2d 852 (1974), affirmed at 85 Wn.2d 151, 530 P.2d 334 (per curiam). This objective test is based on whether a reasonable person in the patient's position would attach significance to the risk in determining whether to be treated. Smith v. Shannon, 42 Wn.App. 234; RCW 7.70.050(2). The test does not place upon the physician a duty to explain all possible risks, but only those of a serious nature. Smith v. Shannon, 100 Wn.2d at 31; Adams v. Richland Clinic, Inc., P.S., 37 Wn.App. 650, 681 P.2d 1305 (1984).

The duty to inform also extends to the disclosure of recognized alternative forms of treatment, including no treatment, and the risks associated with each alternative. Archer v. Galbraith, 18 Wn.App. 369, 567 P.2d 1155 (1977); Miller v. Kennedy, 11 Wn.App. 272; RCW 7.70.050(3). Whether an alternative treatment is feasible under the patient's physical condition is a question for the jury. Thornton v. Annest, 19 Wn.App. 174, 574 P.2d 1199 (1978); Archer v. Galbraith, 18 Wn.App. 369.

To hold a doctor liable for failure to obtain informed consent from a patient or the patient's representatives, it must be shown that the treatment in question proximately caused injury to the patient, not the patient's parents or relatives. See Branom v. State, 94 Wn.App. 964, 974 P.2d 335 (1999); Benoy v. Simons, 66 Wn.App. 56, 831 P.2d 167 (1992).

Construing RCW 7.70.050(1), Washington courts have held that the statutory duty to disclose is limited to treatment-related facts and does not require disclosure of a physician's qualifications or lack of experience in performing a particular procedure. Housel v. James, 141 Wn.App. 748, 756, 172 P.3d 712 (2007) (lack of experience); Whiteside v. Lukson, 89 Wn.App. 109, 112, 947 P.2d 1263 (1997) (lack of experience); Thomas v. Wilfac, Inc., 65 Wn.App. 255, 261, 828 P.2d 597 (1992) (physician's qualifications).

The duty to obtain an informed consent rests primarily with the physician, not the hospital or its personnel unless the hospital is aware of extraordinary circumstances that would create an independent duty to inform the patient as to a particular risk. Howell v. Spokane & Inland Empire Blood Bank, 114 Wn.2d 42, 785 P.2d 815 (1990). See also Silves v. King, 93 Wn.App. 873, 970 P.2d 790 (1999); Burnet v. Spokane Ambulance, 54 Wn.App. 162, 168–69, 772 P.2d 1027 (1989); Alexander v. Gonser, 42 Wn.App. 234, 239, 711 P.2d 347 (1985).

In McKee v. American Home Products, Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989), the court held that a pharmacist who properly fills a prescription issued by a licensed physician has no duty to question the propriety of the prescription or to warn customers of potential hazards associated with the prescribed drug, either orally or by way of the manufacturer's package insert. In Silves v. King, 93 Wn.App. 873, 970 P.2d 790 (1999), the court held that a pharmacist's duty to warn the patient, or to consult with the prescribing physician, about potential drug interactions and contraindications applies only when there is a clear error or mistake in the prescription.

In an emergency in which the patient is incompetent and there is no other person reasonably available who is authorized to consent to emergency care, consent will be implied. RCW 7.70.050(4). If the patient is not legally competent to consent due to age or other legal disability, a representative may consent on the patient's behalf. RCW 7.70.060.

Under RCW 7.70.060, although a legally competent patient's signature on a consent form is prima facie evidence of consent, such evidence can be rebutted by a preponderance of the evidence. Morinaga v. Vue, 85 Wn.App. 822, 830, 935 P.2d 637 (1997). A person can be incompetent to give informed consent to health care even if the person has not been declared legally incompetent. Morinaga v. Vue, 85 Wn.App. 822, 830. Developmental disabilities can be a basis for deeming a person incompetent to give informed consent under RCW 7.70.050 and .065. Morinaga v. Vue, 85 Wn.App. 822, 830.

Failure to obtain informed consent versus failure to diagnose claims. RCW 7.70.050 speaks only of “treatment” in connection with the doctrine of informed consent. However, in Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), the court applied the doctrine of informed consent to a nontreatment situation. The court stated:

Gates v. Jensen, 92 Wn.2d at 250–251. Gates did not discuss RCW 7.70.050, presumably because the case involved health care provided prior to the effective date of that section. See RCW 7.70.010.

Following Gates, a number of cases have clarified that informed consent and medical negligence are alternative, exclusive methods of imposing liability in the context of a medical diagnosis. Backlund v. University of Washington, 137 Wn.2d 651, 975 P.2d 950 (1999); Gustav v. Seattle Urological Associates, 90 Wn.App. 785, 954 P.2d 319 (1998); Thomas v. Wilfac, Inc., 65 Wn.App. 255, 828 P.2d 597 (1992); Bays v. St. Luke's Hosp., 63 Wn.App. 876, 825 P.2d 319 (1992); Burnet v. Spokane Ambulance, 54 Wn.App. 162, 168, 772 P.2d 1027 (1989). Thus, a physician who misdiagnoses the patient's condition and is therefore unaware of an appropriate category of treatment alternatives may be liable for negligence where such misdiagnosis breaches the standard of care, but not for failure to obtain informed consent. Backlund v. University of Washington, 137 Wn.2d 651. See also RCW 4.24.290 (actions based on professional negligence, “in no event shall … apply to an action based on the failure to obtain the informed consent of a patient.”).

As the Washington Supreme Court explained in Anaya Gomez v. Sauerwein, 180 Wn.2d 610, 618, 331 P.3d 19 (2014), “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.” Anaya Gomez v. Sauerwein, 180 Wn.2d at 623, citing Backlund v. University of Washington, 137 Wn.2d 651, 975 P.2d 950 (1999). The health care provider may be liable for negligence in failing to diagnose the condition if the mistaken diagnosis otherwise meets the elements of a medical malpractice claim. Anaya Gomez v. Sauerwein, 180 Wn.2d at 623.

In applying what it denominated the “Backlund rule,” the Anaya Gomez court distinguished Gates v. Jensen, 92 Wn.2d 246, 595 P.2d 919 (1979), noting that Gates was based on a unique factual situation that made it “unlikely we will ever see such a case again,” and held that Gates, while not overruled, represented “the exception and not the rule with regard to the overlap between medical negligence and informed consent.” Anaya Gomez v. Sauerwein, 180 Wn.2d at 626. The Anaya Gomez court further clarified that “[t]he determining factor” for whether a duty to inform arises during the diagnostic process “is whether the process of diagnosis presents an informed decision for the patient to make about his or her care.” Anaya Gomez v. Sauerwein, 180 Wn.2d at 623.

In Flyte v. Summit View Clinic, 183 Wn.App. 559, 333 P.3d 566 (2014), the Court of Appeals, citing Gates and Anaya Gomez, held that because the “duty to disclose is not confined to the period after a conclusive diagnosis has been made,” it was error to instruct 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.” Flyte v. Summit View Clinic, 183 Wn.App. at 579–80.

In Ruffer v. St. Frances Cabrini Hosp., 56 Wn.App. 625, 784 P.2d 1288 (1990), the court discussed in depth what constitutes a material risk for purposes of the doctrine of informed consent.

Consumer Protection Act. In Quimby v. Fine, 45 Wn.App. 175, 724 P.2d 403 (1986), the court held that a lack of informed consent claim against a health care provider may be within the scope of the Consumer Protection Act, if it relates to “the entrepreneurial aspects of a medical practice.” See also Benoy v. Simons, 66 Wn.App. 56, 65, 831 P.2d 167 (1992); Burnet v. Spokane Ambulance, 54 Wn.App. 162, 166–67, 772 P.2d 1027 (1989). In Ambach v. French, 167 Wn.2d 167, 216 P.3d 405 (2009), the court held that the “injury to business or property” prong of a CPA claim was not satisfied when the purported CPA injury was payment for a surgery from which personal injury also arose.