WPI 105.06 Theories of Recovery

In previous editions, the WPI Committee included an instruction labeled “Theories of Recovery”, mirroring the language of RCW 7.70.030. The instruction has since been withdrawn because it does not appear that it gave jurors any additional helpful information. Whichever of those statutory theories is in issue will always be set forth in the issues and burden of proof instructions. See, e.g., WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence); WPI 20.01 (Issues); WPI 105.03 (Burden of Proof—Negligence—Health Care Provider); WPI 105.05 (Burden of Proof—Informed Consent—Health Care Provider).

The court in Branom v. State, 94 Wn.App. 964, 974 P.2d 335 (1999), held that, under RCW 7.70.010 and RCW 7.70.030, “whenever an injury occurs as a result of health care, the action for damages for that injury is governed exclusively by RCW 7.70,” and to be actionable must fit within one of the three causes of action defined in RCW 7.70.030. Whether the action is one “for damages occurring as the result of health care” depends upon whether the injuries arose during the process in which the health care provider “was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for” a patient. Branom v. State, 94 Wn.App. at 969–70. A common law claim of intentional misrepresentation against a doctor, however, will not be governed by the procedural requirements of RCW 7.70. Young v. Savidge, 155 Wn.App. 806, 823, 230 P.3d 222 (2010).

Without addressing RCW 7.70.010 or RCW 7.70.030, the Court of Appeals in Quimby v. Fine, 45 Wn.App. 175, 724 P.2d 403 (1986), held that a lack of informed consent claim may be actionable under the Consumer Protection Act if it relates to the entrepreneurial aspects of a medical practice. See also Ambach v. French, 167 Wn.2d 167, 216 P. 3d 405 (2013). However, “[w]here the marketing of a surgical procedure is deceptive and entrepreneurial, a jury may be permitted to find that the cost of the procedure is a consumer injury even if the plaintiff has alleged that the same procedure caused personal injury.” Williams v. Lifestyle Lift Holdings, Inc., 175 Wn.App. 62, 64, 302 P.3d 523 (2013).