JOHNSON v. COUNTRY DOCTOR COMM. CLINIC, 50408-8-I (Wash.App. 5-12-2003)

No. 50408-8-IThe Court of Appeals of Washington, Division One.
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 00-2-07567-7 Judgment or order under review Date filed: 08/15/2001

Counsel for Appellant(s), Edward Dickson Campbell, Attorney at Law, 9534 14th Ave NW, Seattle, WA 98117-2308.

Counsel for Respondent(s), Susan L Handler, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.

William Robert Hickman, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.

Sherry Hemming Rogers, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.

KENNEDY, J.

Carolyn Diane Johnson appeals a summary judgment order in favor of Dr. Elizabeth Brown and the Country Doctor Community Clinic. Ms. Johnson argues that RCW 7.70.050(3)(d) is unconstitutional because the statute requires a plaintiff to prove the scope and breach of a duty to obtain informed consent by expert testimony. She contends that requiring a plaintiff to present expert testimony to determine whether a patient had a right to receive a warning about the potential risks associated with taking a drug undermines a patient’s constitutional right to determine his or her own treatment. But the statute does not govern the private relations between a doctor and patient; it merely addresses the necessary elements of proof in an action for damages. Accordingly, we affirm.

FACTS
On April 8, 1997, Dr. Elizabeth Brown, a doctor at the Country Doctor Community Clinic (the `Clinic’), treated Ms. Johnson for a medical problem by giving her a prescription for Keflex, an antibiotic classified as a cephalosporin. Ms. Johnson’s medical records at the Clinic indicated that she is allergic to penicillin. The manufacturer’s warning on Keflex, as published in the Physician’s Desk Reference (PDR), stated that before the drug is administered, careful inquiry should be made concerning previous hypersensitivity reactions to penicillin, and that Keflex should be given cautiously to penicillin-sensitive patients, based on some clinical and laboratory evidence of partial cross-allergenicity of the penicillins and the cepalasporins.

Sometime after taking the medication, Ms. Johnson experienced an allergic reaction. She obtained treatment for the reaction from Dr. Richard A. Wilson, a physician at Harborview Medical Center. Dr. Wilson subsequently submitted a declaration stating that Ms. Johnson’s reaction was `an idiosyncratic reaction to Keflex and perhaps an underlying chronic hepatitis C condition [.]’

Ms. Johnson sued Dr. Brown and the Clinic, asserting that Dr. Brown failed to notify her about the drug manufacturer’s warning regarding Keflex, thereby failing to obtain Johnson’s informed consent to the treatment. Dr. Brown and the Clinic moved for summary judgment, pointing out that Ms. Johnson had failed to produce expert testimony supporting her informed consent claim. The trial court granted the motion and dismissed Ms. Johnson’s claim. Ms. Johnson appeals.

STANDARD OF REVIEW
An appellate court reviews a grant of summary judgment de novo and engages in the same inquiry as the trial court. Trimble v. Washington State Univ., 140 Wn.2d 88, 92, 993 P.2d 259 (2000). The court views the evidence in light most favorable to the nonmoving party and sustains the summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). Here, the facts are not in dispute, but rather the constitutionality of a statute. ‘[T]he standard of review in a case where the constitutionality of a statute is challenged is that a statute is presumed to be constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt.’ Island County v. State, 135 Wn.2d 141, 146, 955 P.2d 377 (1998).

DISCUSSION
Ms. Johnson argues that RCW 7.70.050(3(d)) is unconstitutional because it requires a plaintiff in an action alleging failure to obtain informed consent to prove the scope and breach of the duty to obtain informed consent by expert testimony. To prevail on her claim for failure to secure informed consent, Ms. Johnson was required by RCW 7.70.050(1) to prove the following: (a) that Dr. Brown failed to inform Johnson of a material fact relating to treatment; (b) that Johnson consented to treatment without being aware of that fact; (c) that a reasonably prudent patient under similar circumstances would not have consented if given such information; and (d) that the treatment in question proximately caused Johnson’s injury.

RCW 7.70.050(2) and (3) state:

(2) Under the provisions of this section a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment. (3) Material facts under the provisions of this section which must be established by expert testimony shall be either: (a) The nature and character of the treatment proposed and administered; (b) The anticipated results of the treatment proposed and administered; (c) The recognized possible alternative forms of treatment; or (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment.

In Smith v. Shannon, 100 Wn.2d 26, 33, 666 P.2d 351(1983) our Supreme Court held that the determination of whether a fact is material is a two-step process. The first step in the process is to determine the scientific nature of the risk and the likelihood of its occurrence. The second step is to determine whether the probability of the type of harm found to exist is a risk that a reasonable patient would consider in deciding on treatment: `While the second step of this determination of materiality clearly does not require expert testimony, the first step almost as clearly does.’ Id. at 33-34. The Smith court stated further: `Regarding the need for expert testimony, Ms. Smith was required to present some expert testimony to show the magnitude and other scientific characteristics of the risks described in the PDR.’ Id. at 34. Like the plaintiff in Smith, Ms. Johnson failed to present expert testimony to show the magnitude and other scientific characteristics of the risks described in the PDR. Like the trial court, we are bound by the Supreme Court’s ruling in Smith, unless Ms. Johnson can prove beyond a reasonable doubt that this element of proof impinges on a constitutional right. But in Backlund v. University of Washington, 137 Wn.2d 651, 666, 975 P.2d 950
(1999) the Supreme Court held that the `reasonably prudent patient/representative under similar circumstances” standard contained in RCW 7.70.050(1)(c) does not undermine a patient’s sovereignty. The court stated that while a patient retains the right to make ultimate decisions regarding his or her treatment, if that patient chooses to pursue an informed consent claim under RCW 7.70.050(1), any assertion that he or she would not have consented to the treatment is appropriately judged under an objective standard. Id. In Degel v. Buty, 108 Wn. App. 126, 127-28, 29 P.3d 768 (2001), review denied, 145 Wn.2d 1031 (2002) we rejected the plaintiff’s contention that the objective standard regarding causation contained in RCW 7.70.050 is unconstitutional because it undermines a patient’s right to determine his or her own treatment. We held that the statutory standard is constitutional because `the standard for a patient to recover damages in a lawsuit against a doctor has no bearing on the patient’s freedom to choose medical procedures. Id. at 132. For the same reasons as stated in Backlund and Degel, Ms. Johnson’s constitutional challenge to the statutory requirement for medical expert testimony contained in RCW 7.70.050(3)(d) must also fail. The statute does not govern the private relations between a doctor and his or her patient generally, or the right of a patient to receive information about known risks of medical procedures specifically. The statute merely addresses the necessary elements of proof in an action for damages. For whatever reason, Ms. Johnson failed to obtain the necessary expert testimony to support her informed consent claim. It is that failure, and not any constitutional infirmity of the statute, that required dismissal of her claim. .

We affirm the trial court’s summary judgment order.[1]

GROSSE and COLEMAN, JJ., concur.