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Degel v. Buty8/27/2001
This is an appeal of a defense jury verdict in a medical malpractice case against a doctor who delivered a brain-damaged baby. The focus of the appeal is whether the doctor failed to obtain informed consent when he artificially ruptured the mother's membranes in order to attach an electrode for the purpose of internally monitoring the fetus. The appellants contend that the objective standard regarding causation in the informed consent statute, RCW 7.70.050, is unconstitutional because it undermines a patient's right to determine his or her own treatment. But 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. We therefore conclude that the appellants failed to establish that RCW 7.70.050 is unconstitutional. Because appellants' remaining assignments of error, which we address in the unpublished portion of this opinion, do not warrant reversal of the jury's verdict, we affirm.
STATEMENT OF FACTS
Beginning in June 1994, Dr. Steven G. Buty, an obstetrician/gynecologist, managed Tara Perisho's pregnancy. During that time, Dr. Buty and Perisho discussed the possible methods of inducing labor. On February 21, 1995, Dr. Buty obtained Perisho's consent to induce labor and attempted to do so by applying prostaglandin gel to Perisho's cervix. The next day at Swedish Medical Center, Dr. Buty applied the gel again and later put Perisho on intravenous pitocin in an effort to induce labor. Although Perisho was in active labor, the nurses were unable to adequately monitor the fetus using the external monitor. Believing this was a medically urgent situation, Dr. Buty artificially ruptured Perisho's membranes (AROM) to attach a scalp electrode for the purpose of monitoring the fetus internally. At the time Dr. Buty did this, the fetus was at a high station in Perisho's pelvis.
After performing the AROM, Dr. Buty discovered a segment of prolapsed umbilical cord and noted a slowed fetal heartbeat. Perisho was rushed to the operating room for emergency cesarean section surgery. There, Perisho gave birth to a baby girl who was in poor condition, requiring immediate resuscitation. The baby suffered significant neurological damage, and Perisho experienced abdominal complications from the surgery.
On January 20, 1998, Perisho sued Dr. Buty for damages under theories of medical negligence and failure to obtain informed consent. During trial, Perisho testified that she did not know that Dr. Buty was going to perform the AROM until after he did it. Dr. Buty, however, testified that it was his habit when performing an AROM to tell the patient what he is about to do and what he is doing as he does it. Although Dr. Buty could not remember the specific conversation he had with Perisho before he performed the AROM, he said he was sure -- based on his habit of doing so -- that he had such a conversation with Perisho. He further testified that prior to the day the baby was born, he explained the AROM procedure to Perisho as a method of inducing labor. He nonetheless admitted that he did not ask Perisho for her permission to perform the procedure immediately before he did so. Dr. Buty said he believed that Perisho consented to the AROM procedure when she consented to be induced.
Dr. Buty also testified that he did not discuss with Perisho the risks associated with performing the AROM at a high station for the purpose of attaching a scalp electrode. Experts testified during trial regarding the risk of prolapsed umbilical cord from the AROM procedure at a high station. These experts' opinions on the risk ranged from 'very high' to 'extraordinarily small{.}' Another expert testified
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