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Bundrick v. Stewart5/2/2005
e defendants were liable for failure to follow the accepted standard of care, failure to obtain consent (medical battery), and failure to obtain informed consent. She did not sue Jain, but alleged that others had vicarious liability for his negligence.
The University and the State (collectively, 'the University') filed a motion for summary judgment. The court granted the motion in part, dismissing all claims against the University for failure to obtain consent, failure to obtain informed consent, and vicarious liability for Stewart's acts and omissions. The court denied the University's motion insofar as it related to vicarious liability for Jain's alleged failure to comply with the standard of care.
The case was tried to a jury. At the close of plaintiff's case, the University moved to dismiss the claim that Jain failed to comply with the standard of care, and the court granted the motion. Thus, all claims against the University were dismissed before the case went to the jury. The jury returned a verdict against Stewart and Pacific Gynecology Specialists, P.C. in the amount of $3.2 million. According to the special verdict form, the verdict was based on Stewart's negligence, not his failure to obtain Bundrick's informed consent to Jain's participation. Stewart appealed. Bundrick filed a cross-appeal, and also appealed dismissal of certain claims against the University. The University cross-appealed. While these appeals were pending, Stewart and Bundrick settled for an amount less than the full judgment, and Bundrick filed a satisfaction of the judgment against Stewart.
The issue remaining is Bundrick's appeal from the summary judgment ruling that neither the University nor its resident had a duty to obtain her consent to the resident's participation in her surgery.
DISCUSSION
The University first contends the medical malpractice statute, chapter 7.70 RCW, supercedes the common law cause of action for medical battery and replaces it with the statutory claim for failure to obtain informed consent. We disagree.
The statute authorizes three causes of action: breach of the standard of care, breach of promise that the injury suffered would not occur, and injury resulting 'from health care to which the patient . . . did not consent.' RCW 7.70.030(3). This section announces a general cause of action for absence of consent. It makes no reference to informed consent, and nothing in its language indicates the legislature intended to eliminate claims for injuries arising from health care to which the patient gave no consent. Elsewhere, the statute sets forth the requirements of informed consent, again without suggesting any limitation on claims for complete lack of consent. RCW 7.70.050.
An action for total lack of consent sounds in battery, while a claim for lack of informed consent is a medical malpractice action sounding in negligence. 'The performance of an operation without first obtaining any consent thereto may fall within the concepts of assault and battery as an intentional tort, but the failure to tell the patient about the perils he faces is the breach of a duty and is appropriately considered under negligence concepts.' Miller v. Kennedy, 11 Wn. App. 272, 281-82, 522 P.2d 852 (1974). While Miller preceded the enactment of chapter 7.70 RCW, the legislature is presumed to know the existing state of case law, Price v. Kitsap Transit, 125 Wn.2d 456, 463, 886 P.2d 556 (1994), and nothing in the statute indicates the legislature intended to eliminate the common law claim. Further, the two causes of action protect entirely different values: informed consent protects the patient's right to know the risks of the decisions she makes abo
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