Gustav v. Seattle Urological Associates
Gustav v. Seattle Urological Associates
Opinion of the Court
Robert J. Gustav, a 75-year-old man suffering from incurable metastasized prostate cancer, filed this action for medical malpractice against Dr. James Gottesman and his partner, Dr. Joel Lilly, alleging that Dr. Gottesman negligently failed to diagnose his cancer until April 1994 after another doctor in California did a bone scan that revealed the presence of cancer in his spine, ribs and scapula. Gustav appeals the trial court’s summary dismissal of his informed consent claim. Because Gustav stated a claim for negligence, not informed consent, the trial court properly granted summary judgment and we affirm.
FACTS
Gustav first saw Dr. Gottesman on June 22, 1987, for a suspicious nodule in his prostate and an elevated PSA.
Dr. Gottesman continued to examine Gustav for prostate cancer over the next six years. During that time, Gustav’s PSA level was tested over 20 times by Dr. Gottesman and sometimes by other physicians that Gustav was also seeing, i.e., about three times a year. A high PSA level is not specific to cancer; men with a normal PSA may have cancer, and other conditions such as prostatitis can cause a high PSA.
In 1991, Dr. Gottesman noted some changes in the appearance of the prostate and arranged for his partner, Dr. Lilly, to biopsy the areas he felt were suspicious. Dr. Lilly had to stop before biopsying all the areas he had planned to cover because Gustav was in pain from the procedure. But he was able to biopsy the suspicious areas in the left base and left mid-gland. The biopsy was negative, and Dr. Gottesman concluded that it was not necessary to rebiopsy. Over the course of the next two years, Gustav continued to experience urologic symptoms and elevated PSA levels which Dr. Gottesman believed were caused either by his chronic prostatitis or by an episode of bacterial infection. In June 1993, Gustav’s PSA level rose to 31.2, but it had
The last time Dr. Gottesman saw Gustav before his cancer was detected, he reported that pain in his right groin from twisting a muscle playing golf was improving with physical therapy. Because cancer-related pain would not have responded to physical therapy, Dr. Gottesman again did not attribute it to cancer. Dr. Gottesman also did not regard either a February 27.3 PSA test result Gustav reported from California or the fact that Gustav’s flow tended to decrease after he ate salty food as cause for concern. In his clinical judgment, both were consistent with Gustav’s long history of prostatitis, and he did not consider a biopsy at that time.
On April 6, 1994, Gustav called Dr. Gottesman from California and reported he had undergone a bone scan which revealed the presence of metastatic cancer in his bones. When Dr. Gottesman examined Gustav in Seattle on April 11, his PSA level was 57.6. A biopsy revealed the presence of cancer in the left base and mid-gland and a lesser amount of cancer in the left apex, the areas that had previously appeared suspicious to Dr. Gottesman. When the pathology report came back, Dr. Gottesman met with Gustav and his family. He told them there was prostate cancer and that he had been mistaken in regarding Gustav’s 20-year history of prostatitis as the sole cause of his elevated PSA levels.
In December 1994, Gustav filed this action against Dr. Gottesman and Dr. Lilly. In February 1996, Gustav moved for partial summary judgment on his claims for negligence and informed consent. Drs. Gottesman and Lilly cross-moved for summary judgment on the ground that Gustav’s informed consent claim was subsumed in his negligent failure to diagnose claim. On April 18, 1996, the trial judge granted the doctors’ motion and dismissed the informed consent claim.
DISCUSSION
Informed Consent Claim
Gustav contends that the trial court erred when it dismissed his informed consent claim on summary judgment. In reviewing a summary judgment order, we engage in the same inquiry as the trial court. Summary judgment should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Summary judgment was proper here because, as a matter of law, Gustav’s allegations involved negligence prior to treatment, not informed consent concerning a treatment the doctor proposed to use. These are two distinct causes of action. Allegations supporting one normally will not support the other. Both Gustav’s negligence claims and his informed consent claim were based on Dr. Gottesman’s failure to diagnose his prostate cancer. Gustav alleged that Dr. Gottesman was negligent in “[flailing to order diagnostic tests as frequently as appropriate” and “[flailing to order completion of the 1991 biopsy for the four areas of the prostate gland not tested by giving the appropriate anesthesia to the plaintiff.” His informed consent claim similarly alleged that Drs. Gottesman and Lilly “failed to fully inform [him] of the appropriate frequency of diagnostic testing, the dangers involved in not testing more frequently, and the consequences of not
While a physician has a duty to disclose an abnormality in the patient’s body which may indicate risk or danger,
This is true even of Dr. Gottesman’s failure to inform
Affirmed.
A majority of the panel having concluded that the remainder of this opinion lacks precedential value, it is ordered that only the foregoing will be published. The balance of the opinion shall be filed for public record as provided in RCW 2.06.040.
Coleman, J., concurs.
PSA is a molecule produced only by the prostate and normally found only in very small amounts in the blood. Greater amounts of PSA in the blood indicate conditions or events affecting the prostate.
Seventy percent of men with elevated PSA levels do not have prostate cancer.
Mountain Park Homeowners Ass’n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). We may affirm an order granting summary judgment on any basis supported by the record. Hadley v. Cowan, 60 Wn. App. 433, 444, 804 P.2d 1271 (1991).
In his answer to an interrogatory asking him to identify each wrongful or negligent act they alleged, Gustav similarly listed “[flailure to disclose to Mr. Gustav the risk of not obtaining] frequent biopsies and other test[s] to determine the presence of prostate cancer” and “[flailure to disclose to [Mr.] Gustav that obtaining only 2 samples during the [1991] biopsy was insufficient to properly test for prostate cancer and that additional biopsies should be taken.” These are diagnostic tests, not treatment for a diagnosed condition.
A physician has a duty to disclose the risks of proposed treatment before obtaining a patient’s consent for treatment. Smith v. Shannon, 100 Wn.2d 26, 29, 666 P.2d 351 (1983). A physician does not have a duty to explain all risks, only those of a material nature. ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wn.2d 12, 25, 499 P.2d 1, 52 A.L.R.3d 1067 (1972). The informed consent form Gustav signed stated that biopsies could be inconclusive for the presence or absence of malignancy.
Thomas v. Wilfac, Inc., 65 Wn. App. 255, 261, 828 P.2d 597, review denied, 119 Wn.2d 1020 (1992); Bays v. St. Luke’s Hosp., 63 Wn. App. 876, 881, 825 P.2d 319, review denied, 119 Wn.2d 1008 (1992).
Bays, 63 Wn. App. at 881; Burnet v. Spokane Ambulance, 54 Wn. App. 162, 772 P.2d 1027, review denied, 113 Wn.2d 1005 (1989).
Thomas, 65 Wn. App. at 261; Burnet, 54 Wn. App. at 168.
Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974), on which the dissent relies for its position to the contrary, is distinguishable. In that case, the
In our view, the dissent significantly mischaraeterizes the differences between the two PSA results. The pattern was apparent regardless of the scale that was used.
Estate of Lapping v. Group Health Coop., 77 Wn. App. 612, 892 F.2d 1116 (1995), on which Gustav relies for his argument that the duty to inform is implicated where a misdiagnosis occurs, is not on point. In Lapping, where the plaintiff’s decedent died while undergoing a diagnostic procedure, the court considered a physician’s duty to inform regarding risks inherent in the diagnostic procedure itself.
See, e.g., Bays, 63 Wn. App. at 881.
Dissenting Opinion
(dissenting) — I respectfully dissent. I would hold appellant Bob Gustav stated and factually supported a claim that his physician failed to inform him of facts material to his treatment.
Early in 1987, Gustav learned he was at risk of prostate cancer. A suspicious nodule was found during a digital rectal examination, and he had an elevated score in a Prostate-Specific Antigen (PSA) blood test. Gustav, then 65 years old, consulted Dr. Gottesman. Dr. Gottesman initially thought it was probable that cancer would be found, and ordered a biopsy. The biopsy was negative for cancer. Dr. Gottesman did not inform Gustav that the biopsy measured fewer areas than he had intended.
In view of the negative biopsy, Dr. Gottesman diagnosed Gustav’s symptoms as manifesting prostatitis, not cancer, though he continued to monitor his PSA level and to send the lab reports to Gustav. PSA levels were being reported in two different scales depending on which lab did the testing. According to the declaration of Dr. Palken submitted by Gustav in defending the motion for summary judgment, Dr. Gottesman did not realize values reported by different labs needed to be converted in order to be comparable, and consequently he did not have accurate information with which to track Gustav’s PSA levels. On occasion, he reported to Gustav his PSA levels were falling when actu
Later in 1991, Dr. Gottesman, noting a changing appearance in the prostate, ordered another biopsy. His partner, Dr. Lilly, performed the biopsy, but stopped early when it became painful to Gustav. The biopsy was negative for cancer. Dr. Gottesman told Gustav that he was satisfied with the biopsy because even though they did not take as many tissue samples as planned, they did take samples from the most suspicious areas. Dr. Gottesman did not inform Gustav that Dr. Lilly had written on his note, “Appropriate biopsies could not be completed.”
It goes without question that, had Mr. Gustav known his PSA was rising instead of staying the same, he would have asked what else could have been done, or if an additional biopsy should have been performed. He could have gotten a second opinion. Had Mr. Gustav been told that both of the biopsies were flawed, he would have asked that they be completed and/or performed again.
The majority relies on Bays v. St. Luke’s Hospital,
A health care provider may become liable for breaching a duty to obtain informed consent if the provider fails to “inform the patient of a material fact or facts relating to the treatment.”
Applying these legal rules to the present case, Dr. Gottesman was aware that Gustav’s condition strongly suggested cancer. After the first biopsy came back negative, he diagnosed the condition as prostatitis. From then on, Dr. Gottesman’s treatment was to diagnose and treat prostatitis, while continuing to monitor for new signs of cancer. He continued with the same course of treatment after doing a second biopsy which also came back negative. This course of treatment, because it depended on the accuracy of the PSA levels and the adequacy of the biopsies, presented a foreseeable risk to the patient if the PSA levels were inaccurately tracked and the biopsies were incomplete. A jury could thus find that Dr. Gottesman breached his duty to disclose material facts when he failed to inform Gustav of the errors in the information underlying Gustav’s consent to a course of treatment involving no additional biopsies. The nondisclosure deprived Gustav of the choice to seek additional biopsies or a second opinion from a physician better informed about how to interpret PSA tests.
Under Miller v. Kennedy,
The defendants’ only argument in moving for summary judgment was that Gustav’s informed consent claim was completely subsumed under his negligence theory. I would hold Gustav established a distinct prima facie case of breach of the duty to disclose. Dr. Gottesman’s explanation, that he did not need to tell Gustav about the erroneous PSA readings or the flaws in the biopsies because these items were not significant to his diagnosis, is a defense. It does not negate the plaintiff’s cause of action.
I would reverse and remand for trial on the issue of informed consent.
Review denied at 136 Wn.2d 1023 (1998).
Dr. Lilly qualified this observation in deposition, saying that on the whole he felt the patient had an adequate evaluation. But on summary judgment we must construe all inferences in favor of Gustav, the nonmoving party, and an available inference is that Dr. Lilly would have recommended doing another biopsy.
Majority at 789.
Majority at 790.
See Gates v. Jensen, 92 Wn.2d 246, 250, 595 P.2d 919 (1979).
Bays v. St. Luke’s Hosp., 63 Wn. App. 876, 881, 825 P.2d 319, review denied, 119 Wn.2d 1008 (1992); see also Burnet v. Spokane Ambulance, 54 Wn. App. 162, 168, 772 P.2d 1027, review denied, 113 Wn.2d 1005 (1989).
RCW 7.70.050(l)(a).
Miller v. Kennedy, 11 Wn. App. 272, 282, 522 P.2d 852 (1974).
Miller v. Kennedy, 11 Wn. App. at 282.
Id.; quoted in Keogan v. Holy Family Hosp., 95 Wn.2d 306, 315, 622 P.2d 1246 (1980).
Keogan v. Holy Family Hosp., 22 Wn. App. 366, 369, 589 P.2d 310 (1979). On appeal to the Supreme Court, the Court of Appeals analysis of the informed consent issue was cited with approval by Justice Hicks’ concurring/dissenting opinion, in which he was joined by four other members of the Supreme Court. Keogan, 95 Wn.2d at 330.
Miller v. Kennedy, 11 Wn. App. 272, 282-83, 522 P.2d 852 (1974).
Reference
- Full Case Name
- Robert J. Gustav, Et Al., Appellants, v. Seattle Urological Associates, Et Al., Respondents
- Cited By
- 9 cases
- Status
- Published