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This opinion was filed for record For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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SUSAN L. CARLSON

SUPREME COURT CLERK

DAVID DUNNINGTON and JANET )

WILSON, . )

) No. 91374-9

Petitioners, )

)

v. ) EnBanc

)

VIRGINIA MASON MEDICAL CENTER; )

UNKNOWNJOHNDOESANDJOHN )

DOE CLINICS, )

)

Respondents. )

) Filed FEB 0 2 2011

JOHNSON, J.-This case involves a medical malpractice action for a lost

chance of a better outcome. The parties jointly sought direct discretionary review

under RAP 2.3(b)(4), challenging two pretrial rulings. Two questions of law are

before us: (1) whether a court should use a "but for" or "substantial factor"

standard of causation in loss of chance cases and (2) whether evidence relating to a

contributory negligence defense should be excluded based on the plaintiffs failure

to follow his doctor's instructions. The trial court decided that the but for standard

applies and the contributory negligence defense was not appropriate in this case.

We affirm in part and reverse in part. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

FACTS AND PROCEDURAL HISTORY

On September 1, 2011, David Dunnington saw his primary care provider,

Dr. William Kirshner, reporting that he had a lesion on the plantar surface of his

left foot that arose after a puncture wound. Dr. Kirshner arranged an appointment

with Dr. Alvin Ngan, a podiatrist at Virginia Mason Medical Center. Dr. Ngan saw

Dunnington the same day and diagnosed the lesion as a pyogenic granuloma-a

benign lesion.

Dr. Ngan recommended two courses of possible treatment: it could be

surgically excised or conservatively treated with cryotherapy. Dunnington chose

the conservative treatment. Dr. Ngan administered the treatment and instructed

Dunnington to return in 10 days. When Dunnington returned on September 15,

2011, the lesion appeared recalcitrant. Dr. Ngan once again informed Dunnington

of his options, which included surgical excision and biopsy. Dr. Ngan favored

surgical excision, but Dunnington chose conservative treatment. Dr. Ngan

instructed Dunnington to return in 10 days, but he did not. On December 16, 2011,

Dunnington contacted Dr. Ngan, complaining of continued soreness, and requested

an MRI that was performed on December 26, 2011. When Dunnington returned to

the clinic the following day to discuss the results of his MRI, Dr. Ngan noticed the

lesion was enlarged from the previous visit and he recommended surgical

excisional biopsy. Dr. Ngan did not suspect cancer. Dunnington deferred making a

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

decision because he wanted to discuss the issue with his family. Dunnington then

saw Dr. Ryan Bierman, seeking a second opinion regarding the surgical excision.

Dr. Bierman also diagnosed the lesion as a benign, trauma-induced pyogenic

granuloma. They discussed all options, including surgical excision and biopsy, but

Dunnington chose conservative treatment once more. On January 31, 2012,

Dunnington consulted a dermatologist, Dr. Arlo Miller, who performed a punch

biopsy. This resulted in a positive finding of melanoma. On February 16, 2012,

Dunnington underwent surgical excision and the cancer was removed. However,

the melanoma recurred. Dunnington went through chemotherapy and radiation

treatment, which proved unsuccessful, and the cancer recurred. Dunnington's left

leg ultimately had to be partially amputated. He now appears to be cancer free.

Dunnington brought a medical negligence action against Virginia Mason

alleging that Dr. Ngan was negligent in Dunnington's diagnosis, which deprived

him of a 40 percent chance that the melanoma would not recur had a proper

diagnosis and treatment occurred. The defendant, Virginia Mason, asserted an

affirmative defense of contributory negligence based on Dunnington's delay in

returning for follow up care and his decision to seek a second opinion rather than

undergo the recommended excision and biopsy. Dunnington moved to strike the

affirmative defense or for partial summary judgment. Based on declarations, the

court granted the motion, which the parties treat as a grant of partial summary

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

judgment. Virginia Mason's motion for reconsideration was denied. The trial court

also granted Dunnington's motion for a loss of chance jury instruction, but denied

his request for a substantial factor test instruction. Instead, the court determined

that a but for causation standard is the appropriate legal standard. The parties

jointly sought discretionary review of Dunnington's challenge to the loss of chance

and substantial factor jury instruction and Virginia Mason's challenge to the trial

court's dismissal of the contributory negligence defense.

ANALYSIS

Causation

We first recognized the lost chance of a better outcome cause of action in

Herskovits v. Group Health Cooperative ofPuget Sound, 99 Wn.2d 609, 664 P.2d 474 (1983) (plurality opinion). Although a majority in that case recognized the

cause of action, several opinions were authored and no opinion garnered five votes:

the lead opinion by Justice Dore collected one supporting vote and a concurring

opinion by Justice Pearson collected three votes. Although both of these opinions

recognized the cause of action, they differed on its characterization. Most recently,

in Mohr v. Grantham, 172 Wn.2d 844, 262 P .3d 490 (20 11 ), we revisited this issue

and expressly adopted Justice Pearson's analysis. Mohr contains a detailed and

comprehensive discussion of the cause of action, the principles underlying the

doctrine, and how the cause of action fits in our traditional and general tort

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

principles of medical malpractice, including duty, breach, injury, and proximate

cause. Mohr, 172 Wn.2d at 850-57.

In Mohr, the plaintiff suffered a trauma-induced stroke and was permanently

disabled. At the hospital, Mrs. Mohr suffered neurological symptoms but the

physician failed to immediately treat her. Expert opinion established that she

would have had a 50-60 percent chance of a better outcome with nonnegligent

treatment. There, we adopted the characterization and analysis of the cause of

action from the Herskovits concurrence and continued by noting,

A plaintiff making such a claim must prove duty, breach, and that

there was an injury in the form of a loss of a chance caused by the

breach of duty. To prove causation, a plaintiff would then rely on

established tort causation doctrines permitted by law and the specific

evidence of the case.

Mohr, 172 Wn.2d at 862 (emphasis added). By emphasizing the basic requirement

of tort law, we implicitly recognized that generally a but for test is the applicable

standard. While we did not conclusively reject a relaxed causation standard, we

suggested in Mohr that general tort law principles apply.

We have held in certain circumstances the substantial factor standard is

appropriate to use:

First, the test is used where either one of two causes would have

produced the identical harm, thus making it impossible for plaintiff to

prove the "but for" test. In such cases, it is quite clear that each cause

has played so important a part in producing the result that

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

responsibility should be imposed on it. Second, the test is used where

a similar, but not identical, result would have followed without the

defendant's act. Third, the test is used where one defendant has made

a clearly proven but quite insignificant contribution to the result, as

where he throws a lighted match into a forest fire.

Daugert v. Pappas, 104 Wn.2d 254, 262, 704 P.2d 600 (1985). Here, the plaintiff

recognizes that when Mohr adopted the Herskovits concurrence, we rejected

Justice Dore's analysis that the substantial factor test is used in all loss of chance

cases. However, the plaintiff argues that in rejecting the lead opinion, we did not

establish that a substantial factor test is never applicable. Thus, the plaintiff argues

that the facts of this case fall into the limited set of circumstances where the

substantial factor test is appropriate. In doing so, the plaintiff recognizes that a but

for test generally applies, but argues it shouldn't under these facts.

The Court of Appeals has recently confronted this issue. Relying on both

Herskovits and Mohr, Division Three adopted a but for causation standard in a loss

of chance case. Rash v. Providence Health & Servs., 183 Wn. App. 612, 634-35,

334 P.3d 1154 (2014), review denied, 182 Wn.2d 1028 (2015). In that case, the

patient underwent a right knee replacement and the physician failed to give the

proper medication after surgery. As a result, the patient suffered numerous

complications that resulted in a 10-day stay, instead of being discharged a day after

Surgery. Although the plaintiffs expert could not provide an exact percentage of

the loss of chance, he testified that the hospital's negligence was significant and

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

led to the patient's death. The plaintiff argued that a substantial factor test was

appropriate. However, the trial court rejected this view and adopted a but for

causation standard. The Court of Appeals affirmed the trial court holding that

because Mohr adopted the Herskovits concurrence-the law in loss of chance

cases-a but for causation standard was applicable.

This holding was reiterated by Division Three most recently in Christian v.

Tohmeh, 191 Wn. App. 709, 730, 366 P.3d 16 (2015), review denied, 185 Wn.2d

1035 (2016). There, the physician failed to diagnose the plaintiff, resulting in a

delayed postoperative surgery. The plaintiff would have had a 40 percent chance of

diminished symptoms with nonnegligent treatment. The trial court granted the

defendant's motion for summary judgment, concluding that the plaintiff did not

satisfy her burden of proof as to the standard of care and proximate cause. Relying

on Rash, the Court of Appeals reversed and determined that "the plaintiff must

provide a physician's opinion that the health care provider 'likely' caused a lost

chance of a better outcome," which she did. Christian, 191 Wn. App. at 730 (citing

Rash, 183 Wn. App. at 631).

In a medical malpractice action, the plaintiff must satisfy traditional tort

elements of proof: duty, breach, injury, and proximate cause. Our cases have

consistently recognized two elements of proximate cause: cause in fact and legal

causation. "Cause in fact refers to the 'but for' consequences of an act-the

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

physical connection between an act and an injury." Hartley v. State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985) (citing King v. City of Seattle, 84 Wn.2d 239, 249,

525 P.2d 228 (1974)). Yet, in a narrow class of cases, proximate cause is defined

using a substantial factor test-it is an exception to the but for standard. Here, the

issue is whether this case falls within a Daugert exception.

The plaintiff argues that the facts of this case fall within the first Daugert

exception: there were two causes of the 40 percent lost chance-the cancer and Dr.

Ngan's negligence. We disagree. The two causes-the cancer and the

negligence-would not have caused the identical harm. The cancer itself cannot be

a negligently causing factor. Dunnington had a 40 percent chance of a better

outcome with nonnegligent treatment. Based on the plaintiffs expert, he had a 40

percent chance that the cancer would not recur and a 60 percent chance it would.

What this means is that his existing cancer is what caused the recurrence, not the

alleged negligence. This case is against only Dr. Ngan based on the asserted

misdiagnosis that diminished Dunnington's 40 percent chance the cancer would

not recur. It does not make sense to say that the cancer reduced Dunnington's

chance the cancer would not recur. Although the plaintiff makes a case specific

argument, his analysis could have broader implications. A key distinction of loss of

chance cases is that regardless of the negligence, the ultimate injury is likely to

occur. Thus, if we held that the underlying medical condition, such as cancer, is

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

also a cause of the lost chance, then we would essentially be holding that in every

loss of chance case, the two causes, the negligence and the underlying medical

condition, produce an identical harm. This would render a substantial factor test

applicable in every loss of chance case involving medical malpractice-there will

always be negligence and an underlying medical condition. Using a substantial

factor test would be inconsistent with traditional tort law. Because the plaintiff fails

to show this case fits within a Daugert exception, the substantial factor test is

inappropriate.

Contributory Negligence

The hospital challenges the trial court's grant of the plaintiffs motion to

strike pursuant to CR 12(f) or, in the alternative, motion for partial summary

judgment on the issue of comparative fault pursuant to CR 56( a). 1 The parties treat

the trial court's ruling as a grant of partial summary judgment, which we review de

novo. Gleason v. Cohen, 192 Wn. App. 788,794,368 P.3d 531 (2016). The

question in this case is whether a contributory negligence defense is barred as a

matter of law. We hold it is not.

1

The parties interchange the use of contributory negligence and comparative fault. For

clarity, we will refer to the affirmative defense as contributory negligence. Contributory

negligence does not automatically bar recovery for a tort victim; however, it can reduce

damages. RCW 4.22.005.

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

In determining a plaintiff's contributory negligence, 2 "'the inquiry is

whether or not he exercised that reasonable care for his own safety which a

reasonable man would have used under the existing facts and circumstances, and,

if not, was his conduct a legally contributing cause ofhis injury."' Rosendahl v.

Lesourd Methodist Church, 68 Wn.2d 180, 182, 412 P.2d 109 (1966) (quoting

Heinlen v. Martin Miller Orchards, Inc., 40 Wn.2d 356, 360, 242 P.2d 1054

(1952)). "Whether there has been negligence or comparative negligence is a jury

question unless the facts are such that all reasonable persons must draw the same

conclusion from them, in which event the question is one oflaw for the courts."

Hough v. Ballard, 108 Wn. App. 272,279,31 P.3d 6 (2001) (citing Shookv.

Bristow, 41 Wn.2d 623, 626, 250 P.2d 946 (1952)). We must view the evidence,

and all reasonable inferences from the evidence, in the light most favorable to the

nonmoving party, and the motion should be granted if a reasonable person could

reach only one conclusion. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

The hospital alleges "'[t]hat the plaintiff's injuries and damages, if any, may

be caused in part by the conduct of David Dunnington, thus barring or diminishing

2

Washington pattern instruction 11.01 defines "contributory negligence" as "negligence

on the part of a person claiming injury or damage that is a proximate cause of the injury or

damage claimed." 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL

11.01, at 133 (6th ed. 2012).

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

any right to recover."' 3 Resp't's App. at 164. Specifically, they point to two

significant decisions made by the plaintiff that showcase his own negligence: (1)

when he failed to return to the clinic for a follow-up appointment resulting in a

three and a half month delay and (2) when he sought a second opinion from two

other doctors, instead of having the recommended excision in December, resulting

in a one month delay.

The plaintiff counters that the defendant failed to prove that Dunnington's

alleged contributory negligence was a proximate cause of his injury. To show a

lack of proximate cause, the plaintiff points to Dr. Ngan's deposition testimony

that even if Dunnington came back in October for his follow-up visit, Dr. Ngan

would not have diagnosed the lesion as melanoma. The plaintiff focuses narrowly

on Dr. Ngan's differential diagnosis and his reasons for recommending a biopsy.

3

The hospital relies on Brooks v. Herd, 144 Wash. 173, 177, 257 P. 238 (1927). There,

the court found no error with the challenged jury instructions because the instructions, in the

aggregate, "correctly state the law as to the respective duties of physician and patient toward

each other." Brooks, 144 Wash. at 177. Specifically, the court pointed to the following jury

instruction: "[W]hen a patient goes to a physician and accepts the professional skill of such

physician, it is the duty of the patient to follow the advice of the physician, and if he fails to

follow the advice of the physician and something untoward happens to the patient which would

not have happened or was not the physician's negligence, then the physician would not be liable;

and if the plaintiff failed to follow the advice of the doctor and thereby aggravated the ailment,

the jury should find for the defendant." Brooks, 144 Wash. at 177. This jury instruction, and the

principle that contributory negligence is a bar to recovery, has been replaced with RCW

4.22.005. Thus, the plaintiff can be liable for his own negligence, but his negligence doesn't bar

recovery, it merely reduces his damages.

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

Looking at the facts in the light most favorable to the defendant, there is an

issue of material fact. On September 1, 2011, Dr. Ngan recommended two courses

of possible treatment: Dunnington's lesion could be surgically excised or

conservatively treated with cryotherapy. Dunnington chose the conservative

treatment. When Dunnington returned on September 15, 20 11, the lesion appeared

recalcitrant. Dr. Ngan once again informed Dunnington of his options, which

included surgical excision and biopsy. Dr. Ngan favored surgical excision, but

Dunnington chose conservative treatment once more. Dr. Ngan instructed

Dunnington to. return in two weeks; however, he did not. Instead, he returned in

December, when Dr. Ngan instructed him that the next step was surgical excision

and biopsy. Dr. Ngan alleged that if Dunnington returned in October and the lesion

did not improve, he would have made the same recommendation as he did in

December-surgical excision and biopsy. There is a clear dispute as to whether Dr.

Ngan would have again recommended an excision in October if Dunnington had

returned. If he did, the melanoma would have been revealed. 4

4

The plaintiff argues that Dr. Ngan's affidavit revealed that he would have conducted an

excision only if the lesion did not improve, but the lesion was, in fact, responding to treatment.

Yet, this characterization of the evidence is based on selected testimony and fails to consider the

record as a whole and in a light most favorable to the defense.

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Dunnington v. Virginia Mason Med. Ctr., No. 91374-9

CONCLUSION

Traditional tort causation principles guide a loss of chance case. Applying

these established principles, under the circumstances here, a but for cause analysis

is appropriate. We affirm the trial court's ruling on this issue. We reverse the trial

court's partial summary judgment dismissing the contributory negligence defense.

We remand to the trial court for further proceedings.

WE CONCUR:

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13