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2001 Wash. App. LEXIS 1860, * JILLA KHATIBNIA and MIKE MANSOURI, Appellants, v. ROBERT K. KELLEY, M.D., Respondent. No. 47425-1-I COURT OF APPEALS OF WASHINGTON, DIVISION ONE 2001 Wash. App. LEXIS 1860 August 6, 2001, Filed NOTICE: [*1] RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT. PRIOR HISTORY: Appeal from Superior Court of King County. Docket No: 99-2-20289-9. Date filed: 09/07/2000. Judge signing: Hon. Richard Eadie. DISPOSITION: Affirmed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff patient sued defendant doctor, claiming the doctor failed to warn her that anxiety attacks were a side effect of the drug the doctor prescribed for the patient. The King County Superior Court (Washington) granted the doctor's motion for summary judgment. The patient appealed. OVERVIEW: The patient argued that: (1) she was not required to produce expert testimony in support of her informed consent claim because the doctor had admitted that the drug in question was known to cause anxiety attacks, and (2) the trial court erred in denying her motion for a voluntary nonsuit. The instant court held that summary judgment was appropriate because the patient failed to produce any expert testimony as to the likelihood of the risk associated with the drug. Contrary to the patient's contention, the fact that a risk of potential side effects was known did not necessarily mean that the risk was material. The trial court also properly denied the patient's motion for voluntary nonsuit under Wash. Super. Ct. Civ. R. 41(a)(1)(B). Because the doctor's motion for summary judgment had been submitted to the trial court for determination, the patient was not entitled to a voluntary nonsuit, even though the trial court had not yet rendered a decision. OUTCOME: The judgment was affirmed. CORE TERMS: anxiety, expert testimony, summary judgment, voluntary nonsuit, side effect, informed consent, matter of law, prescribed, announced, patient, first step, occurrence, summary judgment hearing, failed to produce, infection, warn LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts Civil Procedure > Summary Judgment > Summary Judgment Standard Healthcare Law > Treatment > Failures to Warn & Disclose HN1clsccl1clsccl1 A physician need not disclose every possible risk associated with treatment. In order to avoid summary judgment, the patient is required to show that the physician failed to inform her of a material fact or facts relating to her treatment. Wash. Rev. Code § 7.70.050(3)(d). A fact is "material" for purposes of informed consent if a reasonably prudent person in the position of the patient or his representative would attach significance to it in deciding whether or not to submit to the proposed treatment. Wash. Rev. Code § 7.70.050(2). Evidence > Witnesses > Expert Testimony Healthcare Law > Treatment > Failures to Warn & Disclose HN2clsccl2clsccl2 For purposes of determining whether a physician failed to inform a patient of a material fact or facts relating to her treatment, the determination of whether a fact is material is a two-step process. The first step is to determine the scientific nature of the risk and the likelihood of its occurrence; the second is to determine whether the probability of the type of harm described is a risk which a reasonable patient would consider in deciding on treatment. While the second question is one for a jury, expert testimony is required to establish the first step. Wash. Rev. Code § 7.70.050(3) also requires that the recognized serious possible risks, complications, and anticipated benefits of the treatment be established by expert testimony. Civil Procedure > Dismissal of Actions > Voluntary Dismissal Civil Procedure > Appeals > Standards of Review > De Novo Review HN3clsccl3clsccl3 Wash. Super. Ct. Civ. R. 41(a)(1)(B) provides for voluntary dismissal of an action, without prejudice, upon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case. The trial court's application of rule 41(a) is a question of law, reviewed de novo. Civil Procedure > Dismissal of Actions > Voluntary Dismissal Civil Procedure > Summary Judgment > Summary Judgment Standard HN4clsccl4clsccl4 In the context of a summary judgment proceeding, a plaintiff has a right to a voluntary nonsuit until the motion has been submitted to the trial court for determination. Where a motion for a voluntary nonsuit has been filed before the motion on summary judgment has begun, the motion must be granted as a matter of right. Conversely, once the trial court has announced its oral decision, a plaintiff has no right to a voluntary nonsuit. COUNSEL: For Appellant(s): David A. Williams, Attorney At Law, Bellevue, WA. For Respondent(s): Christopher H. Anderson, Fain Sheldon et al, Seattle, WA, John E. Gagliardi, Fain Sheldon Anderson & Vanderhoef, Seattle, WA. OPINION: PER CURIAM. Jilla Khatibnia brought suit against Robert K. Kelley, M.D., claiming that Dr. Kelley failed to warn her that anxiety attacks were a side effect of the drug Floxin. She appeals from the trial court's grant of summary judgment in favor of Dr. Kelley, arguing that she was not required to produce expert testimony in support of her informed consent claim because Dr. Kelley had admitted that Floxin was known to cause anxiety attacks. Because Khatibnia produced no expert testimony to demonstrate that the risk of side effects was material, summary judgment was appropriate. The trial court also properly denied Khatibnia's motion for a voluntary nonsuit, because that motion was not [*2] brought until after the motion for summary judgment was submitted for determination. We therefore affirm. FACTS In the course of treating Khatibnia for a urinary tract infection, Dr. Kelley prescribed the antibiotic Floxin to clear up the infection without warning Khatibnia of any potential side effects. Approximately 10 days after the drug was prescribed, Khatibnia suffered an anxiety attack. She was treated at the hospital, where she was told to stop taking the Floxin. Khatibnia continued to suffer from anxiety attacks and, approximately one week after the first attack, Khatibnia was seen again by Dr. Kelley. According to Khatibnia, Dr. Kelley told her that her anxiety attacks were caused by the Floxin, and that the drug is known to trigger such attacks. Khatibnia brought suit against Dr. Kelley alleging that she suffered anxiety attacks as a direct result of her taking Floxin, and that Dr. Kelley had prescribed the Floxin without obtaining her informed consent. Dr. Kelley moved for summary judgment on the basis that Khatibnia had failed to produce expert testimony to support her claim. In support of his motion, Dr. Kelley produced a declaration from a doctor who opined that it [*3] was not necessary to warn patients of the alleged side effect of anxiety attacks when prescribing Floxin. In response, Khatibnia argued that because Dr. Kelley had admitted that anxiety attacks were a known side effect of Floxin, and that the drug caused her attacks, she was not required to produce expert testimony to support her claim. Dr. Kelley submitted a reply brief, in which he argued that expert testimony was required to prove that the risks associated with Floxin were material. At the summary judgment hearing, after both sides had presented oral argument but before the trial court had announced its decision, counsel for Khatibnia made an oral motion for a voluntary nonsuit pursuant to CR 41(a)(1)(B). The court denied Khatibnia's motion for a voluntary nonsuit, and granted Dr. Kelley's motion for summary judgment. Khatibnia appeals. DISCUSSION HN1clscc1clscc1A physician need not disclose every possible risk associated with treatment. n1 In order to avoid summary judgment, Khatibnia was required to show that Dr. Kelley failed to inform her of a material fact or facts relating to her treatment. n2 A fact is "material" for purposes of informed consent "if a reasonably prudent person in [*4] the position of the patient or his representative would attach significance to it [in] deciding whether or not to submit to the proposed treatment." n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Smith v. Shannon, 100 Wn.2d 26, 32-34, 666 P.2d 351 (1983). n2 RCW 7.70.050(3)(d). n3 RCW 7.70.050(2); Backlund v. Univ. of Wash., 137 Wn.2d 651, 664, 975 P.2d 950 (1999). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - HN2clscc2clscc2The determination of whether a fact is material is a two-step process. The first step is to determine the scientific nature of the risk and the likelihood of its occurrence; the second is to determine whether the probability of the type of harm described is a risk which a reasonable patient would consider in deciding on treatment. n4 While the second question is one for a jury, expert testimony is required to establish the first step. n5 RCW 7.70.050(3) also requires that the "recognized serious possible risks, complications, and anticipated benefits" of the [*5] treatment be established by expert testimony. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Shannon, 100 Wn.2d at 33. n5 Shannon, 100 Wn.2d at 33-34; Ruffer v. St. Frances Cabrini Hosp. of Seattle, 56 Wn. App. 625, 631, 784 P.2d 1288 (1990). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Khatibnia argues that she was not required to produce expert testimony because Dr. Kelley admitted that her anxiety attacks were caused by the Floxin and that such attacks were a side effect of Floxin. While Dr. Kelley's admission was arguably sufficient to demonstrate the nature of the risk (i.e., that anxiety attacks were a possible side effect of Floxin), his statement did not speak to the likelihood of its occurrence. Contrary to Khatibnia's contention, the fact that a risk of potential side effects is "known" does not necessarily mean that the risk is material. A side effect of a drug may be known, yet be so unlikely to occur that the risk is not material as a matter of law. n6 Because Khatibnia failed to produce any expert testimony as to the likelihood [*6] of the risk associated with Floxin, the trial court did not err in granting Dr. Kelley's motion for summary judgment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 See, e.g., Ruffer, 56 Wn. App. at 628-29 (risk of perforating the colon resulting from a sigmoidoscopy with biopsy was 1 in 20,000 to 50,000; as a matter of law, risk was not material); Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970) (as a matter of law, a .75 percent risk of esophageal perforation during esophagoscopy is not a reasonably foreseeable risk about which a physician must warn). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Nor did the trial court err in denying Khatibnia's motion for voluntary nonsuit under CR 41(a)(1)(B). HN3clscc3clscc3CR 41(a)(1)(B) provides for voluntary dismissal of an action, without prejudice, "[u]pon motion of the plaintiff at any time before plaintiff rests at the conclusion of his opening case." The trial court's application of CR 41(a) is a question of law, reviewed de novo. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 Port of Port Angeles v. CMC Real Estate Corp., 114 Wn.2d 670, 676-77, 790 P.2d 145 (1990). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*7] HN4clscc4clscc4 In the context of a summary judgment proceeding, a plaintiff has a right to a voluntary nonsuit until the motion has been submitted to the court for determination. n8 Where a motion for a voluntary nonsuit has been filed before the motion on summary judgment has begun, the motion must be granted as a matter of right. n9 Conversely, once the trial court has announced its oral decision, a plaintiff has no right to a voluntary nonsuit. n10 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Paulson v. Wahl, 10 Wn. App. 53, 57, 516 P.2d 514 (1973). n9 Greenlaw v. Renn, 64 Wn. App. 499, 824 P.2d 1263 (1992). n10 Beritich v. Starlet Corp., 69 Wn.2d 454, 418 P.2d 762 (1966). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The facts of this case lie somewhere between those in Greenlaw v. Renn and Beritich v. Starlet Corporation. The summary judgment hearing had begun and the parties had concluded their oral arguments, but the trial court had not yet announced its decision on the motion. We hold that under these circumstances, the motion [*8] for summary judgment had been submitted to the court for determination, notwithstanding the fact that the court had not yet rendered a decision. Khatibnia was therefore not entitled to a voluntary nonsuit Affirmed. FOR THE COURT: Copyright © 2002 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.
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