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Witherspoon • Kelley Assists in Successful Amicus Efforts in Informed Consent Case

Nick Pecoraro

Witherspoon • Kelley is active in the Washington Defense Trial Lawyer's Amicus Committee and participated in the Amicus briefing for Gomez v. Sauerwein, 172 Wn. App. 370, 289 P.3d 755 (2012).  In that case, the plaintiffs argued that the defendant physician failed to secure informed consent regarding a condition that the physician did not diagnose and had in fact affirmatively considered and rejected as implausible.  As it turned out, the physician was incorrect and, though implausible, the condition was, in fact, the plaintiff's ailment.  The plaintiff sued the physician alleging: (i) that the physician was negligent for not diagnosing the condition, and (ii) that the physician breached his informed consent obligations by not disclosing the undiagnosed condition. 

The trial court dismissed the informed consent claim, holding that failure to diagnose claims are properly brought as negligence claims, not informed consent.  The plaintiffs appealed.  Amicus efforts were successful in convincing the Court of Appeals to maintain the traditional division between negligence and informed consent.  Under the Court of Appeals' decision, a duty to disclose does not arise until a physician becomes aware of a condition's existence by diagnosing it.