Harward v. Urology Clinic of Utah Valley LLC

Fourth District Court, Provo Department The Honorable Kraig Powell No. 170401397

G. Eric Nielson and Todd Wahlquist, Attorneys for Appellants

Stephen W. Owens, James T. Egan, and Nourin Nahed Abourahma, Attorneys for Appellees

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred.

CHRISTIANSEN FORSTER, JUDGE:

¶1 As a result of receiving multiple daily infusions of the antibiotic gentamicin, Cecilia Harward developed permanent vestibular damage.^[1] She and her husband, Alvin Harward, sued

her prescribing urologist, Dr. Brandon Reynolds, and Urology Clinic of Utah Valley LLC (collectively, Dr. Reynolds), asserting that Dr. Reynolds committed medical malpractice by failing to obtain her informed consent prior to ordering that she undergo gentamicin infusions. Following trial, the jury found by special verdict that Dr. Reynolds did not breach his duty of care with respect to Ms. Harward's informed consent. On appeal, we are asked to determine whether the jury instructions, along with statements regarding consent made by witnesses, misled the jury as to the meaning of informed consent. We are also asked to address questions regarding allocation of fault to Ms. Harward and the infusion center nurses.

¶2 We agree with the Harwards that the jury instructions and statements concerning consent had the potential to confuse the jury and that the confusion was reasonably likely to have affected the jury's verdict. We accordingly vacate the verdict and remand for a new trial. We also provide guidance regarding the allocation issues, which may arise on remand.

BACKGROUND

¶3 Ms. Harward's primary physician referred her to Dr. Reynolds because "[s]he had recurrent urinary tract infections that were becoming more and more resistant to antibiotics." Dr. Reynolds found that Ms. Harward also had a kidney stone and scheduled surgery to remove it. Dr. Reynolds also determined that it was necessary to treat Ms. Harward's current infection with antibiotics prior to the surgery to avoid the risk of sepsis. Dr. Reynolds decided that gentamicin would be the most appropriate antibiotic, based on Ms. Harward's circumstances, and instructed his medical assistant to order the antibiotic. Dr. Reynolds did not

discuss his choice of antibiotic with Ms. Harward. Instead, he had his medical assistant call Ms. Harward and tell her, "Dr. Reynolds wants you to go to the IV infusion center at Utah Valley starting Monday morning for IV antibiotics." The assistant told Ms. Harward she would make the arrangements and that the antibiotic treatment would continue once per day for fourteen days prior to Ms. Harward's surgery but did not give Ms. Harward any details concerning the antibiotic she would receive, its risks, or its alternatives.

¶4 When Ms. Harward arrived at the infusion center, she received a handout concerning gentamicin and signed an acknowledgment (the Acknowledgement) stating, "I have received and understand the instructions in this handout." The handout included a list of side effects, including "loss of balance" and becoming "confused, dizzy, disoriented." It did not specifically mention the risk of permanent vestibular damage.

¶5 When Ms. Harward went to the infusion center for her sixth dose of gentamicin, she complained to the nurse of "dizziness, nausea, dry heaves, [and a] metallic taste" in her mouth. The nurse called Dr. Reynolds, who ordered her to "hold today's dose and restart tomorrow." Based on the nurse's description, Dr. Reynolds did not believe Ms. Harward was having a reaction to the gentamicin, but he told the nurse to call him back if Ms. Harward continued to have problems. Ms. Harward returned for another infusion the next day and received several more doses over the ensuing days. Over the next several days, she told the nurses she was feeling "the same," but the nurses did not report any further symptoms to Dr. Reynolds.

¶6 Ms. Harward ultimately received ten infusions of gentamicin before her surgery. A week later, she followed up with Dr. Reynolds and told him she was concerned she was suffering from "gentamicin poisoning." Dr. Reynolds referred Ms. Harward to an ENT physician, who confirmed that she had

suffered permanent vestibular damage as a consequence of the gentamicin infusions.

¶7 Subsequently, the Harwards sued Dr. Reynolds and the IHC infusion center for medical malpractice based on the failure to obtain Ms. Harward's informed consent to the gentamicin infusions. The Harwards settled their claims against IHC and then proceeded to trial on their claims against Dr. Reynolds.

¶8 Prior to trial, Dr. Reynolds filed a Notice of Apportionment of Fault, stating that he intended to ask that the jury allocate fault to the IHC nurses at trial. However, when he did not designate a nursing expert to testify as to the nursing standard of care, the Harwards filed a motion in limine seeking to prevent him from allocating fault to IHC. The court denied the motion, concluding that Dr. Reynolds's physician experts could opine as to the nursing standard of care in this case and that Dr. Reynolds could, on the basis of this testimony, argue for apportionment of fault.

¶9 Dr. Reynolds filed a motion in limine asking that he be allowed to argue to the jury that IHC paid a settlement to the Harwards. He explained that he wanted to argue that "[i]f a mistake was made, IHC made it and paid out money" and the Harwards "have been compensated for it." The Harwards responded that such an argument would be inappropriate because "[t]here are many reasons why persons settled their dispute" and that Dr. Reynolds should not be able to imply that the settlement with IHC indicated that IHC rather than Dr. Reynolds committed the malpractice. The district court concluded that Dr. Reynolds would not be permitted to make statements or elicit testimony regarding the settlement that went beyond the language of the jury instructions, which informed the jury that the Harwards had settled their claims against IHC and that the jury's award of damages "should be made without considering what they received under this settlement."

¶10 The case proceeded to trial. The Harwards presented evidence that Dr. Reynolds had not told Ms. Harward the name of the drug he was prescribing, that gentamicin had a "black box warning" regarding permanent vestibular damage, or that there were two other medications that could have potentially treated her infection. Their infectious disease expert testified that the risk of vestibular damage from gentamicin is somewhere between 2% and 10% and that gentamicin should be used only in life-threatening situations.

¶11 When cross-examining the Harwards' expert, Dr. Reynolds's counsel referred to the Acknowledgement as a "consent form." The Harwards objected to this reference, but the court overruled that objection. Dr. Reynolds's counsel continued referring to the Acknowledgement as a "consent form" throughout the remainder of the questioning. The Harwards then moved for a mistrial on the ground that mischaracterizing the Acknowledgement as a "consent form" had misled the jury into believing Ms. Harward had given informed consent. At that point, the court took the mistrial motion under advisement and told counsel to, for the rest of the day, refer to the Acknowledgment as "the document that Cecilia Harward signed on . . . March 29, 2016." Subsequently, the district court denied the motion for mistrial, ruling that "the question of whether the form qualifies as a...