By Sook Kim

In Gomez v. Sauerwein, the Washington Supreme Court held that a medical negligence claim for misdiagnosis and a failure to obtain informed consent claim are mutually exclusive.  Justice Steven Gonzalez, joined by three other justices, concurred in the result but disagreed with the majority’s reasoning on this issue, arguing while alternative theories were inappropriate under the facts of this case, the claims are not always mutually exclusive.


The defendants, a medical clinic and physician, conducted a preliminary blood test on a patient. The patient tested positive for a rare but serious and potentially fatal yeast infection. The physician eventually determined that the test result was a false positive and ordered a subsequent blood test without informing the patient of the preliminary test result. However, the preliminary blood test result was accurate, and the patient later died from complications arising from the infection. The patient’s estate brought claims for misdiagnosis and failure to obtain informed consent, with each claim based on the same facts.


The majority opinion held that a negligence claim for misdiagnosis and an informed consent claim are mutually exclusive because a healthcare provider cannot be expected to inform a patient about an illness of which she is unaware or has excluded as a possibility.  The rationale behind this rule is that healthcare providers should not be subject to double liability for the same alleged misconduct.


The concurring opinion agreed that the facts of the case failed to support an informed consent claim.  But the concurrence disagreed with the majority on the issue of whether the two claims were mutually exclusive.  Citing to Backlund v. Univ. of Wash., in which a healthcare provider misdiagnosed a headache as a transitory illness and failed to detect a brain tumor, Justice Gonzalez explained that while a provider cannot be held liable for failing to obtain the patient’s informed consent for treating an undetected or undiagnosed condition, the provider nonethelesss may be liable for failing to secure informed consent for treating a certain condition based on an exclusion of other possibilities.  In other words, an informed consent claim and misdiagnosis claim are not always mutually exclusive.