APPELWICK, J.
A deceased patient's estate sued his doctor, physician's assistant, and group health cooperative for medical malpractice after the patient died of cardiac arrest shortly after a visit to the doctor. After a bench trial, the trial court rendered a verdict in favor of defendants, finding no proximate cause between their care and his death. The estate appealed. We affirm.
FACTS
Asawa Izidor (Izidor) visited Diana Tufel, a physician's assistant, and Dr. Knight at Group Health Cooperative (Group Health) for a check-up and completion of a sports authorization form for Shoreline Community College (SCC) in October 1996. Although he lived with his mother, Izidor was over 18 years of age and emancipated. Tufel examined Izidor, and noted that, although he had a heart murmur, Asawa Izidor denied having chest pains and shortness of breath and was otherwise asymptomatic. Tufel had Dr. Stacey Globerman, a Group Health physician, listen to Asawa Izidor's heart and question him; again, Asawa Izidor denied pain, fatigue, or shortness of breath. Tufel signed the SCC authorization form, but also referred Asawa Izidor to Dr. Robert Wallach for an echocardiogram.
Asawa Izidor's mother, Myrna Izidor, is the appellant here. Asawa Izidor will be referred to as Asawa Izidor, and his mother, as Myrna Izidor throughout.
Dr. Wallach reported on November 15, 1996, that Asawa Izidor suffered from hypertrophic cardiomyopathy. Dr. Knight and/or Tufel received Dr. Wallach's report on or about November 15, 1996. On December 12, 1996, Dr. Knight sent Asawa Izidor's 1996 echocardiogram to Dr. Resnick, a cardiologist at Group Health who had interpreted Asawa Izidor's 1994 echocardiogram. The parties dispute if, and when, Dr. Knight informed Asawa Izidor of his condition. Dr. Knight testified that he informed Asawa Izidor of his condition when Asawa Izidor called him on November 29, 1996. Dr. Knight also testified that he explained to Asawa Izidor during that call that sudden death was a potential complication of hypertrophic cardiomyopathy, and advised him to stop playing basketball and other sports. Dr. Knight further testified that he memorialized that conversation in a telephone consultation form on December 3, 1996. The parties dispute the authenticity of the phone form memorializing the November 29, 1996 conversation. Dr. Knight was unable to produce the telephone consultation form until June 1998. The court admitted the telephone consultation form into evidence. Myrna Izidor does not challenge its admission into evidence here.
Hypertrophic cardiomyopathy is defined as a thickening of the walls of the heart. An echocardiogram measures the thickness of heart walls. Asawa Izidor had an echocardiogram in 1994, following a stab wound near his heart. In the 1994 echocardiogram, the septum wall of his heart measured 15 millimeters (mm.) and the posterior wall, 12 mm. In Dr. Wallach's 1996 echocardiogram, those measurements were 14 mm. and 14 mm., respectively. Dr. Wallach inferred that the difference in the heart wall measurements between his 1996 test and the 1994 test was not `necessarily different substantially,' and said the difference was `really quite small.' But Dr. Wallach also stated that he and Dr. Resnick, who had done the 1994 test, had interpreted the two echocardiograms differently. Dr. Wallach also reported that the normal adult human heart range is from 7 mm. to 11 mm. for both of those dimensions. In other words, `abnormal' can be defined as not common. Measurements of up to 16 mm. are not necessarily cause for concern because there is a lot of latitude between normal and abnormal. Dr. Wallach also testified that, without further testing, it was not possible to say with certainty that the thickening of Asawa Izidor's heart was hypertrophic cardiomyopathy; that was, however, the possibility that immediately came to his mind as the most likely cause of thickening.
Tufel testified that she had made an earlier referral to a cardiologist, but there is no record of her alleged earlier referral.
On January 4, 1997, Asawa Izidor played basketball, first at SCC for a brief period of time, and then for a few hours with friends at a recreational center. He then returned home to play cards with friends. His mother found him in bed, deceased, the next day. An autopsy attributed Asawa Izidor's death to hypertrophic cardiomyopathy.
On December 19, 1999, Myrna Izidor, mother of decedent Asawa Izidor and personal representative of his estate, sued Dr. Knight, Tufel, and Group Health for Asawa Izidor's wrongful death, on behalf of his minor daughter, the sole beneficiary of his estate. Myrna Izidor alleged that Dr. Knight's failure to notify Asawa Izidor of his condition, upon receiving Dr. Wallach's report that Asawa Izidor had hypertrophic cardiomyopathy, was the proximate cause of his death.
ANALYSIS
I. Expert Testimony
Myrna Izidor asserts that the trial court erred when it entered its order limiting her to a `single expert witness to testify on each particular subject matter.'
The decision to exclude cumulative or repetitive evidence is within the trial court's discretion. Christensen v. Munsen, 123 Wn.2d 234, 241, 867 P.2d 626 (1994). This court reviews the trial court's admission or rejection of expert testimony under an abuse of discretion standard. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Stenson, 132 Wn.2d at 701.
In her disclosure of possible primary witnesses submitted to the court on December 14, 2000, Myrna Izidor named three cardiology experts: Dr. Henry DeMotts, Dr. Michael D. Crawford, and Dr. Floyd Short. Myrna Izidor stated that each of them would `testify regarding the methods of care regarding treatment of patients with hypertrophic cardiomyopathy.' Dr. Knight filed a motion to limit expert witnesses, urging that Myrna Izidor's use of three cardiology experts would `present duplicative, bolstering testimony regarding causation.' The court granted Dr. Knight's motion, limiting Myrna Izidor to one expert per subject matter, but allowing her to `supplement [her] interrogatory answers and witness disclosure so that the testimony of the witnesses is not cumulative . . . .' Notwithstanding Myrna Izidor's failure to supplement her interrogatory answers, and the court's order that she be limited to one expert, the court ultimately admitted testimony from both Dr. DeMotts and Dr. Short. `In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson.' Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983). This is particularly true of medical facts, where expert testimony is `necessary to establish the standard of care and most aspects of causation.' Harris, 99 Wn.2d at 449. The rule that medical facts generally require expert testimony, however, does not mean a party may present duplicative testimony. Civil Rule 16(a)(4) provides that on the motion of any party, the court has the discretion to direct counsel for the parties to appear before it in conference to consider the limitation of the number of expert witnesses. CR 16(a)(4). Under ER 403, even relevant evidence may be excluded on the basis that it is cumulative. ER 403. The trial court acted within the ambit of its authority under CR 16(a)(4) and ER 403 when it granted Dr. Knight's motion to limit the number of expert witnesses. Moreover, the court ultimately permitted two cardiologists to testify as expert witnesses on Myrna Izidor's behalf. Its denial of further expert testimony on the issue of causation did not prejudice Myrna Izidor; nor did the denial constitute a manifest abuse of discretion.
The court denied Dr. Knight's motion to strike Dr. Short's testimony, subsequent to his earlier motions to limit plaintiff's expert witnesses, stating that the court was `unable to tell from this record whether the testimony of the witnesses will be cumulative. The fact that they are both cardiologists is not determinative.'
II. Late Demand for a Jury Trial
Myrna Izidor asserts that the trial court abused its discretion when it denied her motion to file a late demand for a jury trial.
The application of a court rule to a particular set of facts is a question of law and is subject to de novo review. Kim v. Pham, 95 Wn. App. 439, 441, 975 P.2d 544 (1999). Civil Rule 38(a) preserves as `inviolate' the right to trial by a jury as declared by article I, section 21 of the Washington State Constitution. CR 38(a). King County Superior Court Local Rule (KCLR) 38(b)(2) provides that `a jury demand shall be filed and served no later than the final date to change trial designated in the Case Schedule.' KCLR 38(b)(2). In this case, pursuant to a case schedule order, the trial court established the change of trial date as February 12, 2001. Myrna Izidor failed to perfect her demand for jury trial because she did not file or pay the jury fee on or before February 12, 2001. She then filed a motion for a late jury demand on March 15, 2001. The court denied that motion. Myrna Izidor justifies her failure to timely demand a jury trial by explaining that she had presumed that the defendants planned to file a jury demand, and that she did not learn that they had not done so until after February 12, 2001. She also argues that the trial court should have granted her motion for a late jury demand to accommodate `legal and factual issues involving the liability' in this case. Myrna Izidor seems to present an equitable argument. She specifically mentions the discovery and admission into evidence of a key telephone consultation form, documenting Dr. Knight's alleged notice to Izidor about his heart condition, seven months after a preceding lawsuit was filed in October 1997, as justification for granting a late jury demand. The discussion and admission into evidence of the telephone consultation form was well before the February 12, 2001 change trial date. Moreover, even if its discovery was delayed, that delay is of no consequence to the change trial date. Myrna Izidor cites no authority to support her argument that the trial court abused its discretion in failing to grant her late jury demand for the reasons she presents. Civil Rule 38(d) provides that a party's failure to perfect demand for a jury trial in accord with CR 38(b) implies that party's consent to the waiver of the right to a jury. CR 38(d). Myrna Izidor's failure to timely serve and file her demand for a jury trial constituted her consent to waive her right to a jury trial pursuant to CR 38(d). The trial court was well within its discretion when it denied Izidor's motion to file a late jury demand.
January 29, 2001 was the initial deadline for filing a demand for a jury trial; the deadline was subsequently extended to February 12, 2001.
III. Physician-Patient Confidentiality
Myrna Izidor next asserts that Dr. Knight had a duty to inform both her and SCC of Asawa Izidor's condition, and that the trial court erred in holding that Knight had no duty to withdraw medical authorization for Asawa Izidor to engage in sports activities once they were notified that he had hypertropic cardiomyopathy. Dr. Knight argues that the trial court properly concluded that he had `an affirmative obligation to keep the information confidential.'
A. Notice to SCC
Chapter 7.70 RCW governs actions for injuries and death resulting from health care. RCW 70.02.020 states that '[e]xcept as authorized in RCW 70.02.050, a health care provider . . . may not disclose health care information about a patient to any other person without the patient's written authorization.' RCW 70.02.020 (emphasis added). Subsequent to signing and submitting to SCC its sports authorization form, Asawa Izidor never granted written permission to the respondents to disclose health care information about him to a third party. Thus, the respondents could have disclosed health care information about Asawa Izidor to a third party only if one of the exceptions to confidentiality set forth in RCW 70.02.050 applied.
Case law supports a narrow interpretation of third party disclosure under RCW 70.02.050. In Berger v. Sonneland, we held that a physician defendant breached patient-physician confidentiality pursuant to RCW 70.02.050 when he disclosed details of a patient's medical care to her former husband. 101 Wn. App. 141, 1 P.3d 1187 (2000). During the patient's visit, the doctor asked the plaintiff about her medical and family history. She confided that she was estranged from her physician-husband, Dr. Hoheim. At no point did she convey to the defendant doctor that she had ever received medical treatment from Dr. Hoheim. The defendant doctor then contacted Dr. Hoheim and informed him that the plaintiff had requested Tylox. Dr. Hoheim thereafter sought to modify the child custody orders relating to their two children on the grounds that the plaintiff was abusing narcotics. On appeal, the Berger court held that, pursuant to chapter 7.70 RCW, the accepted standard of care for physicians includes a duty to maintain the confidentiality of the physician-patient relationship.
RCW 70.02.050(1) is explicit that disclosure is not required except for circumstances delineated in RCW 70.02.050(2), which do not apply here. RCW 70.02.050(1)(d) states:
RCW 70.02.050(2) mandates disclosure of health care information about a patient to a third party without the patient's authorization only when the disclosure is to select federal, state, or local governmental entities, as required by law enforcement authorities, or to comply with compulsory discovery requests pursuant to RCW 70.02.060. RCW 70.02.050(2) (emphasis added).
(1) A health care provider may disclose health care information about a patient without the patient's authorization to the extent a recipient needs to know the information, if the disclosure is: . . . . (d) To any person if the health care provider reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the patient or any other individual, however there is no obligation under this chapter on the part of the provider to so disclose.
RCW 70.02.050(1)(d). RCW 70.02.050(1)(d) permits disclosure to a third party only when a physician believes that disclosure will `avoid or minimize an imminent danger to the health or safety of the patient . . . .' Both Tufel and Dr. Knight, as well as other medical experts, testified that the results of Asawa Izidor's echocardiograms did not indicate that he was in imminent danger. Even if Dr. Knight had considered Asawa Izidor to be in imminent danger, the authority to disclose under RCW 70.02.050(1) is permissive; he had `no obligation' to disclose Asawa Izidor's condition to SCC. RCW 70.02.050(1).
Dr. Roger Rosenblatt, an expert in medical ethics, testified that Dr. Knight and Tufel had not fallen below the standard of care for a physician in having failed to notify SCC of Asawa Izidor's condition. He discussed the potential problems inherent in their unilaterally contacting SCC without Asawa Izidor's permission:
I have a number of patients this age . . . and it's really a tight rope. You're trying [to] help them toward adulthood, . . . trying to respect their judgment and their autonomy and you want them to look to you if something happens you want to be the person they trust. Often you're the only person around who is objective, independent person in their lives . . ..
B. Sports Authorization Form
Myrna Izidor argues that Tufel and Dr. Knight should have revoked the sports authorization form, which Asawa Izidor submitted to SCC upon learning that he had hypertrophic cardiomyopathy. When Asawa Izidor visited Group Health in October 1996, he brought with him a physical authorization form required for participation on the SCC basketball team. Tufel examined Asawa Izidor, and noted that, although he had a heart murmur, he denied having chest pains and shortness of breath. Based on her examination and on Asawa Izidor's replies to her questions, Tufel signed Asawa Izidor's sports authorization form, and referred him for an echocardiogram. It was incumbent upon Asawa Izidor, not Group Health, to return the completed and signed authorization form to SCC. Myrna Izidor presents no authority to suggest that, once a Group Health practitioner signed the form and returned it to Asawa Izidor, Group Health had any duty to revoke the sports authorization form upon a later diagnosis. The revocation would have been another form of notice to SSC and the previous analysis applies regarding notice applies here as well. The respondents owed a duty to Asawa Izidor to uphold physician-patient confidentiality, and chapter 70 RCW conferred no duty to revoke the sports authorization form.
C. Notice to Myrna Izidor
Myrna Izidor also asserts that respondents were negligent in not having informed her, as Asawa Izidor's mother, of her son's diagnosis.
RCW 70.02.050(1)(e) states:
(1) A health care provider may disclose health care information about a patient without the patient's authorization to the extent a recipient needs to know the information, if the disclosure is: . . . . (e) Oral, and made to immediate family members of the patient, or any other individual with whom the patient is known to have a close personal relationship, if made in accordance with good medical or other professional practice, unless the patient has instructed the health care provider in writing not to make the disclosure.
RCW 70.02.050(1)(e).
Asawa Izidor never instructed Dr. Knight or Tufel in writing not to disclose his condition. Myrna Izidor testified that she was not informed of her son's diagnosis when she telephoned Group Health to report that he had complained of chest pain. Pursuant to RCW 70.02.050(1)(e), if Dr. Knight had determined that Asawa Izidor had a `close personal relationship' with his mother, and that disclosure to her may have been `good medical . . . practice,' then he would have had the option of disclosing, orally, Asawa Izidor's condition to his mother. The record does not permit us to ascertain whether Asawa Izidor's relationship with his mother was close.
Even if the record did support a finding that Asawa Izidor's relationship with his mother was close, and that it may have been in `good medical . . . practice' for the respondents to have disclosed Asawa Izidor's condition to his mother, the language of RCW 70.02.050(1)(e) is permissive and did not require them to notify Myrna Izidor of her son's diagnosis. Pursuant to RCW 70.02.020 and .050, the respondents did not breach the standard of care when they failed to disclose Asawa Izidor's condition to Myrna Izidor. The trial court did not err in concluding that Dr. Knight and Tufel owed no duty to notify to either Myrna Izidor or SCC of Asawa Izidor's condition.
IV. Proximate Cause
Myrna Izidor argues that the trial court erred when it `limited its determination of proximate cause to the consideration of whether or not the treatment available to Asawa Izidor for his condition would have prevented his death.' To show a health care provider committed malpractice by failing to follow the accepted standard of care, a plaintiff must prove by a preponderance of the evidence that (1) the provider `failed to exercise that degree of care, skill, and learning expected . . . at that time [by other persons in the same] profession' and (2) the failure was a proximate cause of the injury.
RCW 7.70.040 The trial court concluded that, although Tufel was not negligent, Dr. Knight was negligent in the care he provided Asawa Izidor. Specifically, the court noted in its findings of fact:
Health care providers include physicians, nurses, and hospitals. RCW 7.70.020.
[Dr.] Knight was negligent and violated the standard of care in essentially allowing six weeks to go by, or so, between receiving the results of the echocardiogram and Asawa [Izidor's] death without being more aggressive about either getting the second opinion or referring him to a cardiologist or taking really any action at all, without really meaningful follow-up with any other health care provider.
The trial court also concluded, however, that Asawa Izidor's death did not `result from [Dr. Knight's failure] to follow the accepted standard of care.' RCW 7.70.030(1).
The trial court properly relied upon expert witnesses to arrive at its conclusion that Dr. Knight's negligence was not the proximate cause of Asawa Izidor's death. Expert testimony is required when an essential element in the case is best established by an opinion that is beyond the expertise of a layperson. Harris, 99 Wn.2d at 449. Accordingly, expert testimony is required to establish the standard of care and most aspects of causation in a medical negligence action. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).
In its findings of fact, the trial court stated that testimony by expert witnesses `fell far short of establishing by a preponderance of the evidence that had [the proper advice] been given to . . . Asawa [Izidor], he would not have died when and how he did.' The record supports the trial court's conclusion. Dr. Resnick, the cardiologist who interpreted Asawa Izidor's 1994 echocardiogram, testified that slight thickening of the heart walls was not uncommon among athletic males and could be the body's response to frequent strenuous activity rather than a sign of illness. Dr. Resnick also noted that the reasons for sudden death are `quite controversial.' Dr. Wallach, the cardiologist who interpreted the 1996 echocardiogram, testified that cardiologists advise people at risk for arrhythmias to `restrict competitive sports,' in order to `reduce the risk of arrhythmias.' Dr. Wallach also testified that Asawa Izidor's heart walls measured about 14 or 15 millimeters, and that, `statistically, 14, 15 millimeter heart walls [are] not a clarion warning of imminent arrhythmias.' He further stated that '[s]tatistically,' Asawa Izidor was not `in a high-risk category' and that for individuals with mild hypertrophic cardiomyopathy, sudden death was `very rare.' The court also relied upon expert testimony by two cardiology experts, Dr. Floyd Short and Dr. Barry Maron, to arrive at its conclusion that, although Dr. Knight was negligent, his care did not proximately cause Asawa Izidor's death. Dr. Short testified that most episodes of arrhythmia occur during rest, and that the two hours of basketball that Asawa Izidor played at the recreational center `might' have led to dehydration which might have led to arrythmias. Dr. Maron testified that it was a `reasonable matter of clinical speculation' that there was a connection between Asawa Izidor's basketball playing on the evening of January 5, 1997, and his death. '[E]vidence establishing proximate cause must rise above speculation, conjecture, or mere possibility.' Atwood v. Albertson's Food Centers, Inc., 92 Wn. App. 326, 331, 966 P.2d 351 (1998). `Thus, medical testimony must demonstrate that the alleged negligence `more likely than not' caused the later harmful condition leading to injury; that the defendant's actions `might have,' `could have,' or `possibly did' cause the subsequent condition is insufficient.' Atwood, 92 Wn. App. at 331. Dr. Knight's negligence would be the proximate cause of Asawa Izidor's death only if it was `more likely than not' that Asawa Izidor's basketball playing caused his death. Dr. Short's and Dr. Maron's testimony falls short of the requirement that it `more likely than not' caused his death. Myrna Izidor has not proved by a preponderance of the evidence that Dr. Knight's negligence was the proximate cause of Asawa Izidor's death. Accordingly, the trial court did not err in concluding that Asawa Izidor's death did not `result from the failure of [Dr. Knight] to follow the accepted standard of care.' RCW 7.70.030(1).
Dr. Maron's testimony is not within the trial transcript. The record shows that his testimony was videotaped, but this court did not receive a copy of it. The trial court references Dr. Wallach's testimony in its findings and conclusions.
V. Telephone Consultation Form
Myrna Izidor also asserts that the trial court erred in refusing to allow Elizabeth Donaldson to testify regarding the telephone consultation form memorializing Dr. Knight's conversation with Asawa Izidor on November 29, 1996.
In September 2000, Myrna Izidor brought a motion permitting discovery regarding a missing telephone consultation form prepared by Dr. Knight. That form, allegedly completed by Dr. Knight on December 3, 1996, memorialized a conversation Dr. Knight had with Asawa Izidor on November 29, 1996, during which Dr. Knight informed Asawa Izidor of the results of his echocardiogram and warned him to stop playing basketball immediately.
The respondents had previously failed to submit that form in response to Myrna Izidor's discovery requests. They alleged that they had not found that form until June 1998.
The parties dispute the authenticity of the telephone consultation form. To establish its authenticity, Dr. Knight testified at trial that he had informed Elizabeth Donaldson, a manager at Group Health's risk management office, of the telephone consultation form prior to June 1998. Myrna Izidor claims she was entitled to Donaldson's testimony at trial to refute Dr. Knight's testimony. Myrna Izidor and the respondents dispute whether Donaldson's testimony was protected by attorney-client privilege because of her affiliation with Group Health's risk management department. The record does not contain sufficient evidence to determine if that law is applicable. If this were a matter of attorney-client privilege, Myrna Izidor would be correct that Dr. Knight would have waived the attorney-client privilege when he testified as to his conversation with Donaldson.
Even if the court erred in not admitting Donaldson's testimony, that error would be harmless. The sole purpose of having Donaldson testify was to impeach Dr. Knight's credibility by stating that he had not informed her, as he claimed, of the existence of the telephone consultation form prior to June 1998. Donaldson's testimony presents three theoretical possibilities. First, if Donaldson had testified that Dr. Knight had informed her of the telephone consultation form prior to June 1998, then her testimony would have corroborated the existence of the form, contra to Myrna Izidor's purpose of impeaching Dr. Knight. Second, two other Group Health risk managers had already testified that they did not recall whether or not Dr. Knight had spoken with them regarding the telephone consultation form. If Donaldson had testified that she did not recall whether Dr. Knight had spoken with her prior to June 1998 about the form or not, then her testimony would merely have been cumulative. In that event, Donaldson's testimony would not have aided Myrna Izidor. The third possibility is that Donaldson would have rebutted Dr. Knight's testimony by stating that she did not speak with Dr. Knight about the form prior to June 1998. That testimony would have impeached Dr. Knight's credibility. However, the court's findings and conclusions already questioned Dr. Knight's credibility. Donaldson's testimony, therefore, would have merely confirmed what the court concluded. Accordingly, even if the court erred in not admitting Donaldson's testimony, that error was harmless.
The court wrote:
Circumstances/Telephone Consultation Form. The court is not troubled by the fact that it took many, many months to get into the right chart in terms of whether nor not that indicates that the telephone consultation form was actually made in December of 1996; nor is the court troubled by some of the other circumstances around the making of the note. The court is struck, however, that the tone of that note is in stark contrast to the tone testimony of Dr. Knight regarding his reactions and actions both before and after the making of the note. For instance, there is no indication that there actually was any e-mail referral or any other referral which would have set it up so that Asawa [Izidor] could call cardiology and get an appointment for a follow-up. It is in stark contrast to [Dr.] Knight's testimony, and from his actions and reactions in November and December, as to whether or not Asawa [Izidor] had hypertrophic cardiomyopathy. That telling Asawa [Izidor] that a complication of the disease that he had was sudden death is in contrast to [Dr.] Knight's testimony that he was floored by Asawa [Izidor's] death, that it was completely unexpected and that he, [Dr.] Knight, felt betrayed and taken advantage of. No Finding. The court is not prepared to find one way or another whether or not the telephone conversation reflected in the telephone consultation form took place or that the note was or was not made on December 3rd.
We affirm.
GROSSE and COLEMAN, JJ., concur.