A woman who suffered from kidney disease had a disagreement with her doctor and stopped receiving medical care. She relocated and changed doctors.
Her doctor ordered a biopsy and steroid treatment. She had a phobia of needles and an aversion to steroid treatment and said something to the effect of “I would rather lose this kidney than go through any more of this.” Eventually, her new kidney failed and she had to begin dialysis again. She was placed on “inactive status” for the kidney transplant list, because of ongoing problems with infections caused by dialysis catheters.
She felt she was not treated well at her dialysis center and skipped or cancelled many appointments. Ultimately, she was taken off the transplant list because of her noncompliance with dialysis treatment.
She sued her doctor for malpractice, alleging lack of informed consent and asserting that she had adhered to all prescribed treatment.
Her doctor defended by arguing he met the standard of care and that the patient had failed to comply with prescribed treatment.
Prior to trial both parties designated thousands of pages as admissible under court rules. Some of those records included these statements in her doctor’s notes.
“[The patient] has made me uncomfortable emphatically stating she will not be mistreated based on race. Her mother joins in with statements like “don’t make us go all black on you now.” These statements are not appropriate and make me uncomfortable even said in a laughing way. I feel they are taunting me. It is always my goal to treat all my patients fairly regardless of ethnic background. I do not correct these statements because it only takes me farther from the real point of these clinic visits – her renal failure.”
These statements were never referenced or displayed during trial. The patient objected to the documents being admitted into evidence and going to the jury room. The court allowed the documents into evidence and without redacting the racially charged statements.
On appeal the patient argued that the trial court erred by admitting the statements into evidence. The patient’s attorney cited a case where Washington courts had found prosecutorial misconduct.
In State v. Monday, the Washington Supreme Court reversed based on racial references amounting to prosecutorial misconduct. The prosecutor purposefully injected racial themes to attack witnesses’ credibility on the sole basis of their race. He argued that ”’black folk don’t testify against black folk”‘ and referred to the “police” as “‘po-leese.”‘ There was no factual support in the record for the proposition that only ”’black folk'” adhere to a so-called anti-snitch code. The court held that a prosecutor may not “seek to achieve a conviction by resorting to racist arguments.” It explained that, “appeals by a prosecutor to racial bias” fundamentally undermine the principle of equal justice, because they “necessarily seek to single out one racial minority for different treatment.”
The Court of Appeals distinguished the Monday case on several grounds. The challenged statements are statements that the patient and her mother made to or about her doctor, not that he made about her or her race. The statements at issue were relevant to a central issue of the case: informed consent. It was relevant to whether the patient trusted her doctor, whether she listened to her doctor’s advice, and whether she understood and complied with ordered treatment. The clinic note, including the challenged comments, established the patient’s distrust in her doctor, her propensity to disregard his advice, and her tendency to place irrational blame on her doctor and his staff.
The Court of Appeals upheld the trial court’s ruling.
By Travis Scott Eller, Personal Injury Attorney
 Nero v. Cryst, Unpublished (No. 67371-8-1). Available at http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=673718.pdf (last accessed 8/27/13).
 171 Wn.2d 667, 681, 257 P.3d 551 (2011).