A Washington state appellate court panel here has upheld a challenged judge’s ruling that was made in a medical malpractice trial stemming from the 2010 post-surgery death of prominent Spokane architect and developer Glen Cloninger.

Following the two-week trial in June 2013, a Spokane County Superior Court jury absolved anesthesiologist Dr. Kim Chen, Anesthesia Associates of Spokane PS, and Deaconess Hospital of any wrongdoing in Cloninger’s death. His widow, Pamela Cloninger, had sought $12 million in damages.

The sole question on appeal was whether Superior Court Judge Kathleen M. O’Connor erred when she refused to give the jury that heard the case what’s called a spoliation instruction before it began its deliberations.

A spoliation instruction outlines permissible inferences a jury may draw against a party who has lost, altered, or destroyed evidence, or who has failed to adequately explain its nonproduction. In this case, it involved data that might or might not have been recorded on what’s called a Datascope machine used to monitor vital signs such as blood pressure, heart rate, oxygen saturation, and temperature.

The three-judge appellate panel ruled unanimously that O’Connor acted properly when she declined to give the jury the spoliation instruction, saying appellant Pamela Cloninger didn’t establish “that any evidence existed that the defendants could have had a duty to preserve.“

As outlined in court documents, the 66-year-old Cloninger had gone to Deaconess for a routine lithotripsy procedure to address a kidney stone problem. Although the procedure itself was unremarkable, problems arose as Chen attempted to revive Cloninger from the general anesthetic used for the procedure.

 While still intubated—meaning he still had a tube extending into his airway to assist with breathing—Cloninger became combative, and nurses had to calm and restrain him. The tube inserted into his airway eventually was removed, and a short time later, a laryngospasm—a spasm of the vocal cords—blocked his airway, causing him to asphyxiate, court documents said.

Chen used a positive pressure face mask to attempt to restore air flow into Cloninger’s lungs, but his condition worsened and the medical staff called a “code” and began chest compressions. Chen twice attempted to reintubate Cloninger, but was unsuccessful. Another anesthesiologist who responded to the “code” was able to reintubate Cloninger an estimated 60 to 90 seconds after it had been declared. 

Cloninger’s vital signs were restored by the chest compressions and a ventilator around 75 minutes after the “code” was called. He was disconnected from the surgery room Datascope machine and connected to another such machine for a transfer to the intensive care unit.

The surgery room was then “turned over” for the next procedure. As part of that routine, the Datascope originally used on Cloninger was reset, effectively erasing any information that might have been in the machine. That occurred about 42 minutes after Cloninger was moved to the ICU.

He suffered brain damage during the fight to revive him and was rendered permanently vegetative. He died four days later when life support measures were terminated.

Cloninger’s widow and children sued Chen and Deaconess, with their suit focusing on Chen’s actions from the time he began attempting to revive Cloninger until the “code” was called. Chen spent considerable time creating and editing his narrative of the event, and the plaintiffs in the case sought the records of the Datascope machine as part of their case preparation. The pre-trial discovery process, though, revealed that no records from the machine existed.

The plaintiffs indicated before trial that they would be seeking a spoliation instruction based on a theory of negligent failure to preserve evidence. The proposed instruction read: “If Deaconess Medical Center failed to produce evidence which was under their control and reasonably available to them and not reasonably available to plaintiff, then you may infer that the evidence was unfavorable to the defendant who could have produced it and did not.”

O’Connor indicated that she believed spoliation instructions were only proper when evidence was intentionally destroyed, and she would be open to giving the jury such an instruction only if that foundation was satisfied.

At trial, though, the evidence about the capabilities of the Datascope machine used on Cloninger was unclear, in part because the machine couldn’t be identified and probably had been disposed of by the hospital.

Testimony indicated that many of the Datascope machines could be programmed to record their readings for up to two hours. Chen testified, however, that the machine used on Cloninger was set to the default “display” only setting and that he didn’t print out any readings because he didn’t know the machine had the ability to print the information. There was no evidence, the appellate panel said, that the machine recorded any information while used on Cloninger.

At the conclusion of testimony, O’Connor declined to allow the plaintiffs’ proposed instruction. 

In coverage of the trial, the Spokesman-Review newspaper reported that Chen’s attorney, Dan Keefe, argued the death was unpreventable due to underlying heart disease.

It said the Cloningers’ attorney, Stephen Haskell, had argued earlier that Glen Cloninger was deprived of oxygen for more like eight minutes, leading to hypoxia and brain damage, and that Chen should have anticipated the complications and reinserted the breathing tube faster.

On appeal, Haskell sought to expand state law to permit spoliation instructions when evidence is negligently—rather than just intentionally—destroyed or not preserved. The appellate court panel said it was declining that opportunity since “even if we accept the plaintiffs’ argument, they failed to establish an entitlement to the instruction because they cannot show any evidence was destroyed.”

Known for his love of incorporating brick masonry into the structures he designed, Cloninger designed and co-developed Grapetree Village, a retail-office complex along east 29th Avenue. He also was known for a long-running battle with city officials over land he owned near the Spokane Convention Center, where the Davenport Grand hotel complex now is being constructed.