$16.7 Million Verdict for Family of Pregnant Woman Who Died of H1N1 After Clinic Withheld Tamiflu Option

On June 26, 2009, Kathryn Flyte went to Summit View Clinic in Puyallup while pregnant and sick with flu-like symptoms. At the time, public health authorities had already issued alerts recommending that pregnant women receive antiviral treatment for H1N1 influenza -- a group identified as at high risk for severe complications. Clinic staff did not tell Kathryn about the H1N1 outbreak or that Tamiflu was a treatment option.

Her condition deteriorated quickly. On June 30 she was placed in a medically induced coma. She died on August 11, 2009. Her daughter Abbigail, delivered by emergency cesarean section while Kathryn was hospitalized, died on February 21, 2010.

Kenneth Flyte, Kathryn's husband, brought suit against Summit View Clinic on behalf of both estates. The central legal theory was informed consent: a patient cannot meaningfully refuse or accept a treatment that a provider never mentions. The first trial ended in a defense verdict, but the Washington Court of Appeals, Division II, reversed in 2014 (No. 43964-6-II, reported at 183 Wash. App. 559). The appellate court found two trial errors: the jury had been told that a physician has no duty to disclose treatments for a condition until that condition is actually diagnosed -- a misstatement of Washington informed-consent law -- and the trial court had improperly admitted evidence of a prior $3.5 million settlement with another defendant.

The family was represented by a co-counsel team: Lincoln Beauregard and Julie Kays of Connelly Law Offices, along with Ashton Dennis of Washington Law Center. Their theory was that the clinic's failure to disclose the Tamiflu option denied Kathryn any chance to protect herself and her child. At the 2015 retrial in Pierce County Superior Court, the jury agreed and returned a verdict of $16.7 million, apportioned as $5 million to Kathryn's estate, $5 million to Kenneth, and $6.7 million to their son Jacob.

The Washington Court of Appeals affirmed the retrial verdict in 2017 (No. 48278-9-II).