Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 105. Health Care
WPI 105.01 Negligence—General Health Care Provider
A(fill in type of health care provider)owes to the patient a duty to comply with the standard of care for one of the profession or class to which he or she belongs.
A(type of health care provider)has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent(health care provider)in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question.
Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.
The degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent. However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.
NOTE ON USE
Use this instruction for a claim of negligence involving a health care provider such as doctor, surgeon, dentist, chiropractor, psychologist, or nurse by filling in the blank with the appropriate word. See RCW 4.24.290 and RCW 7.70.020. If there is no dispute as to the health care provider being a specialist, fill in the blanks with the health care provider's specialty designation. If the jury must decide whether the health care provider held himself or herself out as a specialist or assumed the care or treatment of a condition ordinarily treated by a specialist, use both this instructions and WPI 105.02 (Negligence—Health Care Provider—Specialist).
Do not use this instruction for an incorporated hospital. Use WPI 105.02.01 (Negligence—Hospital) instead.
Do not use WPI 10.01 (Negligence—Adult—Definition). The ordinary definition of negligence should not be used for the professional standard of care applicable in a malpractice case.
Use WPI 105.03 (Burden of Proof—Negligence—Health Care Provider) with this instruction.
RCW 4.24.290 and RCW 7.70.040(1).
Standard of care. RCW 7.70.040(1) provides that the plaintiff in an action for professional negligence must show that the defendant health care provider “failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances.” RCW 4.24.290 varies from RCW 7.70.040(1). RCW 4.24.290 provides in part that
[T]he plaintiff in order to prevail shall be required to prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages …
The WPI Committee elected to incorporate the language of RCW 7.70.040(1) into this instruction in view of the court's opinion in Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d 438, 663 P.2d 113 (1983).
In Harris, the court held that the standard of care established under RCW 7.70.040 and RCW 4.24.290 is that of a “reasonably prudent practitioner” and not that of the “average practitioner.” The court reasoned that the statutory phrase “expected of a reasonably prudent health care provider” referred to the expectations of society and not those of the medical community. The court in Harris summarized its holding as follows:
The standard of care against which a health care provider's conduct is to be measured is that of a reasonably prudent practitioner possessing the degree of skill, care and learning possessed by other members of the same profession in the state of Washington. The degree of care actually practiced by members of the profession is only some evidence of what is reasonably prudent—it is not dispositive.
Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d at 451.
In Brown v. Dahl, 41 Wn.App. 565, 705 P.2d 781 (1985), the court held that the trial court's insertion of the terms “average,” “reasonable,” and “ordinary” into a standard of care instruction was erroneous because these terms allowed the jury to apply a lower standard than the “reasonable prudence” standard. The Brown court also held that the instructions the trial court gave on the standard of care overemphasized the defendant's case and deprived the plaintiff of a fair trial.
The court in Harris suggested that the instruction on health care provider negligence should omit reference to the standard of practice for the profession prevailing at the time of the care or treatment in question. Harris v. Groth, 99 Wn.2d at 448 n.5. In Miller v. Peterson, 42 Wn.App. 822, 714 P.2d 695 (1986), however, the court under the facts of that case did not find any prejudicial error resulting from the giving of an instruction which included the “standard of practice” language. Consistent with the court's suggestion in footnote 5 in Harris, the WPI Committee has included no reference to “standard of practice” in the instruction.
The WPI Committee has, however, included a reference to the “standard of care.” In practice the term “standard of care” is frequently used by lawyers, judges, and expert witnesses during a medical negligence jury trial and is referred to in many appellate decisions as well. See, e.g., Van Hook v. Anderson, 64 Wn.App. 353, 358, 824 P.2d 509 (1992). Thus, to comply with actual practice, the WPI Committee has included language to convey to the jury that the duty of a health care provider is to comply with the “standard of care.”
The court in Adair v. Weinberg, 79 Wn.App. 197, 205, 901 P.2d 340 (1995), cited the last paragraph of this instruction with approval, noting that such an instruction could have cured any confusion engendered by opposing counsel's misleading arguments about whether society, or doctors alone, define the standard of care. The first sentence of the last paragraph of the instruction was inserted by the WPI Committee to caution the jury not to confuse the standard of care with the prevailing standard of practice. See Harris v. Groth, 99 Wn.2d 438, 663 P.2d 113 (1983), and Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669 (1986).
Mode of proof-Expert testimony. The purpose of the second sentence of the last paragraph of the instruction is to inform the jury that expert testimony is not the exclusive means of determining the degree of care owed. Inclusion of this provision in a jury instruction was approved in Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. 266, 277, 796 P.2d 737 (1990).
The court in Richards, however, cautioned that “although the standard of care is not restricted to what is actually practiced, it must be determined by reference to expert testimony as to what is reasonably prudent.” Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. 266, 277, 796 P.2d 737 (1990). Thus, the Richards court found no error in the trial court's refusal to instruct the jury that “[i]t is society and the patients to whom physicians are responsible, not solely their fellow practitioners.” Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. at 277. The Richards court explained that such an instruction was not correct, as “the law does not permit a jury to base a standard of care on what it believes to be a prudent expectation of society or patients.” Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. at 277. See also Adair v. Weinberg, 79 Wn.App. 197, 202–04, 901 P.2d 340 (1995) (reference to the phrase “expected by society” in a jury instruction on, or argument about, the standard of care in a medical negligence case is improper).
Absent exceptional circumstances, expert testimony is necessary to establish the standard of care, and to prove whether a particular practice is reasonably prudent under the applicable standard of care. E.g., McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). As a general rule, expert testimony on the issue of proximate cause is also necessary in medical negligence cases and must be based upon a reasonable degree of medical certainty. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). The requisite expert testimony on standard of care and causation may be provided by nonphysicians if they are found qualified by the trial court. Harris v. Groth, 99 Wn.2d 438, 663 P.2d 113 (1983); Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968).
The requisite expert testimony on standard of care may also be provided by an expert from a different school of medicine than the defendant's school if the methods of treatment in the two schools are the same or the testimony of the witness is based on knowledge of the defendant's own school. Leaverton v. Cascade Surgical Partners, PLLC, 160 Wn.App. 512, 519, 248 P.3d 136 (2011). It is the scope of the expert's knowledge, not the expert's professional specialty that governs the threshold question of admissibility of expert medical testimony in medical negligence cases. Leaverton v. Cascade Surgical Partners, PLLC, 160 Wn.App. at 518.
For additional cases discussing the competency and qualifications of an expert to testify on standard of care or causation in medical negligence cases, see, e.g., McKee v. American Home Products, Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989); Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 770 P.2d 182 (1989); White v. Kent Med. Ctr., Inc., P.S., 61 Wn.App. 163, 810 P.2d 4 (1991).
When the evidence establishes that there is a national standard of care, an out-of-state practitioner may testify to its application in a Washington case. Elber v. Larson, 142 Wn.App. 243, 173 P.3d 990 (2007).
The requirement that there be expert testimony to establish the standard of care in a particular situation is a guideline for the court as to whether the plaintiff has established a case for consideration by a jury. Ordinarily, the jury need not be instructed as to the existence of the evidentiary requirement. The court in Housel v. James, 141 Wn.App. 748, 758–60, 172 P.3d 712 (2007), however, held that the giving of such an instruction was not error in a case in which trial events caused the court to fear the jury might “go off on a tangent” and “‘make their own’ standard of care.”
One exception to the general rule requiring expert testimony in medical malpractice cases is when a physician inadvertently leaves a foreign object or substance in the patient. The court in Bauer v. White, 95 Wn.App. 663, 976 P.2d 664 (1999), held as a matter of law that it is not reasonably prudent for a physician to unintentionally leave a foreign substance in a surgical patient and, therefore, the plaintiff in such a case does not need expert testimony to establish the physician's negligence.
Whether the standard of care was breached is a separate question from whether that breach proximately caused the plaintiff's damages. The question of proximate cause may still go to the jury even though negligence has been established as a matter of law. See Keogan v. Holy Family Hospital, 95 Wn.2d 306, 622 P.2d 1246 (1980); Byerly v. Madsen, 41 Wn.App. 495, 704 P.2d 1236 (1985).
In Ketchum v. Overlake Hosp. Med. Ctr., 60 Wn.App. 406, 804 P.2d 1283 (1991), the court held that it was reversible error to give an instruction stating that “the testimony of other health care providers that they would have followed a different course of treatment, or disagreement between health care providers as to what the treatment should have been, is not enough to establish negligence.” The court found that although the general principle of law underlying the instruction may be appropriate in analyzing a prima facie case of negligence, the instruction was incomplete and misleading once the issue of negligence was submitted to the jury and came close to commenting on the evidence.
The first paragraph of this instruction assumes that it is a patient who is claiming injury as a result of a health care provider's failure to follow the applicable standard of care. In the typical case, defining the duty as “owe[d] to the patient” is seen as accurate and helpful. In Eelbode v. Chec Medical Centers, Inc., 97 Wn.App. 462, 984 P.2d 436 (1999), however, the court held that a physician-patient relationship is not always required to establish liability for a breach of the standard of care. Thus, in the case of a cognizable claim by a non-patient, it may be necessary to modify the first paragraph to delete the reference to “the patient.”
Consumer Protection Act. In Quimby v. Fine, 45 Wn.App. 175, 724 P.2d 403 (1986), the court held that the Consumer Protection Act does not apply to medical negligence actions.
and WPI 105.02 (Negligence—Health Care Provider—Specialist). s