WPI 105.07 No Guarantee—Poor Result

Use one or both sentences of this instruction, when appropriate, to supplement either WPI 105.01 (Negligence—General Health Care Provider) or WPI 105.02 (Negligence—Health Care Provider—Specialist). See the Comment below.

The giving of a supplemental “no guarantee—poor result” instruction in a medical malpractice case is within the trial court's discretion. Christensen v. Munsen, 123 Wn.2d 234, 248, 867 P.2d 626, 634 (1994). See also Estate of Lapping v. Group Health Co-op. of Puget Sound, 77 Wn.App. 612, 626–27, 892 P.2d 1116 (1995). The use of such an instruction was earlier discussed and approved in the cases of Miller v. Kennedy, 91 Wn.2d 155, 588 P.2d 734 (1978), and Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669 (1986).

In Watson, the court suggested the circumstances in which discretion should be exercised in favor of use of the instruction: “Such an instruction is particularly appropriate where the jury has heard evidence or argument from which it might reach an improper conclusion that doctors guarantee good results, or can be found negligent merely because of a bad result.” Watson v. Hockett, 107 Wn.2d at 164.

In Watson, where the central issue was the credibility of the parties, the decision not to give an instruction of this type did not constitute “prejudicial error.” Watson v. Hockett, 107 Wn.2d at 167. In Christensen, the court noted that “the evidence supported giving the instruction, since the main issue at trial was whether plaintiff's blindness was the result of defendant's treatment or her underlying eye disease.” Christensen v. Munsen, 123 Wn.2d at 248.

In an analogous case involving architectural malpractice, the determination of whether to give a supplemental instruction of this type has been held to be discretionary with the trial judge. See Seattle Western Industries, Inc. v. David A. Mowat Co., 110 Wn.2d 1, 9, 750 P.2d 245, 251 (1988) (trial court did not abuse its discretion by refusing to give a supplemental “no guarantee/poor result” instruction because the instructions given permitted the defendant to argue its case, were not misleading, and properly informed the jury of the applicable law).

Although the reported cases discuss this instruction as a unit, there are actually two distinct propositions stated. The two sentences are separately bracketed because the Washington Supreme Court has noted that the “no guarantee” portion of this instruction would clearly be inappropriate “in a case tried on a theory that the doctor had promised a particular result.” Watson v. Hockett, 107 Wn.2d 158, 164, 727 P.2d 669 (1986).