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Ezell v. Hutson3/6/2001
Panel Five
In this medical negligence action, Robert and Virginia Ezell appeal from a defense judgment in favor of Dr. Scott Hutson. Despite settled precedent, they argue the giving of 6 Washington Pattern Jury Instructions: Civil 105.08, at 106 (3d ed. Supp. 1994) (WPI) on 'error of judgment' was prejudicial error. We affirm.
FACTS
Dr. Hutson, an orthopedic surgeon, performed arthroscopic surgery on Mr. Ezell's left knee. A staphylococcus infection was later discovered. Dr. Hutson treated the infection with Ancef, an antibiotic. Despite additional treatment, Mr. Ezell continued to experience infection. Mr. Ezell then consulted a Portland orthopedic surgeon, Dr. Robert Manley, who changed Mr. Ezell's medication from Ancef to Nafcillin. The infection soon cleared up, but Mr. Ezell had sustained permanent damage to his knee.
The Ezells filed a medical negligence suit against Dr. Hutson. At trial, Dr. Hutson's experts testified that the course of treatment he chose was within the standard of care. Experts for the Ezells disagreed. Over the Ezells' objection, the trial court instructed the jury that '{a} physician is not liable for an error of judgment if, in arriving at that judgment, the physician exercised reasonable care and skill, within the standard of care the physician was obliged to follow.' Clerk's Papers at 126. The jury returned a verdict for Dr. Hutson. We consider the Ezells' appeal after transfer from the Washington Supreme Court where the Ezells originally filed their direct appeal.
ANALYSIS
A. Error of Judgment Instruction
The issue is whether the 'error of judgment' instruction is erroneous because it misstates the statutory standard of care in RCW 7.70.040, and because it is ambiguous and misleading. The Ezells ask us to disregard precedent when deciding this issue.
''Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.'' Robertson v. Liquor Control Bd., 102 Wn. App. 848, 860, 10 P.3d 1079 (2000) (quoting Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)). Claimed errors of law in jury instructions are reviewed de novo, and an instruction containing an erroneous statement of the applicable law is reversible error where it causes prejudice. Hue, 127 Wn.2d at 92.
6 WPI 105.08 provides: 'A physician is not liable for an error of judgment if, in arriving at that judgment, the physician exercised reasonable care and skill, within the standard of care the physician was obliged to follow.' Washington courts have long approved the use of an 'error of judgment' instruction in medical malpractice cases. Division One first approved it in Miller v. Kennedy, 11 Wn. App. 272, 280, 522 P.2d 852 (1974), aff'd, 85 Wn.2d 151, 530 P.2d 334 (1975), explaining that, because a physician may make an error of judgment without being negligent, the instruction makes clear a physician is liable only for misjudgments arrived at through the failure to act within the standard of care of his or her practice. In a second appeal in the Miller case, our Supreme Court expressly upheld the use of this instruction, although not explicitly on the ground that it was legally correct but on the basis that it was (as here) supported by the facts in that case. Miller v. Kennedy, 91 Wn.2d 155, 160, 588 P.2d 734 (1978).
The Court more fully addressed the instruction eight years later in Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669 (1986). The Court noted it had 'unanimously upheld' the instruction in Miller, and he
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