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Ezell v. Hutson3/6/2001
definition committed no 'error.' Id. at 933. The source of the problem, in the court's view, is that the term 'error' is 'commonly defined as 'an act or condition of often ignorant or imprudent deviation from a code of behavior.'' Id. (quoting Webster's Third New International Dictionary 772 (Unabridged 1971)). Thus, '{i}f the term 'judgment' refers to choices between acceptable courses of treatment, then the term 'error in judgment' is a contradiction in itself.' Id. It is evident that, in context, the term 'error' is used in the limited sense of a physician making a decision that, in hindsight, did not achieve the desired result. We agree it may be confusing to suggest that a physician who has exercised his or her judgment within the standard of care may have committed an 'error of judgment,' even if it seems unlikely the instruction would be understood that way. However, as noted above, we are bound by stare decisis to follow our Supreme Court's decisions on this subject. If the Supreme Court chooses to revisit the line of cases that bind us, it seems fair to add that we see no independent reason for giving a separate 'error of judgment' instruction. It appears to us that the standard instructions are adequate to allow argument on the topic without undue emphasis or risk of confusion. In this sense the 'error of judgment' instruction adds little while risking unnecessary confusion.
The second case the Ezells cite is Vachon v. Broadlawns Med. Found., 490 N.W.2d 820 (Iowa 1992). The instruction there did not make reference to errors of 'judgment,' but it spoke of 'mistakes' in 'treatment' or 'diagnosis.' Id. at 824. The court held no reversible error was committed, but, with little discussion, directed that the instruction not be given in future cases. Id. In a subsequent decision, the Iowa Supreme Court more fully explained that instructions of that nature were not statements of the law that determine the duty of care, but rather amounted to comments on the evidence that were unnecessary to the jury's determination of the issues. Peters v. Vander Kooi, 494 N.W.2d 708, 712-13 (Iowa 1993). Not only was the instruction different in the Iowa cases from our instruction, but our Supreme Court has expressly held that Washington's 'error of judgment' instruction does not constitute an impermissible comment on the evidence. Christensen, 123 Wn.2d at 249.
In sum, our Supreme Court has approved the 'error of judgment' instruction and we are constrained to follow the principles established under stare decisis. The Ezells have failed to establish that the instruction is a misstatement of the law, or that it is ambiguous and misleading. As such, the trial court did not err in giving the instruction.
B. Prejudice
The issue is whether the giving of the 'error of judgment' instruction resulted in prejudicial error. An erroneous jury instruction is presumed to be prejudicial and is grounds for reversal unless it can be shown that the error was harmless. Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). Error is not prejudicial unless it affects or presumptively affects the outcome of the trial. Id. Because we have concluded that the 'error of judgment' instruction is not erroneous, it cannot be prejudicial.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J.
WE CONCUR:
Kurtz, C.J.
Schultheis, J.
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