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Christensen v. Munsen2/10/1994
tudy showed that this observation may have resulted from a faulty sampling. Moreover, it was the defense on cross examination which initially referred to the study's 1 in 3,000 figure. In response to this figure, plaintiff proposed the following instructions:
he fact that a possible risk associated with care and treatment of patient [is small] does not excuse an ophthalmologist from his obligation to inform the patient of that risk and to obtain the informed consent of a patient before providing treatment to that patient. . . . he fact that a possible risk associated with the care and treatment of a patient is small, does not excuse an ophthalmologist from his obligation to exercise reasonable prudence in the care and treatment of his patient.
Report of Proceedings (July 8, 1991), at 9.
Plaintiff stated that these proposed instructions were based on Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981, 67 A.L.R.3d 175 (1974). In Helling, medical experts had established during trial that the standards of the profession did not require routine glaucoma tests for patients under 40 years of age. In her petition for review, plaintiff contended that in giving certain instructions to the jury, and in refusing her proposed instructions on standard of care, the trial court prevented her from arguing her theory of the case to the jury that the standard of care for ophthalmologists was inadequate to protect her, at age 32, from glaucoma. Helling, at 517.
The issue thus became whether the defendants' compliance with the standard of the profession insulated them from liability under the facts presented. Helling, at 517. The court recognized that the incidence of glaucoma in 1 out of 25,000 persons under the age of 40 might appear minimal. "However, that one person, the plaintiff in this instance, is entitled to the same protection, as afforded persons over 40 . . . . Under the facts of this case reasonable prudence required the timely giving of the pressure test to
this plaintiff." Helling, at 518-19. In so holding, the court declined to discuss the plaintiff's proposed instructions. Helling, at 519.
In the present case, the trial court declined to give plaintiff's proposed instructions because, though allegedly based on Helling, they were not approved of in that case, and because plaintiff cited no authority stating that it would be error to refuse them. The defendant contends it would have been error to give the proposed instructions since they erroneously suggest that a physician has a duty to inform of, or act in response to, every conceivable risk, no matter how small. The guide for disclosure of a possible risk is materiality. Smith v. Shannon, 100 Wash. 2d 26, 31, 666 P.2d 351 (1983); Miller v. Kennedy, 11 Wash. App. 272, 287, 522 P.2d 852 (1974), aff'd per curiam, 85 Wash. 2d 151, 152, 530 P.2d 334 (1975). The court in the present case so instructed the jury, and correctly added that " material fact is one to which a reasonably prudent patient in the position of the plaintiff would attach significance in deciding whether or not to submit to the proposed course of treatment." Clerk's Papers, at 207. See Smith, at 31.
[8, 9] The trial court's refusal to give the proposed instructions was also proper because the study was not sufficient, in and of itself, to support these two jury instructions. A trial court is only compelled to submit instructions to a jury where there is substantial evidence to support the claim. Adams v. State, 71 Wash.
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