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Christensen v. Munsen2/10/1994
2d 414, 427, 429 P.2d 109 (1967); Thompson v. Groves, 68 Wash. 2d 790, 791, 415 P.2d 648 (1966). The defense provided no other support for the 1 in 3,000 figure, and plaintiff argued that the figure was based on inadequate research. Plaintiff did provide other evidence to support her claims of inadequate warnings and substandard care, and the court offered seven instructions to the jury that discussed the defendant's duties regarding standard of care and informed consent. See instructions 7, 8, 9, 10, 12, 14, 15; Clerk's Papers, at 199-208. Pursuant to these instructions, plaintiff was able to argue to the jury that defendant breached the standard of care and his duty
of informed consent by injecting Kenalog and by not informing her of the possibility that the steroid might cause glaucoma. Thus, unlike the plaintiff in Helling, the plaintiff here was able to argue her theory of the case to the jury under the instructions given. Accordingly, the court did not err in declining to give her proposed instructions.
IV
The plaintiff next argues that the trial court erred in giving instruction 13 on after-acquired knowledge. Instruction 13 reads as follows:
A defendant is not to be judged in the light of any after-acquired knowledge in relation to the case, and the questions of whether or not a defendant-physician failed to comply with the standard of care and/or failed to inform the patient, as defined elsewhere in these instructions, are to be determined by what was known or should have been known, in relation to the case at the time of the treatment in question and must be determined by reference to the pertinent facts then in existence of which he knew, or in the exercise of reasonably prudent care should have known.
Clerk's Papers, at 206. The plaintiff excepted to the instruction on the grounds that it was being used to impeach Dr. Zimmerman, her pars planitis expert. Dr. Zimmerman was not licensed to practice ophthalmology until after the defendant treated the plaintiff.
The defense countered that the purpose of the after-acquired knowledge instruction was not to undermine Dr. Zimmerman's authority, but to make it clear to the jury that it was not to hold the defendant responsible for information acquired during plaintiff's surgeries, which occurred after he treated her. The trial court agreed that plaintiff misperceived the reason for giving the instruction and confirmed that its inclusion of the instruction was based on the later surgeries.
The plaintiff next points out that while a similar after-acquired knowledge instruction was approved in Gjerde v. Fritzsche, 55 Wash. App. 387, 391, 777 P.2d 1072 (1989), review denied, 113 Wash. 2d 1038 (1990), the court approved that instruction with the admonition that the use
of the negative in the phrase "not to be judged in light of any after-acquired knowledge in relation to the case . . ." created an unnecessary risk of misapplication. Gjerde, at 391. However, since plaintiff did not raise this issue in excepting to the instruction before the trial court, it need not be considered here. See Galvan v. Prosser Packers, Inc., 83 Wash. 2d 690, 692, 521 P.2d 929 (1974); State v. Scott, 77 Wash. 2d 246, 461 P.2d 338 (1969). We conclude that the trial court did not err in giving instruction 13 on after-acquired knowledge.
In another argument based on knowledge of plaintiff's surgeries, plaintiff claims that the trial court erred in stri
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