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Christensen v. Munsen2/10/1994
n stating that giving an "error of judgment" instruction does not constitute error. 6 Wash. Prac., at 525; see also Miller v. Kennedy, 91 Wash. 2d 155, 160, 588 P.2d 734 (1978). This instruction only applies, however, when there is evidence that in arriving at a judgment, the physician exercised reasonable care and skill within the standard of care he or she was required to follow. Moreover, its application will ordinarily be limited to situations in which the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses. 6 Wash. Prac., at 525 (citing Watson, at 165). Finally, an error in judgment instruction supplements the standard of care and can only be given with a proper standard of care instruction. 6 Wash. Prac., at 525; Watson, at 166.
In the present case, one defense expert testified that the defendant treated plaintiff appropriately and properly injected her with Kenalog as well as Depo-Medrol. Another defense expert testified that he would have also used Kenalog, while Dr. Zimmerman testified that he would have relied exclusively on Depo-Medrol. Thus, there was evidence that the defendant acted within the standard of care required of ophthalmologists as well as evidence that he had a choice of therapeutic techniques. The error in judgment instruction closely followed the court's standard of care instruction and was appropriately worded. See instruction 10; Clerk's Papers, at 203; Watson, at 164-65.
An instruction which does no more than accurately state the law pertaining to an issue does not constitute an impermissible comment on the evidence by the trial judge under Const. art. 4, ยง 16. Hamilton v. Department of Labor & Indus., 111 Wash. 2d 569, 571, 761 P.2d 618 (1988); State v. Ciskie, 110 Wash. 2d 263, 282-83, 751 P.2d 1165 (1988). Instructions 11 and 12 accurately stated the law as set forth by this court in Watson and thus did not constitute comments on the evidence. We conclude that the trial court did not err in giving instructions 11 and 12, the "no guarantee/poor result" and "error in judgment" instructions.
Having resolved the issues presented in favor of the defendant, we affirm the judgment of the trial court in his favor.
Disposition
Holding that the patient had waived the physician-patient privilege, that the treating physician could testify for either party but had an independent duty to testify honestly without regard to whether the testimony favored one party or the other, and that the trial court did not abuse its discretion in admitting expert testimony and in instructing the jury, the court affirms the judgment.
Johnson, J. (dissenting)
I disagree with the majority's holding regarding the primary issue in this case for the reasons expressed in the dissenting opinion in Carson v. Fine, 123 Wash. 2d 206, 867 P.2d 610 (1994) (Johnson, J., dissenting). Therefore, I dissent.
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