Group Health Cooperative v. Annette Baughman ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANNETTE BAUGHMAN, individually
and as guardian of E.S. and M.S., No. 71835-5-1
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DIVISION ONE - —1 ^4
155 Wash. App. 560, 570-71, 228 P.3d 828, review denied, 169 Wash. 2d
1024 (2010). Jury instructions must properly inform the jury of the applicable law
and permit each party to argue his or her theory of the case. Keller v. City of
Spokane, 146 Wash. 2d 237, 249, 44 P.3d 845 (2002).
In granting the motion for a new trial, the trial court concluded that
instruction 7 was erroneous for the reasons stated in Richards v. Overtake
Hospital Medical Center, 59 Wash. App. 266, 796 P.2d 737 (1990), review denied,
No. 71835-5-1/8
116 Wash. 2d 1014 (1991), and Dinner v. Thorp. 54 Wash. 2d 90, 338 P.2d 137
(1959).
In Richards, a family medicine practitioner was providing pediatric care at
the time of an alleged malpractice. Over the plaintiff's objection, the trial court
gave the following instruction:
"A physician who is a family practitioner has a duty to
exercise the degree of skill, care and learning of a reasonably
prudent family practitioner in the State of Washington acting in the
same or similar circumstances at the time of the care or treatment
in question. Failure to exercise such skill, care and learning is
negligence.
If a family practitioner holds himself out as qualified to
provide pediatric care, or assumes the care or treatment of a
condition which is ordinarily treated by a pediatrician, he has a duty
to possess and exercise the degree of skill, care and learning of a
reasonably prudent family practitioner in the State of Washington
acting in the same or similar circumstances at the time of the care
and treatment in question. Failure to exercise such skill, care and
learning is negligence."
Richards, 59 Wash. App. at 276. The Richards court held the second paragraph
was erroneous because it prevented the jury from choosing to apply the standard
of care of a pediatric specialist:
Instruction 7 given by the court deprived the jury of the
determination of whether Dr. Haeg should be held to the standard
of care of a reasonably prudent family physician or to the standard
of a reasonably prudent pediatrician, because the instruction as
given assumed that regardless of the conclusion of the jury, Dr.
Haeg was to be judged by the standard of care of a family
practitioner.
Richards, 59 Wash. App. at 276. An analogous problem occurred in Dinner. In that
case, a standard of care instruction misleadingly suggested that a specialist
could be held to the standard of care of an "average physician" when practicing
within his board certified specialty. Dinner, 54 Wash. 2d at 97.
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No. 71835-5-1/9
Here, instruction 7 was similarly misleading. The instruction expressed
the standard of care in a confusing composite phrase—"the degree of skill, care
and learning expected of a reasonably prudent pediatrician in an urgent
care/emergency room setting." The trial court recognized the problem when
orally ruling on the motion for a new trial:
Next issue is whether there's any factual evidence
supporting plaintiffs' proposed alternative to the Court's No.7. This
indeed was a contested factual issue at trial and the plaintiff did
produce—introduce evidence that, if believed by a jury, supports
the proposition that the doctor held himself out to be a specialist ER
doctor and that the urgent care center was the equivalent of an
emergency room. This was a contested issue.
The trial court correctly concluded instruction 7 misstated the law.
A court will find an instructional error harmless if it had no effect on the
verdict or did not deprive a party of her theory of the case. Estate of Dormaier ex
rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wash. App. 828, 861, 313
P.3d 431 (2013). Group Health argues instruction 7 was harmless because the
plaintiffs' expert witnesses testified that all physicians, whatever their specialty,
should be trained to recognize indicators of sexual abuse. On its face, this
argument has some weight, but it ignores the discretion a trial court has in
deciding whether to grant a motion for a new trial. The trial judge who has seen
and heard the witnesses is in a better position to evaluate whether a new trial is
warranted than an appellate court reviewing a cold transcript. State v. Hawkins,
181 Wash. 2d 170, 179, 332 P.3d 408 (2014).
No. 71835-5-1/10
Here, the trial judge heard competing testimony about the applicable
standard of care. The plaintiff's expert witnesses were emergency room
physicians. They testified that the differential diagnosis methodology—"assume
the worst"—is the standard of care to be employed in the practice of emergency
medicine. The defendant's expert witnesses were pediatricians. They testified
that pediatricians satisfy their standard of care by using the unifying diagnosis
methodology that zeroes in on the most likely explanation for a patient's
symptoms.
The trial court also listened to the closing argument, in which Group
Health repeatedly emphasized, using PowerPoint slides, that the plaintiff's
witnesses were not pediatricians.
The experts that we have called and had testify and tell you their
opinions in this case, three out of four are pediatricians, three out of
four are child abuse experts. Plaintiffs' experts: No pediatricians,
no child abuse specialists.
Group Health used this point to exploit the advantage created by instruction 7.
Calling the jury's attention to instruction 7, counsel argued that only the defense
experts were discussing the appropriate standard of care:
Pediatricians are to be judged based on the way reasonably
prudent pediatricians care for patients in this kind of urgent care
setting. The only people we have had who have told you what
pediatricians do are—I mean, the actual people who were
pediatricians, every single one of them have been defense experts
and they have all told you that what was done was reasonable and
appropriate under the circumstances, and in fact, what they would
do in their facilities.
The closing argument demonstrates how instruction 7 allowed Group
Health to marginalize the testimony of the emergency room physicians. The
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No. 71835-5-1/11
effect of the instruction was to endorse the standard of care presented by the
pediatrician witnesses. As the trial court saw it, Group Health "attacked the
reliability of the plaintiffs' experts, because they were not pediatricians like the
defense experts." The instruction not only misstated the law but prejudicially
undermined the plaintiff's ability to present her theory of the case. The trial court
was within its discretion to find the instructional error warranted a new trial.
Group Health also claims that Baughman did not adequately preserve the
instructional error raised in her motion for a new trial. We disagree. The key
factual issue involved in Baughman's objection to the final version of instruction 7
was whether Dr. Milligan should be held to the standard of care of an emergency
room physician. Baughman did not explicitly cite Richards, but she did employ
its reasoning:
I think the word "pediatrician" there should be "physician."
That's from the WPI instruction, and the reason that instruction is
given, Your Honor, is that when someone from a different specialty
fills a role other than they would typically fill, that's when this
instruction is given.
So to use a really extreme example, if they decide to staff
their emergency department with an allergist, that allergist isn't held
to the standard of care of an allergist in the emergency department.
He's held to the standard of care of a reasonably prudent
emergency room physician.
And so I think this is the defendant's modified language, but
it guts the instruction of its intended meaning by saying that a
pediatrician has to perform to the standard of care of a pediatrician.
The point of the instruction is to tell the jury that the pediathcian, if
he's going to be practicing in an emergency room, he has to
practice to the same standard as an emergency room physician,
and not the same standard as a pediatrician. That doesn't make
any sense.
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No. 71835-5-1/12
(Emphasis added.) This was sufficient to preserve the instructional error raised
in Baughman's motion for a new trial. Washburn v. City of Federal Way, 178
Wash. 2d 732, 746-49, 310 P.3d 1275 (2013).
Affirmed.
WE CONCUR:
Sf Q, ,U3 flo.
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