Fitzgerald v. Vincent
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 15052-6-III
Title of Case: Norine Fitzgerald
v.
Ronald L. Vincent, M.D.
File Date: 04/24/97
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Spokane County
Docket No: 93-2-02677-8
Judgment or order under review
Date filed: 07/17/95
Judge signing: Hon. Richard J. Schroeder
JUDGES
------
Authored by Frank L. Kurtz
Concurring: Dennis J. Sweeney
Stephen M. Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Malcolm L. Edwards
Edwards Sieh Hathaway Smith & Goodfriend
6501 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
Dan W. Keefe
Keefe King & Bowman
Suite 1102
W 601 Main
Spokane, WA 99201
James B. King
Keefe King & Bowman
1102 Wa.MUTUAL Financ.CTR
W.601 Main
Spokane, WA 99201
Catherine W. Smith
Edwards Sieh Hathaway Smith & Goodfriend
6501 Columbia Center
701 5th Ave.
Seattle, WA 98104
Counsel for Respondent(s)
Steven L. Jones
Feldman Gebhardt Eymann & Jones
14th Fl Paulsen Bldg
421 W Riverside Ave
Spokane, WA 99201-0495
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
Richard C. Eymann
Feltman Gebhardt Eymann & Jones
1400 Paulsen Building
421 W Riverside Ave
Spokane, WA 99201
Robert F. Greer Ii
Feltman Gebhardt Eymann & Jones PS
1400 Paulsen Ctr
421 W Riverside Ave
Spokane, WA 99201
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NORINE FITZGERALD, ) No. 15052-6-III
)
Appellant, )
)
v. ) Division Three
) Panel Eight
RONALD L. VINCENT, M.D.; and )
SACRED HEART MEDICAL CENTER, ) UNPUBLISHED OPINION
a Washington corporation, )
)
Respondents. ) FILED
KURTZ, J. Norine Fitzgerald brought this action to recover damages
for the difference between the C5-6 level quadriplegia she suffered in a
fall from a horse and the C1-2 level quadriplegia she developed thereafter,
allegedly as a result of Dr. Ronald L. Vincent's inadequate medical care.
A jury returned a verdict of $5,215,935.72 against Dr. Vincent. Dr.
Vincent appeals contending the court erred in: (1) admitting and refusing
to strike the causation testimony of three of Ms. Fitzgerald's expert
witnesses; (2) refusing to give Dr. Vincent's proposed "two schools of
thought" instruction; and (3) entering judgment on the jury's verdict and
denying Dr. Vincent's motion to dismiss and motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial as
there was no competent expert testimony from which a jury could have
determined that Dr. Vincent's care caused Ms. Fitzgerald's injury to ascend
to the C1-2 level. We affirm.FACTS
On Saturday, June 9, 1990, 37-year-old Norine Fitzgerald was thrown
or fell from the rented horse she was riding on a trail near Spokane. When
she hit the ground, her head was pushed forward with such great force that
both of the facets on the C5 vertebra "jumped" over the C6 facets and
became trapped in front of the C6 facets. In their proper configuration,
these facets meet to form a joint that helps keep the spine in alignment
while permitting motion when the bones rotate, flex and extend. This type
of bilateral dislocation or subluxation of the spinal column is called a
"bilateral facet lock" or "bilateral locked facets." This subluxation
decreased the space occupied by the spinal cord by approximately 50
percent.
Ms. Fitzgerald's injury occurred at approximately 3:25 p.m. and she
was evacuated by helicopter to Sacred Heart Medical Center where she
arrived at approximately 4:11 p.m. Dr. Vincent was the neurosurgeon on
call for Sacred Heart Medical Center. He was called by the hospital at
4:30 p.m. and arrived at the hospital within 10 minutes. Based on the
findings of a recently released study on spinal cord injury, a steroid
protocol was commenced at approximately 4:40 p.m. Dr. Vincent performed a
neurological examination on Ms. Fitzgerald and found she had approximately
40 percent of her biceps function, a trace of wrist rotation, but no
movement elsewhere below. He also found she had a sensory level at the
nipple level, but her basic reflexes were unresponsive.
Dr. Vincent was aware of the "window of opportunity" concept that
there may be a two- or three-hour period after a traumatic cervical injury
during which some return to function can be achieved if the subluxation is
reduced quickly. There are three means of attempting reduction of
subluxated vertebrae: manual, traction and surgery. Manual and traction
are means of "closed reduction." Surgery is used to effect "open
reduction." All of the physicians who testified at trial undertake
surgical reduction if other methods are unsuccessful. One of the
physicians who testified never attempts any other method of reduction. Dr.
Vincent attempted to reduce Ms. Fitzgerald's bilateral locked facets with
traction, but was not successful. This attempt concluded at 6:40 p.m.
After his evaluation of the patient in the emergency room, Dr.
Vincent diagnosed Ms. Fitzgerald as having a complete physiological
transection of the spinal cord at C5-6 and a complete or near complete
anatomical transection. A spinal cord lesion can be partial or
"incomplete," in which some function remains, or it can be "complete" in
which there is no nerve function below the level of the lesion. The
diagnosis of Ms. Fitzgerald's injury as complete was a critical decision in
terms of the decisions, treatments and care offered to Ms. Fitzgerald. Dr.
Vincent and other physicians testified that all questions whether there was
any treatment to offer her in the emergency period depended on the decision
as to whether her injury was complete or incomplete.
After the unsuccessful attempt to reduce the subluxation by
traction, Dr. Vincent scheduled a surgical reduction procedure for Tuesday,
June 12, based on his diagnosis that Ms. Fitzgerald's injury was a complete
lesion. Dr. Vincent and all of the physicians testifying at trial stated
that if Ms. Fitzgerald's spinal cord lesion was incomplete and showed any
sign of deterioration in function, the standard of care required immediate
surgical reduction of Ms. Fitzgerald's subluxed vertebrae. Ms.
Fitzgerald's level of function and what it meant in terms of the extent of
her injury was a hotly contested issue at trial.
Ms. Fitzgerald was transferred to the hospital's neurointensive care
unit (NICU) from the emergency room. Dr. Vincent brought in a
pulmonologist to manage Ms. Fitzgerald's pulmonary and respiratory care.
In the NICU, nurses work 12-hour shifts and each patient has round-the-
clock one-on-one nursing care. Dr. Vincent did not leave any special
instructions with the NICU staff with regard to the significance of any
change in Ms. Fitzgerald's clinical condition. Dr. Vincent relied on the
expertise of the staff to recognize the significance of any changes and
notify him. Dr. Vincent testified that he would have been concerned if
changes occurred below the level he felt was complete.
Ms. Fitzgerald was transferred to the NICU shortly after the night
nurse came on duty. The night nurse noted possible improvements in Ms.
Fitzgerald's neurological function during the night of June 9-10. The NICU
nurse tested Ms. Fitzgerald's arm movements hourly during the night and
found some triceps muscle function present in both arms from midnight to
6:00 a.m. During all of this time, Ms. Fitzgerald continued to breathe on
her own.
The NICU night nurse who noted possible improvements in Ms.
Fitzgerald's neurological function made notes on her findings, but did not
call Dr. Vincent and did not discuss these improvements with the nurse who
replaced her for the day shift. Dr. Vincent examined Ms. Fitzgerald at
about 10:00 a.m. on Sunday, June 10. Dr. Vincent noted no neurological
change in Ms. Fitzgerald's condition. He spoke to the day nurse, but did
not read the notes left by the night nurse.
At 4:30 p.m. on Sunday, June 10, the NICU nurse caring for Ms.
Fitzgerald called Dr. Vincent to report Ms. Fitzgerald had lost the use of
her biceps and her sensory level was now at the shoulders. Dr. Vincent
returned to the hospital. When he examined Ms. Fitzgerald, he initially
believed Ms. Fitzgerald had lost nerve root function to her biceps and this
loss did not indicate her function loss had moved up a level on her spinal
cord. Dr. Vincent did not feel he needed to reconsider his thoughts about
the timing of surgery. He based this decision partly on the fact that Ms.
Fitzgerald had no change in respiratory functions. The nurse did not
notify Dr. Vincent of any change in Ms. Fitzgerald's ability to breathe and
Dr. Vincent was unaware of entries made by the nurses, the respiratory
therapist and the pulmonologist indicating Ms. Fitzgerald's breathing
capacity deteriorated all day Sunday. At approximately 9:00 p.m. on
Sunday, the NICU called Dr. Vincent and informed him that the pulmonologist
had given the order to put Ms. Fitzgerald on a ventilator.
Dr. Vincent testified that Ms. Fitzgerald's breathing problems
indicated the onset of ascending myelopathy causing Ms. Fitzgerald to lose
function up the spinal cord to the C3-4 level. This loss of function
eventually ascended to the C1-2 level making Ms. Fitzgerald a chin level
quadriplegic. Surgery was performed on Tuesday, June 12, and an orthopedic
surgeon and Dr. Vincent reduced and stabilized the subluxation. Ms.
Fitzgerald is now unable to breathe on her own, move any muscle below her
chin, or to feel touch anywhere but on her face.
Ms. Fitzgerald's position at trial was that her injury was an
incomplete spinal injury and that she lost function unnecessarily when Dr.
Vincent left her vertebrae in their subluxated position which pinched her
spinal cord and caused a domino effect of swelling and tissue death up the
cord. She contends that she would not have lost any additional function if
she had been properly diagnosed and taken immediately to surgery when the
traction attempt proved unsuccessful, or at the very latest, as soon as her
condition began to deteriorate.
Dr. Vincent called expert witnesses who supported his diagnosis that
Ms. Fitzgerald's injury was complete and agreed any function Ms. Fitzgerald
demonstrated below the C5-6 level was lost over time as the nerve roots
died as a result of the severity of her injury. Dr. Vincent also presented
expert testimony establishing that there were differing views as to the
timing of surgery in spinal injury cases. One expert testified that he
recommended surgery four to five days after the trauma as there was some
danger to the patient if surgery was performed too soon after a traumatic
injury.
Dr. Vincent's witnesses also supported his position that the loss of
function above the C5-6 level was the result of ascending myelopathy, a
rare condition which occurs in two percent of patients with spinal
injuries. Ascending myelopathy has occurred in patients whose injury has
been reduced and those whose injury has not been reduced. Experts for Dr.
Vincent testified that the severe trauma of the injury itself caused
chemicals to be released which caused the death of the tissue above the
site of the injury.
The jury returned a verdict of $5,215,935.72 representing past
economic damages of $659,685.72, future economic damages of $3,037,500 and
noneconomic damages of $1,518,750. The verdict was 10 to 2.
DISCUSSION
Did the court err in admitting the testimony of Ms. Fitzgerald's
experts on the issue of causation?
Dr. Vincent contends Ms. Fitzgerald presented no competent expert
testimony on the issue of causation and the court erred in admitting and
refusing to strike the testimony of three of Ms. Fitzgerald's experts, Dr.
Steven Urman, Dr.
Robert Rand and Dr. Donald Smith. Dr. Vincent also contends the expert
testimony offered by these witnesses did not rise to the level of
admissibility required under ER 702 and ER 703. The testimony of these
experts is summarized below.
Dr. Donald Smith. Dr. Smith was board certified as a neurosurgeon
in 1963 and practiced in that specialty until retiring in 1991. Dr. Smith
holds a masters degree in anatomy, specializing in neuroanatomy. During
most of his career, Dr. Smith performed spinal trauma surgery as part of
his practice. He gave up this portion of his practice in 1985. Dr. Smith
testified he always performed early surgical reduction of this type of
spinal injury to prevent progressive spinal cord damage. Dr. Smith never
confronted a case of ascending myelopathy in his years of practice. Dr.
Smith also testified he did not believe Ms. Fitzgerald's injury was
complete. In Dr. Smith's opinion, Dr. Vincent's attempt to reduce the
subluxation by traction was insufficient and Ms. Fitzgerald should have
been taken immediately to surgery when traction failed. Dr. Smith
testified that Dr. Vincent should have taken Ms. Fitzgerald to surgery on
Sunday when she showed signs of clinical progression of her injury.
The trial judge initially refused to allow Dr. Smith to testify as
to causation. Over objection, Dr. Smith stated:
I think if this patient had had a reduction of the spine and
the compression of the spinal cord had been reduced, the lesion would have,
within a matter of 48 to 72 hours, stabilized and resolved. I do not
believe that there would have been an ascending myelopathy, and I believe
that experience in neurosurgery has shown that reduction is the best means
of reducing complications associated with chronic compression of the spinal
cord.
Dr. Smith also testified he assumed that ascending myelopathy could
"probably" be prevented by early proper management. He further stated he
had never seen a case of ascending myelopathy, but he also had "never
allowed patients not to be treated in a reasonably prompt manner" in his 35
years of experience in neurosurgery.
Dr. Steven Urman. Dr. Urman is a radiologist from Portland, Oregon,
who specializes in neuroradiology. He is board certified in diagnostic
radiology. Dr. Urman also has a Ph.D. in neuroanatomy. He practiced as a
scientist in neuroanatomy for several years prior to completing his medical
training. Dr. Urman currently serves as a radiologist at two hospitals
including one Level I trauma hospital. Dr. Urman did not testify as to the
standard of care for a neurosurgeon.
Dr. Urman examined the X-rays, MRI images and CT scans in this case.
He testified that the MRI images performed June 26, 1990, were consistent
with progressive swelling which caused obstruction of the blood supply to
tissues progressively further from the C5-6 site of dislocation. Dr. Urman
testified that this process, coupled with the progressive swelling of these
tissues as they lost their blood supply, resulted in a vicious cycle of
swelling and compromise to the blood supply which caused damage to nearly
the top of the cervical cord. He concluded this edema and hemorrhage was
related to the continued compression of the cord. Based on his experience,
Dr. Urman also concluded that an injury so distant from the site of
dislocation would not occur as a result of the initial trauma itself. Dr.
Urman had seen two cases with similar findings of swelling trauma at least
one level above the level of dislocation even after reduction of the
initial injury.
Dr. Robert Rand. Dr. Rand is an M.D. and has a Ph.D. in
neuroanatomy. He was at UCLA for 35 years where he became a Professor of
Neurosurgery. At UCLA, Dr. Rand performed and taught spinal trauma surgery.
Dr. Rand testified he had never seen or treated a case of ascending
myelopathy. During his surgical career, Dr. Rand diagnosed and treated
progression of spinal cord damage in cord compression lesions. He has seen
unstable or progressing cord injuries after failure of traction reduction.
Dr. Rand felt Dr. Vincent should have spent more time on his attempt
to reduce the subluxation by traction. Dr. Rand testified the standard of
care required immediate decompression as the neurological deficits began to
progress. Dr. Rand testified he was knowledgeable about the effects of
compression on the human spinal cord based on experiments he performed on
kittens in 1953 and 1954. Dr. Rand was permitted to testify that he
believed the compression of the spinal cord caused edema in addition to the
edema caused by the direct trauma. Dr. Rand concluded that this caused a
"domino effect" ascending up the cord. Over objection, Dr. Rand testified
the neurological deterioration would have stopped if the spine had been
decompressed.
Dr. Vincent argues Dr. Smith and Dr. Rand were not competent to
testify as to causation as they admitted they had never seen or treated a
case of ascending myelopathy. Dr. Vincent contends Dr. Rand also should
not have been permitted to testify because Dr. Rand believed a laminectomy
was the only procedure which would have prevented Ms. Fitzgerald's
ascending myelopathy, even though Dr. Rand admitted that a laminectomy was
not required by the standard of care applicable to Dr. Vincent. Dr.
Vincent also contends the testimony of Dr. Urman was improper as Dr. Urman
never attributed the swelling in the spinal cord to Dr. Vincent's care, nor
could he exclude the original injury as the cause of the swelling. Dr.
Vincent argues that the testimony of these experts was based on speculation
and conjecture, and was unreliable on the issue of causation and improper
for presentation to a jury.
The admissibility of evidence at trial lies within the sound
discretion of the trial court. Reese v. Stroh, 128 Wn.2d 300, 907 P.2d 282
(1995). The admissibility of expert testimony is governed by ER 702 which
involves a two-step inquiry: (1) whether the witness qualifies as an
expert; and (2) whether the expert testimony would be helpful to the trier
of fact. Reese, 128 Wn.2d at 306. The acceptable bases of an expert's
opinion are set forth in ER 703 which reads as follows:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made known to
the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
As a general rule, expert medical testimony on the issue of
causation is required in medical malpractice cases. McLaughlin v. Cooke,
112 Wn.2d 829, 837, 774 P.2d 1171 (1989). Admissibility of a causation
opinion regarding the application of an accepted theory or methodology to a
particular medical condition is weighed under the general reliability
standard established in ER 702 and ER 703. Reese, 128 Wn.2d at 307-08.
"Expert testimony is usually admitted under ER 702 if helpful to the jury's
understanding of a matter outside the competence of an ordinary layperson."
Reese, 128 Wn.2d at 308. An opinion is admissible under ER 703 if it is
based on the expert's firsthand experience or information generally relied
upon in the field of expertise. Id. at 309. Medical expert testimony must
be based upon a "reasonable degree of medical certainty" and must not be
based upon speculation, conjecture or mere possibility. McLaughlin, 112
Wn.2d at 836-37.
The proper analysis to apply in this case is the general reliability
standard established in ER 702 and ER 703. The admissibility of novel
scientific evidence is not at issue here and we need not address the
holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993) concerning the application of the
Frye1 rule. Neither Frye nor Daubert applies here as there is nothing
novel about the treatment of spinal cord injuries. At issue instead is the
application of accepted principles to a particular medical condition.
There is no dispute over the need to reduce Ms. Fitzgerald's subluxation by
some method. The questions in this case relate to the timing of surgical
reduction when other techniques are unsuccessful and the consequences if
such surgery is delayed.
We conclude that Ms. Fitzgerald's experts were qualified to testify
and that their testimony was helpful to the jury under ER 702. Each of
these experts had years of experience evaluating and/or treating spinal
cord injuries. The record also shows that these experts based their
opinions on firsthand knowledge or on information generally relied on in
their field pursuant to ER 703.
Dr. Vincent seeks to bar the causation testimony of Dr. Rand and Dr.
Smith based on a narrow reading of ER 703. Under Dr. Vincent's analysis,
no expert is competent to testify as to causation in this case unless they
have treated the end result, a rare condition known as ascending
myelopathy. This view is mistaken. The jury in this case needed expert
testimony to help them decide whether or not Dr. Vincent met the standard
of care in his diagnosis and treatment of Ms. Fitzgerald's spinal cord
injury. The testimony of Ms. Fitzgerald's experts, based on firsthand
experience treating spinal cord injuries, was helpful to the jury as they
evaluated this case. Dr. Vincent's narrow focus on the end result is
artificial and not in keeping with the spirit of the rules of evidence.
Furthermore, it is clear that these experts testified based on
information relied on in their fields. All of the surgeons testifying at
trial indicated that immediate surgery was required when an incomplete
spinal cord injury showed deterioration. Presumably all of these
physicians fear a bad result if immediate surgery is not performed. The
fact that this bad result has a name or may or may not have been seen by
some physicians, does not disqualify those physicians from expressing an
opinion based on information relied upon in their field related to the
treatment of spinal cord injuries.
Dr. Vincent admits that Dr. Urman has seen ascending myelopathy, but
seeks to bar his testimony based on his assertions that Dr. Urman never
attributed the swelling in the cord to Dr. Vincent's care. Dr. Urman's
testimony is clearly admissible in that he was testifying as to his
evaluation of the X-rays, CT scans and MRI images. The fact that Dr. Urman
did not testify as to each and every element of the case is unimportant.
His testimony was appropriate as one part of a larger picture presented to
the jury for its consideration.
The testimony of Dr. Smith as to causation is limited. The trial
court intended to prevent Dr. Smith from testifying as to causation
pursuant to its reading of Daubert and Division One's decision in Reese v.
Stroh, 74 Wn. App. 550, 874 P.2d 200 (1994), aff'd, 128 Wn.2d 300, 907 P.2d
282 (1995). Later in the trial, Dr. Vincent's attorney pointed out that he
believed that the judge permitted Dr. Smith to answer a causation question
over counsel's objection. The court then invited Dr. Vincent's attorney to
present this testimony to the court so it might be corrected. Dr.
Vincent's attorney failed to bring this matter to the court's attention.
Permitting this response to stand is not an abuse of discretion.
Dr. Vincent cites several cases to support his argument that the
expert testimony was based solely on speculation and conjecture. These
cases do not support his position. In Tonkovich v. Department of Labor &
Indus., 31 Wn.2d 220, 195 P.2d 638 (1948), the court rejected a physician's
expert testimony as "unmistakenly erroneous" when the physician stated at
trial that the claimant's abdominal cancer was caused by an injury to his
right foot. In Burkett v Northern, 43 Wn. App. 143, 715 P.2d 1159, review
denied, 106 Wn.2d 1008 (1986), the court, applying the test in Frye,
refused to accept thermographic testimony because it was not reliable and
was not accepted in the medical community. Intalco Aluminum Corp. v.
Department of Labor & Indus., 66 Wn. App. 644, 833 P.2d 390 (1992), review
denied, 120 Wn.2d 1031 (1993) also discusses physicians' testimony in areas
considered to be novel. The treatment of spinal cord injuries is not novel
even if the end results are not always predictable. The issue in this case
is the application of accepted theories or methodologies to a particular
medical condition and not the admissibility of novel scientific evidence.
The testimony of Dr. Rand, Dr. Smith and Dr. Urman was admissible
under ER 702 and ER 703. Dr. Vincent fails to demonstrate an abuse of
discretion in the trial court's decision to admit this testimony. Dr.
Vincent's attorneys could and did attack the credibility of these
witnesses. The testimony itself was helpful to the jury and based on
firsthand knowledge or on information generally relied on in the expert's
field. Jurors are capable of determining what weight to give this type of
testimony.
Did the court err in refusing to instruct the jury on "two schools
of thought"?
Jury instructions must not be misleading and must permit the parties
to argue their theory of the case. Adcox v. Children's Orthopedic Hosp. &
Med. Ctr., 123 Wn.2d 15, 864 P.2d 921 (1993). Read as a whole, the
instructions must inform the trier of fact of the applicable law. Id. The
proper inquiry on appeal is whether the trial court abused its discretion
by giving or refusing to give a proposed instruction. Goodman v. Boeing
Co., 75 Wn. App. 60, 877 P.2d 703 (1994), aff'd, 127 Wn.2d 401 (1995).
Dr. Vincent contends the court erred when it refused to give his
proposed instruction that there were two schools of thought about what
constituted proper treatment and that a physician was not liable if he or
she followed a course of treatment advocated by a considerable number of
medical professionals. Dr. Vincent argues that there was a dispute at
trial as to whether or not the standard of care required emergency surgery
to reduce Ms. Fitzgerald's bilateral locked facets when traction proved
unsuccessful. Dr. Vincent contends there were two schools of thought with
regard to the treatment of Ms. Fitzgerald's injury with one school
supporting the position that emergency surgery was required and the other
school supporting the decision to delay surgery.
The trial court in this case gave both the "no guarantee/poor
result" instruction found at WPI 105.07 and the "error of judgment"
instruction found at WPI 105.08. The error of judgment instruction may be
used to supplement the standard of care instruction and should be given
with caution and "be limited to situations where the doctor is confronted
with a choice among competing therapeutic techniques or among medical
diagnoses." Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986).
The instruction proposed by Dr. Vincent reads as follows:
A physician is not liable for medical negligence if you find
that the course of treatment chosen by the physician is one alternative
among two medical "schools of thought." A medical "school of thought" is a
course of treatment which is advocated by a considerable number of
recognized and respected medical professionals in his or her given area of
expertise.
Dr. Vincent argues this instruction is proper, pointing out that the
commentators on WPI 105.08 suggest that a two schools of thought
instruction might be preferable to the error of judgment instruction in
some instances. The committee stated as follows:
The committee suggests that the following language, adapted as
necessary to fit the facts of the case, may convey more clearly and more
safely to a jury the intended legal proposition:
A physician is not liable of selecting one of two or more
alternative courses of treatment even though the treatment results in a
poor medical result, if, in arriving at the judgment to follow the
particular course of treatment, the physician exercised reasonable care and
skill, within the standard of care the physician was obliged to follow.
WPI 105.08 cmt.
The trial court did not abuse its discretion when it refused to give
Dr. Vincent's proposed two schools of thought instruction. The
instructions as given informed the jury of the applicable law and presented
Dr. Vincent with the opportunity to argue his theory of the case. The
language of Dr. Vincent's proposed instruction is inappropriate given the
nature of the decisions faced by the medical practitioner in the treatment
of spinal cord injuries. Dr. Vincent's instruction does not fit the facts
presented in this case and would have confused the jury in that it is not
clear that the treatments advocated by the experts were alternate choices
or that there were only two choices available.
Was the evidence sufficient to support the verdict?
It is appropriate to overturn a jury verdict only when it is clearly
unsupported by substantial evidence. Burnside v. Simpson Paper Co., 123
Wn.2d 93, 107-08, 864 P.2d 937 (1994). Substantial evidence exists if the
evidence in the record is sufficient to persuade a fair-minded, rational
person of the truth of the matter in question. Bering v. Share, 106 Wn.2d
212, 220, 721 P.2d 918 (1986). Even if convinced that a verdict is wrong,
the reviewing court will not substitute its judgment for that of the jury
where there was evidence which, if believed, would support the verdict
reached by the jury. State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872,
77 A.L.R.3d 874 (1974).
Dr. Vincent contends there is insufficient evidence, other than
testimony based on speculation, to establish that Ms. Fitzgerald's injury
became more severe as a result of improper treatment while in his care. We
conclude there is sufficient evidence on the issue of causation in this
case to support the verdict reached by the jury. Sufficient evidence
exists if a reasonable person can infer that a causal connection exists
from the facts and the medical testimony given. McLaughlin v. Cooke, 112
Wn.2d 829, 837, 774 P.2d 1171 (1989).
Cases relied upon by Dr. Vincent where medical malpractice actions
were dismissed on summary judgment are not persuasive. In Guile v. Ballard
Community Hosp., 70 Wn. App. 18, 851 P.2d 689, review denied, 122 Wn.2d
1010 (1993), the court affirmed dismissal where the patient's evidence
failed to identify specific facts that would establish a basis for
negligence and merely consisted of unsupported conclusions that the
patient's postsurgical complications were caused by their surgeon's "faulty
technique." In Vant Leven v. Kretzler, 56 Wn. App. 349, 738 P.2d 611
(1989), summary judgment was affirmed where the patient was unable to
obtain an expert's opinion in support of his theory of negligence or
indicate what evidence might be established through further discovery.
We recognize that the expert testimony relating to the causation of
Ms. Fitzgerald's injury at the C1-2 level was complicated and
contradictory. Ms. Fitzgerald contended her injury deteriorated due to Dr.
Vincent's inattention and failure to operate in a timely manner. Dr.
Vincent argued early surgery was not required and Ms. Fitzgerald's injury
was so severe that she would have been rendered a C1-2 quadriplegic
regardless of when the surgery was performed. A jury considered all of the
evidence presented at trial and made its decision. We find sufficient
evidence in the record to support the verdict.
We affirm.
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.
Kurtz, J.
WE CONCUR:
Sweeney, C.J.
Brown, J.
1 Frye v. United States, 293 F. 1013, 1014, 34 A.L.R. 145 (D.C. Cir.
1923).