The Necessity, Scope, and Admissibility of Expert Testimony in Medical Negligence Cases
By Mark Johnson and Michael Sprangers, Published in Trial News, October 2019.
In 1909, in the case of Helland v. Bridenstine, 55 Wash. 470 (1909), the Washington Supreme Court published its first opinion in a medical malpractice case. The trial had taken place in King County Superior Court and resulted in a verdict for the plaintiff, a woman who sued her physician for giving her a “loathsome disease” as a result of examining her with unsterilized instruments. The jury awarded the woman $4,000. The Supreme Court found the verdict excessive and gave the woman the choice of a remittitur to $2,000 or a new trial. Helland v. Bridenstine, 55 Wash. 470, 472, 477-478 (1909).
In 1976, more than six decades after Helland, our state legislature codified Washington’s medical negligence law in RCW Chapter 7.70 and RCW 4.24.290CW 4.16.350, a statute of limitations applicable solely to medical negligence claims and first enacted in 1971, was also amended in 1976.
Actions against healthcare providers (broadly defined in RCW 7.70.020) for injuries resulting from health care are governed by RCW Chapter 7.70 and RCW 4.24.290.
RCW 7.70.040 sets out the standard of care for negligence claims as the failure “to exercise that degree of care, skill and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same circumstances…” Somewhat incongruously, RCW 4.24.290 also sets out a standard of care (of sorts) for claims based on negligence, “…the defendant or the defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages…” WPI 105.01, the negligence instruction for a general health care provider, tracks RCW 7.70.040. RCW 4.24.290 specifically provides that the standard of care set out therein does not apply to a claim based on the failure to obtain the informed consent of a patient.
RCW 7.70.040 specifies the elements of proof in a negligence action against a health care provider based upon the failure to follow the accepted standard of care. The statute provides:
(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such failure was a proximate cause of the injury complained of.
The elements of an action for medical malpractice in Washington are merely “particularized expressions” of the concepts fundamental to any negligence action: (1) the existence of a duty owed to plaintiff; (2) a breach of that duty; (3) injury; and (4) a causative link between the breach and the injury. Harbeson v. Parke-Davis, 98 Wn.2d 460, 468 (1983); Pedroza v. Bryant, 101 Wn.2d 226, 228 (1984).
The quality of care which a Washington State health care provider is obligated to provide is the degree of care, skill and learning expected of a reasonably prudent health care provider of the defendant’s profession or specialty in the same or similar circumstances, at the time the services are rendered, not the standard actually practiced. Harris v. Groth, 99 Wn.2d 438, 442-447 (1983). The standard is one of reasonable prudence, not that of the medical community or average practitioner. Id., 447. As stated by the Court in Harris:
This legislative history strongly suggests that the Legislature considered adopting an ‘average practitioner’ standard and chose instead to adopt one of a ‘reasonably prudent practitioner’. We cannot, and will not, override that choice by construing the two standards to be the same. The legislature has chosen to impose on health care providers the same standard of care as is imposed on other members of society and we must implement that choice.
Id., 446-447. (Emphasis added.)
The standard of care is a statewide standard; there is no “locality” rule. Pederson v. Dumouchel 72 Wn.2d 73, 79 (1967). A physician who specializes in a particular area of medicine is held to the standard of care of the members of that specialty. Dinner v. Thorp, 55 Wn.2d 90 (1959); Richards v. Overlake Hospital Medical Center, 59 Wn. App. 266 (1990).
Necessity, Scope, and Admissibility of Expert Testimony
With respect to medical negligence claims it is a near universal truth that a plaintiff must present qualified expert opinion testimony, stated to a reasonable degree of medical certainty, on both the standard of care and proximate cause. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 228 (1989); Harris v. Groth, 99 Wn.2d 438 (1983).
Expert testimony on the issue of the standard of care is unnecessary in only two circumstances. The first occurs when the medical facts are “observable by a [layperson’s] senses and describable without medical training.” Harris v. Groth, 99 Wn.2d 438, 449 (1983), citing, Bennett v. Department of Labor and Industries, 95 Wn.2d 531, 533 (1981); Miller v. Jacoby, 145 Wn.2d 65, 72-73 (2001). The most common example is leaving a foreign object, not intended to have a therapeutic effect, in a patient’s body. Miller v. Jacoby, 145 Wn.2d 65, 72-73 (2001). The second circumstance is when the trial court finds that the doctrine of res ipsa loquitur applies. The application of res ipsa permits (but does not require) a jury to find negligence and causation without the necessity of expert opinion testimony.
“The doctrine of res ipsa loquitur spares the plaintiff the requirement of proving specific acts of negligence in cases where a plaintiff asserts that he or she suffered injury, the cause of which cannot be fully explained, and the injury is of a type that would not ordinarily result if the defendant were not negligent. In such cases, the jury is permitted to infer negligence.” Pacheco v. Ames, 149 Wn.2d 431, 436 (2003). Whether res ipsa applies to a particular case is a question of law. Id.
Res ipsa has three elements: “(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.” Pacheco v. Ames, 149 Wn.2d 431, 436 (2003), quoting Zukowsky v. Brown, 79 Wn.2d 586, 593 (1971).
There are cases that conflate circumstances constituting negligence as a matter of law (the foreign object cases) with res ipsa. See, Ripley v. Lanzer, 152 Wn. App. 296 (2009). The concepts, however, are distinct. Leaving a foreign object in a patient’s body is negligence. A res ipsa instruction permits a jury to infer negligence but the jury is not required to so find.
As in any case where the admission of expert testimony is an issue, it is for the trial court to determine: (1) whether the subject matter is grounded in “generally accepted science” (the Frye standard); (2) whether expert testimony will “assist the trier of fact”; and (3) whether the witness is qualified to testify on the issue by possessing sufficient “knowledge, skill, experience training or education.” L.M. v. Hamilton, 193 Wn.2d 113 (2019); ER 702.
An affidavit from plaintiff’s expert in opposition to a summary judgment motion must connect the expert’s opinions to the underlying medical facts. See, Keck v. Collins, 184 Wn.2d 358 (2015), in which the Court found that the affidavit of a plaintiff’s expert was sufficient to withstand summary judgment because the expert “connected his opinions about the standard of care and causation to a factual basis: the medical records.” Id., 372.
In Reyes v. Yakima Health District, 191 Wn.2d 79 (2018), the Court affirmed summary judgment in favor of the defendant in a medical malpractice case, finding that the affidavit by the standard of care expert for the plaintiff was insufficient to create a fact issue. Id., 83. The Court explained that in order to avoid the summary disposition of a medical malpractice action: “The expert may not merely allege that the defendants were negligent and must instead establish the applicable standard and how the defendant acted negligently by breaching that standard. Furthermore, the expert must link his or her conclusions to a factual basis.” Id., 86-87.
Although a recent case out of Division III, Boyer v. Morimoto, No. 36166-7-III, 2019 Wash. App. LEXIS 2363 (2019), has generated some dyspepsia in the plaintiffs’ bar, it did not change established law that if an expert is going to testify that there is a national standard of care and the defendant violated it, the expert must provide factual support for how the expert knows that the national standard and the Washington standard are coextensive. Id.
Therefore, plaintiffs’ experts in medical negligence cases must testify to what the defendant did or did not do to violate the standard of care, the opinions must be connected to the medical facts of the case and, with respect to out-of-state experts, the testimony must include an explanation of how the expert knows what the standard of care in Washington is. If the expert testifies that there is a national standard and it is the same as Washington’s, the expert must support that conclusion with facts. For example, an expert’s declaration may include the following: The procedures performed for treatment of __________are the same, nationwide; the techniques for performing those procedures are the same, nationwide; the board certification exam is the same, nationwide; medical students and residents in _________, (wherever they are taught), are taught the same procedures and taught to perform them in the same manner; the expert has practiced and taught in several states and written and spoken extensively throughout the United States and there is no difference anywhere with respect to the selection, performance and execution of the most common procedures for the treatment of______________. The Boyer opinion also mentioned that another resource for the expert to utilize, to confirm that Washington’s standard is the same as a purported national standard, would be for the expert to speak to a physician practicing in Washington, a suggestion that we think is rife with potential problems.
Washington has long adhered to the rule that non-physicians may testify on standard of care and causation in medical malpractice cases if the court finds them to be qualified. Harris v. Groth, 99 Wn.2d 438, 449-451 (1983). For example, an Advanced Registered Nurse Practitioner (ARNP) is not per se disqualified from testifying on the issue of proximate cause in a medical malpractice case. Frausto v. Yakima HMA, LLC, 188 Wn.2d 227, 229 (2017).
In a recent Washington Supreme Court decision (one which rightfully should cause dyspepsia), regarding an injury to a newborn’s brachial plexus nerve group, the Court held that it was not an abuse of discretion for the trial court to permit a witness with a doctorate in engineering, who the Court acknowledged was not specially trained in the mechanics of childbirth, to testify that it was “not possible to differentiate whether the brachial plexus nerve damage suffered by [L.M.] resulted from exogenous, endogenous or some other combination of forces.” L.M. v. Hamilton, 193 Wn.2d. 113, 126 (2019). According to the Court, the witness had reached his conclusion after reviewing the “latest science on the biomechanics of childbirth.” Id., 137.
There are numerous examples in Washington case law where a health care provider who practiced in a medical area different than the defendant provider has been permitted to testify on the issue of standard of care. For example, in Miller v. Peterson, 42 Wn. App. 822, 831 (1986), an orthopedic surgeon was permitted to testify regarding a podiatrist’s standard of care. In White v. Kent Med. Ctr., 61 Wn. App. 163 (1991), a specialist was permitted to testify regarding a general practitioner’s standard of care. In Hall vs. Sacred Heart Medical Center, 100 Wn. App 53, 995 (2000), a medical doctor was permitted to testify regarding an intensive care nurse’s standard of care. In Seybold v. Neu, 105 Wn. App. 666 (2001), a plastic surgeon was permitted to testify regarding the standard of care for an orthopedic surgeon specializing in musculoskeletal oncology. In Leaverton v. Cascade Surgical Partners, 160 Wn. App. 512 (2011), an otolaryngologist was permitted to testify regarding a general surgeon’s standard of care.
Finally, the threshold of admissibility for expert testimony on causation appears to be lower for defendant’s experts than it is for plaintiff’s experts. Colley v. Peacehealth, 177 Wn. App 717, 728-730 (2013), held that defense medical experts testifying on causation in a medical malpractice case are not constrained by the “more probable than not” causation testimony requirement that is imposed on plaintiffs and are permitted to offer opinions as to other “possible” causes of an injury. The Colley Court’s reasoning was that the plaintiff has the burden of proof to a probability on causation, that the defendant does not have to prove or disprove causation and is also not, “obligated to agree or assume that the plaintiff is injured.” Id. Division I reaffirmed the Colley holding in L.M. v. Hamilton, 200 Wn. App. 535, 552-553 (2017) and the Supreme Court affirmed it in L.M. v. Hamilton, 193 Wn.2d. 113 (2019).
This article was written by Mark Johnson and Michael Sprangers. It was published in October 2019 in Trial News, a publication of the Washington State Association for Justice.
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