Rogers v. Meridian Park Hosp.

• Decision Date: 18 April 1989
• Citation: 772 P.2d 929,307 Or. 612
• Parties: Jesse W. ROGERS, Petitioner on Review, v. MERIDIAN PARK HOSPITAL, an Oregon corporation, M. Tait, R.N., F. Drury, R.N., C. Carlson, R.N., P. Bolthouse, R.N., and Jonathan M. Berger, M.D., and D. Michael Spittel, M.D., Defendants, and David Holmes, M.D., Respondent on Review. TC 8503-01766; CA A44255; SC S35749.
• Court: Oregon Supreme Court

Page 929

772 P.2d 929

307 Or. 612

Jesse W. ROGERS, Petitioner on Review, v. MERIDIAN PARK HOSPITAL, an Oregon corporation, M. Tait R.N., F. Drury, R.N., C. Carlson, R.N., P Bolthouse, R.N., and Jonathan M. Berger M.D., and D. Michael Spittel M.D., Defendants, and David Holmes, M.D., Respondent on Review.

TC 8503-01766; CA A44255; SC S35749.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 8, 1989.

Decided April 18, 1989.

J. Michael Alexander, Salem, argued the cause, for petitioner on review. With him on the petition were Burt, Swanson, Lathan, Alexander & McCann, Salem.

John R. Faust, Jr., Portland, argued the cause, for respondent on review. On the response were Ridgeway K. Foley, Jr., Timothy J. Murphy, Mildred J. Carmack, and Schwabe, Williamson, Wyatt, Moore and Roberts, Portland.

PETERSON, Chief Justice.

This is an action in negligence for damages brought by a patient against an anesthesiologist. ¹ The jury returned a verdict for the defendants and the plaintiff appealed. The Court of Appeals affirmed. Rogers v. Meridian Park Hospital, 93 Or.App. 533, 763 P.2d 400 (1988). The sole issue on appeal is whether the trial court erred in giving Uniform Civil Jury Instruction ("UCJI") No. 105.06. We reverse and remand for retrial.

FACTS

The plaintiff had abdominal surgery at Meridian Park Hospital. The defendant was his anesthesiologist. Either during or immediately after the surgery the plaintiff regurgitated and aspirated matter from his stomach, resulting in permanent lung and kidney damage. He alleged that the defendant negligently failed to prevent the aspiration.

Expert testimony established that the endotracheal tube aids the patient's breathing under anesthesia and helps prevent material from the stomach from entering the lungs. The experts also testified that medical opinion differs on when to remove the tube after surgery. Some physicians remove the tube as soon as the patient regains enough reflexive activity to resist its presence through a coughing-like response called "bucking," because bucking could reopen sutures, irritate the trachea, and the like. Others resedate the patient, leaving the tube in place to prevent aspiration of stomach contents. The plaintiff's experts testified that the defendant was negligent in removing the tube prematurely. The defendant's experts testified that his course of action was one of several medically acceptable alternatives.

The experts also testified about the appropriate position in which to place a patient during recovery to reduce the risk of aspiration. The experts again gave differing medical opinions.

The judge instructed the jury with a slightly modified version of UCJI No. 105.06. The instruction given contained five sentences (which we number for later reference):

" A physician is charged with applying without error those principles and learnings that are settled and agreed upon by all members of the medical profession. In some cases, there may be reasonable differences of opinion among members of the medical profession as to the nature of the patient's condition or the proper course of treatment. When there is such a difference of opinion, the physician must exercise reasonable judgment. A physician is liable for an error of judgment if the physician fails to act with reasonable care and skill in exercising that judgment. A physician is not liable for an error in judgment if the physician acts with reasonable care and skill in exercising such judgment."

The jury returned a verdict for the defendant, the plaintiff appealed, and the Court of Appeals affirmed.

ANALYSIS

Actions against professionals often involve the exercise of what the professionals refer to as "judgment." Due care may permit an engineer to design a device using material A or material B. Selection of either material for the design is not negligence. Similarly, due care may permit a surgeon to follow an alpha procedure or a beta procedure. Selection of either procedure is not negligence. Expert witnesses may testify, "The choice of either alpha or beta is a matter of judgment; either is acceptable." This brings us to the "error-of-judgment" rule, which is nothing if not hoary in Oregon case law.

The rule derives in part from the notion that a doctor does not promise a cure and that an untoward result might not be the result of negligence. See, e.g., Hills v. Shaw, 69 Or. 460, 467, 137 P. 229 (1914); Langford v. Jones, 18 Or. 307, 323, 22 P. 1064 (1890). In Lehman v. Knott, 100 Or. 59, 71, 196 P. 476 (1921), this court discussed "error in judgment" and attempted to distinguish between "improper" treatment and "negligent" treatment. The court stated that "[i]mproper treatment * * * might be due to error in judgment of a skillful surgeon honestly and carefully exercised, and not constitute negligent treatment." Likewise, in Malila v. Meacham, 187 Or. 330, 354, 211 P.2d 747 (1949), the court declared that "a physician or dentist is not a warrantor of cures * * * and that, if a regularly licensed physician or dentist with reasonable diligence employs the skill of which he is possessed in treating a surgical case, he is not liable for an error of judgment."

The error-of-judgment rule also stems in part from the recognition that if there is more than one acceptable treatment option, then the selection of any one of them is not negligence. Thus, a doctor is not liable for untoward results if he or she used reasonable care in selecting one of those options. See Foxton v. Woodmansee, 236 Or. 271, 281, 386 P.2d 659 (1964).

An instruction that accurately quotes or faithfully paraphrases an appellate decision is not necessarily beyond reproach. Indeed, "it is not advisable in charging the jury to use the exact words of an appellate court opinion * * *." Ireland v. Mitchell, 226 Or. 286, 294, 359 P.2d 894 (1961). In Amfac Foods v. Int'l Systems, 294 Or. 94, 99 n. 3, 654 P.2d 1092 (1982), we warned that because many appellate opinions are written with no view that they will be turned into instructions, care must be exercised in using the language of these opinions for instructions to juries. See also Thornburg v. Port of Portland, 244 Or. 69, 73, 415 P.2d 750 (1966).

Jury instructions should reduce the relevant law to terms readily grasped by the jury without doing violence to the applicable legal rule. Newbern v. Exley Prod. Exp. Co., 212 Or. 458, 470, 320 P.2d 678 (1958). In Williams v. Portland Gen. Elec., 195 Or. 597, 610, 247 P.2d 494 (1952), this court explained the aim of instructions:

"The parties to any jury case are entitled to have the jury instructed in the law which governs the case in plain, clear, simple language. The objective of the mold, framework and language of the instructions should be to enlighten and to acquaint the jury with the applicable law. Everything which is reasonably capable of confusing or misleading the jury should be avoided. Instructions which mislead or confuse are ground for a reversal or a new trial." ²

The error-of-judgment instruction has been criticized on several occasions. In Rayburn v. Day, 126 Or. 135, 268 P. 1002 (1928), the plaintiff took a very general exception to the instruction. The court perfunctorily disposed of the issue, declaring: "The exception having been no more specific, we believe that the court fairly instructed the jury upon the principles of law applicable to the problem before them." 126 Or. at 151, 268 P. 1002. The plaintiff in King v. Ditto, 142 Or. 207, 19 P.2d 1100 (1933), complained of an instruction that "[a] physician or surgeon practicing his profession is not liable for errors or mistakes of judgment." The court agreed that, although the instruction correctly stated the law, it was confusing and should not have been given:

"True, a physician and surgeon is not liable for error of judgment if the same is consistent with the exercise of reasonable care and diligence, but, if the defendants, in the use of the X-ray machine, failed to follow the formula relative to time of exposure universally accepted by the profession it will not do for them, in order to avoid liability, to say 'We exercised our best judgment'. To avoid liability, the judgment must be based upon the exercise of reasonable care and skill." 142 Or. at 217, 19 P.2d 1100.

The court reversed, concluding that "[t]he instructions, considered in their entirety, are subject to criticism * * *." 142 Or. at 218, 19 P.2d 1100.

Even after King v. Ditto, supra, the error-of-judgment doctrine lived on as a valid rule of substantive law, arising most frequently in the context of challenges to the sufficiency of evidence. See, e.g., Willard v. Hutson, 234 Or. 148, 160, 378 P.2d 966 (1963); Eckleberry v. Kaiser Foundation et al, 226 Or. 616, 626-27, 359 P.2d 1090 (1961) (dictum); Malila v. Meacham, supra, 187 Or. at 354, 211 P.2d 747. It appears, however, that this court has not addressed the propriety of the error-of-judgment instruction since King v. Ditto.

The Oregon Court of Appeals has since reviewed the error-of-judgment instruction and on at least one occasion found it wanting. In Ellis v. Springfield Women's Clinic, 67 Or.App. 359, 361, 678 P.2d 268, rev. den. 297 Or. 228, 683 P.2d 91 (1984), the plaintiff excepted to an error-of-judgment instruction which stated that " 'if the Defendants in good faith and in the exercise of reasonable care, erred in such judgment, then they would not be negligent.' " The court noted that although it had previously approved of the instruction in Roach v. Hockey, 53 Or.App. 710, 715, 634 P.2d 249, rev. den., 292 Or. 108, 642 P.2d 310 (1981), it now concluded that this approval was in error. It decided that the use of "good faith" in the instruction confused matters and had no place in an action for ordinary medical negligence. 67 Or.App. at 362, 678 P.2d 268.

Courts in several other jurisdictions have recently disapproved the use, either in whole or in part, of the error-of-judgment...