Harris v. Groth, 8796-7-I

• Decision Date: 17 May 1982
• Docket Number: No. 8796-7-I,8796-7-I
• Parties: Barbara HARRIS and Samuel V. Harris, Appellants, v. Robert C. GROTH, M.D., Inc., P.S., and Robert C. Groth and the marital community of which he forms a part; and Warren C. Lindblad, d/b/a Warren's Drugs, and the marital community of which he forms a part, Respondents.
• Court: Washington Court of Appeals

Page 876

31 Wn.App. 876

645 P.2d 1104

Barbara HARRIS and Samuel V. Harris, Appellants, v. Robert C. GROTH, M.D., Inc., P.S., and Robert C. Groth and

the marital community of which he forms a part; and Warren

C. Lindblad, d/b/a Warren's Drugs, and the marital community

of which he forms a part, Respondents.

No. 8796-7-I.

Court of Appeals of Washington, Division 1.

May 17, 1982.

Rehearing Denied June 16, 1982.

Olwell, Boyle & Hattrup, Lee Olwell, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Dewitt Williams, Merrick, Hofstedt & Lindsay, H. J. Merrick, Gary Eliasen Sidney Snyder, Seattle, for respondent.

CORBETT, Judge.

Plaintiff appeals a judgment of dismissal and order denying motion for new trial entered after a defense verdict. We affirm.

Plaintiff, Barbara Harris, has been treated since 1965 for chronic iritis, an inflammatory disease of the front portion of the eye. Plaintiff consulted the defendant, Dr. Groth in November 1976, at which time she was 42. He diagnosed her condition as iritis and followed the recognized treatment for the disease by prescribing Atropine and Maxitrol. Dr. Groth did not test her intraocular pressure. In most cases, during iritis the intraocular pressure remains low. In some cases, the patient responds to the steroid medication, Maxitrol, with increased intraocular pressure. On January 15, 1977, plaintiff was treated by Dr. Topinka, who administered a tonometer test and found her intraocular pressure to be normal. Plaintiff had been treated with steroid medication since 1965, and had not demonstrated any increase in intraocular pressure when tested by various physicians between 1965 and 1977. In early February, 1977, plaintiff returned to Dr. Groth. He noted some synechia or binding of the iris to the lens. On March 18, he performed emergency surgery for iris bombe, a complete binding of the iris to the lens. Plaintiff presently suffers severe visual impairment.

Plaintiff relies upon three theories of negligence. First, that Dr. Groth failed to exercise reasonable prudence, as required under the holdings of Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974), and Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919 (1979). Second, that Dr. Groth failed to use the skill, care and learning possessed by others in his profession. Plaintiff contends that steroids such as those prescribed by Dr. Groth can elevate intraocular pressure, which can produce optic nerve damage and permanent loss of vision, if sustained for a sufficient period of time. Accordingly, plaintiff argues under both theories that Dr. Groth was negligent in failing to monitor her intraocular pressure. The third theory of negligence is that Dr. Groth failed to fulfill his duty to disclose alternative diagnostic and treatment procedures to her, under the doctrine of informed consent.

The jury was instructed that the defendant Lindblad was negligent as a matter of law. As a registered pharmacist, he had mistakenly filled the prescription for Atropine with Isopto Carpine, a drug which was contraindicated for acute iritis because it had the effect of constricting rather than dilating the pupil. Despite plaintiff's contention that the substitution was a contributing factor or proximate cause of her vision loss, the jury found in pharmacist Lindblad's favor.

The first assignment of error is the trial court's limitation of testimony by plaintiff's expert, Dr. Fredric Harris. Dr. Harris was a research associate professor in the Department of Physiology and Biophysics at the University of Washington Medical School. Plaintiff made an offer of proof concerning Dr. Harris' intended testimony, which included the accepted methods of treating iritis, the diagnosis and treatment of glaucoma, and his opinion as to the proximate cause of plaintiff's injury. The trial court ruled that Dr. Harris could testify within his area of expertise i.e., physiology, and limited the testimony as follows:

Now, at the other end of the scale, when he tries to testify as to what is the responsibility of a physician when he observes certain signs, symptoms, or he hears certain complaints, I think that this is outside the scope of Dr. Harris' expertise.

... I think that when he tries to testify as to the proximate cause of any disease, or loss of vision of the plaintiff in this case, that he is outside of the field of his expertise. I think if he tries to testify to methods of treatment of a specific physical condition, that he is outside the field of his expertise.

In other words, it does not seem reasonable to me that a person who is not, who could not legally diagnose or treat a condition, should not be testifying as to how to diagnose or treat that condition.

The standard of care in a medical malpractice case is generally established only through the testimony of a physician. Keogan v. Holy Family Hospital, 95 Wash.2d 306, 325, 622 P.2d 1246 (1980). Medical testimony is required to establish the negligence of a physician unless the negligence is so apparent that a layman would have no difficulty in recognizing it. Huttner v. MacKay, 48 Wash.2d 378, 383, 293 P.2d 766 (1956); Hurspool v. Ralston, 48 Wash.2d 6, 7, 290 P.2d 981 (1955). Nor can the expert be called upon to give an opinion as to questions of mixed law and fact, e.g., whether Dr. Groth was negligent. 5 Meisenholder, Wash.Prac. § 356 (1979). The determination of expertise and admission of such testimony is largely within the discretion of the trial court and will not be disturbed on appeal, absent a showing of abuse. Talley v. Fournier, 3 Wash.App. 808, 814, 479 P.2d 96 (1970). We note that despite the court's ruling to the contrary, Dr. Harris did testify to methods of diagnosis and treatment of iritis and glaucoma and to possible causes of optic nerve damage, although he was careful not to diagnose the plaintiff's condition. The trial court acted within its discretion and did not err by placing the limitation upon Dr. Harris' testimony.

The second assignment of error raised by plaintiff is the trial court's failure to direct a verdict that Dr. Groth was negligent as a matter of law. In order to direct a verdict, the trial court must find that there is no competent evidence or reasonable inference which would sustain a jury verdict in favor of the nonmoving party. Shelby v. Keck, 85 Wash.2d 911, 913, 541 P.2d 365 (1975); Levy v. North American for Life & Health Ins., 90 Wash.2d 846, 851, 586 P.2d 845 (1978). There was testimony on behalf of Dr. Groth that he could not have prevented plaintiff's injuries. Specifically the jury could infer from the evidence presented that the plaintiff did not suffer optic nerve damage, her sight impairment was due to cataracts resulting from the disease of iritis, and tonometry would have shown normal intraocular pressure, until just prior to her iris bombe attack on March 18, 1977. There being substantial evidence to sustain a jury finding that Dr. Groth was not negligent, the trial court did not err by failing to direct a verdict.

Plaintiff next assigns error to failure of the trial court to instruct the jury concerning reasonable prudence as a standard of care. ¹ The requested instruction is substantially that approved in Gates v. Jensen, supra. It sets forth a standard of care, the scope and application of which is not clear. 15 Gonzaga L.Rev. 931, 938-39 (1980), Annot., 100 A.L.R.3d 1205, 1206 (1980). In the two cases that enunciated the rule of reasonable prudence, Helling v. Carey, supra and Gates v. Jensen, supra, the court dealt with the disease of glaucoma, and the testimony was undisputed that simple risk-free tests were available to timely diagnose the condition. Although plaintiff argues the existence of glaucoma in this case, there was substantial evidence to the contrary. The jury was properly instructed concerning the standard of care to be exercised by a specialist. ² We, therefore do not address the argument...