Harris v. Robert C. Groth, M.D., Inc., P.S.

• Decision Date: 28 April 1983
• Docket Number: No. 48870-3,48870-3
• Parties: Barbara HARRIS and Samuel Harris, Petitioners, 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 Supreme Court

Page 438

99 Wn.2d 438

663 P.2d 113

Barbara HARRIS and Samuel Harris, Petitioners, 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. 48870-3.

Supreme Court of Washington,

En Banc.

April 28, 1983.

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

Williams, Lanza, Kastner & Gibbs, Craig E. Kastner, Merrick, Hofstedt & Lindsey, Gary R. Eliasen, Sidney R. Snyder, Jr., Seattle, for respondents.

UTTER, Justice.

This is a medical malpractice action which presents two issues. The first, an issue which has received great attention in the past decade, is whether the conduct of a health care provider is to be measured against the standard of care practiced by the profession or against a standard of reasonable prudence. The second issue is whether a nonphysician may give expert medical testimony in a malpractice action. We hold that, as enacted by the Legislature, the standard of care imposed upon health care providers is one of reasonable prudence and that nonphysicians, if otherwise qualified, may give expert testimony in a medical malpractice case. Nonetheless, we affirm the trial court's refusal to give plaintiff's reasonable prudence instruction in the present case because it was not properly framed. We also affirm its limitation of nonphysician expert testimony as within its discretion to evaluate the qualifications of a proffered expert.

The plaintiff, Barbara Harris, has an intermittent history of an eye disease known as iritis. In November 1976, she had another attack and went to see the defendant physician, Robert Groth, on November 8. She saw him weekly through November 30, at which time her visits stopped.

As treatment for Ms. Harris' iritis, Dr. Groth prescribed topical corticosteroids (eyedrops) and systemic corticosteroids (pills). He also prescribed a drug called atropine In January 1977, Ms. Harris began to see flashing lights, wavy lines, and spider webs. She went to see Dr. Walter Topinka, one of Dr. Groth's associates, and he gave her an eye injection. Her visual problems continued, however, and in February Ms. Harris began to feel pressure centered in her right eye. She saw Dr. Groth on February 14 and he increased her medication. Despite this, the pain grew worse and Ms. Harris visited Dr. Groth again on March 8 and March 14. On March 18, Ms. Harris, in still worse pain, made an emergency visit to Dr. Arthur Wilson, another associate of Dr. Groth. Dr. Wilson tested Ms. Harris' intraocular pressure, ¹ found it to be extremely high, and diagnosed an acute glaucoma attack. (Glaucoma is an increase in fluid pressure in the eye which may result in damage to the optic nerve.) Ms. Harris was rushed to the hospital, where she underwent emergency eye surgery. Since that time, she has been hospitalized with eye problems on several more occasions and has suffered a severe deterioration in her vision with attendant psychological problems.

                in topical form.   Ms. Harris claims that she faithfully took these medications at least through March 1977, though Dr. Groth claims she could not have continually taken the systemic corticosteroids during this period because she did not have enough prescribed
                

At trial, Ms. Harris sought to develop several theories of negligence. One was based on the fact that Warren's Drugs, the drugstore owned by defendant Warren Lindblad, mistakenly provided Ms. Harris with a drug called isopto-carpine rather than the atropine actually prescribed. While atropine helps cure iritis by dilating the pupil, isopto-carpine constricts the pupil. For this reason, isopto-carpine should not be used by a patient with iritis.

Ms. Harris also sought to prove that Dr. Groth was negligent in failing to detect her glaucoma. Flashing lights and a feeling of pressure centered in the eye are common symptoms of glaucoma. In addition, steroids may induce glaucoma Ms. Harris also produced physician testimony that her intraocular pressure was probably excessive when she visited Dr. Groth on March 8 and March 14, 1977, that a pressure test would have detected this, and that action could have been taken to save her vision on either of those dates. Ms. Harris offered additional testimony regarding these facts by Professor Fredric Harris, a physiologist not licensed to practice medicine, but the trial court ruled that he was not qualified to give such testimony. Professor Harris was also prevented from testifying generally about the causes of and methods of treatment and diagnosis of medical conditions such as glaucoma and, in particular, was prevented from testifying that he also believed that the intraocular pressure of a patient on steroids should be regularly tested.

                in a small number of susceptible persons.   Two physicians testified that, because of this possibility, the intraocular pressure of any patient on steroids should be tested regularly.   Yet at no time did Dr. Groth test Ms. Harris' intraocular pressure.   The only time it was tested between November and March was when Ms. Harris visited Dr. Topinka in January.   At that time it was normal
                

Dr. Groth and Mr. Lindblad presented evidence countering that presented by Ms. Harris. Their evidence tended to prove that Ms. Harris' glaucoma attack was of a type known as closed-angle glaucoma which comes on in a matter of hours and would therefore not have been detected by intraocular pressure tests. Dr. Groth also sought to prove that his failure to perform pressure tests was not negligent.

The case was then submitted to the jury. The court ruled Mr. Lindblad negligent as a matter of law but refused to make such a ruling with respect to Dr. Groth. The court also refused to give several of Ms. Harris' proposed instructions, including her proposed instruction 5. That instruction read:

Irrespective of whether you find that defendant Groth met or failed to meet the applicable standard of care followed by practicing ophthalmologists in the diagnosis of Clerk's Papers, at 36. Instead the court gave the traditional instruction stating the standard of care to be established medical practice.

                glaucoma, if you find that plaintiff Barbara Harris had glaucoma and that the statistical risk of sight loss from glaucoma is serious enough in cases such as Barbara Harris' that reasonable prudence under the circumstances required the administration of additional diagnostic tests before March 18, 1977, you are instructed that failure to perform those tests before that date would constitute negligence.   In determining whether reasonable prudence would require giving the tests in question, you should consider, among other facts, the cost, ease or difficulty of administration, risk to the patient and relative reliability of the tests in question
                

The jury rendered judgment against Ms. Harris and she appealed on several grounds. The Court of Appeals, Division One, affirmed ( Harris v. Groth, 31 Wash.App. 876, 645 P.2d 1104 (1982)) and Ms. Harris sought review by this court on the two issues noted above. Her petition for review did not raise any of the other issues raised before the Court of Appeals and those issues are thus not before us here. See RAP 13.7(b).

I

A

Traditionally, the standard of care demanded of physicians has been conformance to the standard of the profession. See 51 Wash.L.Rev. 167, 169 (1975); W. Prosser, Torts § 32, at 165 (4th ed. 1971). This contrasts with the rule applied in most negligence cases that compliance with custom, while strong evidence of reasonable care, is not dispositive. See, e.g., Blood v. Allied Stores Corp., 62 Wash.2d 187, 193, 381 P.2d 742 (1963); W. Prosser, supra § 33, at 166-68.

In 1974, we broke with the traditional medical malpractice rule in Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981, 67 A.L.R.3d 175 (1974). In that case, the defendant physician failed to perform a glaucoma test which was simple, harmless, and relatively inexpensive and which involved no Our decision in Helling, as well as several concurrent decisions in other areas of medical malpractice law, aroused great controversy. Bohrnsen & Ryan, Tort Law in Washington: A Legal Chameleon, 11 Gonz.L.Rev. 73, 87-88 (1975). While some viewed Helling as limited to its own unique facts, others viewed it as generally applicable. See 51 Wash.L.Rev. 167, 175-76, 183-84 (1975). Apparently fearing the worst, health care providers sought aid from the Legislature in reversing what they viewed as an unjustified judicial intrusion into health care; however, other groups put up a stiff resistance. See, e.g., Read, Medical Malpractice Bill Drafted by Doctors, Seattle Post-Intelligencer, Jan. 1, 1976, at A1. Out of the fray rose several bills which dealt exhaustively with most aspects of medical malpractice. See Laws of 1975, 2d Ex.Sess., ch. 56; Laws of 1975, 1st Ex.Sess., ch. 114; Laws of 1975, 1st Ex.Sess., ch. 35. One of those areas was the standard of care to be applied in actions for professional negligence. See Laws of 1975, 2d Ex.Sess., ch. 56, § 9, codified as RCW 7.70.040; Laws of 1975, 1st Ex.Sess., ch. 35, § 1, codified as RCW 4.24.290.

                judgment factor.   Helling, 83 Wash.2d at 518, 519 P.2d 981.   We held that, regardless of customary medical practice, reasonable prudence required that the test be given and that failure to give the test was negligence, as a matter of law
                

The language of these statutes is somewhat ambiguous. The prevailing view among the commentators has been that they were intended to overrule our decision in Helling and reestablish in toto the traditional standard of care. See, e.g., Physicians and Surgeons: Standard of Care, 15 Gonz.L.Rev. 931, 939-40 (1980); 51 Wash.L.Rev. 167, 168 (1975). In Gates v. Jensen, 92 Wash.2d 246, 595 P.2d 919 (1979), however, we rejected the contention that RCW 4.24.290 had overruled Helling. Gates, 92 Wash.2d...