Mitchem v. Morgan, 93-2-01246-3

• Decision Date: 29 January 1999
• Docket Number: 93-2-01246-3
• Citation: 137 Wn.2d 1037,980 p.2d 1284
• Court: Washington Court of Appeals
• Parties: <PartyHeader> VIRGINIA M. MITCHEM, RESPONDENT, v. BRUCE J. MORGAN, D.P.M., APPELLANT. </PartyHeader>

[1]
[2]	VIRGINIA M. MITCHEM, RESPONDENT,; v.; BRUCE J. MORGAN, D.P.M., APPELLANT.
[3]	No. 20994-2-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Cowlitz County Docket No: 93-2-01246-3 Judgement or order under review Date filed: 06/27/1996 Judge signing: Hon. Randolph Furman
[6]	January 29, 1999
[7]	Counsel: Counsel for Appellant(s) Gary R. Eliasen Attorney At Law 710 9th Avenue Seattle, WA 98104-2017 David A. Roberts Attorney At Law 17791 Fjord Dr NE #114 PO Box 2760 Poulsbo, WA 98370 Counsel for Respondent(s) Evelyn M. Conroy Jolles Bernstein & Garone 721 SW Oak 2nd Fl Portland, OR 97205 Bernard Jolles Jolles Bernstein & Garone 721 SW Oak Street Portland, OR 972053791
[8]	The opinion of the court was delivered by: Houghton, J.
[9]	Judges: Authored by Elaine M. Houghton Concurring: J. Dean Morgan Carroll C. Bridgewater
[10]	[Editor's note: originally released as an unpublished opinion]
[11]	Dr. Bruce J. Morgan appeals from a jury verdict*fn1 against him and in favor of Virginia Mitchem on grounds of trial court error in evidentiary rulings, commenting on the evidence, and instructing the jury. We affirm.
[12]	FACTS
[13]	Mitchem is a retired 66-year-old woman with a severely deformed left foot.*fn2 She has suffered from foot problems since approximately 1950. Before having surgery performed by Dr. Morgan, Mitchem managed her pain by shaving her bunions and slitting open her left shoe to accommodate the bunion. Her activities were limited; she was able to perform only light housework but could ride horseback periodically.
[14]	Mitchem's family physician referred her to Dr. Morgan in October 1990. At that time, she had a grade-six bunion, degenerative joint disease, dislocations, and calluses; her big toe turned in and crossed her second and third toes, which curled under. After discussing various treatment options, Dr. Morgan performed a modified Hoffman/Clayton surgical procedure on Mitchem's left foot on November 16, 1990. He removed the main joint of Mitchem's big toe and replaced it with an artificial joint. He also removed the metatarsal heads of her second, third, and fourth toes. After the surgery, Dr. Morgan splinted and wrapped the left foot for stabilization.
[15]	Mitchem's foot deformities recurred shortly after the surgery. By the end of November, the big toe began to cross the smaller toes, and the artificial joint was out of alignment. The smaller toes began to point upwards. Mitchem could walk only on her heel and developed pain throughout her foot.
[16]	In March 1993, Mitchem consulted with Dr. Virgil Gene Livingston, who referred her to Dr. Theodore Scott Woll of Portland. In March 1994, Dr. Woll amputated all of Mitchem's toes.
[17]	In November 1993, Mitchem sued Dr. Morgan for medical malpractice. Dr. Morgan denied that his treatment fell below the standard of care and asserted contributuory negligence. He produced evidence showing that Mitchem's post-operative deformities were due to either her non-compliance with his post-operative instructions, a natural recurrence of her preoperative deformities, or both. Dr. Morgan also attempted to prove that Mitchem's general damages were caused at least in part by a November 1991 automobile accident.
[18]	Doctors Livingston, Woll, and Sigvard Hansen testified as Mitchem's experts at trial. Dr. Livingston testified that Dr. Morgan's care fell below the standard expected because he used an artificial joint for the big toe, and he failed to stabilize the big toe joint and pin the second, third, and fourth toes to hold them in place. He opined that the foot could have been saved had those procedures been followed. On cross examination, he stated that, generally, not pinning the toes after removing the metatarsal heads might meet the standard of care in California, but does not meet the standard in Washington. He asserted that not pinning the toes causes severe contraction.*fn3
[19]	Dr. Woll testified that Dr. Morgan fell below the standard of care in using an implant, by failing to fuse the big toe and pin the middle toes, and by removing the second, third, and fourth metatarsal heads without removing the fifth. He also testified that had the proper procedures been followed, amputation would not have been necessary. On cross examination, he admitted that splinting and wrapping externally instead of pinning the toes internally was an older stabilization technique that would not necessarily fail to meet the standard of care. But he asserted that, in light of Mitchem's severe deformities, it did not meet the standard of care in her case. He acknowledged that some medical articles advocate foot-wrapping, such as Dr. Morgan did, as an accepted practice. He also acknowledged that some individuals might advocate using an implant in a foot like Mitchem's. He never testified that such techniques met the standard of care for Mitchem's foot.
[20]	Mitchem's other expert, Dr. Hansen, testified as to the proper standard of care: "{E}ven though we all agree that basically the standard is the same for everyone, the exact standard for this problem varies . . . to some degree between individuals." When asked whether there were multiple possible methods to treat Mitchem, he replied: "Certainly a number of people would have . . . taken care of that in different ways." He further testified: "{A} standard of care is not related to procedure. It's related to . . . giving a percentage outcome to a patient no matter what the problem is." When asked whether Dr. Morgan breached that standard of care, Dr. Hansen replied, "I believe this is somewhat below a standard of care." He listed several respects in which Dr. Morgan fell below the standard: (1) the surgery chosen by Dr. Morgan is usually used only for rheumatoid patients (Mitchem was not rheumatoid) because it leaves a serious disability; (2) removing the second, third, and fourth metatarsals without removing the fifth creates an unequal weight distribution on the foot; and (3) using an implant without fusing the big toe makes it likely that the toe will revert to its original position.
[21]	In addition to his other qualifications, Dr. Hansen is an examiner for the American Board of Orthopedic Surgery, testing applicants who wish to specialize in foot and ankle surgery. On this basis, Dr. Hansen suggested that Dr. Morgan did not have enough skill to fix Mitchem's foot.*fn4 The trial court overruled defense counsel's objection to this testimony. Dr. Hansen also testified that Mitchem likely had a tight heel cord because similar patients usually did. He suggested that Dr. Morgan was negligent in not lengthening the heel cord. He admitted that he had no documentation to support this proposition, and that he was merely speculating.*fn5 When asked later whether it was below the standard of care not to lengthen the heel cord, Dr. Hansen answered: "I can't be sure without having seen her before the case." On cross examination he repeated that he did not know whether she had a tight heel cord. But he believed that she did because a majority of people with her foot problems do, and most doctors do not know how to diagnose it. Dr. Morgan objected to this testimony on the ground that Dr. Hansen never examined Mitchem himself and had laid no foundation for the testimony other than general experience.
[22]	On cross examination, Dr. Hansen conceded that use of an implant such as Dr. Morgan could fall within the standard of care, provided the surgeon removed all five metatarsal heads. He maintained that the procedure performed by Dr. Morgan was below the proper standard of care. Dr. Morgan also presented three experts, Drs. Lawrence Michael Oloff, William Turner, and Stephen J. Miller. Dr. Oloff testified that Dr. Morgan was qualified to perform surgery on Mitchem. He opined that Dr. Morgan properly performed the surgery. He testified that not removing the fifth metatarsal head, using an implant, and splinting and wrapping the foot instead of pinning the toes were within the standard of care. But he testified that had he performed the surgery, he would have fused the big toe rather than using an implant, pinned the middle toes rather than splinting, and removed all five metatarsal heads.
[23]	Dr. Turner also testified that Dr. Morgan's procedure was within the standard of care, but, personally, he would have fused the big toe, pinned the middle toes, and he might have removed the fifth metatarsal head. Dr. Miller agreed that Dr. Morgan's treatment was within the standard of care. At the close of trial, Dr. Morgan moved for a directed verdict based upon the "respectable minority opinion doctrine." The court denied the motion. Dr. Morgan excepted to the Judge's refusal to give several of his proposed jury instructions. Instruction No. 2, patterned upon WPI 20.01 (Issues Instruction), outlined six of plaintiff's negligence theories, but included only one defense theory (comparative negligence) in addition to a general denial of liability. The defense proposed two additional "affirmative defenses" that were excluded: (1) plaintiff was compensated for some or all of her injuries in the 1991 arbitration settlement; and (2) plaintiff's foot deformity naturally recurred after the surgery.
[24]	Defendant also proposed four instructions regarding Mitchem's 1991 car accident injuries. These proposals would have instructed the jury not to award against Dr. Morgan any damages that were attributable to the car accident, and that Mitchem had the burden of proving which injuries resulted from which incident.
[25]	Before deliberations, the jury was given a special verdict form. The parties had previously stipulated that Mitchem's economic damages were $8,229.20. The court, over defendant's objection that it was a comment on the evidence, wrote in this amount on the special verdict form before giving it to the jurors. The jury awarded $450,000 in general damages and $8,229.20 in special damages. The jury attributed 23 percent comparative

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