Samuelson v. Freeman

• Citation: 75 Wn.2d 894,454 P.2d 406
• Decision Date: 08 May 1969
• Docket Number: No. 38838,38838
• Parties: Eileen M. SAMUELSON, a single woman, Appellant, v. George FREEMAN and Jane Doe Freeman, his wife, Respondents.
• Court: United States State Supreme Court of Washington

Page 894

75 Wn.2d 894

454 P.2d 406

Eileen M. SAMUELSON, a single woman, Appellant, v. George FREEMAN and Jane Doe Freeman, his wife, Respondents.

No. 38838.

Supreme Court of Washington, En Banc.

May 8, 1969.

Schroeter & Jackson, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Seattle, for respondent.

HALE, Judge.

An intrinsic quality of imprecision found in the statute of limitations as it affects allegations of medical malpractice has emerged since our opinion in Ruth v. Dight, Wash., 453 P.2d 631 (1969), overruling Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954). This appeal is not likely to make the statute seem more precise.

Eileen Samuelson was injured in an automobile accident September 17, 1960, and taken immediately to Ballard Hospital in Seattle. Her family physician, Dr. Charles Day, reached the hospital shortly thereafter and, among other injuries, found a fracture of the right femur. He called in Dr. George Freeman as an orthopedic specialist to take charge of the case. Dr. Freeman confirmed Dr. Day's findings, diagnosed the injury as a subtrochanteric spiral fracture and assumed control of the treatment. Next day, September 18, 1960, he performed an open reduction of the break. After attaching metal plate and screws for fixation, he applied a plaster cast to immobilize the thigh and leg.

About 3 years and 7 months after the operation, plaintiff, April 1, 1964, brought this action against Dr. Freeman and his community alleging, at the outset--not negligence in the performance of the surgery, but--negligence during the 3-year period next preceding the commencement of the action in the examination, diagnosis, treatment and care, including negligent failure to diagnose and properly treat a bone infection. Defendants entered a general denial and pleaded the statute of limitations and contributory negligence as affirmative defenses.

Although initially asking damages in her complaint only for negligence occurring after April 1, 1961, plaintiff during trial sought a trial amendment to include negligence in performing the surgery of September 18, 1960, alleging in the proposed amendment that the doctor negligently used screws and plate of different metals which produced an electrolysis in the wound and caused a continuing injury during postoperative treatment. The learned trial judge denied the amendment and applied the 3-year statute of limitations in accordance with Lindquist v. Mullen, Supra, and instructed the jury that plaintiff could not recover for any negligence occurring before April 1, 1961.

From a judgment of dismissal entered on a verdict for the defendants and the order denying a new trial, the plaintiff appeals, specifying 31 assignments of error. We will discuss two points, the first relating to the multiplicity of instructions dealing with standards of care required of medical practitioners, and the second involving the statute of limitations in complaints alleging medical malpractice.

As to the first point, we are of the opinion that the jury was overinstructed on the subject of the standards of care and skill required of medical practitioners. Instructions 5, 6, 8, 9, 10 and 11 all in one way or another told the jury that a physician is held to and must apply an average of the skill ordinarily possessed by similar physicians; he is not required to possess the highest degree of skill, but must apply his average skill and learning with reasonable care; he is liable for failure to properly exercise that skill and is negligent if he fails to inform himself of his patient's condition, but if, having properly informed himself, he reaches a wrong conclusion, he is not liable for errors in judgment; a physician is not liable for malpractice in choosing one of two or more methods of treatment if his choice was based on honest judgment and was one of several of the recognized methods of treatment; a physician does not insure or guarantee a satisfactory result; lack of success in the treatment is in itself no evidence that the doctor failed to possess or exercise reasonable skill; a doctor should not be liable for an honest mistake in judgment if there was reasonable doubt as to the nature of the physical condition involved or reasonable doubt as to what should have been done according to the current standard of practice in the community; and, finally, that the defendant doctor should not be judged by after-acquired knowledge but only by circumstances then known to him or which should have been known in the exercise of ordinary skill.

The six instructions considered seriatum--even if singly correct--did in totality overemphasize the limitations upon the physician's liability. When considered as a whole--and instructions must be taken as a whole--they became argumentative in character and in sum overemphasized the physician's immunities and markedly diminished his responsibilities.

When the instructions as a whole so repetitiously cover a point of law or the application of a rule as to grossly overweigh their total effect on one side and thereby generate an extreme emphasis in favor of one party to the explicit detriment of the other party, it is, we think, error--even though each instruction considered separately might be essentially correct. Thus, if the instructions on a given point or proposition are so repetitious and overlapping as to make them emphatically favorable to one party, the other party has been deprived of a fair trial. We are, of course, not alluding to those minor redundancies or even casual repetitions which may inadvertently or unavoidably develop among the instructions, but refer rather to the extreme case where they overlap and are repetitive to such a degree that a court of review must find them palpably unfair.

This overweighing of the instructions is not likely to recur in the instant case because of the recent publication in this state of Washington Pattern Jury Instructions, 6 Wash.Prac. 105.00 and 105.01, which set forth possible instructions concerning standards of medical practice and seem to do so with fairness and reasonable brevity. Complementing these pattern instructions, and not to be overlooked, is the rule of this jurisdiction as stated in Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967): A qualified medical practitioner is required to exercise (at 79, 431 P.2d at 978)

that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances. This standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient.

The next question is to determine when, under the statute of limitations, the instant cause of action accrued. Confronted at the outset by an affirmative defense which would limit an action for medical malpractice to within 3 years 'after the cause of action shall have accrued,' RCW 4.16.010, ¹ 4.16.080(2), plaintiff, as earlier noted, initially sought recovery for negligence occurring in the course of treatment and not from the initial surgery September 18, 1960. She alleged negligence in the...