Opinion
No. 61132-1-I.
April 20, 2009.
Appeal from a judgment of the Superior Court for Skagit County, No. 04-2-01561-1, Dave Needy, J., entered December 7, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Schindler, C.J., and Leach, J.
UNPUBLISHED OPINION
The Bartletts appeal the denial of their motion for new trial. They argue that the jury instructions did not properly state the duty of a physician to impart material information to parents about the likelihood of an unborn child's birth defects. Because the contested jury instruction accurately described the physician's duty, we affirm the denial of plaintiffs' motion for new trial.
FACTS
Dr. Robert Rieger, a family practice doctor, provided care to Vanessa Bartlett throughout her pregnancy; his examinations revealed a normal pregnancy. On November 15, 2001, Mrs. Bartlett had a blood draw for a Triple Screen test, which tests for Down syndrome, open neural tube defects, and Trisomy 18. The test came back negative.
On December 18, 2001, Dr. Rieger discussed the results of the Triple Screen with Mrs. Bartlet and her husband, Jeremy. He explained that it was not 100 percent accurate, and told them that they could opt for amniocentesis, a more accurate test for ruling out birth defects. The Bartletts did not request amniocentesis. Lorenzo was born with spina bifida, Arnold-Chiari II brain malformation, and club feet. The Bartletts testified that had Lorenzo's conditions been revealed, they would have chosen to terminate the pregnancy.
The Bartletts, on their own behalf and on behalf of their son, Lorenzo Bartlett, brought claims against Dr. Rieger for wrongful birth and wrongful life. Much of the factual disagreement between the parties concerns the alleged request for a second trimester ultrasound to screen for birth defects. The Bartletts testified that they asked Dr. Rieger for the ultrasound, and that he refused. Dr. Rieger testified that the Bartletts did not make the request, and none of his patient records show that they made the request.
The parties also disputed whether the standard of care required Dr. Rieger to offer a second trimester ultrasound. The Bartletts presented expert testimony that the standard of care includes a second trimester ultrasound to screen for birth defects. Dr. Rieger presented expert testimony that the standard of care does not include a second trimester ultrasound. The jury returned a verdict in favor of Dr. Rieger, finding no evidence of negligence.
The Bartletts appeal the court's refusal to give their proposed jury instruction articulating that Dr. Rieger had a duty to inform them of potential defects to preserve the parents' choice to terminate, and the court's denial of their motion for new trial. They also appeal the trial court's ruling that diminished earning capacity is not a recoverable special damage in a wrongful life action.
DISCUSSION
I. Jury Instruction
The trial court has discretion whether to give a particular instruction to the jury, and a trial court's refusal to give a requested instruction is reviewed for abuse of discretion. Stiley v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996). If a ruling on a jury instruction is founded on an erroneous understanding of the law, review is de novo. Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006). Jury instructions are proper if they allow the parties to argue their theories of the case, do not mislead the jury, and when read as a whole properly inform the jury of the applicable law. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000).
The Bartletts contend that the trial court erred when it failed to give their proposed jury instruction, which would have instructed the jury: "Parents have the right to prevent the birth of a child with birth defects and physicians have a duty to preserve that right." They argue that, because Harbeson v. Parke-Davis, Inc. stated that a physician has a duty to protect a patient's right to prevent the birth of a defective child, the jury instructions should have specifically articulated that duty. 98 Wn.2d 460, 462, 656 P.2d 483 (1983) (where the Washington Supreme Court recognized the causes of action for wrongful birth and wrongful life). The trial court refused to give the instruction, explaining that it would have constituted a comment on the evidence. The pattern instruction was given instead. 6 Washington Practice: Washington Pattern Jury Instructions: Civil 105.02, at 559 (5th ed. 2005) (WPI).
Dr. Rieger responds that the jury instructions were adequate and that the Bartletts' proposed instruction was not proper, because it merely lifted language from Harbeson's discussion of why the court would recognize wrongful birth and wrongful life claims, and was not meant as a jury instruction.
The underlying tension between the parties' arguments is whether Harbeson created a duty requiring articulation to the jury beyond traditional medical negligence instructions. In Harbeson, the court's recognition of wrongful life and wrongful birth claims stemmed from an analysis of how these claims would fit into the medical negligence framework. Harbeson, 98 Wn. App at 472-76. It described the duty owed as the relevant standard of care, breach of that duty as a failure to conform to the appropriate standard of care, injury, proximate cause, and damages. Id. In its discussion of duty, the Court stated:
[W]e hold that parents have a right to prevent the birth of a defective child and health care providers a duty correlative to that right. This duty requires health care providers to impart to their patients material information as to the likelihood of future children's [sic] being born defective, to enable the potential parents to decide whether to avoid the conception or birth of such children. If medical procedures are undertaken to avoid the conception or birth of defective children, the duty also requires that these procedures be performed with due care.
Id. at 472.
The Bartletts' proposed instruction mirrored a portion of the court's articulation of a physician's duty, but lifting language from an appellate opinion not intended as a jury instruction does not necessarily make for a proper jury instruction. See, e.g., Swope v. Sundgren, 73 Wn.2d 747, 750, 440 P.2d 494 (1968) (explaining that the court's language is not designed or intended as a model for jury instructions); Wendt v. Dep't of Labor Indus., 18 Wn. App. 674, 682, 571 P.2d 229 (1977) (language intended as an explanation for the holding was not for use as an instruction).
Harbeson's reasoning considers whether the wrongful birth and wrongful life claims fit into the well established medical negligence framework. 98 Wn.2d at 472-76. Because they do, the court more readily recognized them. The court in Harbeson stated that physicians have a duty to protect the choice of the parents to terminate, as part of its rationale for adopting such a claim as wrongful birth, and in so doing, describing the scope of the duty. Id. at 472. However, this does not render the duty owed in a wrongful birth claim somehow distinct from the duty owed in any other medical negligence claim. Rather, the standard of care inquiry encompasses the physician's specific duty to preserve the parents' right to terminate a defective child.
Courts confronted with wrongful birth actions since have treated them as medical negligence suits requiring no special articulation of the duty owed. In Stewart-Graves v. Vaughn, the court characterized Harbeson's holding as allowing wrongful birth under the theory of negligence, "based on a health care provider's failure to impart information or to perform medical procedures with due care, when the proximate result is the birth of a child with deficits." 162 Wn.2d 115, 129, 170 P.3d 1151 (2007). And In State v. Quimby, the court classified the plaintiffs' wrongful birth action as a liability theory of medical negligence, with no discussion about a distinct duty. 45 Wn. App. 175, 178-79, 724 P.2d 403 (1986).
The sole issue in the Bartletts' wrongful birth claim was whether Dr. Rieger had breached the standard of care by not conducting a second trimester ultrasound to screen for birth defects. The jury had to decide whether Dr. Rieger met the standard of care, after hearing expert witnesses explain the standard of care for birth defect screening. In deciding whether Dr. Rieger met the standard of care, the jury would implicitly determine whether he had preserved the parents' choice to terminate.
The jury instructions given allowed the Bartletts to argue their theory of case: that they had a right to know of potential birth defects, a right to terminate the fetus up to 24 weeks, and that Dr. Rieger did not perform the proper tests. Jury instruction 8, consistent with WPI 105.02, which describes the elements of negligence of a specialist health care provider, and the Bartletts' proposed instruction, defined standard of care: "A family practice doctor treating an obstetrical patient has a duty to exercise the degree of skill, care and learning expected of a reasonably prudent obstetrician in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question." Jury instruction 8 defined breach as failure to exercise the skill, care, and learning consistent with the standard of care. Jury instruction 11 stated, "[t]ermination of pregnancy is legal until the fetus reaches 24 weeks of gestation.
The parents have the right to prevent the birth of a child with birth defects if they so choose until that time." Moreover, the Barletts had ample opportunity at trial to discuss Dr. Rieger's duty to preserve their choice to terminate — its absence from the jury instructions does not suggest otherwise.
Additionally, the instructions did not mislead the jury, and, when read as a whole, properly informed the jury of the process for deciding a medical negligence case. In determining whether Dr. Rieger discharged his duty, the jury had to decide whether he met the standard of care, as defined by the jury instruction given, based on the conflicting expert witnesses' testimony about whether the standard of care required a second trimester ultra sound. The Bartletts' contention that the duty to preserve the parents' choice to terminate was somehow a distinct duty is untenable: absent the standard of care framework the jury would be free to speculate whether that duty had been met.
The court did not abuse its discretion in refusing to give plaintiff's proposed instruction.
Citing to a passage from Van Hook v. Anderson, 64 Wn. App. 353, 357-58, 824 P.2d 509 (1992), that distinguishes the legal duty of care and the medical duty of care, the Bartletts further assert that, because Harbeson created a "new and particular legal duty of care, it was error for the court to fail to instruct on it." Anderson explained that the medical standard of care is "evidential but not conclusive with regard to what constitutes reasonable prudence," whereas the legal duty of care is that "which would be exercised by a reasonably prudent doctor." 64 Wn. App at 357-58. As the court explained, they are similar but not identical concepts. Id. The Bartletts contend that, because Dr. Rieger testified that the medical standard of care did not include the second trimester ultrasound, the jury would be free to conclude that it was not Dr. Rieger's legal duty to provide the ultrasound either. This argument is not persuasive, because the jury was instructed consistent with the distinction that the Bartletts discuss. Jury instruction 8 explained and defined the standard of care, and then stated that "this [standard of care] evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question."
II. Motion for New Trial
A court's ruling on a motion for new trial is reviewed for abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). Abuse of discretion in the context of reviewing a decision on a motion for new trial has a distinct meaning: whether a feeling of prejudice has been engendered in the minds of the jury so as to preclude a fair trial. Id.
The Bartletts assert that the trial court's refusal to give the proposed jury instruction on the physician's duty to preserve their right to terminate the pregnancy of a child with birth defects is grounds for a new trial. The jury instruction issue was the sole issue presented in the Bartletts' motion. Because the jury instructions were proper, the court did not abuse its discretion by denying the Bartletts' motion for new trial.
Because we find no basis for remand, we do not reach the issue of lost earning capacity.
We affirm.
WE CONCUR: