Opinion
No. 51037-1-I.
Filed: February 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-24235-2. Judgment or order under review. Date filed: 08/05/2002. Judge signing: Hon. Joan E DuBuque.
Counsel for Appellant(s), Lisa Marie Marchese, Stafford Frey Cooper, 601 Union St. Ste 3100, Seattle, WA 98101-1374.
Marcus B. Nash, Stafford Frey Cooper, 601 Union St. Ste 3100, Seattle, WA 98101-1374.
Counsel for Respondent(s), Nancy C. Elliott, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98104-7088.
Mary H. Spillane, William Kastner Gibbs, Two Union Square, 601 Union St. Ste 4100, Seattle, WA 98101-2341.
In a medical malpractice action, a plaintiff wishing to hold a physician to the standard of care of a specialist must show that the procedure involved was a specialized one. Here the record shows that the repair of torn veins is not so specialized that the defendant surgeon was not qualified to perform it, or should be held to the standard of care of a specialist. The trial court did not err in the instruction to the jury on the standard of care. Affirmed.
FACTS
After experiencing back pain for several years, Wanda David elected to undergo an anterior lumbar interbody fusion of the L4 and L5 vertebrae. Both Dr. Charles Oakley, a neurosurgeon who had previously advised Mrs. David, and Dr. Paul Schwaegler, an orthopedic surgeon, recommended the surgery and discussed the risks associated with the procedure. Dr. Oakley specifically discussed the risk of developing deep vein thrombosis (DVT), a blood clot which blocks the flow of blood through a deep vein. Dr. Oakley advised this condition could result due to manipulation of blood vessels during surgery, restriction of activity levels post operatively, and Mrs. David's weight.
Dr. Oakley performed the fusion of the vertebra and chose Dr. Mark Brakstad, a board certified general surgeon, to assist. Mrs. David's back pain was resolved. However, two days after surgery, Mrs. David developed DVT. Mrs. David testified that she now lives with constant painful swelling in her leg, uses a compression hose daily to reduce swelling, and takes a blood thinner to reduce the risk of further clotting. She testified that she can no longer be employed. Mrs. David sued Dr. Brakstad, asserting that he was negligent in sewing an iliac vein damaged during the surgery, thus narrowing the vein rather than performing a vein patch.
During trial, testimony established that Dr. Brakstad was present at the procedure to open the patient, expose the spine so that Dr. Oakley could perform the fusion, and be present to take care of complications. Dr. Oakley testified that he selected Dr. Brakstad because he thought he was the best of the surgeons who had assisted him on anterior lumbar interbody fusions and had selected him to assist with these operations on many occasions. Dr. Oakley testified that because of Dr. Brakstad's competence, he now worked solely with him on these types of surgeries.
Dr. Brakstad testified that he saw Mrs. David for the first time in the operating room. With Mrs. David lying on her back, Dr. Brakstad made an incision in her belly and dissected through skin, fat, and muscle. He then exposed the ureter and the left common iliac artery and vein, the major blood vessels which provide blood flow from the heart to the leg and back to the heart. Dr. Brakstad noted that the iliac artery and vein lay directly over the L4-L5 vertebrae. Dr. Brakstad was able to mobilize the artery to the side, but had to mobilize the vein upward toward the belly button.
When he first attempted to move the vein Dr. Brakstad observed a small rent, which he repaired with 4-0 silk suture. Dr. Brakstad then manually held the vein out of the way so that Dr. Oakley could work between the artery and the vein and perform the surgery. As Dr. Oakley removed instrumentation after the fusion, the left iliac vein was torn and began to bleed heavily. The bleeding from the tear was `quite brisk' and quickly filled up the area. Dr. Brakstad testified that this was a life-threatening emergency situation.
Dr. Brakstad responded to the emergency by calling for suction, and applied sponge sticks to control the bleeding, pinching the vein closed. Dr. Oakley then held the sponge sticks so that Dr. Brakstad could repair the vein. Dr. Brakstad testified that he considered his four options: tying off the vein, sewing up the vein, doing a vein patch, or adding a graft to the vein. Dr. Brakstad testified that attempting a vein patch was not his best option under the circumstances. He asserted that the extensive bleeding created an emergency situation, and while sewing the vein would take a few minutes, a vein patch would take much longer and would require Dr. Oakley to hold the sponge sticks completely still for up to an hour.
Dr. Brakstad testified that he chose to over sew the large rent in the vein using 4-0 and 3-0 silk sutures. Mrs. David remained stable throughout the procedure, which lasted about two minutes. She lost 750 milliliters of blood, half of which the doctors were able to return to her using a Cell-Saver which recycled the blood. After the repair, Dr. Oakley and Dr. Brakstad checked the vein using a Doppler, and observed that blood was flowing through the repaired vein.
Dr. Brakstad's post operative report indicated that after the repair, `approximately half the iliac lumen [the interior diameter of the vein] had been compromised.' However, although the vein was narrowed, Dr. Brakstad asserted it was still a good size with good blood flow. Dr. Brakstad further testified that although the repair reduced the diameter of the vein, he believed his quick response saved Mrs. David's life. Other experts at trial agreed.
Mrs. David was taken to recovery in stable condition. Sequential stockings and blood thinner were used during her recovery to reduce the risk of DVT. Nevertheless, two days after surgery, Mrs. David developed DVT. Dr. Brakstad ordered intravenous blood thinner and tests. Dr. Brakstad also consulted with a vascular surgeon about the possible surgical removal of the DVT. The vascular surgeon decided against surgical intervention. Dr. Brakstad continued to see Mrs. David on a daily basis until she was discharged eight days after surgery.
Mr. and Mrs. David sued Dr. Brakstad for negligence claiming that he deviated from his standard of care by failing to complete a vein patch, instead of over sewing the injured vein and thereby reducing its diameter. All of the experts who testified at trial agreed that the four options in such a situation were to ligate or tie off the vein, sew the rent, add a vein patch, or graft the vein. However, the experts disagreed about whether Dr. Brakstad's actions in over sewing Mrs. David's iliac vein violated the standard of care.
Dr. Zierler, a vascular surgeon, reviewed Mrs. David's medical records and testified on behalf of Mrs. David. He testified that he had repaired iliac veins before, and a surgeon who repairs an iliac vein should be careful not to narrow the vein by 50 percent or more so that the vein is not restricted and the patient does not develop DVT. Dr. Zierler asserted that Dr. Brakstad's notes, indicating that he reduced the iliac lumen by about 50 percent, really meant that Dr. Brakstad reduced diameter of the vein by 50 percent, thus reducing the lumen area by 75 percent. Dr. Zierler concluded that Dr. Brakstad's repair of the tear in the iliac vein fell below the standard of care because he failed to restore a normal sized vein lumen, and also because he failed to undo the primary repair and proceed with a vein patch afterwards.
Dr. Eickerman, a general surgeon who testified for the Davids, testified that most general surgeons were competent to repair a torn iliac vein. However, he agreed with Dr. Zierler that Dr. Brakstad's repair of the vein fell below the standard of care. Dr. Eickerman testified that Dr. Brakstad could have looped off or clamped the vein to control bleeding and added a vein patch, rather than narrowing the vein by sewing the rent. Like Dr. Zierler, Dr. Eickerman asserted that Dr. Brakstad's repair resulted in a 50 percent reduction in the diameter of the vein, and a 75 percent reduction of the lumen.
Dr. Quigley, a vascular surgeon who had a history of repairing iliac veins, testified for Dr. Brakstad. Dr. Quigley testified that general surgeons were qualified to do surgery on the vascular system and asserted that Dr. Brakstad had met the standard of care `in every respect.' He disagreed that a vein patch should have been done as it would have taken too long, caused clotting, and might have made the situation worse. He testified that clamping the vein could have torn it more. He also believed it would not have been reasonably prudent to undo the primary repair and do a vein patch since it would result in more complications. Dr. Quigley asserted that ligation was probably what he would have done in the circumstance, even though it would have definitely resulted in a DVT, and that Dr. Brakstad took a safer and more difficult approach.
Dr. Jurkovich, a general surgeon, testified that all general surgeons are certified to do surgery on the vascular system, and asserted that Dr. Brakstad met the standard of care in all factors. He further testified that the majority of injuries to iliac veins are repaired by ligation, or tying off of the vein. Dr. Jurkovich agreed that a vein patch should be used when the repair narrows the lumen and a surgeon does not want to tie off the vein, but emphasized that there were no advantages to a vein patch if the lumen was reduced by 50 percent or less. He also asserted that even if the vein lumen had been narrowed by more than 50 percent, a vein patch was not required and there were risks associated with any possible advantages.
Dr. Quigley testified that the injury itself increased the risk that Mrs. David would develop DVT regardless of what repair was used, and that taking the time to do a vein patch would have resulted in blood clotting below the repaired vein. Dr. Jurkovich also testified that more probably than not Mrs. David would have developed DVT even if a patch had been used. Both surgeons testified that Dr. Brakstad's decision to do a primary repair was reasonable and acceptable and within the standard of care. Both surgeons also disagreed with the Davids' experts' mathematics that concluded a 50 percent narrowing of the diameter of the iliac vein would result in a 75 percent reduction of the lumen.
Dr. Brakstad testified that injury to the iliac vein was a known complication of the surgery and, although he did not expect that an injury would occur during surgery, he and Dr. Oakley were prepared for any type of injury to the vein. Dr. Brakstad asserted that his experience included repairing veins and doing vein patches, and that he was both competent and qualified to repair the vein or do a vein patch if he thought one was necessary. However, Dr. Brakstad also testified he felt from his training and experience as a general surgeon that a vein patch after the repair of Mrs. David's vein was inappropriate because she had just had a major injury and excessive blood loss. He asserted that although the vein was narrowed by his repair, it was still a good size vein with good blood flow. Like Dr. Jurkovich and Dr. Quigley, Dr. Brakstad asserted that no matter what repair was attempted, Mrs. David was at risk for developing DVT solely due to the injury.
Prior to jury deliberation, the Davids argued that Dr. Brakstad had held himself out as a general surgeon with specialized expertise in the repair of deep vein injuries, thus he should be held to that standard or the standard of a vascular surgeon or a general surgeon with such specialized expertise. The Davids proposed an instruction that would have informed the jury that Dr. Brakstad was to be held to that standard. The court declined to give the instruction. The court commented that such an instruction would be `telling the jury that ordinarily vascular surgeons do this type of treatment for this condition, and the evidence is heavily disputed with regard to that.'
Instead, the court gave an instruction patterned after Washington Pattern Jury Instruction 105.01. This instruction informed the jury that Dr. Brakstad had a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent general surgeon in the state of Washington. Although the Davids objected, the court also gave a supplementary `error of judgment' instruction. After a day and a half of deliberation, the jury found no negligence and awarded costs to the doctor in the amount of $3,133.40.
6 Washington Pattern Jury Instructions: Civil 105.01, at 551-52 (2002).
The Davids appeal, asserting the trial court erroneously instructed the jury. They also argue that several trial discrepancies, including interruption of their case by defense witnesses, improper ex parte contact between opposing counsel and Mrs. David's treating physician, and improper comments by defense counsel during closing, cumulatively denied the Davids a right to a fair trial. The Davids had previously objected to, and sought relief from, these discrepancies at trial, but sanctions were denied.
DISCUSSION 1. Instructional Error.
Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the application law. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). An instruction that contains an erroneous statement of the applicable law is reversible error if it prejudices a party. Cox, 141 Wn.2d at 442.
The trial court here gave the following instruction:
A general surgeon owes to the patient a duty to comply with the standard of care for one of the profession or class to which he or she belongs.
A general surgeon has a duty to exercise the degree of skill, care and learning expected of a reasonably prudent general surgeon in the State of Washington acting in the same or similar circumstances at the time of the care or treatment in question. Failure to exercise such skill, care and learning constitutes a breach of the standard of care and is negligence.
The degree of care actually practiced by members of the medical profession is evidence of what is reasonably prudent. However, this evidence alone is not conclusive on the issue and should be considered by you along with any other evidence bearing on the question.
This instruction is based on Washington Pattern Jury Instruction (WPI) 105.01 and appropriately states that a health care provider must meet the standard of care of a `reasonably prudent' provider. However, the Davids argue that the court erred in giving this general standard of care instruction. They assert that the evidence at trial unquestionably established that some general surgeons are competent to do vascular surgery, while others are not. They further assert that Dr. Brakstad held himself out as a general surgeon with specialized technical skill to repair a torn iliac vein and perform a vein patch. Thus, they assert that Dr. Brakstad should have been held to the standard of a vascular surgeon or a general surgeon with expertise in vascular repair of deep veins, and the instruction should have reflected this. We disagree.
WPI 105.01.
Brief of Appellants at 17.
Brief of Appellants at 16-18.
It is improper to instruct a jury on the more general medical standard of care where a physician in question holds himself out as competent and qualified for a more specialized procedure or area of practice. However, `a party's theory of a case need not be the subject of an instruction unless the theory is supported by substantial evidence at trial.' As the trial court recognized, the Davids failed to show that only some general surgeons are qualified to do vascular surgery or that only vascular surgeons, or general surgeons with specialized training, perform this type of procedure.
See, e.g., WPI 105.02; Dinner v. Thorp, 54 Wn.2d 90, 97, 338 P.2d 137 (1959); Atkins v. Clein, 3 Wn.2d 168, 171, 100 P.2d 1 (1940).
Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 275, 796 P.2d 737 (1990).
Three expert witnesses testified that all general surgeons are trained to do vascular surgery. Dr. Eickerman, who testified for the Davids, also testified that most general surgeons were competent to repair a torn iliac vein. The record does not show that repair of a vein, or even repair of the iliac vein, is a specialty that most general surgeons do not have. The mere fact that Dr. Brakstad testified he felt competent to repair such an injury does not indicate that the repair involved an expertise that not all general surgeons have. The Davids failed to show at trial, or here, that repair of the iliac vein is a specialized procedure that a general surgeon possessing the vascular training of a general surgeon could not perform. Thus, we hold that the court did not err in giving a standard of care instruction that informed the jury that Dr. Brakstad was to be held to the standard of a reasonably prudent general surgeon under same or similar circumstances.
The Davids argue that the court erred in giving a supplemental `error of judgment' instruction. The instruction provided:
A physician is not liable for an error of judgment if, in arriving at that judgment, the physician exercised reasonable care and skill, within the standard of care the health provider was obliged to follow.
This type of instruction may be given by the trial court in conjunction with a properly given standard of care instruction, and we have determined that the standard of care instruction was properly given. However, a supplemental `error of judgment' instruction may only be given where the physician was confronted with a choice of techniques and there is evidence that, in arriving at a choice, the physician exercised reasonable care and skill within the standard of care he or she was required to follow. Such evidence existed here.
Watson v. Hockett, 107 Wn.2d 158, 166-67, 727 P.2d 669 (1986).
Christensen v. Munsen, 123 Wn.2d 234, 248-49, 867 P.2d 626 (1994); Watson, 107 Wn.2d at 165.
The Davids and their experts agreed that four potential options existed when the iliac vein tore: litigate, sew, patch, or graft. Thus, Dr. Brakstad was confronted with a range of choices with which to repair the injury. Further, Dr. Quigley and Dr. Jurkovich both testified that Dr. Brakstad, in deciding to sew rather than patch the vein, exercised reasonable skill and judgment as a general surgeon. Thus, sufficient evidence existed to support the giving of a supplemental `error of judgment' instruction.
Although other cases have indicated that an `error of judgment' instruction may confuse the jury, that does not seem to be the case here where the jury was properly instructed on the standard of care and substantial evidence existed to support the giving of the supplementary instruction. Therefore, we find that the court did not abuse its discretion in giving this instruction to the jury.
See, e.g., Ezell v. Hutson, 105 Wn. App. 485, 491, 20 P.3d 975 (2001).
2. Trial Irregularities.
The Davids argue that several trial irregularities cumulatively denied their right to a fair trial. They assert that these trial irregularities include interruption of their case by defense witnesses, improper ex parte contact between defense counsel and one of Mrs. David's treating physicians, and improper defense counsel comments during closing argument. We address each of these allegations in turn.
A. Presentation of witnesses.
Although a party's presentation of its case without interruption is the `preferred' method of procedure, parties do not have an absolute right to present their case without interruption. A trial court has the discretion to permit the interruption of a party's case when necessary for the convenience of litigants or the court. Further, the Davids apparently conceded to defense witnesses appearing several times during the presentation of their case before they objected.
Wilson v. Overlake Hosp. Med. Ctr., 77 Wn. App. 909, 913, 895 P.2d 16 (1995).
Wilson, 77 Wn. App. at 913.
Opening statements were given on June 26, 2002. Defense witnesses were called, without objection, on July 3 and July 9, during the presentation of the Davids' case. The Davids recognized then, as now, that they accommodated the court and opposing counsel during this time as a professional courtesy. On July 10, defense counsel reminded the court and the Davids' counsel that it had earlier informed them that Dr. Jurkovich and Dr. Silverman would soon be leaving town and needed to testify as early as possible. Counsel for the Davids then objected for the first time that the scheduling of defense witnesses interrupted the presentation of their case.
The court noted that it had nothing to do with how the parties originally agreed to schedule witnesses. It noted that the Davids were entitled to present their case, but asked if there were any alternatives because the doctors were leaving town. The Davids' counsel objected again to the interruption and stated that their next witness, although not a doctor, should be able to testify first. The court asserted that the Davids' witnesses would finish the testimony for the day and the following morning the Davids' next witness would testify first before the doctors testified for the defense. Courts are awarded considerable discretion in scheduling witnesses. This final witness scheduling by the court, after the Davids conceded other scheduling, was not an abuse of discretion.
Wilson, 77 Wn. App. at 913-14.
B. Alleged improper ex parte contact.
The Davids argue that defense counsel engaged in improper ex parte contact with Dr. Nancy Niles, Mrs. David's treating endocrinologist, and seek reversal of the jury verdict and the trial court's denial of sanctions on this issue. The Davids allege that defense counsel contacted Dr. Niles without permission and prepared an outline for her to use during her testimony. The Davids' attorney claimed to have seen the outline in Dr. Niles' possession during the trial and argued that she later admitted she possessed such an outline.
The Davids filed a motion for sanctions and to strike Dr. Niles' testimony six days after the alleged incident. The trial court denied the Davids' motion finding that the motion was not timely; that the scheduling contacts were not prohibited ex parte contact; that the court did not recall Dr. Niles admitting that she received an outline from defense counsel; and that Dr. Niles did not appear to be a hostile witness toward the Davids. The court offered to allow the Davids to supplement the record, or hold a post trial hearing or deposition to make a better record for appeal. Again the Davids asked for sanctions and submitted a copy of the transcript of their examination of Dr. Niles regarding the outline, but did not avail themselves of the court's other options.
Any unauthorized ex parte contact between defense counsel and a plaintiff's treating physician is forbidden. However, the portion of the report of proceedings to which the Davids direct this court's attention does not clearly indicate that Dr. Niles admitted having either improper ex parte contact with defense counsel, or possessed an outline prepared by defense counsel for her examination by the defense. In fact, the testimony shows that Dr. Niles denied knowing of such an outline.
Loudon v. Mhyre, 110 Wn.2d 675, 678-79, 756 P.2d 138 (1988).
Further, defense counsel asserts, as she did below during the Davids' motion for sanctions, that she had only contacted Dr. Niles to schedule her testimony. Defense counsel testified that she had an outline of her planned examination, but never gave it or showed it to Dr. Niles. She testified she had the outline in her hand when she took Dr. Niles' records to make copies of them. This is a plausible explanation for the incident and the Davids have not provided any other evidence of the alleged ex parte contact. There was no error.
C. Alleged misconduct during closing argument.
After in limine motions, the trial court specifically ordered defense counsel not to refer to Dr. Howell, an expert testifying regarding Mrs. David's ability to return to work, as an `independent expert witness' or state that he was `retained by or acting on behalf of any of the parties in the case.' However, while arguing the credibility of various witnesses during closing argument, defense counsel asserted:
There can be no argument that Dr. Niles and Dr. Jackson weren't telling the truth.
There can be an argument regarding Dr. Howell. Dr. Howell was a witness who the plaintiffs claim is a vascular surgeon. Dr. Howell is not even board certified in general surgery. He was grandfathered into general surgery because of his age. He has no different training than Dr. Brakstad. He has never even done the procedure that is at issue in this case. He examined Mrs. David on behalf of her attorneys.
The Davids moved to strike, arguing the comments misstated the evidence. The trial court declined the motion. After the jury retired, the Davids asked the court to sanction defense counsel for the remark, arguing that defense counsel had lied to the jury. The Davids requested a curative instruction, but did not have one to propose. The court declined the instruction, reasoning it would put more emphasis than necessary on the testimony. The court later declined to impose sanctions for the comments, asserting that it did not believe that the comments were ill-intentioned. Neither do we. Further, the Davids have not shown how this comment prejudiced their case and cite no authority to support their contention that a new trial is warranted because of the single comment by the defense attorney.
In sum, because the court did not err in giving its instructions, and because no errors occurred that would warrant a new trial, we affirm.
BECKER and COX, JJ., concur.