Victor Borst v. Patrick S. Lynch, Jr., et vir ( 2021 )

FILED
MARCH 11, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
VICTOR BORST, a single individual, )
) No. 36469-1-III
Appellant, )
)
v. )
)
PATRICK S. LYNCH, JR. and JANE ) UNPUBLISHED OPINION
DOE LYNCH, husband and wife and the )
marital community thereof, and )
NORTHWEST ORTHOPAEDIC )
SPECIALISTS, P.S., a Washington )
Corporation, )
)
Respondent. )
STAAB, J. — Victor Borst sued Dr. Patrick Lynch for medical negligence after an
MRI revealed a torn Achilles tendon following knee replacement surgery. The case went
to trial. Over Mr. Borst’s objections, the jury was given standard civil jury instructions
on the general standard of care and supplemental instructions that further defined the
standard of care. The jury returned a verdict for Dr. Lynch. On appeal, Mr. Borst
challenges two of the court’s jury instructions. First, he argues that the standard
instruction in 6 Washington Practice: Washington Pattern Jury Instructions: Civil
105.03, at 612 (7th ed. 2019) (WPI) is an incorrect statement of the law and should have
been altered. In addition, he contends that the court abused its discretion and commented
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on the evidence by including the “no guarantee” jury instruction. We disagree and affirm
the jury’s verdict.
FACTS
Dr. Patrick Lynch is an orthopedic surgeon in Spokane. Victor Borst was his
patient for several years, seeking treatment for ongoing knee issues. In September 2011,
Dr. Lynch performed a total knee replacement of Mr. Borst’s right knee. Following
surgery, Mr. Borst adhered to an intensive post-op physical therapy regimen.
Approximately two months after surgery, Mr. Borst told one of his physical
therapists that he had been experiencing pain in his right Achilles tendon since the surgery
but that it had lessened in the last week. This was the first documentation of any problems
with Mr. Borst’s Achilles tendon. Over the next several weeks, Mr. Borst complained of
pain in his Achilles tendon in varying degrees. One of his physical therapists, John
McKinnon, concluded in his treatment report that the pain in Mr. Borst’s Achilles tendon
was likely due to long-term knee flexion contracture prior to the knee surgery.
On December 1, three months after surgery, Mr. Borst told Dr. Lynch that he had
been experiencing Achilles pain since the surgery. Dr. Lynch made a note that the
Achilles might have been torn due to the foot’s position during surgery. This notation
became the impetus of Mr. Borst’s lawsuit against Dr. Lynch. A subsequent MRI
showed Achilles tendinosis with a small tear.
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At trial, Mr. Borst testified that he felt significant pain in his Achilles immediately
after surgery. Mr. Borst called a medical expert who testified that knee and leg
placement during surgery was critical: the surgeon must avoid placing the foot in a dorsal
flexion position to prevent stretching the achilles tendon. The expert further testified that
Dr. Lynch indicated in his notes that he had placed Mr. Borst’s foot in a dorsal flexion
position during surgery. The expert opined that this positioning fell below the standard
of care for surgeons and was most likely the cause of the injury to Mr. Borst’s Achilles
tendon. The plaintiff’s medical expert also testified that Dr. Lynch exacerbated the injury
with his ongoing failure to exercise appropriate care following the surgery.
Dr. Lynch called two of his own medical experts, who testified that the knee
replacement surgery did not cause Mr. Borst’s Achilles injury. Both experts testified that
Dr. Lynch used proper legal and foot placement during the surgery, and there was no risk
of tearing because the tendon is relaxed throughout the surgery. One expert also testified
that his review of Mr. Borst’s injury suggested a long-standing injury to the Achilles that
was present before surgery and aggravated by Mr. Borst’s increased mobility and
flexibility following surgery.
The parties submitted proposed jury instructions. Mr. Borst demurred to jury
instruction number 10, which mirrored WPI 105.03. Mr. Borst argued that the instruction
misrepresented the law and his burden of proof. Mr. Borst also objected to jury
instruction number 13, commonly referred to as the “no guarantee” instruction, WPI
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105.07, because the evidence did not support the instruction. Its inclusion would
therefore amount to an unconstitutional comment on the evidence. The court overruled
these objections and provided the instructions.
The jury returned a verdict for Dr. Lynch. Following denial of a motion for a new
trial, Mr. Borst appealed.
ANALYSIS
1. Is WPI 105.03 a misstatement of the law?
Mr. Borst assigns error to two of the trial court’s jury instructions. Specifically, he
argues that jury instruction number 10, which mirrors WPI 105.03, is a misstatement of
the law. “Legal errors in jury instructions are reviewed de novo.” Fergen v. Sestero, 182
Wn.2d 794, 803, 346 P.3d 708 (2015).
Mr. Borst contends that WPI 105.3 is an inaccurate statement of the law because
it requires him to prove that Dr. Lynch failed to follow the “applicable standard of care”
without defining that term. The challenged instruction reads:
In connection with the Plaintiff’s claims of injury resulting from
negligence, the Plaintiff has the burden of proving each of the following
propositions:
First, that the Defendant failed to follow the applicable standard of
care and was therefore negligent;
Second, that the Plaintiff was injured;
Third, that the negligence of the Defendant was a proximate cause of
the injury to the Plaintiff.
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If you find from your consideration of all of the evidence that each of these
propositions has been proved, your verdict should be for the Plaintiff. On
the other hand, if any of these propositions has not been proved, your
verdict should be for the Defendants.
Clerk’s Papers (CP) at 164 (emphasis added).
Mr. Borst contends that the law, RCW 7.70.040, requires him to prove that Dr.
Lynch failed to exercise the care, skill, and learning expected of a reasonably prudent
health care provider, not the applicable standard of care. Br. of Appellant at 15-16. We
disagree with this argument.
The basic elements of any negligence claim include duty, breach, causation, and
harm. Eelbode v. Chec Medical Centers, Inc., 97 Wn. App. 462, 984 P.2d 436 (1999).
Medical negligence causes of action are authorized by chapter 7.70 RCW. For purposes
of this case, RCW 7.70.030(1) requires Mr. Borst to prove that his “injury resulted from
the failure of a health care provider to follow the accepted standard of care.” The
“standard of care” is further defined in RCW 7.70.040(1), which requires a plaintiff to
prove causation by showing that the “health care provider ‘failed to exercise that degree
of care, skill, and learning expected of a reasonably prudent health care provider at that
time in the profession or class to which he belongs, in the state of Washington, acting in
the same or similar circumstances.’” Housel v. James, 141 Wn. App. 748, 758, 172 P.3d
712 (2007).
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In this case, the elements of Mr. Borst’s negligence claim, as provided in RCW
7.70.030, were set out in jury instruction number 10. The details, as provided in RCW
7.70.040, were set out in jury instruction number 9, which read:
A physician who holds himself out as a specialist in orthopedic
surgery has a duty to exercise the degree of skill, care, and learning
expected of a reasonably prudent orthopedic 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.
CP at 163 (emphasis added).
“Jury instructions are adequate if they are supported by substantial evidence, allow
each party to argue its theories of the case, and, when read as a whole, properly inform
the jury of the applicable law.” Housel, 141 Wn. App. at 758. Here, jury instruction
number 9, which mirrored WPI 105.02, adequately defined the applicable standard of
care for a physician who holds himself out as a specialist in orthopedic surgery. When
read as a whole, the instructions adequately informed the jury of the applicable law.
To the extent that Mr. Borst argues that the statute requires the judge, and not the
jury, to establish the applicable standard of care, he fails to cite any authority to
contradict significant precedent holding otherwise. See Collins v. Juergens Chiropractic,
PLLC, 13 Wn. App. 2d 782, 793, 467 P.3d 126, review denied, 196 Wn.2d 1027, 476
P.3d 567 (2020) (Generally, a plaintiff must establish the applicable standard of care and
proximate cause by medical expert testimony).
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We hold that WPI 105.03 is not a misstatement of the law.
2. Did the trial court abuse its discretion by giving the “no guarantee” instruction?
Mr. Borst also contends that the trial court erred by giving jury instruction number
13, the “no guarantee” instruction, because the evidence did not support this instruction,
and it constituted a comment on the evidence. A trial court’s decision on whether to give
a particular instruction is reviewed for abuse of discretion. Fergen, 182 Wn.2d at 802.
“The propriety of a jury instruction is governed by the facts of the particular case.” Id. at
803.
The trial court instructed the jury that “[a]n orthopedic surgeon does not guarantee
the results of his care and treatment. A poor medical result is not, by itself, evidence of
negligence.” CP at 167. This is often referred to as the “no guarantee” instruction. It is
used to supplement the standard of care instructions. Watson v. Hockett, 107 Wn.2d 158,
166, 727 P.2d 669 (1986). Similar to other supplemental instructions, it is proper when
supported by the evidence. Fergen, 182 Wn.2d at 803.
Mr. Borst contends that the evidence did not support giving the “no guarantee”
instruction because the parties in this case agreed that the knee surgery was successful.
Instead, the issue at trial was whether, during this surgery, Dr. Lynch placed Mr. Borst’s
leg and foot in a position that caused his Achilles injury. Thus, there was no evidence to
support a jury instruction that suggested an unexpected result from the surgery.
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As Dr. Lynch points out, however, the surgery and physical therapy did have a
poor medical result, i.e., an Achilles injury that may not have occurred but for the
surgery. This unexpected result was not necessarily the result of negligence. Instead, as
provided by the defense experts, the injury could have been a prior existing condition that
was unexpectedly aggravated by the surgery and physical therapy. Consequently, the “no
guarantee” instruction was supported by the evidence.
Mr. Borst also contends that since there was no evidence to support the “no
guarantee” instruction, giving the instruction amounted to an improper comment on the
evidence. He reasons that the only issue at trial was whether Dr. Lynch’s placement of
his foot during surgery caused his Achilles injury. If Dr. Lynch placed the foot and leg in
one particular position, he violated the standard of care and caused the injury. By
instructing the jury that there is no guaranteed result, the court is inferentially discounting
plaintiff’s theory of the case and thus, commenting on the evidence.
A similar argument was recently rejected by the Supreme Court in Fergen where
the Court addressed the “exercise of judgment” supplemental instruction. The dissent in
Fergen argued that this instruction should be discontinued in part because it tended to
overemphasize certain aspects of a defendant’s case, which might then subject the trial
judge to a charge of commenting on the evidence. Fergen, 182 Wn.2d at 818 (Stephens,
J., dissenting). The majority rejected this argument, noting that “instructions that inform
the jury of a party’s theory of the case are not necessarily harmful or incorrect. If a
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party’s theory of the case is supported by substantial evidence, he or she is entitled to
have the court instruct the jury on it.” Id. at 810.
Finally, Mr. Borst argues that, combined with the inaccurate statement of the law
in jury instruction 10, the “no guarantee” instruction improperly delegated a legal
question to the jury. Throughout this argument, as well as the argument above, Mr. Borst
fails to mention, much less analyze, how jury instruction number 9, which provided
details on the applicable standard of care, addresses any such concern. Because we have
found that instruction number 10 was not a misstatement of the law, we likewise reject
this argument.
Instruction number 10 was supported by the evidence and did not constitute an
improper comment on the evidence. The trial court did not abuse its discretion by giving
this instruction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________ _________________________________
Fearing, J. Pennell, C.J.
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