WPI 105.01 recites the following standard of care for a general health care provider:
A [type of health care provider] has a duty to exercise the degree of skill, care, and
learning expected of a reasonably prudent [health care provider] in the State of
Washington acting in the same or similar circumstances at the time of the care or
treatment in question.
The pattern jury instruction for a health care specialist (WPI 105.02) likewise focuses on what
a reasonably prudent specialist in the State of Washington would do under the same or
similar circumstances.
The problem is, despite the fact Washington state has almost 67,000 square miles, finding a
Washington doctor willing to testify against another doctor in a professional negligence case can
be exceedingly difficult. Although that still leaves 49 states as options, an out-of-state expert
may be vulnerable because he allegedly lacks the requisite familiarity with the in-state standard
of care. As shown by Elber v. Larson, 142 Wn. App. 243 (2007), however, this attack can be
neutralized if (1) the out-of-state expert is appropriately qualified and (2) the applicable
standard of care is a national one.
Since detailed facts in Elber v. Larson are sorely lacking, my synopsis will be
short-and-sweet.
In 2000, Spokane neurosurgeon Jeffrey Larson performed spinal surgery on Roger Elber, who later
developed paralysis. Though cognitively normal, Elber was wheelchair-bound and later died from
complications of his paralysis. His wife, Norma Elber, along with the couple’s adult children,
eventually sued Dr. Larson for damages in Spokane County Superior Court.
Dr. Larson responded by moving for summary judgment, arguing that Elber had shown no medical
negligence and also failed to provide the requisite expert testimony to support her claim. After
successfully moving to continue the hearing, Elber first deposed Dr. Larson and then secured a
declaration from Daniel Meub, a board-certified neurosurgeon who had practiced in either California
or Vermont since 1955.
According to Dr. Meub, after Mr. Elber displayed signs of spinal cord dysfunction following the
surgery, Dr. Larson waited 12 days before decompressing the spine. This was “below the standard of
care,” said Dr. Meub, who also opined that Mr. Elber wouldn’t have suffered permanent paralysis if
his spine had been emergently and adequately decompressed by Dr. Larson. Though Dr. Meub also said
his opinions were based on his knowledge, training, experience, and Mr. Elber’s medical records, he
nowhere mentioned in his declaration that he was familiar with the standard of care in Washington
State.
Elber submitted Dr. Meub’s declaration in opposition to the pending CR 56 motion. In his reply
brief, Dr. Larson argued that the out-of-state physician was not competent as a matter of law
because he had “no background, training, education or experience in Washington.” Siding with the
defense, the trial court summarily dismissed the complaint.
The widow timely moved for reconsideration, armed with a supplemental declaration from Dr. Meub,
who averred that:
· He had contacted medical colleagues in Washington to confirm the in-state practices were
no different from the standards of the American Board of Neurological Surgery.
· The standard of care for neurosurgeons performing spine surgery is a national standard.
· The medicine, anatomy and instrumentation, as well as the anticipated risks and benefits
of the surgery, are the same in California, Vermont and Washington.
· Through his education, experience, training and knowledge, he was aware of the standard
of care in Washington.
For unclear reasons, the trial court stuck to its guns and denied the motion for
reconsideration.
In the ensuing appeal, Elber contended that Washington has abolished the “locality rule,” and
that competent medical testimony doesn’t require knowledge of a particular local practice. Larson,
on the other hand, argued that Elber’s suit was properly dismissed because her expert failed to
affirmatively show he was familiar with the standard of care in Washington.
Preliminarily, the Court of Appeals (Division Three) noted that although the qualifications of
an expert and the admissibility of his opinions are usually left to the trial court’s discretion,
review is de novo when they are “part and parcel” of the summary judgment proceeding.
Division Three focused on two aspects of Dr. Meub’s testimony in his supplemental declaration:
(1) that he is familiar with the standard of care for neurosurgeons, and (2) that the standard of
care is a national one. The court continued:
In other words, the standard for a neurosurgeon doing this work in Washington is not any
different than the standard for a neurosurgeon doing this work in California, Vermont, or any
place else in the United States. Now, the necessary inference from this is that he is
familiar with the standard of care in Washington because the standard of care is a national
standard of care and he is familiar with that standard. And his assertion is not
contradicted. Dr. Larson does not suggest that the standard here in Washington is different.
142 Wn. App. at 247.
The court next discussed Pon Kwock Eng v. Klein, 127 Wn. App. 171 (2005), review
denied, 156 Wn.2d 1006 (2006), 1 whose
analysis it found “helpful.” In that malpractice case, the decedent died from a rare form of
meningitis that went undiagnosed. Granting summary judgment for the defendant neurosurgeon, the
trial court ruled that the plaintiff’s expert – an infectious disease specialist from Connecticut –
wasn’t competent to testify regarding the relevant standard of care. Division One reversed, holding
that the scope of the expert’s knowledge – not his “artificial classification by title” (i.e., his
specialty) – determined the admissibility of his testimony. In addition, the court emphasized how
plaintiff’s expert said his opinion was based on national standards of care for diagnosing and
treating meningitis.
In short, Elber ultimately got good news and bad news from the Court of Appeals.
On the negative side, the court rejected her claim that the “locality rule” has been abolished
in Washington. As expressed in our pattern jury instructions, the plaintiff in a professional
negligence case still must show what a reasonably prudent health care provider in the state of
Washington would have done under the same or similar circumstances. But on the plus side, since Dr.
Meub “is familiar with the standard of care in Washington because it is the same everywhere in this
country,” 142 Wn. App. at 249, Elber will have her day in court.
The lesson to be learned is that if you decide to investigate a potential malpractice case, a
threshold question to be addressed is whether the applicable standard of care is a national one. If
so, your universe of potential expert witnesses will have greatly expanded.
1 For a review of this case, please see my Appellate Spotlight column
appearing in the
October 2005 edition of Trial News.
