WPI 105.02 Negligence—Health Care Provider—Specialist

A(fill in type of health care provider)who [holds himself or herself out as a specialist in(fill in type of specialist)] [assumes the care or treatment of a condition that is ordinarily treated by a(fill in type of specialist)] has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent(fill in type of specialist)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.

Use this instruction together with WPI 105.01 (Negligence—General Health Care Provider) if the jury must decide whether a particular health care provider, such as a physician, surgeon, dentist, chiropractor, or other health care professional is a specialist, claimed to be a specialist, or provided care or treatment within the exclusive province of a specialist. If there is no dispute whether the practitioner is a specialist, use WPI 105.01 (Negligence—General Health Care Provider).

Use bracketed material as applicable. If more than one specialty is involved, fill in the blanks and use bracketed material to designate the appropriate specialty or specialties or use separate instructions for each specialty.

Do not use WPI 10.01 (Negligence—Adult—Definition). The ordinary definition of negligence should not be used in a malpractice case.

A specialist is held to the standard of care possessed by other members of that specialty. It is error not to give an instruction that so indicates. Dinner v. Thorp, 54 Wn.2d 90, 338 P.2d 137 (1959); Atkins v. Clein, 3 Wn.2d 168, 100 P.2d 1 (1940).

The standard of care required of professional practitioners must be established by the testimony of experts who practice in the same field. See McKee v. American Home Products, Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989) (the standard of care of a pharmacist practicing in Washington was not established by an affidavit of an Arizona physician); Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 770 P.2d 182 (1989) (pharmacist not competent to testify on the physician's standard of care for treatment using medication).

In Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. 266, 796 P.2d 737 (1990), the court stated that an instruction stating that a family practitioner who holds himself out “as qualified to provide pediatric care … has a duty to possess and exercise the degree of skill, care and learning of a reasonably prudent family practitioner in the State of Washington” was a “flat” misstatement of the law and error, though harmless under the facts of the case. The court said that the instruction deprived the jury of the determination whether the doctor should be held to the standard of care of a reasonably prudent family physician or to the standard of a reasonably prudent pediatrician, because the instruction as given assumed that regardless of the conclusion of the jury, the doctor was to be judged by the standard of care of a family practitioner.

The witness need not have the same precise practice as the defendant “so long as the criterion by which the witness measures defendant's treatment is that of defendant's own school of medicine.” White v. Kent Medical Center, Inc., P.S., 61 Wn.App. 163, 173, 810 P.2d 4 (1991). Expert testimony on standard of care may be provided by an expert from a different school of medicine than the defendant's school if the methods of treatment in the two schools are the same or the testimony of the witness is based on knowledge of the defendant's own school. Leaverton v. Cascade Surgical Partners, PLLC, 160 Wn.App. 512, 519, 248 P.3d 136 (2011). It is the scope of the expert's knowledge, not the expert's professional specialty that governs the threshold question of admissibility of expert medical testimony in medical negligence cases. Leaverton v. Cascade Surgical Partners, PLLC, 160 Wn.App. at 518.

When the evidence establishes that there is a national standard of care, an out-of-state practitioner may testify to its application in a Washington case. Elber v. Larson, 142 Wn.App. 243, 173 P.3d 990 (2007).