Washington Pattern Jury Instruction  105.08

A physician is not liable for selecting one of two or more alternative courses of treatment if in arriving at the judgment to follow a particular course of treatment, the physician exercised reasonable care and skill within the standard of care the physician was obligated to follow.

This instruction should be eliminated as a biased statement in favor of a defendant doctor. It is difficult to deal with but here are some suggested idea for cross examination.

COMPLICATIONS

Emphasize the responsibility to diagnose and treat carefully:

• AGREE WITH THE PROPOSITION THAT:

• WHEN THERE IS A RISK OF SERIOUS DISEASE OR DEATH TO A PATIENT, A PHYSICIAN SHOULD TAKE  REASONABLE & AVAILABLE STEPS TO FIND OUT WHAT THE PROBLEM IS AND TO CURE IT IF POSSIBLE.

1. AGREE THAT WHERE THERE IS A QUESTION OF SERIOUS DISEASE OR DEATH, THE POLICY OUGHT TO BE: “DON’T TAKE CHANCES.”

(1)  “IT’S BETTER TO BE SAFE THAN SORRY?”

• AGREE THE FIRST AND MOST IMPORTANT STEP WOULD BE TO:

(1)       FIND OUT WHAT IS CAUSING THE PROBLEM?

(2)       SECOND STEP WOULD BE TO TAKE REASONABLE STEPS TO CURE THE PROBLEM?

IMPORTANCE OF DETERMINING THE CAUSE OF MEDICAL SYMPTOMS

1. DOCTORS ARE TRAINED ABOUT THE IMPORTANCE OF FINDING OUT THE CAUSE OF A PATIENT’S PROBLEMS – ESPECIALLY WHEN SERIOUS DISEASES LIKE CANCER COULD BE INVOLVED?

• IT IS BASIC TO GOOD MEDICINE TO ALWAYS TREAT THE UNDERLYING CAUSE RATHER THAN JUST THE SYMPTOMS?
• AREN’T DOCTORS TRAINED TO PERFORM CAREFUL EXAMINATIONS AND ORDER APPROPRIATE DIAGNOSTIC TESTS IN ORDER TO FIND OUT WHAT THE CAUSE OF SOMEONE’S PROBLEM IS?

• A CAREFUL, COMPETENT DOCTOR WOULD NOT ASSUME A MEDICAL PROBLEM WASN’T SERIOUS WITHOUT MAKING A CAREFUL DIAGNOSIS. When it IS POSSIBLE, THE PATIENT MIGHT HAVE A SERIOUS DISEASE?

• IMPORTANCE OF DIFFERENTIAL DIAGNOSIS:

1.  DIAGNOSES IS OFTEN MADE BY CONSIDERING LIKELY CAUSES AND THEN TAKING STEPS TO RULE OUT THE LESS LIKELY IN ORDER TO ARRIVE A PROBABLE DIAGNOSIS?

2.         AREN’T DOCTORS TRAINED TO PERFORM CAREFUL EXAMINATIONS AND ORDER APPROPRIATE TESTS IN ORDER TO FIND OUT WHAT THE CAUSE OF SOMEONE’S PROBLEM IS?

(1) KNOWN AS “DIFFERENTIAL DIAGNOSIS”?

3.         NOT GOOD MEDICINE TO:

(1)       FAIL TO DO APPROPRIATE TESTING TO RULE OUT SERIOUS UNDERLYING CAUSES OF SYMPTOMS

(2)       ASSUME THE CAUSE IS SOMETHING NOT SERIOUS OR IMPORTANT WITHOUT FINDING OUT FIRST AND JUST TAKING A CHANCE?

4.         ISN’T IT IMPORTANT TO OBTAIN A CAREFUL HISTORY, PERFORM A THOROUGH PHYSICAL EXAM AND ORDER APPROPRIATE STUDIES TO FIND OUT THE CAUSE OF THE PROBLEMS, RATHER THAN TREAT THE SYMPTOMS AND IGNORE THE REASON FOR THEM?

MEDICAL LITERATURE

NOTE: SEE ATTACHED MEDICAL LITERATURE AS TO WHAT SHOULD HAVE BEEN DONE AND WHY. ASK IF WITNESS AGREES

RISK vs BENEFIT ANALYSIS

Risk vs benefit

1.         Benefit

(1)       IN DECIDING WHAT DIAGNOSTIC TESTS to use TO FIND OUT WHAT THE CAUSE OF SYMPTOMS MIGHT BE, WOULD THE POTENTIAL BENEFIT OF DOING THE STUDIES BE SOMETHING TO CONSIDER BY THE PHYSICIAN AND PATIENT?

2.         Cost of Diagnostic studies

(1)       HOW MUCH THE STUDIES COST WOULD BE A  CONSIDERATION?

1. WHAT IS THE COST OF ______? (list)
2.        Time & Difficulty

(1)       HOW DIFFICULT AND TIME-CONSUMING IT IS TO DO THE STUDIES WOULD BE A CONSIDERATION?

 HOW DIFFICULT WOULD IT HAVE BEEN?

WHAT IS INVOLVED?

HOW MUCH TIME would TAKE

HOW LONG TO GET RESULTS BACK

5.         Whether it’s Available or not

(1)       WHETHER IT’S AVAILABLE OR NOT IS A FACTOR TO CONSIDER?

a. WAS IT POSSIBLE TO DO?

6.         Accepted medical procedure or Experimental

(1)       WHETHER IT IS AN ACCEPTED MEDICAL PROCEDURE IS A CONSIDERATION i.e., NOT EXPERIMENTAL OR UNPROVEN?

A.        WAS IT AN ACCEPTED  MEDICAL PROCEDURE?

b.         COMMONLY USED BY OTHER DOCTORS? FOR HOW LONG?

c.         WRITTEN ABOUT AND DESCRIBED IN MEDICAL BOOKS AND JOURNALS?

7.         Risk and Danger involved in using it

(1)       WHETHER THERE IS ANY DANGER TO THE PATIENT IN DOING THE STUDIES WOULD BE A FACTOR TO CONSIDER?

a.         IS THERE ANY SIGNIFICANT DANGER INVOLVED IN DOING IT?

BETTER TO BE SAFE THAN SORRY

1.         IN MEDICINE, ISN’T IT GENERALLY BETTER TO BE “SAFE THAN SORRY” WHEN WE ARE TALKING ABOUT THE RISK OF HAVING COLON CANCER?

 (2)      IT IS EASIER TO PUT OUT A CAMPFIRE THAN A FOREST FIRE

4. Is it basic good MEDICINE TO ALWAYS TREAT THE UNDERLYING CAUSE RATHER THAN JUST THE SYMPTOMS?

5.         WHEN ANY QUESTION OF SERIOUS MEDICAL COMPLICATIONS IS INVOLVED, THE POLICY OUGHT TO BE:

IF ANY DOUBT, DON’T TAKE A CHANCE – SAFETY FIRST

(1)       UTILIZE ALL DIAGNOSTIC TESTING

(2)       FENCE AT THE TOP OF THE CLIFF IS BETTER THAN AN AMBULANCE WAITING

IN VALLEY BELOW

IMPORTANCE OF SIGNS

1.         IN MEDICINE, IMPORTANT TO PROMPTLY REACT TO ANY SIGNIFICANT ABNORMAL CONDITION BEFORE IT BECOMES SERIOUS ENOUGH TO BE FATAL?

5.         IT’S NOT ACCEPTABLE PRACTICE TO IGNORE ABNORMAL SIGNS WHICH MAY INDICATE A PROBLEM SERIOUS ENOUGH TO RESULT IN DEATH?

(1)       IF THE RED WARNING LIGHT ON THE DASHBOARD OF THE AIRPLANE BEGINS FLASHING, A CAREFUL, COMPETENT PILOT IS EXPECTED TO FIND OUT WHY.

(2)       MEDICINE TREATS ABNORMAL SIGNS THE SAME WAY

(3)       POOR PRACTICE FOR PILOT TO PUT A PIECE OF BLACK TAPE OVER IT AND KEEP FLYING?

(4)       MEDICINE IS NO DIFFERENT