Washington provides a defense in medical malpractice cases where the medical provider
was exercising medical judgment. The wording of the instruction the jury receives
represents an obstacle by providing a ready made defense for the medical provider. The
examination of the provider should focus on undermining the excuse that it was simply a
matter of judgment by showing that the judgment was improper and therefore
malpractice. The following is a rough drafted outline of general concepts you can refine
and adapt to your case where it is applicable.

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.

PREVENTING OR MINIMIZING RISK OF SERIOUS MEDICAL COMPLICATIONS

• 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.” “It’s better to be safe than sorry.
2. Agree the first and most important step would be to: Find out what is causing the problem? The second step would be to take reasonable steps to cure the problem.
   IMPORTANCE OF DETERMINING THE CAUSE OF MEDICAL SYMPTOMS
3. 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.
4. Is it basic to good medicine to always treat the underlying cause rather than just the symptoms?

3. 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?
4. 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.
5. IMPORTANCE OF DIFFERENTIAL DIAGNOSIS:
6. Diagnoses are often made by considering likely causes and then taking steps to rule out the less likely in order to arrive at a probable diagnosis.
7. 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? This is known as “differential diagnosis”?
8. 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?
9. Isn’t it important to obtain a careful history, perform a though 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?
   RISK VS BENEFIT ANALYSIS
   
10. Benefit
    (1) In deciding what diagnostic tests 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?
11. cost of diagnostic studies
    (1) How much the studies cost would be a consideration?
    (2) what is the cost of __?
    

4. 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 it 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. Risks and dangers involved in using it
   (1) Whether there is any danger to the patient in doing the studies would be a factor to consider
   a. Iis there any significant danger involved in doing it?
   BETTER TO BE SAFE THAN SORRY
8. 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
9. Is it basic good medicine to always treat the underlying cause rather than just the symptoms?
10. When any question of serious medical complications is involved, policy ought to be:

If any doubt don’t take a chance – safety first
(1) Utilize all diagnostic testing
(2) Fence at top of cliff better than ambulance waiting at top of cliff vs in valley below
IMPORTANCE OF SIGNS

1. in medicine, is it important to promptly react to any significant abnormal condition before it becomes serious enough to be fatal?
2. it’s not acceptable practice to ignore abnormal signs which may indicate a problem serious enough to result in death?
   (1) if red warning light on dashboard of 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 pilots to put piece black tape over it and keep flying?
   (4) Medicine no different