IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ANNETTE BAUGHMAN, individually 

### and as guardian of E.S. and M.S., minors; Respondent,

v. GROUP HEALTH COOPERATIVE, a Washington corporation, Appellant. No. 71835-5-1 DIVISION ONE

UNPUBLISHED OPINION FILED: August 10, 2015 c/>o C~'1j -Hd

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### Becker, J. — In a medical negligence trial, the standard ofcare instruction 

### iserroneous ifitfavors the position of one side over the other on a contested factual issue. Where the erroris preserved by a proper objection and the 

### instruction isprejudicial in the circumstances of the case, atrial court does not abuse its discretion in granting a motion for a newtrial. Late one afternoon in December 2010, a seven-year-old girlwas taken to 

### an urgentcare clinicoperated byappellantGroup Health Cooperative in Bellevue. Itwas too late to get her in to see her regular Group Health doctor. 

### Thegirl came in with a complaintofpain upon urination andblood in herurine. She was seen byDr. Donald Milligan, a physician employed by GroupHealth atNo. 71835-5-1/2 

### the urgent care clinic. Dr. Milligan is a board-certified pediatrician. He does not have specialized training in emergency medicine. 

### Dr. Milligancollected a urine sample, did a physical examination, and documented redness and an abrasion atthe opening ofthe vagina, "including

one area which was quite excoriated." He diagnosed a urinary tract infection. That diagnosis was later borne out by the culture ofthe urine sample. To treat the infection, Dr. Milligan prescribed antibiotics and topical treatment. He did not ask questions to determine the cause ofthe excoriation. He did not suspect sexual abuse as the cause. Consequently, Dr. Milligan did notexplain to the 

### girl's guardian or note inthe girl's record that her symptoms might have been the result of sexual abuse. In November 2011, itwas discovered that the girl and her sister had been victims of sexual abuse on an ongoing basis both before and afterthe girl's visit 

### to the urgent care facility. This negligence lawsuit was filed shortly thereafter. The complaint alleges a failure by Group Health and its agents to implement and followproper procedures for recognizing the signs of child sexual abuse. The expertwitnesses presented competing testimony about the standard ofcare. The plaintiffpresented two physicians who specialized inemergency medicine. One ofthese, Dr. Richard Cummins, explained that in teaching 

### emergency medicine, he asked his students to look for the differential 

### diagnosis—notjustthe most reasonable explanation ofthe symptoms presented, but also the most serious explanation.1 He testified thatthe symptoms of a

1 Report ofProceedings (Jan. 29, 2014) at 31-40. 2No. 71835-5-1/3 

### urinarytract infection seen in this case were also red flags for sexual abuse and that the possibility ofsexual abuse should have been considered. The patient 

### could have been asked, "Tell me about getting this owie
.... Did somebody touch you there in a way that made you uncomfortable?'" Depending on what emerged from the question, Dr. Cummins said, the guardian could have been advised to follow up on the possibility ofsexual abuse. Dr. Cummins was asked to talk about "the standard ofcare of a reasonably prudent physician in an urgent care setting." His opinion was thatthe standard ofcare was not met in this case because indicators of sexual abuse
were present but not recognized or dealt with. He also gave his opinion that if Dr. Milligan had recognized and dealt with the possibility of sexual abuse, the sexual abuse would have been detected then, ratherthan a year later. This opinion was based on the fact that the girl readily disclosed sexual abuse a year later when she was asked about it. Dr. Cummins' opinion was shared by Dr. Marianne Gausche-Hill, an emergency medicine specialist with a subcertification in pediatric emergency medicine. She testified that "for a complaint likethis," the standard ofcare for a physician in an urgent care facility is equivalentto the standard ofcare in an emergency room. The standard requires doctors to go through a differential diagnosis, in otherwords to "think broadly" and not minimize possibilities but 

### rather "assume the worst."2 The question was not whetherthe girlhad a urinary tract infection—she definitely did. The question was whetherthe infection



### 2Report ofProceedings (Jan. 30, 2014) at 223. 3No. 71835-5-1/4 

### originated in an innocentway or whether, particularly in view ofthe excoriation
seen at the entrance to the vagina, there had been some rubbing or scraping that might be attributable to sexual abuse. That issue, according to Dr. Gausche-Hill, should have been explored inan open-ended way, the family should have been counseled about it, and the primary care provider should have been alerted to 

### provide follow-up.3 Pediatricians who were presented by Group Health as expert witnesses,


### on the other hand, testified that underthe circumstances, Dr. Milligan was not obligated to considerthe possibility that sexual abuse caused the infection. Dr. Lori Frasier, a board-certified pediatrician subspecializing in child-abuse pediatrics, testified thatthe standard ofcare was to look for a "'unifying diagnosis'"—"the single diagnosis that will treat and cure the problem." Dr. Frasierwas asked to speak in terms of how "actual pediatricians, general pediatricians" handle the kinds of symptoms Dr. Milligan saw. Based on her 

### experience "both as a general pediatrician and being involved indirecting or overseeing the clinic ofother general pediatricians," Dr. Frasierconcluded that Dr. Milligan's examination was thorough and detailed—"a good, high standard examination."4 Dr. Astrid Heger, also a board-certified pediatrician subspecializing in child-abuse pediatrics, was asked by defense counsel to give a definition ofthe 

### standard ofcare "for a pediatrician as you've seen itused in your institution."5

3Report ofProceedings (Jan. 30, 2014) at 273-277. 4Report ofProceedings (Feb. 10, 2014) at 995-96. 

### 5Report ofProceedings (Feb. 11, 2014) at 1097-98.No. 71835-5-1/5 

### She responded thatthe standard ofcare calls for pursuing the most logical 

### diagnosis first, which in this case was the urinarytract infection. Dr. Heger said that ifshe had been in Dr. Milligan's position, she would not have tried to "flesh 

### out" the possibility ofsexual abuse by asking the childquestions. Nothing in the visit, she said, "would have precipitated a reportfor child sex abuse out of my clinic."

### The plaintiffin an action for professional negligence must showthatthe defendant health care provider "failed to exercise that degree ofcare, skill, and 

### learning expected of a reasonably prudent health care provider at that time in the profession orclass to which he or she belongs, in the state of Washington, acting inthe same or similar circumstances." RCW 7.70.040(1). Two patternjury instructions on the standard ofcare of a health care provider have been adopted. 

### One is on the negligence of a general health care provider; the other is on the 

### negligence of a health care provider who is a specialist. 6Washington Practice: Washington Pattern Jury Instructions: Civil 105.01; 105.02 (6th 

### ed. 2012) (WPI). The parties and the court workedwith WP1105.02. In the context of this case, the key language of that pattern instruction is as follows: A (fill intype ofhealth care provider) who [holds himselfor 

### herselfout as a specialistin(fill in type of specialist)] [assumes the care or treatment of a condition that is ordinarily treated by a (fill in 

### type ofspecialist)] has a duty to exercise the degree ofskill, care, 

### and learning expected of a reasonably prudent (fill in type of specialist) inthe State ofWashington acting inthe same or similar circumstances at the time ofthe care or treatment in question. Failure to exercise such skill, care, and learning constitutes a breach of the standard of care and is negligence.
WPI 105.02.No. 71835-5-1/6

Dr. Milligan's board certification was in pediatrics, but he was practicing in

an urgent care clinic. The first version ofthe instruction the court considered tracked WPI 105.02. Itreflected the plaintiff's theory that Dr. Milligan should be held to the standard ofcare ofan emergency medicine physician: A pediatrician who holds himselfout as a specialist in 

### Emergency Medicine has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent Emergency Medicine physician inthe State ofWashington acting inthe same or similar circumstances at the time ofthe care or treatment in question. Group Health proposed a second version ofthe instruction that eliminated the 

### phrase "who holds himselfout as a specialist in Emergency Medicine" and replaced it with "who works in Emergency Medicine." Baughman did not object to that change. Group Health then proposed a third version ofthe instruction. The third 

### version changed the standard ofcare from what is "expected of a reasonably 

### prudent Emergency Medicine physician" to what is "expected of a reasonably prudent pediatrician inan urgent care/emergency room setting." Baughman objected to this change at length. The trial court nevertheless decided to use the third version, stating that "your distinction is actually lost on me." Thus, the final version given to thejury was as follows:No. 71835-5-1/7

INSTRUCTION NO. 7 

### A health care provider owes to the patient a duty to comply with the standard ofcare for one ofthe profession or class to which he or she belongs. 

### Apediatrician practicing in an urgent care/emergency room setting has a duty to exercise the degree ofskill, care and learning expected of a reasonably prudent pediatrician in an urgent care/emergency room setting inthe state ofWashington acting in the same or similar circumstances at the time ofthe care or treatment in question. 

### Failure to exercise such skill, care and learning constitutes a breach ofthe standard ofcare and is negligence. The degree ofcare actually practiced by members ofthe 

### medical profession is evidence ofwhat is reasonably prudent. However, this evidence alone is not conclusive on the issue and 

### should be considered by you along with any otherevidence bearing on the question. 

### Thejury returned a verdictfor Group Health on the question ofnegligence. Baughman moved for a new trial, alleging that instruction 7 misstated the law. The trial court granted the motion. Group Health appeals. A decision to grant a new trial willbe reversed if itmisapplies the law or is predicated on incorrect legal principles. We afford greater deference to a decision to grant a new trial than we do a decision to deny a new trial. Kuhn v. Schnall, 155 Wn. App. 560, 570-71, 228 P.3d 828, review denied, 169 Wn.2d 1024 (2010). Jury instructions must properly inform thejury ofthe applicable law and permit each party to argue his or hertheory ofthe case. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). Ingranting the motion for a new trial, the trial court concluded that instruction 7 was erroneous for the reasons stated in Richards v. Overtake Hospital Medical Center, 59 Wn. App. 266, 796 P.2d 737 (1990), review denied,No. 71835-5-1/8 

### 116 Wn.2d 1014 (1991), and Dinner v. Thorp. 54 Wn.2d 90, 338 P.2d 137 (1959).

### In Richards, a family medicine practitionerwas providing pediatric care at the time ofan alleged malpractice. Overthe plaintiff's objection, the trial court gave the following instruction: "Aphysician who is a family practitioner has a duty to 

### exercise the degree of skill, care and learning of a reasonably prudentfamily practitioner inthe State ofWashington acting inthe same or similar circumstances at the time ofthe care or treatment 

### in question. Failure to exercise such skill, care and learning is negligence. If a family practitioner holds himselfout as qualified to provide pediatric care, or assumes the care ortreatment of a condition which is ordinarily treated by a pediatrician, he has a duty 

### to possess and exercise the degree of skill,care and learning of a reasonably prudentfamily practitioner inthe State ofWashington 

### acting inthe same or similarcircumstances atthe time ofthe care and treatment in question. Failure to exercise such skill, care and 

### learning is negligence." Richards, 59 Wn. App. at 276. The Richards court held the second paragraph


### was erroneous because itprevented thejury from choosing to apply the standard of care of a pediatric specialist: 

### Instruction 7 given by the courtdeprived thejury ofthe determination ofwhether Dr. Haeg should be held to the standard 

### ofcare of a reasonably prudentfamily physician or to the standard of a reasonably prudent pediatrician, because the instruction as 

### given assumed that regardless ofthe conclusion ofthejury, Dr. Haeg was to bejudged by the standard ofcare of a family practitioner. 

### Richards, 59 Wn. App. at 276. An analogous problem occurred in Dinner. Inthat case, a standard ofcare instruction misleadingly suggested that a specialist could be held to the standard ofcare ofan "average physician" when practicing within his board certified specialty. Dinner, 54 Wn.2d at 97.

8No. 71835-5-1/9 Here, instruction 7 was similarly misleading. The instruction expressed the standard ofcare in a confusing composite phrase—"the degree of skill, care and learning expected of a reasonably prudent pediatrician in an urgent care/emergency room setting." The trial court recognized the problem when orally ruling on the motion for a new trial: Next issue is whetherthere's any factual evidence supporting plaintiffs' proposed alternative to the Court's No.7. This indeed was a contested factual issue at trial and the plaintiffdid produce—introduce evidence that, ifbelieved by a jury, supports the proposition thatthe doctor held himselfout to be a specialist ER 

### doctor and that the urgent care centerwas the equivalent ofan emergency room. This was a contested issue. The trial court correctly concluded instruction 7 misstated the law. A court will find an instructional error harmless if it had no effect on the verdict or did not deprive a party ofhertheory ofthe case. Estate of Dormaier ex rel. Dormaier v. Columbia Basin Anesthesia, PLLC, 177 Wn. App. 828, 861, 313 

### P.3d 431 (2013). Group Health argues instruction 7 was harmless because the plaintiffs' expert witnesses testified that all physicians, whatevertheir specialty, should be trained to recognize indicators ofsexual abuse. On its face, this 

### argument has some weight, but itignores the discretion a trial court has in deciding whetherto grant a motion for a new trial. The trialjudge who has seen and heard the witnesses is in a better position to evaluate whether a new trial is warranted than an appellate court reviewing a cold transcript. State v. Hawkins, 181 Wn.2d 170, 179, 332 P.3d 408 (2014).No. 71835-5-1/10 

### Here, the trialjudge heard competing testimony aboutthe applicable standard ofcare. The plaintiff's expertwitnesses were emergency room 

### physicians. Theytestified thatthe differential diagnosis methodology—"assume 

### the worst"—isthe standard ofcare to be employed in the practice ofemergency medicine. The defendant's expertwitnesses were pediatricians. They testified that pediatricians satisfy their standard ofcare by using the unifying diagnosis methodology that zeroes in on the most likelyexplanation for a patient's symptoms. 

### The trial court also listened to the closing argument, in which Group 

### Health repeatedly emphasized, using PowerPoint slides, that the plaintiff's witnesses were not pediatricians. 

### The experts thatwe have called and had testify and tell you their opinions inthis case, three out offour are pediatricians, three out of 

### four are child abuse experts. Plaintiffs' experts: No pediatricians, no child abuse specialists. 

### Group Health used this point to exploitthe advantage created by instruction 7. 

### Calling thejury's attention to instruction 7, counsel argued that only the defense experts were discussing the appropriate standard ofcare: Pediatricians are to bejudged based on the way reasonably 

### prudent pediatricians care for patients in this kind ofurgent care setting. The only people we have had who have told you what pediatricians do are—I mean, the actual people who were pediatricians, every single one ofthem have been defense experts and they have all told you that what was done was reasonable and appropriate under the circumstances, and infact, what they would do in their facilities. The closing argument demonstrates how instruction 7 allowed Group Health to marginalize the testimony ofthe emergency room physicians. The

10No. 71835-5-1/11 

### effect of the instruction was to endorse the standard ofcare presented by the pediatrician witnesses. As the trial court saw it, Group Health "attacked the reliability ofthe plaintiffs' experts, because they were not pediatricians likethe 

### defense experts." The instruction not only misstated the law but prejudicially undermined the plaintiff's ability to present hertheory ofthe case. The trial court

was within its discretion to find the instructional error warranted a new trial. 

### Group Health also claims that Baughman did not adequately preserve the instructional error raised in her motion for a new trial. We disagree. The key factual issue involved in Baughman's objection to the final version of instruction 7
was whether Dr. Milligan should be held to the standard ofcare ofan emergency


### room physician. Baughman did not explicitly cite Richards, but she did employ its reasoning: Ithink the word "pediatrician" there should be "physician." That's from the WPI instruction, and the reason that instruction is given, Your Honor, is thatwhen someone from a different specialty fills a role otherthan they would typically fill, that's when this instruction is given. So to use a really extreme example, ifthey decide to staff their emergency department with an allergist, that allergist isn't held to the standard of care of an allergist in the emergency department. He's held to the standard ofcare of a reasonably prudent emergency room physician. And so Ithink this is the defendant's modified language, but itguts the instruction ofits intendedmeaning by saying that a pediatrician has to perform to the standard ofcare ofa pediatrician. The point ofthe instruction is to tell the jury that the pediathcian, if he's going to be practicing in an emergencyroom, he has to practice to the same standardas an emergencyroom physician, and notthe same standardas a pediatrician. Thatdoesn'tmake any sense.

11No. 71835-5-1/12 

### (Emphasis added.) This was sufficientto preserve the instructional error raised in Baughman's motion for a new trial. Washburn v. City of Federal Way, 178 Wn.2d 732, 746-49, 310 P.3d 1275 (2013).
Affirmed.

WE CONCUR: 

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