December 28, 2012, James Needham visited his primary care
physician, Dr. Sheryl Dreyer, at The Everett Clinic (Clinic).
Needham presented to the medical assistant with, among other
things, difficulty breathing and gastrointestinal issues. Dr.
Dreyer did not address his breathing symptoms, but treated
Needham for his "active problems," including HIV
and diarrhea. On January 1, 2013, Needham was found
unconscious in a friend's cabin in Concrete, Washington.
Needham suffered frostbite, which resulted in the amputation
of both of his legs. Needham sued Dr. Dreyer and the Clinic
alleging medical negligence as the cause of his injuries.
Needham appeals the defense verdict, arguing that the trial
court erred when it provided the exercise of judgment
instruction, which directs the jury to find that a physician
is not liable for medical negligence if the physician used
their medical judgment to choose one of multiple treatments
or diagnoses. Needham further argues that the trial court
erred by admitting expert opinion evidence regarding
Needham's alcohol use on the day of his collapse.
Dr. Dreyer did not select one of two or more alternative
courses of treatment and did not arrive at a judgment to
follow a particular course of treatment or make a particular
diagnosis with regard to Needham's breathing symptoms,
the trial court erred by giving the exercise of judgment
instruction. The trial court further erred by admitting
evidence of Needham's alcohol use on the day of his
collapse because the probative value of that evidence was
substantially outweighed by the risk of unfair prejudice.
Finally, because these errors were not harmless, we reverse
the jury verdict and remand for a new trial.
is HIV positive, and Dr. Dreyer had been his primary care
physician since 2011. After their first appointment, Dr.
Dreyer ordered lab testing and discovered that Needham's
"T cells [were] at 92," which put him at risk for
"pneumocystis" pneumonia (PCP). PCP is a type of
pneumonia to which individuals with HIV are particularly
susceptible. After receiving these lab results, Dr. Dreyer
sent Needham a letter explaining that he should begin taking
a prophylactic to prevent PCP.
September 28, 2012, Needham's roommate, Jackie Black,
called the Clinic to express concerns regarding Needham's
health; Needham was coughing and exhibiting loss of balance,
drowsiness, and disorientation. Dr. Dreyer recommended that
Black take Needham to an emergency room (ER) for an
evaluation. Two days later, United General Hospital admitted
Needham and treated him for pneumonia in the lower right lobe
of his lung. The treating physician took a chest X-ray, which
indicated that Needham suffered from a possible collapsed
weeks after United General discharged him, Needham visited
Dr. Dreyerfor, among other things, pain in his ribs and
shoulder, which worsened when he breathed. Despite these
symptoms, Dr. Dreyer believed Needham's pneumonia was
improving but that he "may need a follow up chest
CT" (computed tomography) scan. She recommended a
follow-up in one month.
October 23, 2012, Black once again called the Clinic,
reporting that Needham's health had deteriorated. The
Clinic advised Black to take Needham to the hospital and to
notify the ER of the potential for PCP. The ER at Providence
Health Center admitted Needham for Clostridium
difficile (C. difficile) infection. The treating
physician, Dr. Donald Berry, took a CT scan of Needham's
abdomen. Needham's experts later testified that the CT
scan indicated "[t]here was still something going on in
th[e] lower lobe" of his right lung. Conversely, Dr.
Dreyer's expert, Dr. Robert Harrington, testified that
the CT scan did not show evidence that Needham had pneumonia
at that time. Dr. Berry also took a chest X-ray, which he-and
later, Dr. Dreyer-determined showed normal lung health. After
treatment for C. difficile, the hospital discharged Needham.
November 14, 2012, Needham visited the Clinic for a
follow-up. He expressed concerns of back pain. The records
from his visit indicate that he reported he was "slowly
feeling better" after his pneumonia. Dr. Dreyer
performed a chest exam and found that Needham's
"chest [was] clear [with] no wheezes or rales."
Based on the results of Needham's ER X-ray from October
23, Dr. Dreyer chose to forego additional testing for
Needham's pneumonia because she believed "the
pneumonia wasn't there anymore." As a result, Dr.
Dreyer did not recommend any follow-up on Needham's
pneumonia in his intoxicated treatment plan.
November 30, Black contacted the Clinic reporting that
Needham had been experiencing diarrhea for six weeks; the
Clinic advised that he needed a C. difficile test.
Additionally, Dr. Dreyer entered a referral for a
gastroenterologist. On December 5, 2012, the Clinic called
Needham to inquire when he would take laboratory tests for C.
difficile. Needham explained that his dog was dying and that
"making her comfortable [was] his only concern."
later, Needham called the Clinic to re-order an X-ray, which
his previous doctor had ordered over the summer but that
Needham had been unable to complete at the time. In response
to Needham's call, Dr. Dreyer requested that Needham also
get his "usual lab orders" completed. Needham did
not get his lab orders completed until he visited the Clinic
on December 28, 2012. At that appointment, Needham mentioned
difficulty breathing to the medical assistant as one of his
reasons for visiting. The medical assistant noted this in
Needham's record. Needham claims his vital signs were
abnormal; his pulse was 106, his blood pressure was 80/50,
and his pulse oximeter reading was at 93 percent-below a
normal range of 95 to 100 percent.
Dreyer did not discuss Needham's breathing problem with
him, but later testified that she performed an
"observational" exam, which Dr. Dreyer alleges
involves listening to a patient, observing whether the
patient is coughing, is short of breath, or has difficulty
speaking. The medical record from Needham's visit
indicates that Dr. Dreyer treated Needham for his
"active problems": HIV, diarrhea, back pain, and
his "social situation," which included the recent
passing of his housemate and his dog. Needham testified that
Dr. Dreyer discredited his hypothesis that he had cracked his
right rib or that he suffered from a hernia, and instead,
Needham testified that she said it was "just
depression." Needham also testified that no one
discussed his abnormal vital signs with him and that Dr.
Dreyer did not complete a chest exam.
that morning after Needham had left the Clinic, at 10:51
a.m., the laboratory paged the Clinic's on-call doctor,
Dr. Eileen de la Cruze, about the results of Needham's
same-day lab tests. The laboratory explained that
Needham's white blood cell count showed a potentially
serious infection. Dr. de la Cruze tried but could not reach
Needham on his cell phone, and she documented in the
Clinic's records that Needham had not set up his
voicemail. At 9:07 p.m., Dr. de la Cruze called Needham's
previous home number and then retried Needham's cell
phone. At that time, she noted in the record that she left a
voicemail. A few days later, on December 31, 2012, Registered
Nurse (RN) Colleen Burt called Needham's counselor to ask
if she had a new contact number for Needham. The counselor
was out of the office, and RN Burt left a voicemail message.
next day, January 1, 2013, Needham's friends found
Needham unconscious at his friend's cabin in Concrete,
Washington, and first responders transported him to
Sedro-Wooley Hospital. The treating physician determined that
Needham suffered from pneumonia, pleural effusion, and
frostbite. His legs were later amputated as a result of the
sued Dr. Dreyer and the Clinic for medical negligence. At
trial, Needham testified that following his return from the
Clinic on December 28, he spent the next two days trying to
clean up his friend's cabin in Concrete. Needham recalled
that it was hard to breathe. Needham testified that on
December 31, he drank about three shots of alcohol. He
testified that while cleaning, he looked outside and saw his
deceased friend's cat, which had been missing for two
days. Needham recalled that when he tried to grab the cat, he
saw "like, a big white flash, and . . . [t]hat's all
[he] remember[ed]" until he woke up in Sedro-Wooley
case was tried to a jury, and the trial court-over
Needham's objection-gave the exercise of judgment
instruction. The instruction, modeled after 6 Washington
Practice: Washington Pattern Jury Instructions: Civil
105.08 (6th ed. 2012) (WPI), states:
A health care provider is not liable for selecting one of two
or more alternative courses of treatment, if, in arriving at
the judgment to follow the particular course of treatment or
make a particular diagnosis, the health care provider
exercised reasonable care and skill within the standard of
care the health care provider was obliged to follow.
trial court also denied Needham's motion in limine to
exclude defense expert opinions that alcohol use on the day
of the accident could have caused Needham's collapse.
Needham had argued it was speculative and irrelevant. The
trial court concluded that the evidence was relevant and
probative and that the defense experts "don't have
to attack based on a probability of a reasonable degree of
medical certainty ... if they're just attacking and not
offering an alternative causation." Thus, at trial, Dr.
Dreyer and the Clinic introduced testimony from Dr. Benjamin
Starnes and Dr. Peter Shalit regarding how alcohol could have
caused Needham's collapse.
submitting the case to the jury, Needham renewed his earlier
motion in limine to exclude testimony of alcohol use on the
day of his collapse. The jury returned a verdict ...