The Application of Reasonable Prudence to Medical Malpractice Litigation: The Precursor to Strict Liability?

Truman v. Thomas, 611 P.2d 902 (Cal. 1980) [hereinafter cited as Truman].

Gates v. Jensen, 595 P.2d 919 (Wash. 1979) and accompanying text [hereinafter cited as Gates].

Helling v. Carey, 519 P.2d 981 (Wash. 1974) [hereinafter cited as Helling].

The Helling court supported its rejection of the established professional standard of care and its adoption of the rule of reasonable prudence by relying upon two cases, Texas & Pacific Ry. v. Behymer, 189 U.S. 468(1903), and The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932). Factually, both decisions speak to industry-wide disregard of necessary safety precautions by commercial cargo carriers — tugboats and railroads. In Behymer, an ordinary negligence case, justice Holmes said that, “[w]hat usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” 189 U.S. at 470. And in Hooper, another ordinary negligence case, Justice Hand expanded upon the rule of reasonable prudence by stating: [I] most cases reasonable prudence is in fact common prudence, but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. 60. 2d at 740.

Myopia (nearsightedness) “is the condition in which uncorrected distance vision is more or less blurry and near vision without correction is clear.” Gray, Attorneys' Textbook of Medicine §55A. 40 (3d ed. 1981).

Suit was brought against Carey Thomas F. M.D. Laughlin Robert C. M.D. , partners in ophthalmology. Plaintiffs physician was Carey Dr. . For the purpose of this article, the defendants will be referred to in the singular.

Intraocular pressure may be defined as: “The pressure of the fluids within the eye against the tunics, or coverings. This pressure is altered in certain diseases; an increase suggests the onset of glaucoma…. [An] accurate measurement is obtained with a tonometer, an instrument that indents the cornea by a plunger and … through the use of tiny weights, indicates the pressure on a scale.” 6 Lawyers' Medical Cyclopedia §39.8b (1977) (revised volume).

Open angle glaucoma represents an extreme in the polymorphic (having more than one form) clinical pictures produced by glaucoma. Without any discomfort, ache, congestion, or other form of warning a gradual, but characteristic loss of peripheral vision occurs, with one eye usually a little ahead of the other. The rise in intraocular pressure occurs so gradually that the blood circulation of the eye can adapt itself to the new pressure level. Under these conditions only the structures directly concerned with vision, the retina (the light-sensitive membrane of the back of the eye) and the optic nerve (the nerve carrying visual impulses from the eye to the brain) deteriorate while the other structures of the eye continue a fairly normal existence. Gray, supra note 5, at §55B.32(3).

Helling, supra note 3 at 983. The plaintiff, who was 32 years old when her condition was diagnosed, had essentially lost her peripheral vision and her central vision was reduced to a field approximately 5 degrees vertical by 10 degrees horizontal.

Id. The reason the pressure test was not administered as a regular practice to patients under the age of 40 was that the disease rarely occurs in this age group. Specifically, it afflicts one out of every 25,000 people below the age of 40.

Id. at 982. The Supreme Court of Washington heard the case subsequent to two lower court decisions. The trial court entered judgment for the defendant based on the jury's verdict. The plaintiff appealed to the Court of Appeals, which affirmed the judgment of the trial court.

Id. at 983.

Gates, supra note 2.

Id. at 921. The first test was to apply the standard eye drops for dilating the pupils to obtain a good view of the optic nerve discs. The second was to have the plaintiff take a visual field examination to determine whether she had suffered any loss in her field of vision.

Id. at 922.

Id.

Id. at 923, n.3. Plaintiffs proposed instruction read: Irrespective f whether you find that any defendant met or failed to meet the applicable standard of care followed by practicing ophthalmologists in the diagnosis of glaucoma, if you find that Mrs. Gates had glaucoma and that the statistical risk of sight loss from glaucoma is serious enough in cases such as Mrs. Gates' that reasonable prudence under the circumstances required the administration of additional diagnostic tests … you are instructed that failure to perform those tests … would constitute negligence. In determining whether reasonable prudence would require giving the tests in question you should consider, among other facts, the cost, ease or difficulty of administration, risk to the patient and relative reliability of the tests in question.

Id. at 924. On appeal before the Supreme Court of Washington the defendant argued that the Helling rule of reasonable prudence had been abrogated by legislative enactment, Wash. Rev. Code §4.24.290. The statute provides in pertinent part: In any civil action for damages based on professional negligence against … a member of the healing arts … the plaintiff in order to prevail shall be required to prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care and learning possessed by other persons in the same profession…. The court in Gates however, rejected the defendant's contention, noting that “the statute as passed requires physicians to exercise the skill, care and learning possessed by others in the same profession.” In the absence of any argument that the defendants did not possess the skill, care, and learning required to administer the tests, the court held that the requested instruction fell within the statute. Id.

Id.

Truman , supra note 1.

The Pap smear is: [A] simple, painless test used most commonly to detect cancer of the uterus and cervix…. The test can be performed on any body excretion (urine, feces), secretion (sputum, prostatic fluid, vaginal fluid), or tissue scraping (as from the uterus or the stomach). The sample is removed from the area being examined, placed on a glass slide, stained, and then studied under a microscope for evidence of abnormal, or cancerous, cells. In five minutes, the Pap test can reveal uterine or cervical cancer at a stage in which it produces no visible symptoms, has done no damage and, usually, can be completely cured. Encyclopedia and Dictionary of Medicine. Nursing, and Allied Health at 745-46 (2d ed. 1978).

Truman , supra note 1, at 904. At trial, “[t]here was disputed expert testimony that the standard of medical practice required a physician to explain to women patients that it is important to have a Pap smear each year to pick up early lesions that are treatable, rather than have to deal with [more developed] tumor[s] that very often aren't treatable.”

Id. While it might be difficult to accept that Mrs. Truman might not have died in 1970 if she had undergone a Pap smear in 1969, expert testimony given at trial indicated that had she “undergone a Pap smear anytime between 1964 and 1969, the cervical tumor probably would have been discovered in time to save her life.”

Id. at 904-05.

Id. at 905.

Id. at 907, quoting Cobbs v. Grant, 502 P.2d 1,11 (Cal. 1972).

Gates , supra note 2, at 925. See Prosser W. , Law of Torts §32–33 (4th ed. 1971).

Id.

Prosser , supra note 27.

Id.

Id. at §75.

Id. Indeed, in Helling v. Carey, the imposition of strict liability was the basis for a concurring opinion. 519 P.2d at 985.

Prosser , supra note 27, at §75.

Id.

Id. at §81.