371 P.3d 61
Wash. Ct. App.2016Background
- Joshua Driggs (plaintiff) had a distal tibial allograft with plate fixation placed in 2004; subsequent surgeries by Dr. Andrew Howlett removed that plate in March 2009 without substituting fixation (rod or new plate).
- Driggs fractured the tibia in May–June 2009; later surgeries followed and he sustained lasting disability (equinus, numbness, limp).
- Driggs sued for medical malpractice and lack of informed consent, alleging Howlett breached the standard of care by not replacing fixation and failed to disclose the material risk of that choice; suit named Providence Physician Services (Howlett’s employer).
- Plaintiff’s key experts: Dr. Lawrence Menendez (orthopedic oncologist; perpetuation videotaped deposition) and Dr. Steven Graboff (trial testimony). Defense called Dr. James Bruckner and others.
- Trial court excluded substantial portions of Menendez’s testimony (standard of care, causation, and informed-consent risk) on grounds that he didn’t affirm a Washington standard, didn’t expressly testify to reasonable medical probability, didn’t quantify risk percentages, and characterized opinions as “personal.” Jury returned verdict for defendants.
- Court of Appeals (Division III) reversed and remanded for a new trial, holding the trial court abused discretion in excluding Menendez’s opinions and that the exclusion was prejudicial (not harmless).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility: may an out‑of‑state expert testify to a national standard when another trial witness establishes Washington follows the national standard? | Menendez may testify to national standard; Graboff’s trial testimony that WA equals national standard supplies predicate. | Expert must personally know WA standard; cannot piggyback on another witness. | An expert can testify to a national standard if another qualified trial witness testifies WA standard parallels national standard; Graboff’s testimony supplied a sufficient predicate. |
| Causation: must an expert expressly state opinions are to a "reasonable degree of medical certainty" on the record? | Menendez’s deposition answers reflect opinions based on probability—substance over talismanic words suffices. | Menendez failed to affirmatively agree to base opinions on reasonable medical probability; testimony therefore inadmissible. | Court held substance controlled; Menendez’s testimony, read as a whole, satisfied the reasonable‑medical‑probability requirement. |
| Informed consent: must an expert quantify risk (give numeric percentages) to testify about the materiality/likelihood of a risk? | Numerical quantification not required; expert may describe likelihood ("more likely") and nature of risk—statistical proof goes to weight, not admissibility. | Menendez gave no percentages or statistics; testimony therefore unhelpful and should be excluded. | Trial court erred: expert need not state precise percentages; qualitative probability testimony is admissible to establish the scientific nature and likelihood of a risk. |
| Harmless error: was exclusion of Menendez harmless because Graboff testified similarly? | Exclusion was prejudicial—Menendez addressed the same central issues, and defense emphasized Graboff’s alleged unreliability, so Menendez’s exclusion deprived plaintiff of critical corroboration. | Any exclusion was harmless because Graboff covered the same opinions; evidence cumulative. | Error was not harmless: exclusion probative because it prevented jury from hearing corroborating testimony (and defense had attacked Graboff’s credibility). |
Key Cases Cited
- Winkler v. Giddings, 146 Wn. App. 387 (Wash. Ct. App. 2008) (expert qualification and whether standard of care proof requires local familiarity)
- Elber v. Larson, 142 Wn. App. 243 (Wash. Ct. App. 2007) (out‑of‑state expert may be competent to attest national standard when familiar with state practice)
- Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438 (Wash. Ct. App. 2008) (two experts can be used to show national standard governs when one establishes state practice parallels national)
- McKee v. Am. Home Prods. Corp., 113 Wn.2d 701 (Wash. 1989) (expert must be competent to opine on relevant professional standard—context of local practice)
- Reese v. Stroh, 128 Wn.2d 300 (Wash. 1995) (causation in medical malpractice must rise above speculation; expert testimony must be based on reasonable medical probability)
- White v. Kent Med. Ctr., 61 Wn. App. 163 (Wash. Ct. App. 1991) (substance over form: expert testimony need not use talismanic language to be admissible)