A Washington medical malpractice plaintiff who was diagnosed with an Achilles tendon tear months after undergoing total knee replacement surgery by the defendant surgeon appealed a jury verdict in favor of the defendant, arguing, in part, that the trial court erred in proving the jury with the so-called “no guarantee” instruction.
The Underlying Facts
Victor Borst sued Dr. Patrick Lynch for medical negligence after an MRI revealed a torn Achilles tendon following knee replacement surgery. Approximately two months after surgery, Mr. Borst told one of his physical therapists that he had been experiencing pain in his right Achilles tendon since the surgery but that it had lessened in the last week. This was the first documentation of any problems with Mr. Borst’s Achilles tendon. Three months after surgery, Mr. Borst told Dr. Lynch that he had been experiencing Achilles pain since the surgery. Dr. Lynch made a note that the Achilles might have been torn due to the foot’s position during surgery. This notation became the impetus of Mr. Borst’s lawsuit against Dr. Lynch. A subsequent MRI showed Achilles tendinosis with a small tear.
Washington Pattern Jury Instruction 105.07
WPI 105.07 No Guarantee—Poor Result states: [A(fill in type of health care provider)does not guarantee the results of his or her care and treatment.] [A poor medical result is not, by itself, evidence of negligence.]
The trial court instructed the jury that “[a]n orthopedic surgeon does not guarantee the results of his care and treatment. A poor medical result is not, by itself, evidence of negligence.”
Mr. Borst contended that the evidence did not support giving the “no guarantee” instruction because the parties in this case agreed that the knee surgery was successful. Instead, the issue at trial was whether, during this surgery, Dr. Lynch placed Mr. Borst’s leg and foot in a position that caused his Achilles injury. Thus, there was no evidence to support a jury instruction that suggested an unexpected result from the surgery.
Washington Appellate Court Opinion
The Court of Appeals of the State of Washington Division Three (“Washington Appellate Court”) held in its unpublished opinion filed on March 11, 2021: “As Dr. Lynch points out, however, the surgery and physical therapy did have a poor medical result, i.e., an Achilles injury that may not have occurred but for the surgery. This unexpected result was not necessarily the result of negligence. Instead, as provided by the defense experts, the injury could have been a prior existing condition that was unexpectedly aggravated by the surgery and physical therapy. Consequently, the “no guarantee” instruction was supported by the evidence.”
Source Borst v. Lynch, No. 36469-1-III.
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