News: A Washington appeals court affirmed a doctor’s trial win in a malpractice lawsuit alleging he tore a patient’s Achilles tendon during a knee replacement surgery. The jury found the surgeon’s placement of the patient’s foot in a dorsal flexion position during surgery did not fall below the standard of care, and the injury was not sufficiently proven to be caused by the surgeon’s negligence rather than an aggravation of an existing long-term knee flexion contracture. On appeal, the patient challenged two jury instructions, claiming they were improper statements of law that biased the jury in favor of the surgeon. However, the court disagreed, holding the trial judge properly left the jury to define the standard of care rather than the judge defining it himself. The court also found the judge properly instructed the jury that surgeons cannot guarantee positive results from surgery, and that as long as the surgeon did not act negligently, he cannot be held liable for negative and unexpected results stemming from surgery.

Background: A patient in Washington sued his orthopedic surgeon for medical negligence due to a torn Achilles tendon following the patient’s total knee replacement surgery. The surgeon cared for the patient without issue for several years before the surgery. Following knee surgery in 2011, the patient adhered to an intensive therapy regimen, and began to complain of pain in varying degrees in his right Achilles tendon two months later. The patient’s physical therapist concluded the patient’s pain was due to long-term knee flexion contracture before knee surgery, but the surgeon noted the Achilles might have been torn due to the foot’s position during surgery. An MRI revealed Achilles tendinosis with a small tear. The patient filed suit.

At trial, the patient testified he felt pain in his Achilles immediately after surgery, although he only began to complain to his physical therapist two months later. The patient called an expert witness who testified to the standard of care in orthopedic knee surgeries, telling the jury that to meet the standard of care, surgeons must avoid placing the foot in a dorsal flexion position during surgery to prevent stretching the Achilles tendon, or risk tearing the tendon as a result. The patient’s expert further testified that, based on the surgeon’s own notes, the surgeon’s placement of the patient’s foot in a dorsal flexion position during surgery fell below the standard of care for surgeons, was the most likely cause of the patient’s injury. The expert also opined the surgeon exacerbated the injury with his ongoing failure to exercise appropriate care after the surgery.

Two experts testified the surgeon was not responsible for the patient’s injury because the surgeon used proper foot placement during the procedure, and there was no risk of tearing because the tendon is relaxed throughout the surgery. One expert also testified his review of the patient’s injury suggested a long-standing injury to the Achilles that was present before surgery and aggravated by the patient’s increased mobility and flexibility following the operation.

The major issue in this case came down to two jury instructions, both of which were originally submitted by the surgeon. The first instructed the jury to find for the patient if the surgeon “failed to follow the applicable standard of care.” The patient contended this was unlawful, and the jury instruction should have focused on whether the surgeon “exercised the care, skill, and learning expected of a reasonably prudent healthcare provider,” essentially arguing the judge, rather than the jury, should establish the applicable standard of care. The trial court and appellate court agreed with the surgeon.

The second jury instruction (commonly referred to as the “no guarantee” instruction) informed 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.” The patient contended that because both parties in this case agreed the knee surgery was successful, this instruction was unnecessary and would only confuse the jury in favor of the surgeon, since the only issue was whether the surgeon placed the patient’s leg and foot in a position that caused his Achilles injury. However, the trial court and appeals court agreed that because a poor medical result was alleged — an injury that may not have occurred but for the surgery — the jury was properly instructed to consider whether the injury could have been an existing condition that was aggravated unexpectedly by the surgery and physical therapy, as was the surgeon’s argument at trial.

The jury found in favor of the surgeon, and both the trial court and the appellate court denied the patient’s request for a new trial. Both courts also sided with the surgeon, finding the two challenged jury instructions were proper statements of the law and did not constitute an improper comment on the evidence by the trial judge.

What this means to you: This case shows the importance of jury instructions in medical negligence cases and defines how a court properly places the issues before the jury after evidence has been presented. In this case, the parties more or less agreed on the facts of the case, especially those involving the surgery: The patient underwent a total knee replacement surgery, during which the surgeon placed the patient’s foot in a dorsal flexion position, and the patient began to complain of Achilles tendon pain only after the surgery. The parties only disagreed on two major factual contentions: whether the surgeon’s placement of the patient’s foot in the dorsal flexion position during surgery met or fell below the standard of care for orthopedic surgeons, and whether the patient’s pain was simply a result of a pre-existing condition that was aggravated unexpectedly by the surgery and/or physical therapy (for which the surgeon should not be liable), or a result of the surgeon’s placement of the patient’s foot during surgery (for which the surgeon should be held liable).

The trial came down to the classic “battle of the experts,” with both sides presenting expert testimony to support their views of the patient’s pain and the surgeon’s actions. The jury sided with the surgeon’s experts, and the patient believed this was partially because the court improperly primed the jury by giving instructions that unfairly favored the surgeon.

The appellate court’s ruling shows that in most cases, the standard of care is not an issue for judges to define narrowly, but rather an issue to be decided by the jury based on the facts and expert testimony presented in that specific case. In other words, the court properly chose to stay neutral in the opposing experts’ disagreement over whether it was proper for a surgeon to place a patient’s foot in the dorsal flexion position in a total knee replacement surgery. Rather than defining what the standard of care was in such cases, the court properly instructed the jury to define the standard of care and then apply it to the facts presented in this case.

Moreover, the appellate court’s ruling also highlights the importance and potential effect of the “no guarantee” instruction to juries. The patient argued no such instruction was necessary, given the parties largely agreed the knee replacement itself was successful (the patient did not complain of complications with the knee, per se, but rather with the Achilles tendon), and the judge giving the jury that instruction essentially primed them to be less likely to hold the surgeon accountable, since the court had already told them surgeons cannot guarantee good results. Although the courts did not weigh in on how this may have affected the jury, it did find such instruction proper because it viewed the Achilles injury as a bad effect stemming from the surgery, regardless of whether it was a new injury caused solely by the surgeon’s placement of the patient’s foot or simply an aggravation of an existing injury or condition.

As an aside, a torn Achilles’ tendon is quite painful. Had it occurred during the surgery, it would likely have prevented the patient from actively participating in the prescribed physical therapy. A more rational scenario is the injury resulted from increased range of motion and activity after healing and progression of therapy-related exercise. The standards of care for orthopedic surgeries are specific to the type of surgery performed — and there are many. A good medical expert is a necessity.


  1. Decided March 11, 2021, in the Washington State Court of Appeals, Division Three, Case Number 36469-1-III.