¶1(concurring in part, dissenting in part) — I do not quarrel with the analysis and result of the majority on the issue of informed consent. I do disagree, however, with its position on reasonable prudence in medical practice.
¶2Proposed supplemental instruction No. 3 is taken directly from Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 A.L.R.3d 175 (1974). See Schwartz & Komesar, Doctors, Damages and Deterrence: An Economic View of Medical Malpractice, 298 New Eng. J. of Med. 1282 (June 1978). Supplemental instruction No. 3 reads:
Irrespective of 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 before April 22, 1974, you are instructed that failure to perform those *255tests before that date would constitute negligence. In determining whether reasonable prudence would require giving the tests in question you should consider, among other factors, the cost, ease or difficulty of administration, risk to the patient and relative reliability of the tests in question.
¶3The issue in Hellingand in this case is the standard of care to be applied by the jury in measuring the defendants' conduct. The standard of care is a rule of law which provides the trier of fact with the controlling test for negligence. W. Prosser, Law of Torts §§ 32-33 (4th ed. 1971). In most negligence actions, the standard of care to which the defendant must conform is that degree of care which, in the jury's view, a reasonable person of ordinary prudence would have exercised in the defendant's place in the same or similar circumstances. Prosser, § 32, at 150. In medical malpractice actions, however, the standard of care traditionally has been that degree of skill, care and learning which is possessed and exercised by members of the medical profession in good standing. Prosser, § 32, at 162; Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973, 31 A.L.R.3d 1100 (1967); Derr v. Bonney, 38 Wn.2d 678, 231 P.2d 637, 54 A.L.R.2d 193 (1951); Fritz v. Horsfall, 24 Wn.2d 14, 163 P.2d 148 (1945). In short, the standard of care generally has been held to be the standard of the profession. Note, 51 Wash. L. Rev. 167, 169 (1975).
¶4In Helling, however, we held that, regardless of the standards of the profession of ophthalmology, reasonable prudence required the "timely giving of this simple, harmless pressure test [for glaucoma] to this plaintiff and that, in failing to do so, the defendants were negligent." Citing Judge Learned Hand, we quoted with approval his observation that "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission". The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932); Helling, at 519. The Hellingdecision represented a deviation from the "standard of the profession" test used in medical malpractice *256actions. It rested on the "reasonably prudent person" standard which is applied in ordinary tort cases. Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 47 L. Ed. 905, 23 S. Ct. 622 (1903), and The T.J. Hooper, supra(both involving commercial cargo carriers and industry-wide disregard of needed safety precautions). See Note, 10 Gonzaga L. Rev. 220 (1974).
¶5In 1975, the legislature considered and passed Substitute House Bill No. 246 — RCW 4.24.290. The purpose of the bill was stated in the bill report of the House Committee on Judiciary, 44th Legislature, 1st Ex. Sess. That report said:
Purpose of Bill and Effect on Existing Law: This bill is occasioned by a recent holding by the Wash. State Supreme Court regarding the standard of care required of physicians. In Helling v. Carey the court held that in a malpractice suit it is sufficient for plaintiff to prove that the physician failed to provide reasonable and prudent care in light of all of the circumstances — even though he in fact adhered to that standard of care expected of the average practitioner in his field. Hellingsays, regardless of established practice, if the facts involved indicate that a certain duty to perform should exist then the professional is liable for breaches of that duty. The bill as introduced would re-establish the pre-Helling standards of negligence that have been developed through case law in Washington. (See Pederson v. Dumouchel [72 Wn.2d 73, 431 P.2d 973 (1967)] and Hayes v. Hullwit [73 Wn.2d 796, 440 P.2d 849 (1968)][)].
Effect of Substitute Bill: Requires medical malpractice plaintiff to show that defendant failed to exercise the degree of skill, care and learning possessed by others in the same profession and that such failure caused damages. Excludes from this requirement actions based on failure to obtain informed consent of a patient.
¶6The question is whether this purpose was successfully accomplished.
¶7The majority points out that the original bill referred to the "skill and care practiced by others in the same profession" (italics mine), while Substitute House Bill No. 246, now RCW 4.24.290, substitutes the word possessed for practiced. Without explaining further, the majority simply *257asserts "This standard is much broader than the one embodied in the original bill, and allows ample scope for the application of the limited Hellingrule. It is not argued that respondent and other ophthalmologists did not possess the skill, care and learning required to choose and administer the two alternative, simple and risk-free tests." I do not believe that the change of the word "practiced" to "possessed" frustrated the legislature's purpose in enacting RCW 4.24.290. The issue is not whether members of the profession possessed, practiced, followed (Helling v. Carey, supra;RCW 7.70.030) or exercised (RCW 7.70.040) a certain degree of skill. Rather, it is whether the standard of the profession should be used to measure the defendants' conduct instead of the Hellingstandard of "reasonably prudent under the circumstances."
¶8RCW 4.24.290 says that a "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". Plaintiffs' proposed supplemental instruction No. 3 says that even if the defendants met "the applicable standard of care followed by practicing ophthalmologists in the diagnosis of glaucoma" the jury could still find defendants negligent. This is absolutely contrary to the mandate of the legislature. The plaintiff must prove a violation of the standard of the profession. Failure to do so bars recovery.
¶9The trial court did not commit error in refusing to give the instruction.
¶10Reconsideration denied August 21, 1979.