|
NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
|
|
No.
93-1555
STATE OF WISCONSIN : IN SUPREME COURT
|
|
Kim Nowatske and Julie Nowatske, Plaintiffs-Appellants, v. Mark D. Osterloh, M.D., The Medical Protective Company, and Wisconsin Patients Compensation Fund, Defendants-Respondents. |
FILED JAN 25, 1996 Marilyn L. Graves Clerk
of Supreme Court Madison,
WI |
APPEAL from a judgment of the Circuit Court
for Winnebago County, Thomas S. Williams, Judge. Cause remanded to the Court of Appeals.
SHIRLEY
S. ABRAHAMSON, J. This is an appeal by Kim and Julie Nowatske
from a judgment of the circuit court for Winnebago County, Thomas S. Williams,
judge. The circuit court dismissed the
complaint upon a jury finding that Mark D. Osterloh, M.D. (the defendant), did
not negligently cause the Nowatskes' injuries.
Upon certification of the court of appeals pursuant to Wis. Stat. (Rule)
§ 809.61 (1993-94), this court accepted the case but limited its review to the
following issue: "Whether standard
jury instruction Wis JI—Civil 1023 accurately states the law of negligence for
medical malpractice cases?" We
conclude that the jury instruction read as a whole was not erroneous. Nevertheless,
we also conclude that the instruction
should be improved and recommend that the Civil Jury Instruction Committee
revise the standard jury instruction Wis JI—Civil 1023 in light of this
decision.
Having
reached this conclusion, the court would ordinarily dispose of the other issues
raised by the parties and determine whether the judgment of the circuit court
should be affirmed. However, because we
accepted only one issue raised in the Nowatskes' appeal, we cannot reach the
other issues. Instead, we must remand
the cause to the court of appeals to consider the other issues the Nowatskes
raised and to determine the validity of the circuit court's judgment.[1]
I.
We briefly summarize the facts giving rise to
this case, recognizing that the parties dispute whether certain events
occurred, whether the surgery and care provided by the defendant were negligent
and whether the defendant's alleged negligence caused the plaintiff's injury.[2]
One
morning the plaintiff noticed an area of blurred vision in his right eye. He was referred to the defendant, a retina
specialist in Oshkosh, who diagnosed him as having a retinal detachment.
Prior
to surgery to repair his retina, the plaintiff signed a consent form explaining
the risks and possible complications involved in the proposed treatment. He also viewed a videotape explaining the
procedure of retinal reattachment. The
parties dispute whether the defendant warned the plaintiff that
"blindness" or "loss of vision" could result.[3]
The
defendant elected to conduct a relatively common procedure, known as scleral
buckling, in an effort to reattach the retina.
Buckling procedures may raise the intraocular pressure (IOP) in the eye,
resulting in blindness.
Prior
to placement of the buckle with permanent sutures, the defendant checked the
IOP in the plaintiff's eye with his finger and then proceeded to attach the
buckle. Subsequently, he again checked
the IOP with his finger and concluded that it was within an acceptable
range. The parties dispute whether the
defendant should have used a tonometer rather than his finger to check the
plaintiff's IOP.
On
the morning following surgery, the defendant conducted a post-operative visit
to assess the success of his surgery.
The parties dispute whether the defendant measured the IOP. The defendant tested the plaintiff's vision
with an ophthalmoscope, shining a light into the eye to check its
response. Noting a normal "back-off"
response to the light, he concluded that the surgery had been successful. The parties dispute whether the defendant
should have also asked the plaintiff directly whether he could see out of his
right eye.
Although
the defendant did not administer any pressure- reducing medication, he did
prescribe pain relievers for what he assessed as a normal amount of pain
following such an operation. The
parties dispute whether the prescription of pressure-reducing medication would
have been more harmful than beneficial, given the side-effects associated with
the medication in question.
Following
discharge the plaintiff went home and experienced severe eye pain. Learning that upon discharge the plaintiff
had not received the medicine prescribed to alleviate his pain, the defendant
called in a prescription of pain-relievers to a local pharmacy. The parties dispute whether the defendant
should have also asked for a further description of the plaintiff's pain or
spoken with him directly rather than only speaking with the plaintiff's wife.
By
the next morning, the swelling around the plaintiff's eye had subsided. Because the defendant had not indicated when
the plaintiff's vision would return, the plaintiff remained unconcerned about
his continuing inability to see out of his right eye. At the plaintiff's scheduled follow-up appointment, however, the
defendant informed the plaintiff that he would be permanently blind in the
right eye. The parties dispute whether
the blindness was caused by increased anterior IOP resulting from the surgery
or by a discrete vascular event such as an occlusion of the central retinal
artery posteriorly.
On
April 22, 1991, the plaintiff filed a complaint alleging that the defendant
negligently treated him. During a
five-day jury trial in January 1993, the plaintiff introduced expert testimony
suggesting that if the defendant had utilized reasonable care, the plaintiff
would not have lost his eyesight. The
defendant, in turn, introduced expert testimony suggesting that the defendant
had exercised ordinary care and that a high IOP was not the cause of the
plaintiff's blindness.
At
the defendant's request and over the plaintiff's objection, the circuit court
used various paragraphs from the standard jury instruction pertaining to
medical malpractice, Wis JI—Civil 1023, to instruct the jury.[4] In response to the verdict question asking
whether the defendant was negligent, the jury answered "no," thus
returning a verdict in his favor. The
circuit court entered a judgment dismissing the complaint.
II.
We
first examine the standard of review applicable to a jury verdict in a case
involving a challenge to the jury instructions.
First,
a circuit court has broad discretion when instructing a jury so long as it
fully and fairly informs the jury of the rules and principles of law applicable
to the particular case. Peplinski v.
Fobe's Roofing, Inc., 193 Wis. 2d 6, 24, 531 N.W.2d 597 (1995)(quoting
Fischer v. Ganju, 168 Wis. 2d 834, 849-50, 485 N.W.2d 10 (1992)); D.L.
v. Huebner, 110 Wis. 2d 581, 624, 329 N.W.2d 890 (1983). An instruction that is an incorrect or
misleading statement of the law is erroneous.
Second,
a circuit court should instruct the jury with due regard to the facts of the
case. Carlson v. Drews of Hales
Corner, Inc., 48 Wis. 2d 408, 414, 180 N.W.2d 546 (1970). The court has held that it is error to
refuse to instruct on an issue that the evidence raises; it has also held that
it is error to instruct on an issue that the evidence does not support. Lutz v. Shelby Mut. Ins. Co., 70
Wis. 2d 743, 750, 235 N.W.2d 426 (1975).
Third,
an instruction should not be unduly favorable to any party. While a circuit court has "some leeway
in the choice of language and emphasis in framing instructions," the
instructions "as a whole must not favor one side or the other but should
set forth the respective versions of the evidence of the
contestants." Aetna Cas. &
Sur. Co. v. Osborne-McMillan Elevator Co., 35 Wis. 2d 517, 529, 151
N.W.2d 113 (1967); see also D.L. v. Huebner, 110 Wis. 2d at
624.
Fourth,
an appellate court must consider the instructions as a whole to determine
whether the challenged instruction or part of an instruction is erroneous. The instructions are not erroneous if, as a
whole, they adequately and properly informed the jury. Peplinski, 193 Wis. 2d at 25; White
v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557 (1989). "On review, the language of a jury
instruction should not be fractured into segments, one or two of which, when
considered separately and out of context, might arguably be in
error." State v. Paulson,
106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982).
Fifth,
when the circuit court has given an erroneous instruction or has erroneously
refused to give an instruction, a new trial is not warranted unless the error
is prejudicial. "[A]n error
relating to the giving or refusing to give an instruction is not prejudicial if
it appears that the result would not be different had the error not
occurred." Lutz, 70
Wis. 2d at 751. See also
Wis. Stat. § 805.18(2)(1993-94); Helmbrecht v. St. Paul Ins. Co.,
122 Wis. 2d 94, 131, 362 N.W.2d 118 (1985).
III.
The
plaintiff's claim that Wis JI-Civil 1023 is erroneous and prejudicial focuses
on the first three paragraphs of the instruction. As presented to the jury in this case, those paragraphs,
virtually unmodified from the pattern instruction, read as follows:
In treating Kim Nowatske, Dr. Osterloh was
required to use the degree of care, skill, and judgment which is usually
exercised in the same or similar circumstances by the average specialist who
practices the specialty which Dr. Osterloh practices, having due regard for the
state of medical science at the time Kim Nowatske was treated. The burden in this case is on the plaintiffs
to prove that Dr. Osterloh failed to conform to this standard.
A physician does not guarantee the results
of his care and treatment. A physician
must use reasonable care and is not liable for failing to use the highest
degree of care, skill, and judgment.
Dr. Osterloh cannot be found negligent simply because there was a bad
result. Medicine is not an exact
science. Therefore, the issue you must
decide in determining whether Dr. Osterloh was negligent is not whether there
was a bad result but whether he failed to use the degree of care, skill, and
judgment which is exercised by the average physician practicing the
sub-specialty of retinal surgery.
If you find that more than one method of
treatment for Kim Nowatske's injuries is recognized, then Dr. Osterloh was at
liberty to select any of the recognized methods. Dr. Osterloh was not negligent merely because he made a choice of
a recognized alternative method of treatment if he used the required care,
skill, and judgment in administering the method. This is true even though other medical witnesses may not agree
with him on the choice that was made.
The
plaintiff argues that this instruction was erroneous and prejudicial because
(1) paragraph one of the instruction substitutes medical custom for reasonable
care by defining the degree of care that must be exercised in terms of what the
average physician would usually do under the same or similar
circumstances and thereby improperly permits the medical profession to set the
standard of care for physicians; (2) paragraph two of the instruction is unduly
exculpatory by emphasizing the ways in which the defendant was not
negligent and is consequently biased toward the defendant; and (3) paragraph
three instructs the jury that it must find for the defendant when an expert
witness testifies that the defendant's actions represent a recognized
alternative method of procedure and thereby strips the jury of its fact-finding
function.[5]
We
shall examine each of these paragraphs of the jury instruction in turn.
A.
To
repeat, the first paragraph of the circuit court's medical malpractice
instruction to the jury in this case reads as follows:
In treating Kim Nowatske, Dr. Osterloh was
required to use the degree of care, skill, and judgment which is usually
exercised in the same or similar circumstances by the average specialist who
practices the specialty which Dr. Osterloh practices, having due regard for the
state of medical science at the time Kim Nowatske was treated. The burden in this case is on the plaintiffs
to prove that Dr. Osterloh failed to conform to this standard.
The
plaintiff's principal objection to this paragraph is that it defines the
standard of care as that care usually exercised by the average physician
practicing within the same specialty.
According to the plaintiff the instruction thus equates the reasonable
care required by law with customary medical care as defined by the medical
profession, regardless of whether what is customary in the profession reflects
what is reasonable in the wake of current medical science.
Because
the medical profession is allowed to set its own definition of reasonable
behavior in accordance with the customs of the profession, argues the
plaintiff, what counts as an exercise of due care is established as a matter of
law by doctors rather than as an issue to be resolved by the jury. Under Wis JI—Civil 1023, the plaintiff
continues, all a defendant doctor need do is demonstrate that the methods used
in treating the patient were customary in the medical profession. Even if the challenged custom is
unreasonable and outdated, claims the plaintiff, the fact that it is
"usually exercised in the same or similar circumstances by the average
physician" is sufficient to shield clearly negligent conduct and negligent
practitioners from liability.
The
plaintiff is correct in suggesting that physicians, like all others in this
state, are bound by a duty to exercise due care. Every person in Wisconsin must conform to the standard of a
reasonable person under like circumstances; so too, then, "[t]he duty of a
physician or surgeon is to exercise ordinary care." Scaria v. St. Paul Fire & Marine Ins.
Co., 68 Wis. 2d 1, 11, 227 N.W.2d 647 (1975). As the amicus brief of the State Medical
Society of Wisconsin correctly states, "the basic standard‑‑ordinary
care‑‑does not change when the defendant is a physician. The only thing that changes is the makeup of
the group to which the defendant's conduct is compared." Brief for the State Medical Society of
Wisconsin as Amicus Curiae at 2.
The
Medical Society's characterization of how the law gauges whether physicians
have met their duty of ordinary care is correct. Generally a determination of
negligence involves comparing an alleged tortfeasor's standard of care with
"the degree of care which the great mass of mankind exercises under the
same or similar circumstances."
Wis JI-Civil 1005. When a claim
arises out of highly specialized conduct requiring professional training,
however, the alleged tortfeasor's conduct is compared with the conduct of
others who are similarly situated and who have had similar professional
training.[6]
Thus
physicians are required to exercise ordinary care, a standard to which they
have been held since early Wisconsin case law.
In Reynolds v. Graves, 3 Wis. 371 [416], 375-76 [421-22] (1854),
a physician's duty of care was alternately expressed as the obligation "to
use reasonable professional skill and attention" and "to use due and
reasonable skill and diligence" in an effort to cure the patient.
In
Gates v. Fleischer, 67 Wis. 504, 507, 30 N.W. 674 (1886), the court repeated
that the defendant physician "was bound to exercise reasonable skill and
care in the treatment of the plaintiff."
The court then proceeded to define that care in language similar to that
now incorporated into the first paragraph of Wis JI—Civil 1023, stating that
the physician "was bound to bring to [the plaintiff's] aid and relief such
skill as is ordinarily possessed and used by
physicians . . . having regard to the advanced state of the
profession at the time of treatment."[7]
These
early cases demonstrate that the standard of ordinary care applicable to all
people in this state applies to physicians in this state as well. Subsequent case law has confirmed and
amplified what these early cases announced.[8]
The
cases also demonstrate, as the plaintiff urges, that should customary medical
practice fail to keep pace with developments and advances in medical science,
adherence to custom might constitute a failure to exercise ordinary care. The court explained its aversion to equating
custom with reasonable care in abolishing the locality rule. The locality rule, observed the court,
allowed a small group, through its "laxness or carelessness," to
"establish a local standard of care that was below that which the law
requires." Shier v. Freedman,
58 Wis. 2d 269, 280, 206 N.W.2d 166 (1973) (quoting Pederson v.
Dumouchel, 431 P.2d 973 (Wash. 1967)).
But "[n]egligence," the court continued, "cannot be
excused on the ground that others in the same locality practice the same kind
of negligence. No degree of antiquity
can give sanction to usage bad in itself." Id. Since
technological changes insured that there was no longer any "lack of
opportunity for a physician or surgeon to keep abreast of the advances made in
his profession and to be familiar with the latest methods and practices
adopted," id., the court concluded that the reasons prompting the
abolition of the locality rule elsewhere applied "with equal logic and
persuasion in Wisconsin." Shier,
58 Wis. 2d at 283.
Wis
JI—Civil 1023 incorporates the reasoning of Shier, not only by defining
reasonable care as that "which is usually exercised in the same or similar
circumstances by the average physician" but also by requiring that this
definition of care itself be shaped by a "due regard for the state of medical
science at the time plaintiff was treated." If what passes for customary or usual care lags behind
developments in medical science, such care might be negligent, despite its
customary nature.[9]
Both
the amicus brief of the State Medical Society of Wisconsin and the defendant
have acknowledged that the first paragraph of Wis JI—Civil 1023 requires that
custom must be dynamic to be reasonable.
As interpreted by the Medical Society, the portion of Wis JI—Civil 1023
which instructs the jury to judge the defendant's conduct with "due regard
for the state of medical science at the time the plaintiff was treated"
means that "[p]laintiffs can always, if appropriate, present evidence
regarding the 'state of medical science' to show that a professional custom is
obsolete or unreasonable." Brief
for the State Medical Society of Wisconsin as Amicus Curiae at 3.[10]
The
defendant interprets the same jury instruction language as applying "a
dynamic standard" to professionals because the standard "changes as
the state of knowledge of the profession changes." Brief for Defendant at 17. "Absent a dynamic standard," the
defendant continues, "the law could not adjust to changes and improvement
in medical science." Id. at
18. At oral argument before this court,
counsel for the defendant stated that if a particular custom in the medical profession
failed to keep pace with what developments in medical science had rendered
reasonable, the plaintiff could introduce evidence demonstrating that the
custom in question constituted negligent conduct.
We
agree with the parties and the Medical Society that while evidence of the usual
and customary conduct of others under similar circumstances is ordinarily
relevant and admissible as an indication of what is reasonably prudent,
customary conduct is not dispositive and cannot overcome the requirement that
physicians exercise ordinary care.[11]
The
standard of care applicable to physicians in this state can not be conclusively
established either by a reflection of what the majority of practitioners do or
by a sum of the customs which those practitioners follow. It must instead be established by a
determination of what it is reasonable to expect of a professional given the
state of medical knowledge at the time of the treatment in issue.
We
recognize that in most situations there will be no significant difference
between customary and reasonable practices. In most situations physicians, like
other professionals, will revise their customary practices so that the care
they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than
customary practices, however, insures that custom will not shelter physicians
who fail to adopt advances in their respective fields and who consequently fail
to conform to the standard of care which both the profession and its patients
have a right to expect.
The
issue then is whether the first paragraph of the instruction conveys the
correct legal message that the defendant is held to a standard of reasonable
care, skill and judgment and that reasonable care, skill and judgment are not
necessarily embodied by the customary practice of the profession but rather
represent the practice of physicians who keep abreast of advances in medical
knowledge.
We
conclude that the first paragraph of Wis JI—Civil 1023, read in conjunction
with the remainder of the instructions given, conveys this message. The first paragraph speaks of the degree of
care, skill, and judgment usually exercised in the same or similar
circumstances by the average specialist.
The second paragraph expressly states that a physician must use
reasonable care. The third paragraph
cautions that even a physician who has chosen a recognized method of treatment
can nevertheless be found negligent for failing to exercise "the required
care, skill, and judgment in administering the method" chosen. And much like the first paragraph of the
plaintiff's proposed instruction, the first paragraph of the instruction given
requires that in determining the degree of care, skill and judgment required of
a physician, "due regard" should be given to "the state of
medical science." The phrase
"due regard for the state of medical science" tells the jury that a
reasonably competent practitioner is one who keeps up with advances in medical
knowledge.
Paragraph
one of the plaintiff's proposed instruction, see supra note 5, is
substantially the same as paragraph one of the instruction given except that
the plaintiff's proposed instruction uses the word "reasonable" to describe the physician, while the
instruction given uses the word "average."
The
word "average" is problematic, as we explain more fully below. Viewed as a whole, however, the instruction
given does not imply that the degree of care, skill and judgment expected of a
doctor is set by the customs of the profession. Consequently, we disagree with the plaintiff's claim that the
first paragraph of Wis JI—Civil 1023 allows medical custom to be dispositive
regarding what constitutes reasonable medical care.
Nevertheless,
the plaintiff's arguments demonstrate that this pattern jury instruction could
be improved, and we conclude that the instruction should be revised.
The
Civil Jury Instruction Committee's accompanying comment to Wis JI—Civil 1023
correctly states that the "basic inquiry with respect to the defendant's
conduct [should] be framed in simple terms of negligence" and that
"[f]ailure on the part of the doctor to conform to the applicable
standards of care constitutes negligence." But Wis JI—Civil 1023 itself neither frames the standard of care
in simple terms of negligence nor informs the jury that failure to conform to
the applicable standard of care constitutes negligence.[12]
The
instruction's failure to define negligence is exacerbated by its use of the
word "average" to denote the subset of physicians with whom an
alleged tortfeasor is to be compared.
The fallacy in the "average" formulation is that it bears no
intrinsic relation to what is reasonable.
As the American Law Institute stated in its commentary to sec. 299A
Restatement (Second) of Torts (1965), "those who have less
than . . . average skill may still be competent and
qualified. Half of the physicians of
America do not automatically become negligent in practicing medicine . . . merely
because their skill is less than the professional average."[13]
The
Civil Jury Instruction Committee's comment to Wis JI—Civil 1023 tacitly
recognizes the difficulty with the word "average," stating that it
interprets "average" in the instruction and in the court's decisions
on which the instruction is based "to mean a typical physician in the same
class and not a midpoint concept."
"The Committee does not believe," the comment continues,
"that measuring a doctor's conduct against the conduct normally exercised
by physicians changes the standard of conduct from reasonable care to average
care."[14]
On
reflection, we too have reservations about the reference to "average"
in Wis JI—Civil 1023 and conclude that this word should be eliminated. Loaded as it is with mathematical
connotations, the word could distract a jury from its true purpose in a medical
malpractice case: an investigation of
whether the alleged tortfeasor exercised reasonable care. Reasonable care cannot be established by
determining whether a physician provided care above or below the mean of the
medical profession, but rather must be determined by assessing whether a
patient received the standard of care he or she might reasonably expect from
that practitioner, with due regard for the state of medical science at the time
of treatment.
B.
The
second paragraph of the circuit court's medical malpractice instruction to the
jury in this case reads as follows:
A physician does not guarantee the results
of his care and treatment. A physician
must use reasonable care and is not liable for failing to use the highest
degree of care, skill, and judgment.
Dr. Osterloh cannot be found negligent simply because there was a bad
result. Medicine is not an exact
science. Therefore, the issue you must
decide in determining whether Dr. Osterloh was negligent is not whether there
was a bad result but whether he failed to use the degree of care, skill, and
judgment which is exercised by the average physician practicing the
sub-specialty of retinal surgery.
The
plaintiff does not suggest that this paragraph in any way misconstrues or
misrepresents prior case law, from which much of the paragraph's language is
derived. See, e.g., Kuehnemann
v. Boyd, 193 Wis. 588, 592-93, 214 N.W. 326 (1927) ("we see no reason
why proof of a bad result should constitute proof of negligence on the part of
the physician"); Francois v. Mokrohisky, 67 Wis. 2d 196, 201, 226
N.W.2d 470 (1975) (medicine "is not an exact science, and even the very
best of [physicians] can be wrong in diagnosis or procedure"). See also Hoven v. Kelble, 79
Wis. 2d 444, 456, 256 N.W.2d 379 (1977).
The
plaintiff characterizes the paragraph as argumentative, however, because it
allegedly accords undue emphasis to the defendant's case by repeatedly telling the
jury what is not negligent without ever explaining what negligence is. Furthermore, argues the plaintiff, the undue
prominence accorded what is not negligent in the first two paragraphs is
exacerbated by the third paragraph, which also instructs the jury regarding
what behavior is not negligent when it states that a physician choosing an
alternative method of treatment is not negligent so long as he or she exercises
the requisite degree of care.
Compounding
the second paragraph's allegedly disproportionate emphasis on behavior which is
not negligent, argues the plaintiff, the facts in this case did not merit
giving the first sentence of that paragraph.
Although the first sentence simply states that a doctor does not
guarantee a favorable result, the plaintiff never claimed that the defendant
was guaranteeing results. Hence in
giving this part of Wis JI—Civil 1023, insists the plaintiff, the circuit court
did not fulfill the requirement that an "instruction must be germane to
the situation at hand and must be framed in light of the evidentiary
issues." Carlson, 48
Wis. 2d at 414.
Finally
the plaintiff contends that by repeatedly emphasizing forms of behavior which
are not negligent, Wis JI—Civil 1023 ignores this court's admonition that an
instruction "should not give undue prominence to the contention of one
party without giving equal prominence to the contention of the other
party." Kuklinski v. Dibelius,
267 Wis. 378, 381, 66 N.W.2d 169 (1954).
We
agree with the plaintiff that the circuit court need not have given the
instruction's "no guarantee" language and we acknowledge that the
second paragraph of Wis JI—Civil 1023 largely defines negligence through what
is not negligent. Nevertheless, we conclude
that the instruction is not erroneous.
First,
concepts are frequently defined by what they are not. For reasons suggested by the plaintiff himself in mounting his
attack against custom, defining negligence by what it is not is especially
applicable here because the concept requiring definition is necessarily dynamic
and changing.
Second,
even assuming arguendo that the disputed sentences are in error, we
again emphasize that when we review jury instructions, their language
"should not be fractured into segments, one or two of which, when considered
separately and out of context, might arguably be in error." Paulson, 106 Wis. 2d at
108. Any error, the Paulson
court instructs us, "must permeate the underlying meaning of the
instruction" for there to be reversible error. Id.
When
read in the context of both the remaining portions of Wis JI—Civil 1023 and the
instructions as a whole, any alleged bias in the second paragraph of this
instruction is readily dissipated. As
the defendant points out in his brief to this court, the fifth paragraph of Wis
JI—Civil 1023, which addresses the relation between negligence and cause and
which was also given at trial, could be perceived as demonstrating a bias in
favor of the plaintiff.[15] Similarly, as the defendant suggested in
oral argument before this court, one could conclude that the damages
instructions given to the jury at trial were erroneous because of their focus
on the plaintiff's suffering.[16]
We
would reject such arguments, as we reject the one made here by the
plaintiff. While jury instructions can
appear to be biased or argumentative when read in isolation, the litmus test
applied by this court when reviewing such instructions is whether that bias
persists when the instructions are read together. Read together with the remaining instructions given by the
circuit court, the second paragraph of Wis JI—Civil 1023 passes that test. We therefore conclude that the second
paragraph of Wis JI—Civil 1023 as given in this case was not erroneous.[17]
C.
The
third paragraph of the circuit court's medical malpractice instruction to the
jury in this case reads as follows:
If you find that more than one method of
treatment for Kim Nowatske's injuries is recognized, then Dr. Osterloh was at
liberty to select any of the recognized methods. Dr. Osterloh was not negligent merely because he made a choice of
a recognized alternative method of treatment if he used the required care,
skill, and judgment in administering the method. This is true even though other medical witnesses may not agree
with him on the choice that was made.[18]
The
plaintiff contends that the last sentence of this paragraph of the instruction
invades the province of the jury by requiring the jury to disregard other
expert testimony and to conclude that a physician has not acted negligently
when any expert testifies that the physician pursued a recognized method of
treatment. Not only does such an
instruction unduly favor the defendant, the plaintiff insists, but it also
conflicts with another instruction given the jury, Wis JI—Civil 260
("Expert Testimony"), which confers upon the jury the right to
determine the credibility of experts.[19]
In
response, the defendant asserts that the purpose of the third paragraph in the
instruction is to inform the jury that there may be more than one accepted
method of treatment and that a doctor may not be held negligent merely because
the doctor made a choice of a recognized alternative method of treatment.
We
disagree with the plaintiff's interpretation of the third paragraph of JI—Civil
1023.
First,
the opening of the third paragraph states that a doctor cannot be excused for
utilizing an alternative method until "you [the jury] find that more than
one method of treatment . . . is recognized." Thus the instruction insures that it is for
the jury, exercising its role as fact-finder, to determine whether there is more
than one method of treatment as well as whether the treatment method chosen is
among those methods recognized as acceptable.
Second,
the circuit court informed the jurors that they were "the sole judges of
the credibility of the witnesses and the weight to be given to their
testimony" and that while "[o]pinion evidence was admitted in this
case to help you reach a conclusion," "[y]ou are not bound by any
expert's opinion." See Wis
JI—Civil 215; Wis JI—Civil 260. Jury
instructions are to be construed as a whole, Paulson, 106 Wis. 2d
at 108, and "[w]e must assume the jury followed the instructions," Johnson
v. Pearson Agri-Systems, Inc., 119 Wis. 2d 766, 776, 350 N.W.2d 127
(1984). Consequently, we must assume
that the jurors listened and adhered to those portions of the circuit court's
instructions informing them that they were not bound by any expert's opinion
regarding what procedures were "recognized" or whether the defendant
acted negligently.
Third,
we disagree with the plaintiff's claim that the final sentence of this
paragraph of the instruction requires a finding of non-negligence whenever any
expert testifies that an allegedly negligent physician has pursued an accepted
treatment method. The sentence states
that "[t]his is true even though other medical witnesses may not
agree . . . on the choice [of methods] that was
made." The "this" which
is "true" refers to the antecedent sentence, which states that a physician
is not negligent merely because he chose a recognized alternative method. As that preceding sentence also makes clear,
to be negligent a physician must also fail to exercise reasonable care in using
that recognized alternative method.
The
third paragraph of the instruction would be clearer if its final sentence were
eliminated or if the paragraph stated explicitly that the jury alone determines
which methods of treatment are "recognized" on the basis of the
expert testimony in evidence. But these
suggested revisions do not alter our conclusion that the third paragraph
adequately instructed the jury regarding its prerogative to assess and weigh
the evidence before it in reaching a verdict.
To
sum up, we conclude that these three paragraphs of Wis JI—Civil 1023, read as a
whole and in conjunction with the other instructions given in this case, were
not erroneous. At the same time,
however, we recognize that the plaintiff has pointed to a number of ways in
which the first three paragraphs of Wis JI-Civil 1023 might be clarified and
thereby improved. Hence even though we
hold that the pattern jury instruction was not erroneous in this case, we also
conclude that it should be revised.
For
the reasons set forth we remand the cause to the court of appeals for further
proceedings consistent with this opinion.
By
the Court.—The cause is remanded to the court of appeals.
SUPREME COURT OF WISCONSIN
Case No.: 93-1555
Complete Title
of Case: Kim Nowatske and Julie Nowatske,
Plaintiffs-Appellants,
v.
Mark D. Osterloh, M.D.
The Medical Protective Company and
Wisconsin
Patients Compensation Fund,
Defendants-Respondents.
__________________________________
ON CERTIFICATION FROM THE COURT OF APPEALS
Opinion Filed: January 25, 1996
Submitted on Briefs:
Oral Argument: October 31,
1995
Source of APPEAL
COURT: Circuit
COUNTY: Winnebago
JUDGE: THOMAS S. WILLIAMS
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the plaintiff-appellants there were
briefs by David M. Skoglind and Warshafsky, Roter, Tarnoff, Reinhardt
& Bloch, S.C., Milwaukee and oral argument by Gerald J. Bloch.
For the defendants-respondents there was a
brief by Paul H. Grimstad, John F. Mayer and Nash, Spindler, Dean
& Grimstad, Manitowoc and oral argument by Robert L. McCracken.
95-1555 Nowatske v. Osterloh
Amicus curiae brief was filed by Mark L.
Thomsen and Cannon & Dunphy, S.C., Brookfield for The Wisconsin
Academy of Trial Lawyers.
Amicus curiae brief was filed by Mark L.
Adams and State Medical Society of Wisconsin and Barrett J.
Corneille, David J. Pliner and Bell, Metzner, Gierhart & Moore, S.C.,
all of Madison for the State Medical Society of Wisconsin.
[1] This court did not accept the following
issue identified by the court of appeals and the Nowatskes: "Whether evidence that a medical expert
witness was the subject of an unrelated prior malpractice action or a currently
pending action is admissible for impeachment purposes under § 906.08,
Stats.?" The Nowatskes' brief in
the court of appeals raised a third issue:
Did prejudice result from a witness's use of a pen light device during
the trial?
For
the court's decision regarding certification, see the unpublished order dated
February 23, 1995, in the court's file on this case (Abrahamson and Geske,
J.J., objecting to limiting the issues accepted on appeal).
[2] Both Kim Nowatske and his wife Julie
Nowatske are plaintiffs in this case.
In the interest of clarity, we refer only to Kim Nowatske as the
plaintiff.
[3] The plaintiff did not raise the issue of
informed consent either in the circuit court or before this court.
[4] Unless otherwise noted, all references are
to the 1992 version of the instruction used at trial. With one exception noted below, it is the same as the recently
revised 1995 instruction.
[5] The plaintiff proposed the following
modified version of the instruction:
With regard to question 1 you are
instructed that in undertaking to care for Kim Nowatske, Mark Osterloh was
required to use the degree of care, skill and judgment usually exercised under
the same or similar circumstances by reasonable physicians who specialize in
the care of retina problems having due regard for the state of medical science
at the time in question.
A physician such as Dr. Osterloh is
negligent when he fails to exercise reasonable and ordinary care. Reasonable and ordinary care is the degree
of care which physicians who specialize in the care of retina problems
ordinarily exercise under the same or similar circumstances. A physician fails to exercise reasonable and
ordinary care when, without intending to do any wrong, he does an act or omits
to act under circumstances in which a physician ought reasonably to foresee
that such action or omission of action will subject his patient to an
unreasonable risk of injury or damage.
Whether or not
Dr. Osterloh complied with the standards of care, skill and judgment required
of him as someone who specializes in the care of retina problems is not a
matter within the common knowledge or experience of lay persons. These standards are within the special
knowledge of experts in the field of medicine and can only be established by
the testimony of persons knowledgeable in the field of medicine, or by the
written materials received in evidence.
[6] See, e.g., A.E. Investment Corp.
v. Link Builders, Inc., 62 Wis. 2d 479, 489, 214 N.W.2d 764 (1974) (an
architect has "the duty of using the standard of care ordinarily exercised
by the members of that profession"); Malone v. Gerth, 100 Wis. 166,
173, 75 N.W. 972 (1898) (quoted with approval in Helmbrecht v. St. Paul Ins.
Co., 122 Wis. 2d 94, 111, 362 N.W.2d 118 (1985)) (a lawyer is required
to exercise a "reasonable degree of care and skill, and to possess to a
reasonable extent the knowledge requisite to a proper performance of the duties
of his profession").
[7] See also Kuehnemann v. Boyd,
193 Wis. 588, 591-92, 214 N.W. 326 (1927) overruled on other grounds by Fehrman
v. Smirl, 20 Wis. 2d 1, 21-22, 121 N.W.2d 255 (1963); Jaeger v.
Stratton, 170 Wis. 579, 581, 176 N.W. 61 (1920); Wurdemann v. Barnes,
92 Wis. 206, 208, 66 N.W. 111 (1896); Nelson v. Harrington, 72 Wis. 591,
597, 40 N.W. 228 (1888).
With
the exception of Reynolds, the early cases also adhered to the locality
rule which equated a physician's exercise of ordinary care with the standard
exercised by other physicians in the same or similar communities. As we explain below, the locality rule was
abolished by Shier v. Freedman, 58 Wis. 2d 269, 280, 206 N.W.2d 166
(1973).
[8] See, e.g., Kerkman v. Hintz,
142 Wis. 2d 404, 419-420, 418 N.W.2d 795 (1988) (chiropractors must
"exercise that degree of care, diligence, judgment, and skill which is
exercised by a reasonable chiropractor under like or similar
circumstances"; such a standard is consistent with that imposed on other
professionals); Francois v. Mokrohisky, 67 Wis. 2d 196, 201-02, 226
N.W.2d 470 (1975) ("[l]ike automobile drivers, engineers, common laborers,
and lawyers, [physicians] are obliged to conform to reasonable care in the
circumstances").
The circuit
court in Steinberg v. Arcilla, 194 Wis. 2d 759, 773, 535 N.W.2d 444
(Ct. App. 1995), instructed the jury as follows:
A physician . . . is negligent when
he fails to exercise reasonable and ordinary care. A physician fails to exercise reasonable and ordinary care when,
without intending to do any wrong, he does an act or omits an act under
circumstances in which a physician ought reasonably to foresee that such action
or omission will subject his patient to an unreasonable risk [of] injury or
damage.
[9] The relation between custom and negligence
in medical malpractice has long been a topic of debate in American tort law. See,
e.g., 3 Fowler V. Harper et al., The Law of Torts § 17.3
(2d ed. 1986); W. Page Keeton et al., Prosser and Keeton on the Law
of Torts § 32, at 185-89 (5th ed. 1984); Richard A. Epstein, Medical
Malpractice, Imperfect Information, and the Contractual Foundation for Medical
Services, Law & Contemp. Probs., Spring 1986, at 201, 202; Clark C.
Havighurst, Altering the Applicable Standard of Care, Law & Contemp.
Probs., Spring 1986, at 265, 266-70; John Kimbrough Johnson, Jr., An
Evaluation of Changes in the Medical Standard of Care, 23 Vand. L. Rev.
729, 741-747 (1970); Joseph H. King, Jr., In Search of a Standard of Care
for the Medical Profession: The
"Accepted Practice" Formula, 28 Vand. L. Rev. 1213 (1975); Allan
McCoid, The Care Required of Medical Practitioners, 12 Vand. L. Rev.
549, 605 (1959); Matthew J. Mitten, Team Physicians and Competitive
Athletes: Allocating Legal
Responsibility for Athletic Injuries, 55 U. Pitt. L. Rev. 129, 146 (1993);
Richard N. Pearson, The Role of Custom in Medical Malpractice Cases, 51
Ind. L.J. 528 (1976).
[10] What constitutes reasonable physician care
in the wake of developments in medical science must ordinarily be established
by expert testimony, because "medical practice demands special knowledge
or skill or experience on subjects which are not within the realm of the
ordinary experience of mankind, and which require special learning, study, or
experience." Weiss v. United
Fire & Casualty Co., ___ Wis. 2d ___, ___ N.W.2d ___ (1995)
(quoting Cramer v. Theda Clark Mem. Hosp., 45 Wis. 2d 147, 150, 172
N.W.2d 427 (1969)). On the basis of
expert testimony, a jury could determine whether the customary practices of the
medical profession had kept pace with developments in medicine at the time of
an incident and whether a particular practice in issue was therefore negligent.
[11] Cf. Wis JI—Civil 1019
("[c]ustom . . . cannot overcome the requirement of
reasonable safety and ordinary care. A
practice which is obviously unreasonable and dangerous cannot excuse a person from
responsibility for carelessness"); 3 Fowler V. Harper et al., The
Law of Torts § 17.3 at 579 (2d ed. 1986) ("[b]y the great weight
of modern American authority a custom either to take or to omit a precaution is
generally admissible as bearing on what is proper conduct under the
circumstances, but is not conclusive");
Keeton, supra, § 33, at 195 (5th ed. 1984) ("[m]uch the
better view, therefore, is that . . . every custom is not
conclusive merely because it is a custom, that it must meet the challenge of
'learned reason,' and be given only the evidentiary weight which the situation
deserves").
The
court has concluded that a "self-created custom of the profession" is
an improper standard for measuring a doctor's conduct in an informed consent
case. Scaria v. St. Paul Fire &
Marine Ins. Co., 68 Wis. 2d 1, 12, 227 N.W.2d 647 (1975). The Scaria court concluded that the
instruction improperly allowed physicians to set their own standard of
care.
[12] A 1995 revision to Wis JI—Civil 1023 has
attempted to address the second of these two issues. The 1995 revision adds a sentence to the first paragraph of the
instruction stating that "[f]ailure to conform to this standard is
negligence." But because the 1995
revision does not address the plaintiff's argument regarding how the reasonable
standard of care applicable to physicians should be defined and applied, this
revision does not address the plaintiff's argument that an excessive reliance
on custom distorts the relation between physicians' standard of care and
ordinary negligence.
[13] Restatement (Second) of Torts § 199A
cmt. e (1965). See also Keeton, supra,
§ 32, at 187 (reliance on what is average in determining what constitutes
reasonable medical care is "clearly misleading").
[14] In the initial version of JI—Civil 1023 in
1963, the first paragraph of the instruction spoke in terms of the "degree
of care, skill, and judgment which is usually exercised by reputable
physicians" rather than average physicians. In fashioning a replacement for the locality rule which it
abolished, Shier appears to be the first Wisconsin case to use the
phrase "average practitioner."
Shier, 58 Wis. 2d at 283.
[15] As given at trial, the fifth paragraph of
Wis JI—Civil 1023 reads as follows:
The cause
question asks whether there was a causal connection between negligence on the
part of Dr. Osterloh, if you find such negligence, and Kim Nowatske's present
condition. A person's negligence is a
cause of a plaintiff's condition if the negligence was a substantial factor in
producing the present condition of the plaintiff's health. This question does not ask about "the
cause" but rather "a cause."
The reason for this is that there can be more than one cause of a
condition.
[16] The circuit court gave the jury both Wis
JI—Civil 1700 ("Damages: General") and Wis JI—Civil 1750A
("Personal Injury").
[17] In Steinberg v. Arcilla, 194
Wis. 2d at 773-74, 535 N.W.2d 444 (Ct. App. 1995), the court of appeals
recently reached a similar conclusion when it rejected a claim that the second
paragraph of Wis JI—Civil 1023 prejudicially tipped the scales in favor of the
defendant physician.
[18] This paragraph is apparently derived from Treptau
v. Behrens Spa, Inc., 247 Wis. 438, 20 N.W.2d 108 (1945); Holton v.
Burton, 197 Wis. 405, 222 N.W. 225 (1928); DeBruine v. Voskuil, 168
Wis. 104, 169 N.W. 288 (1918).
[19] As given to the jury in this case, Wis
JI—Civil 260 stated, in pertinent part:
You are not bound by any expert's opinion. In resolving conflicts in expert testimony,
weigh the different expert opinions against each other and consider the
relative qualifications and credibility of the experts, the reasons and facts
supporting their opinions, and whether the facts and reasons given are based on
facts you find are established by the evidence in this case.