Nowatske v. Osterloh

543 N.W.2d 265



A court's jury 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.


Plaintiff was defendant's patient, and sought treatment from the defendant. After seeking treatment, the plaintiff lost vision in his eye. Plaintiff contended that his lost vision was because of the defendant's malpractice. Plaintiff sued defendant for medical malpractice. At trial, both parties presented expert testimony. At the end of the trial, the plaintiff objected to a great deal of the court's standard medical malpractice jury instructions, particularly the part that required the defendant to use the “degree of care, skill, and judgment” usually exercised in the same or similar circumstances by the average specialist who was in a practice similar to the defendant. The court overruled the objection, and sent the matter to the jury. The jury found for the defendant, and the plaintiff's complaint was dismissed. Plaintiff now appeals.


Was the court's standard jury instruction on medical malpractice negligence erroneous for failing to include degree of care, skill, and judgment?


No, the court's standard jury instruction on medical malpractice negligence was not erroneous.


On appeal, the court affirmed the lower court's ruling, and found that the instructions were not erroneous, but had to be revised. It found that the court's instructions: (1) properly defined reasonable care as that which was usually exercised in the same or similar circumstances by the average physician; (2) the focus was on reasonable rather than customary practices; (3) the use of the term "average" was misleading and required revision, but did not constitute reversible error; (4) the statement that results were not guaranteed did not need to be given but was not erroneous; (5) read as a whole, the instruction was not biased in the defendant's favor; and (6) the instruction on other methods of treatment required the jury to determine the existence of other methods and the doctor could have also failed to use reasonable care in using the other method.

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