Nowatske v. Osterloh
198 Wis. 2d 419, 543 N.W.2d 265 (1996)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A physician's conduct must be evaluated against a standard of reasonable care, which is informed by but not conclusively defined by the customary practices of the average physician. This standard of care must have due regard for the current state of medical science, and a medical custom that lags behind scientific advances may be found negligent.
Facts:
- Kim Nowatske experienced blurred vision in his right eye and was diagnosed with a retinal detachment by Dr. Mark D. Osterloh, a retina specialist.
- Prior to surgery, Nowatske signed a consent form and viewed a videotape explaining the procedure.
- Dr. Osterloh performed a scleral buckling procedure, a common treatment for retinal detachment which can increase intraocular pressure (IOP).
- During the procedure, Dr. Osterloh checked the IOP in Nowatske's eye with his finger, rather than a tonometer, and concluded it was in an acceptable range.
- The morning after surgery, Dr. Osterloh checked Nowatske's eye with an ophthalmoscope but did not directly ask him if he could see.
- Following his discharge, Nowatske experienced severe eye pain; Dr. Osterloh spoke with Nowatske's wife and called in a prescription for pain relievers.
- At a scheduled follow-up appointment, Dr. Osterloh informed Nowatske that he was permanently blind in his right eye.
Procedural Posture:
- Kim and Julie Nowatske filed a complaint alleging negligent treatment against Dr. Mark D. Osterloh in the circuit court for Winnebago County.
- After a five-day trial, the jury returned a verdict finding that Dr. Osterloh was not negligent.
- The circuit court entered a judgment dismissing the Nowatskes' complaint.
- The Nowatskes appealed the circuit court's judgment to the court of appeals.
- The court of appeals certified the case to the Supreme Court of Wisconsin on the single issue of the accuracy of the standard jury instruction for medical malpractice.
- The Supreme Court of Wisconsin accepted the certified case but limited its review to the issue of the jury instruction.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the standard Wisconsin jury instruction for medical malpractice, Wis JI – Civil 1023, accurately state the law of negligence by defining the standard of care as that which is 'usually exercised in the same or similar circumstances by the average specialist'?
Opinions:
Majority - Shirley S. Abrahamson, J.
Yes, the standard jury instruction, when read as a whole and in context with other instructions, was not erroneous. However, the court concluded that the instruction should be revised to provide greater clarity. The court's reasoning centered on three key points: First, while the instruction's reference to the 'average' physician and customary practice is potentially misleading, the additional phrase requiring 'due regard for the state of medical science' correctly prevents custom from being the dispositive factor and ensures the standard remains one of reasonable care. Second, language that might seem exculpatory (e.g., 'a physician does not guarantee results,' 'medicine is not an exact science') is not unduly biased when viewed in the context of the entire set of jury instructions. Third, the instruction regarding a physician's choice of 'recognized alternative methods' does not usurp the jury's role, as the jury is still responsible for determining what methods are 'recognized' based on expert testimony and whether the chosen method was administered with the required care, skill, and judgment. Despite finding no reversible error, the court strongly recommended that the Civil Jury Instruction Committee revise the instruction, particularly to remove the problematic word 'average,' to better align the language with the core principle of reasonable care.
Analysis:
This decision refines the standard of care in Wisconsin medical malpractice law, clarifying that medical custom is not the benchmark for negligence. The court establishes that the legal standard is one of 'reasonable care,' which must evolve with the 'state of medical science.' This holding prevents the medical profession from insulating itself from liability by adhering to outdated or unreasonable customs. The court's critique of the word 'average' and its call for revision of the pattern jury instruction signals to lower courts that instructions must clearly empower juries to evaluate a physician's conduct against what is objectively reasonable, not merely what is common practice.
Unlock the full brief for Nowatske v. Osterloh