Stephens v. Bohlman, 138 Or App 381 (1996).
Medical Judgment Instruction
Even if "medical judgment" jury instructions are proper in medical malpractice actions, the defendant physician was not entitled to such instruction. There was no evidence that the defendant physician faced a situation in which either of two or more courses of conduct would have been reasonable and within the standard of care and that he reasonably took one of those courses.
Bremner v. Charles, 123 Or App 95 (1993), rev den, 318 Or 579 (1994).
Trial court erred in giving a jury instruction on the liability of nurses which stated that nurses are obligated to carry out the orders of their doctors and that nurses are not negligent if they carry out the order in a competent manner. Such instruction incorrectly informed the jury that nurses are shielded from liability so long as they competently carried out the doctor’s orders, regardless of whether those orders were improper. Reversible error because the court could not determine whether the jury found that the doctor’s orders were proper or whether the orders did not cause plaintiff’s injury.
A trial court does not err in refusing to give a requested jury instruction, when the requested jury instruction embodies a statement of law that is otherwise covered by the jury instructions given by the trial court.
Witness-Counting Instruction
The witness-counting instruction is proper when the number of witnesses testifying on behalf of the defendant greatly outnumbered those for the plaintiff. The instruction was not proper in this case because plaintiff called sixteen witnesses and defendant called fifteen. On appeal, plaintiff argued for the first time that the witness-counting instruction should have been given because the number of expert witnesses called by defendant outnumbered the experts called by plaintiff. A trial court is not required to instruct the jury in the exact language requested and the court is not required to edit a requested instruction. Trial court did not err in refusing to give witness-counting instruction as requested because the instruction was not modified to specify expert witnesses.
Holger v. Irish, 316 Or 402 (1993).
Settlement Instruction
Estate of patient brought a claim against a surgeon and hospital based on failure to remove a surgical sponge following surgery. Hospital settled with the plaintiff prior to trial. Plaintiff pursued claim against the surgeon based on direct liability and on vicarious liability for hospital employees allegedly under control of the surgeon. Prior to trial, the court instructed the jury, consistent with Uniform Civil Jury Instruction 11.70, that the hospital had settled with the plaintiff but that the jury should not infer anything from the settlement with regard to the issues between the parties. Trial court erred in instructing the jury on the settlement by the hospital.
Rogers v. Meridian Park Hosp., 307 Or 612 (1989).
Error of Judgment Instruction
The issue on appeal was whether the trial court erred in giving the uniform error-of-judgment jury instruction (former UCJI 105.06). The "error-of-judgment" rule derives from two sources: (1) a physician does not promise a cure and (2) if there is more than one acceptable treatment option the physician is not negligent if the physician uses reasonable care in the selection of any one those options. The Oregon Supreme Court held the error-of-judgment instruction is unduly confusing and incorrectly states the law. Specifically, it was reversible error to instruct the jury that in some cases there may be reasonable differences of opinion among members of the medical profession as to the course of a patient’s condition and course of treatment, and that when there is such a difference of opinion, a physician must exercise reasonable judgment. A physician’s duty to exercise reasonable judgment does not turn on existence of reasonable differences of opinions. The standard is whether the physician exercised reasonable care.
Further, the Oregon Supreme Court concluded that it was error to instruct that a physician is not liable for bad results caused by an error of judgment because it makes it appear that some types of negligence are not culpable.
Alexander v. Rask, 90 Or App 379, rev den, 306 Or 527 (1988).
Duty of Medical Professional Instruction
Trial court did not err in giving the duty of medical professional instruction instead of the duty of specialist instruction because it was clear from the instructions that the defendant was to be judged by the community standard for oral surgery. Unless a jury instruction could create an erroneous understanding of the law in the minds of jurors which could affect the outcome of a case, a case should not be reversed on the basis of instructions.
Ellis v. Springfield Women’s Clinic, 67 Or App 359, rev den, 297 Or 228 (1984).
Good Faith Instruction
Trial court improperly instructed the jury that if they believed from the evidence that competent obstetricians in the same or similar community may have differed from the judgment of the defendants as to the proper care and treatment of plaintiff, but the defendants acted in good faith in exercising their judgment as to the reasonable care of plaintiff, then the defendant was not negligent. The instruction was an incorrect statement of the law because it added an element of "good faith," allowing the juror’s to consider the defendants’ motivations. Consideration of the defendants’ motivations is not proper in a negligence action. Decision disapproved of Roach v. Hockey, 53 Or App 710, 715, rev den, 292 Or 108 (1981) regarding the "good
faith" instruction.
Roach v. Hockey, 53 Or App 710, rev den, 292 Or 108 (1981).
Error in Judgment Instruction
A physician is not liable for an error in judgment where there is reasonable doubt or a difference of opinion as to the nature of the plaintiff’s condition or the proper course of treatment and the physician acts with reasonable care and skill in exercising that judgment. Jury instruction that a physician’s honest error in judgment or an action in good faith was not negligent was not error. But see Ellis v. Springfield Women’s Clinic, 67 Or App 359 (1984) (holding "good faith" instruction was error).
Physician not Guarantor of Results Instruction
Jury instruction that a doctor is not a guarantor of the results of treatment is proper. The law in Oregon is that a physician is not a warrantor of cures.
Physical Facts Instruction
Trial court properly refused to instruct the jury that their findings could not be based upon evidence which is opposed to established physical facts, where the existence of a physical fact was in dispute. Plaintiff argued that the instruction should have been given based on his expert’s testimony that the intra-operative x-ray showed that the plaintiff was placed in a position of excessive flexion during surgery. However, the defendant’s experts differed in their assessment of what the x-ray showed.
Hoffman v. Rockey, 55 Or App 658, rev den, 292 Or 722 (1982).
Statute of Limitations
Action against an orthopedic surgeon for post-operative surgical infection. Trial court erred in not giving requested jury instruction which stated that the statute of limitations does not begin to run until the harm has occurred and it appears reasonably probable that the damage complained of was caused by the negligence of the defendant, and not some other cause. The discovery rule applies to the two year medical malpractice statute of limitations, ORS 12.110(4). A plaintiff should reasonably discover when a cause of action exists when the plaintiff realizes: 1) that an injury occurred; 2) the injury is attributable to an act of the tortfeasor; and 3) the act of the tortfeasor was somehow negligent. An objective standard is used to determine when the plaintiff should reasonably have discovered the cause of action.
Sculace v. Rogers, 49 Or App 433 (1980).
Plaintiff sued for injuries sustained when an IV line infiltrated into her arm tissue during surgery. Plaintiff filed her lawsuit more than two years after the date of the surgery. At trial, plaintiff presented evidence that she was not told the cause of her injury until several weeks after surgery. The jury was asked to decide when the plaintiff knew or should have known of the injury, and was given an instruction that the plaintiff’s complaint must have been filed within two years from the date of injury. The instruction stated that "an injury is discovered when a reasonably prudent person associates symptoms with a serious or permanent condition and at the same time perceives that the defendants played some role in causing or inducing that condition." Plaintiff requested an alternate instruction be given, but had not taken exception to the statute of limitations instruction that was given. Instruction was not reversible error because it was not clearly erroneous, and because plaintiff failed to take exception to the instruction during the course of the trial, depriving the trial judge of an opportunity to correct any alleged error prior to instructing the jury.
Coyne v. Cirilli, 45 Or App 177, rev den, 289 Or 155 (1980).
Duty of Specialist Instruction
Plaintiff brought a claim against her podiatrist for failing to diagnose and treat a foot fracture. Where a physician specializes in a medical field, the parties are entitled to the "specialist" instruction. A podiatrist by law is a "foot specialist." The trial court erred in refusing to give the specialist instruction, because a greater degree of skill is required of a specialist.
Two or More Possible Causes Instruction
There is sufficient evidence to warrant the instruction on two or more possible causes where there is evidence that causes other than the defendant’s alleged negligence contributed to the plaintiff’s injury.
Cowlthorp v. Branford, 279 Or 273 (1977).
Res Ipsa Loquitor Instruction
Plaintiff appeals a jury verdict for the defendant physician on the grounds that the trial court improperly instructed the jury on res ipsa loquitor. The trial court instructed the jury that the res ipsa loquitor inference does not apply where there are two or more possible causes of damages, for only one of which the defendant would be responsible. The jury instruction as given was an incorrect statement of law requiring reversal because it did not tell the jury that its applicability was dependent upon the two or more causes being equally probable.
Adams v. Spoelstra, 279 Or 65 (1977).
Plaintiff appeals a jury verdict for the defendant in a medical malpractice case alleging that the defendant osteopath was negligent in failing to diagnose a bladder obstruction. Plaintiff failed to preserve several issues for appeal because plaintiff failed to make objections during trial or to make an offer of proof. Plaintiff’s offer of the entire deposition of the plaintiff or reading portions of it during closing argument was not timely. The trial court did not err in refusing to given an instruction that physicians must keep up-to-date in their medical knowledge because the instruction was abstract. Where the trial court read all of plaintiff’s allegations of negligence to the jury and explained the standard of care in medical malpractice cases, the trial court did not err in refusing to give instructions on the individual allegations of negligence.
Kam v. Gaughan, 278 Or 165 (1977).
Plaintiffs appealed a jury verdict in favor of the defendant on the grounds that the trial court erred in giving a requested jury instruction. Plaintiffs’ appeal is not entitled to consideration because the plaintiff failed to set forth the instruction given verbatim and the exception taken to the instruction as required by Supreme Court Rules of Procedure 6.18. The Supreme Court will not ordinarily consider an error of instruction in the absence of a proper exception at trial. The record shows that the plaintiff failed to take exception to that instruction at trial.
Huntley v. Reed, 276 Or 591 (1976).
Plaintiff filed an action against a physician for negligence in removing a cataract. Trial court committed prejudicial error where it gave an instruction to the jury out of the presence of the jury, without any notice to counsel, and the trial court did not make a record of the instruction. An instruction that a physician was conclusively presumed to have the necessary medical knowledge to practice his profession was error. An instruction that the jury must resolve any conflict in the testimony of expert witnesses and that the jury must find in favor of the expert testimony which, in the jury’s opinion, in entitled to the greater weight was not reversible error but should instruct the jury that they are not bound by the opinion of experts but should give the opinion such weight they feel it is entitled to. An instruction detailing the duty of jurors and how they should deliberate was not error and did not invade the province of the jury.
Hansen v. Bussman, 274 Or 757 (1976).
Instruction that the plaintiff failed to use reasonable care to mitigate her injuries by submitting to surgery would not have been proper. Although the plaintiff has the burden of proving that her injuries are permanent, the defendants had the burden of proving that under the circumstances of this case a reasonable person would have submitted to surgery. Defendants failed to offer sufficient evidence to sustain its burden of proof on this issue.
Defendants argued that the trial court erred in instructing the jury that if it found both defendants to be negligent and that the negligence of each was a substantial factor in causing a single injury then each would be responsible for the whole injury. The Supreme Court did not decide if this instruction was error because the jury verdict was only against one defendant.
Holland v. Sisters of St. Joseph, Seeley, 274 Or 757 (1976).
Informed Consent Instruction
Plaintiff alleged that the defendant failed to obtain the plaintiff’s informed consent to radiation treatment. The trial court erred in giving an instruction on the duty to inform asking the jury to consider what a "reasonably prudent and skillful physician specializing in radiology would have explained." The Supreme Court held that where medical testimony has been introduced showing that the risk is material, the alternatives are feasible, and that disclosure of the risk would not be detrimental to the patient, the duty follows as a matter of law (citing Getchell v. Mansfield, 260 Or 174 (1977)). Error in giving the duty to inform instruction was properly preserved where the plaintiff requested an instruction that correctly stated the law, even though the plaintiff did not point out the error in the instruction given by the trial court.
Thorp v. Corwin, 260 Or 23 (1971).
Res Ipsa Loquitor Instruction
Plaintiff brought a medical malpractice action against a physician. In a res ipsa case, an instruction on that issue should be given if requested. Plaintiff may invoke the doctrine of res ipsa loquitor when the complaint alleges either general negligence or specific allegations of negligence or both. However, when the plaintiff only alleges specific allegations of negligence, res ipsa loquitor can only be used to establish the particular acts alleged. Trial court did not err in refusing to give the plaintiff’s res ipsa instruction, because it was not limited to the particular acts alleged.
Dacus v. Miller, 257 Or 337 (1971).
Plaintiff brought an action against a physician arising out of damage to her facial nerve during a radical masetoidectomy revision surgery. In order to be entitled to an instruction on res ipsa loquitor the plaintiff must show: (1) the injury is one which would not ordinarily occur in the absence of negligence; (2) the injury was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) plaintiff’s injury must not be due to any voluntary act or contributory negligence of the plaintiff. In this case, the defendant admitted the second and third elements. Plaintiff’s expert witnesses testified that if due care had been exercised, injury to the facial nerve would not ordinarily occur. The Supreme Court held that plaintiff’s evidence was adequate to make out a res ipsa case and therefore the trial court should have given a proper instruction on this issue if requested. Plaintiff’s requested res ipsa instruction was not proper because the plaintiff’s complaint only alleged specific allegations of negligence and the instruction was not limited to the particular acts alleged in plaintiff’s complaint, but referred to negligent conduct in general.
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