Nowatske v. Osterloh

Decision Date25 January 1996
Docket NumberNo. 93-1555,93-1555
Citation543 N.W.2d 265,198 Wis.2d 419
PartiesKim NOWATSKE and Julie Nowatske, Plaintiffs-Appellants, v. Mark D. OSTERLOH, M.D., The Medical Protective Company and Wisconsin Patients Compensation Fund, Defendants-Respondents.
CourtWisconsin Supreme Court

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.

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.



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.


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 Corners, 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, 329 N.W.2d 890.

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, 531 N.W.2d 597; 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, 235 N.W.2d 426. 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).


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...

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