Jury Instructions on General Physician Standard of Care and Specialist Standard of Care Not Error When All Testimony Pointed to Specialist Standard

A child suffered from multiple hereditary exostosis, a condition causing osteochondromas or bone tumors to grow around the ends of the long bones. The tumors can cause permanent conditions such as pain, loss of motion, deformity, or joint alignment problems. The child’s doctor monitored the bone tumors. After six years of monitoring, the doctor noted the child experienced pain in an area without much soft tissue.


The doctor recommended surgery to remove some bone tumors. The number and locations of the bone tumors to be removed was disputed at trial. After the surgery the child experienced drop foot, which indicated permanent damage to her peroneal nerves.


The child and her parents brought a medical malpractice action against the physician, alleging that the physician had failed to document an appropriate informed consent for osteochondroma surgery, failed to identify and protect neurovascular structure during surgery, and failed to properly diagnose and treat the child's nerve injury following surgery. At trial both parties agreed that the doctor was a specialist, so the specialist standard of care jury instruction should be given. The parties disagreed as to whether the general physician standard of care jury instruction and the best judgment standard of care jury instructions should be issued. The plaintiffs wanted neither while the doctor wanted both.


The general physician standard of care jury instruction stated, in relevant part, “In performing professional services for a patient, a physician has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession and of that school of medicine in which the physician practices and under like circumstances. In the application of this skill and learning the physician should also use ordinary care and diligence.”


The specialist standard of care jury instruction stated, in relevant part, “A surgeon who holds herself out to be a specialist in a particular field of medicine must use her skill and knowledge as a specialist in a manner consistent with the special degree of skill and knowledge ordinarily possessed by other specialists in the same field of expertise at the time of the treatment and diagnosis.”


The best judgment jury instruction stated, “Where, under the usual practice of the profession of the defendant, different courses of treatment are available which might reasonably be used, the orthopedic surgeon has a right to use her best judgment in the selection of the choice of treatment. However, the selection must be consistent with the skill and care which other orthopedic surgeons practicing in the same field of expertise would use in similar circumstances.”


The trial court issued the general physician standard of care because the plaintiffs’ claim that the doctor failed to get informed consent was a general duty of all physicians, not only specialists. The trial court issued the best judgment standard of care because there had been testimony as to multiple alternative treatments. Specifically, the dispute over how many tumors should be removed and via how many incisions were different courses of treatment.


The jury found in favor of the defendant. The plaintiffs appealed arguing that the trial court erred in issuing the general physician standard of care instruction and the best judgment instruction.


The court of appeals reversed the trial court reasoning that the best judgment instruction could have improperly focused the jury on the doctor’s subjective beliefs in determining the appropriate treatment. Instead the jury should have based its decision on the objective standard of care. The court of appeals concluded that the trial court should have modified the general physician standard of care instruction to inform the jury that only the informed consent issue was governed by the lower standard of care. On appeal the defendant argued that issuing the general physician standard of care jury instruction was harmless because it merely set the stage for the specialist standard of care, which at this stage the defendant argued applied to all of the claims including the informed consent claim.


The Supreme Court of Kansas clarified that the appropriate standard of review for issues related to jury instructions is the stair-step analysis as explained in State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012) (reported to you in the Jan. 21 Scalpel Weekly News). The court held that issuing the general physician standard of care instruction was not erroneous because the only trial evidence established the standard of care of a specialist. The general physician instruction informs the jury that physicians have a duty to use a certain degree of skill and the skill level required is based on an objective standard developed by physicians practicing in the same field. The specialist instruction then reiterates that a higher degree of skill is required for specialists and the objective standard is established by other specialists.


The court held that the best judgment jury instruction does not misstate the law because the second sentence directs the jury to the objective standard of care, clarifying any potential confusion caused by referencing a physician's right to use the doctor's best judgment. Additionally, the issuance of the jury instruction was not error because the specialist instruction was also issued, which further clarified that the appropriate standard of care was objective.


See: Foster ex rel. Foster v. Klaumann, 2013 WL 135574 (Kan., January 11, 2013) (not designated for publication).