Boyanton v. Reif

1990 OK 83, 798 P.2d 603, 1990 Okla. LEXIS 96, 1990 WL 103239

• Court: Supreme Court of Oklahoma
• Decided: July 24, 1990
• Docket: 68417, 71984
• Status: Published

Opinions

OP ALA, Vice Chief Justice.

The dispositive issue on certiorari is whether the trial court was correct in instructing the jury that the board-certified surgeon-defendant, Dr. Michael E. Reif [Dr. Reif], was charged with possessing and using “ordinary care” and “best judgment” in the treatment of the plaintiff’s decedent, Bobby Boyanton [Boyanton], We answer this question in the affirmative and affirm the trial court’s judgment.

FACTS

Boyanton died after undergoing medical treatment and surgery performed by Dr. Reif. Uncontroverted evidence at trial established Dr. Reif as a board-certified surgeon. Plaintiff alleged that Dr. Reif had negligently failed to diagnose and treat an infection which allegedly had led to the decedent’s death. The jury found for Dr. Reif.

At the close of the evidence, the trial judge gave, inter alia, Instruction No. 6, whose text was guided by the Oklahoma Uniform Jury Instruction (OUJI-CIV.) 13.-3, and Instruction No. 7 based on OUJI-CIV. 13.4. Instruction No. 6 defines the general duty of physicians to their patients.¹ Instruction No. 7 explains the degree of learning and skill required of a physician who is a specialist.² The sufficiency of the evidence to support the jury verdict for Dr. Reif was not challenged on appeal and is not before us on certiorari. The sole issue for our review is whether there was error in giving Instruction No. 6.

OUJI-CIV. 13.3, from whose text Instruction No. 6 is derived, is entitled “IMPLIED WARRANTY OF CAPACITY AND ABILITY — NONSPECIALIST.” OUJI-CIV. 13.4, which is the basis of Instruction No. 7, is entitled “DUTY OF A SPECIALIST.” Plaintiff argues that Instruction No. 6 is intended for use only when the defendant is a non-specialist, and that the instruction should not have been given in this case because the physician was a specialist. The Court of Appeals agreed, reasoning that (a) it was the trial court’s duty to instruct only on issues raised by the pleadings and supported by the evidence and (b) that Instruction No. 6 misled the jury as to the defendant’s standard of care and hence constitutes a reversible error.

Plaintiff objects in particular to use of the terms “ordinary care” and “best judgment.” She contends that a specialist’s mistake in judgment should be the equivalent of negligence per se. The Court of Appeals also found fault with that portion of Instruction No. 6 which allows the jury to excuse a mistake in the surgeon’s judgment.

OUJI-CIV. 13.3 defines the standard of care required of all physicians, whether general practitioner or specialist. This court has approved the use of instructions applying this standard to medical specialists.³ The standard has not changed since statehood.⁴

The question in professional malpractice suits is not whether a physician has made a mistake, but whether he has used “ordinary care” — that which is ordinarily exercised by his peers.⁵ The law’s “ordinary care” includes the assumption that the physician will use his “best judgment” in the exercise of his skill. It does not mean that he cannot make mistakes.⁶ Because so much of what a medical practitioner does is a matter of opinion he is not responsible for a mistake in judgment unless that mistake is so gross that it makes the professional conduct substandard. Negligence may consist of an error in judgment, but an error in judgment is not necessarily negligence,⁷ i.e., substandard professional performance.

OUJI-CIV. 13.4 is a refinement of, not an alternative to, OUJI-CIV. 13.3. OUJI-CIV. 13.3 defines the physician’s duty by comparing him to “others of his profession practicing in the same field.” OUJI-CIV. 13.4 does nothing more than further define this phrase, in the case of specialist, to mean, “other specialists of good standing in the same special field.”

Nothing in the language of OUJI-CIV. 13.4 or in the underlying cases suggests that this instruction was intended to impose strict liability upon physicians who hold themselves out as specialists. Nor is there any suggestion that OUJI-CIV. 13.4 should not be used concurrently with OUJI-CIV. 13.3 when the defendant-physician is a specialist.⁸ To the contrary, while OUJI-CIV. 13.4 addresses the level of learning and skill to be expected, it does not adequately address the degree of care required. Error may arise when the jury does not receive sufficient instructions on the governing degree of care.

Since we find no legal vice in giving the two jury charges, it is indeed our statutory duty to reinstate the trial court’s judgment.⁹

Certiorari is granted; the opinion of the Court of Appeals is vacated and the trial court’s judgment affirmed.

HARGRAVE, C.J., and HODGES, LAVENDER, SIMMS, DOOLIN and SUMMERS, JJ., concur; ALMA WILSON and KAUGER, JJ., dissent.

1 .Instruction No. 6 states:

Unless he states or agrees otherwise, a physician employed to treat a person impliedly warants that he possesses that degree of learning, skill and experience ordinarily possessed by others of his profession practicing in the same field. The physician further impliedly warrants that he will use ordinary care in the exercise of his skill and the application of his knowledge and experience to accomplish the purpose for which he is employed, and that he will use his best judgment in the exercise of his skill in diagnosing the condition and in treating the patient.

The physician does not warrant a cure and is not responsible for the lack of success unless that lack results from his failure to exercise ordinary care or from his lack of ordinary learning, skill, and experience. If he possesses ordinary learning, skill, and experience and exercises ordinary care in applying same, he is not responsible for mistakes of judgment.

You are instructed that the standard of care required of those engaging in the practice of healing arts within the State of Oklahoma shall be measured by national standards.

2 . Instruction No. 7 states:

A physician who holds himself out to be a specialist in a particular field of medicine owes to his patient the duty of possessing and using that degree of learning and skill ordinarily possessed and used by other specialists of good standing in the same special field under similar circumstances. This is a higher degree of learning and skill than that of a general practitioner.

3 . See Karriman v. Orthopedic Clinic, Okl., 516 P.2d 534 [1973] (defendant orthopedist).

4 . See Champion v. Keith, 17 Okl. 204, 87 P. 845, 846 [1906]; Karriman, supra note 3 at 540.

5 . Even leaving a sponge in a patient, which establishes negligence by res ipsa loquitur, does not negate the physician’s defense of having used ordinary care. Turney v. Anspaugh, 581 P.2d 1301, 1305 [1978]; Cassingham v. Berry, 67 Okl. 134, 150 P. 139, 141 [1915],

6 . The plaintiffs position that no mistake can be made when ordinary care is used would render a human being infallible. Even in the exercise of utmost care, all people can and do make mistakes. Cassingham v. Berry, supra note 5, 150 P. at 141.

7 . McBride v. Roy, 177 Okl. 233, 58 P.2d 886, 888 [1936].

8 . In Karriman, supra note 3, the trial court gave, among others, the following untitled instructions:

1. The equivalent of OUJI-CIV 13.3;

2. The equivalent of OUJI-CIV 13.4;

3. An additional instruction that physicians are not responsible for mere want of success absent ordinary care; and

4. A definition of negligence couched in terms of the "prudent man.”

The court held unanimously that because the instructions equivalent to 13.3 and 13.4, plus the additional instruction on ordinary care, adequately defined the doctors’ duty as that of a specialist, it was not error to refuse to define negligence in terms of the skill and care of an orthopedic specialist. Karriman, supra note 3 at 537-38.

9 .12 O.S. 1981 § 78 and 20 O.S. 1981 § 3001.1. § 78 provides:

The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

§ 3001.1 provides:

No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.