Hanson v. American Family Mutual Insurance

2006 WI 97, 716 N.W.2d 866, 294 Wis. 2d 149, 2006 Wisc. LEXIS 396

• Court: Wisconsin Supreme Court
• Decided: July 12, 2006
• Docket: 2004AP2065
• Status: Published

Opinions

JON E WILCOX, J.

¶ 1. The defendants, American Family Mutual Insurance Company (American Family), Kevin L. Caldwell (Caldwell), and Lindell Motorsports, Inc. (Lindell) (collectively, the defendants), seek review of an unpublished decision of the court of appeals,¹ which reversed an order of the Milwaukee County Circuit Court, Michael D. Guolee, Judge, denying Jo-El Hanson's (Hanson) motion to change the verdict and increasing her award for past medical expenses from $25,000 to $78,338.97, as well as awarding her a new trial on the remaining damages.

¶ 2. We are presented with two issues on review. First, is Hanson entitled to her expenses for a surgery, admittedly well-done, but allegedly not necessitated by her injury, just as a plaintiff is entitled to her expenses when surgery necessitated by the injury was negligently performed and aggravates the injury? Second, was the circuit court's own customized instruction on damages and causation appropriate in this case?

¶ 3. We hold that because the jury concluded that Hanson was injured in the accident, she was entitled to all of her past medical expenses, regardless of whether Hanson's treating physician performed an unnecessary surgery, under the rule first enunciated in Selleck v. Janesville, 100 Wis. 157, 75 N.W. 975 (1898), as Hanson used ordinary care in selecting her doctor. Furthermore, we hold the jury's verdict arose from an erroneous and confusing jury instruction such that there is a reasonable probability of a different outcome on the remaining damages at issue. As such, the decision of the court of appeals is affirmed.

I

¶ 4. On June 22, 2000, Hanson was driving to work when she encountered heavy traffic. She began to slow down and her car was hit in the back by a truck driven by Caldwell. The truck was owned by Lindell and insured by American Family. Caldwell was traveling approximately five to seven miles per hour at the time of the accident. It is undisputed that Caldwell was fully responsible for causing the accident.

¶ 5. The following day, Hanson developed lower back, neck, and rib pain. Hanson saw her family physician, Dr. Kenneth Saydel, that same day. She began going to physical therapy. According to Hanson's trial testimony, the rib pain went away after six to eight months, the lower back pain went away after four to six months, but the neck pain remained. In July of 2000, she was diagnosed with post-traumatic cervical dorsal strain, not improving. Then in August of 2000 she was diagnosed with acute denervation activities of the lower cervical vertebrae (based on an electromyogram (EMG) performed by Dr. Lynn Ma); post-traumatic cervical dorsal strain, not improving with radiculopathy; and cervical thoracic spasm with cervical radiculopathy (based on the findings of an orthopedic surgeon). In November, another EMG performed by Dr. Ma revealed evidence of acute mild right C5-C6 radiculopathy. Hanson was referred to a neurosurgeon, Dr. James Lloyd, who determined that the C4, C5, and C6 disks were causing the pain in Hanson's neck. He recommended surgery and performed it on February 6, 2001, removing the disks specified and replacing them with bone graph material (metal plate squares).

¶ 6. Hanson filed a lawsuit against the defendants on August 13, 2001. The case proceeded to trial, where the liability of the defendants was contested. The two issues before the court were whether Hanson was injured in the accident and, if injuries existed, the extent of those injuries. The defendants argued that Hanson's surgery was unnecessary. In support of this assertion, the defendants' expert, a neurosurgeon, Dr. Ronald Pawl, responded "no" when asked if Hanson's surgery was caused by the accident and stated, "I do not feel [the surgery] was [medically] necessary." He also raised the possibility that the surgery was an act of malpractice in cross-examination. In responding to plaintiffs counsel, Dr. Pawl stated that surgery which is clearly not indicated "can be malpractice, but it is not necessarily malpractice." In further response to whether he thought Dr. Lloyd was incompetent in his diagnosis that led him to do the surgery, Dr. Pawl responded, "Yes, I clearly disagree with that, yes."

¶ 7. However, Dr. Pawl also agreed that Hanson initially went to the doctor as a direct consequence of the accident, and that she acted appropriately in following her doctor's recommendation to undergo surgery. Hanson stressed the existence of a causal nexus between the accident and the treatment received, relying on the testimony of Dr. Lloyd. He testified that the surgery was "necessary" and the structural damage to her spine was caused by the accident. According to the plaintiff, this connection, along with the fact that Hanson acted appropriately in finding a doctor and following his instructions, prevented any decrease in the damages awarded as a result of any mistakes in the medical treatment of Hanson.

¶ 8. Prior to jury deliberation, Hanson moved for a directed verdict on the issue of past medical expenses. The circuit court denied the motion. Hanson also requested a special instruction that she be awarded all of her past medical expenses and related damages, even if the jury concluded that some of her damages were a result of her doctor's malpractice from the unnecessary surgery. The circuit court refused to give this instruction.

¶ 9. At the instruction conference, Hanson also submitted a modified version of Wis JI — Civil 1710. The circuit court, however, refused to give this instruction to the jury. It instead gave its own instruction, which was a combination of Wis JI — Civil 1710 (aggravation of injury because of medical negligence), Wis JI — Civil 1500 (cause), and the court's own additional language added from the bench.

¶ 10. The jury made the following award: (l)past medical expenses: $25,000; (2) past loss of earning capacity: $7,250; (3) future medical expenses: $0; (4) past pain, suffering, disability: $15,000; and (5) future pain, suffering, disability: $0. The $25,000 awarded for past medical expenses was approximately the amount of Hanson's medical expenses that were charged after the accident but before the surgery.

¶ 11. Following the verdict, Hanson filed a post-verdict motion requesting the following: (1) an award of all past medical expenses totaling $79,123.97; (2) an award of past loss of earning capacity totaling $14,500; and (3) a "fair and reasonable" increase in the award for past pain, suffering and disability. As one alternative, Hanson requested a new trial on those damages that were not increased, or an entire new trial in the interest of justice. As another alternative, Hanson asked the court to order a new trial on the grounds that the verdict was against the great weight and clear preponderance of the evidence. The trial court denied Hanson's motions in an order filed on April 12, 2004. Hanson subsequently appealed.

¶ 12. Hanson renewed her arguments before the court of appeals. The court of appeals agreed and reversed the circuit court's order, granting Hanson $78,338.97² in past medical expenses, instead of the $25,000 awarded by the jury. The court of appeals also granted Hanson a new trial on the issues of her past and future pain and suffering and loss of earning capacity, based on what it believed was an erroneous jury instruction.

¶ 13. The court of appeals ruled that the circuit court properly refused to affirm Hanson's pre-verdict motion to award all of her past medical expenses and related damages. The defendants expressed the possibility at trial that Hanson was not injured at all, in which case the jury could agree and not award Hanson any past medical expenses or other damages.

¶ 14. However, the court of appeals ruled that the circuit court mistakenly refused to grant Hanson's post-verdict motion to change the verdict answer to award her the full amount of her past medical expenses. The jury found that Hanson was injured in the accident (a fact that the defendants did not appeal) and granted her $25,000, the cost of her medical expenses prior to the surgery. Under Lievrouw v. Roth, 157 Wis. 2d 332, 459 N.W.2d 850 (Ct. App. 1990), the court of appeals held that Hanson was entitled to "all of her medical expenses related to her original injury, provided that she exercised good faith and due care in selecting her treating physician."³ Hanson v. Am. Family Mut. Ins. Co., No. 2004AP2065, unpublished slip op., ¶ 21 (Wis. Ct. App. Nov. 8,2005). The defendants' expert, Dr. Pawl, stipulated that Hanson exercised good faith and due care in selecting her physician. Therefore, the court of appeals reversed the circuit court's order denying Hanson's post-verdict motion to change the verdict answer and remanded with directions to enter judgment for Hanson, awarding her the full amount of past medical expenses.

¶ 15. The court of appeals also concluded that the circuit court's jury instructions misstated current law. The special instruction ordered the jury not to consider any alleged malpractice, while at the same time telling the jury "it must find that all treatments were related to the accident." Id., ¶ 25. "In effect, the trial court told the jury that regardless of whether the surgery was unnecessary, they could not award the cost of the surgery unless the jury 'relate[d] them to the accident, those injuries.'" Id. In the court of appeals' view, this instruction directly contradicted established law in Wisconsin, as detailed in such cases as Lievrouw and Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977).

¶ 16. Finally, the court of appeals concluded that there was a reasonable probability that the error in the jury instruction contributed to the outcome of the case. In other words, the erroneous instruction was sufficient to undermine confidence in the case's outcome. According to the court of appeals, "the inconsistent and erroneous instructions in this case probably caused jury confusion and probably affected the substantial rights of Hanson with respect to the damage questions in the special verdict." Hanson, No. 2004AP2065, ¶ 31. For these reasons, the court of appeals remanded for a new trial on the remaining damages issues.

¶ 17. The defendants then filed a petition for review in this court, which we accepted.

II

¶ 18. When reviewing a trial court's denial of a motion to change a jury's special verdict "[i]f there is 'any credible evidence which under any reasonable view supports the jury finding especially when the verdict has the approval of the trial court, it should not be disturbed.'" Carl v. Spickler Enters., Ltd., 165 Wis. 2d 611, 625, 478 N.W.2d 48 (Ct. App. 1991) (quoting Ostreng v. Lowrey, 37 Wis. 2d 556, 560, 155 N.W.2d 558, 559 (1968)).

¶ 19. As to the allegedly erroneous jury instructions, such a challenge "warrants reversal and a new trial only if the error was prejudicial. An error is prejudicial if it probably and not merely possibly misled thejury." Fischer v. Ganju, 168 Wis. 2d 834, 849-50, 485 N.W.2d 10 (1992) (citing Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 750-51, 235 N.W.2d 426 (1975)). "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Id. at 850 (citing White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557 (1989); State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982)).

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¶ 20. The Selleck rule has been a part of Wisconsin case law since 1898. This rule essentially states that when a tortfeasor causes an injury to another person who then undergoes unnecessary medical treatment of those injuries despite having exercised ordinary care in selecting her doctor, the tortfeasor is responsible for all of that person's damages arising from any mistaken or unnecessary surgery. See Butzow v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 285-86, 187 N.W.2d 349 (1971).⁴

¶ 21. In Selleck, 100 Wis. at 159, the plaintiff sustained injuries by reason of an allegedly defective sidewalk. The City contended that the circuit court erroneously gave the jury the following charge:

"The plaintiff is not held responsible for the errors or mistakes of a physician or surgeon in treating an injury received by a defect in the street or sidewalk, providing she exercises ordinary care in procuring the services of such physician. Where one is injured by the negligence of another, or by negligence of a town or city, if her damages have not been increased by her own subsequent want of ordinary care she will be entitled to recover in consequence of the wrong done, and the full extent of damage, although the physician that she employed omitted to employ the remedies most approved in similar cases, and by reason thereof the damage to the injured party was not diminished as much as it otherwise should have been."

Id. at 163 (list of cited cases omitted). The court concluded this charge was supported by authority as well as reason. The court further found " 'where personal injuries result proximately from negligence or other tort, the wrongdoer is liable for the damages actually sustained, although they are increased by a tendency to disease on the part of the person injured.'" Id. at 164 (quoting McNamara v. Clintonville, 62 Wis. 207, 22 N.W. 472 (1885)).

¶ 22. This court last cited the Selleck rule almost 30 years ago in Fouse. In that case, the plaintiff sought damages totaling $5,400, which included all medical and hospital expenses, including the surgery in question. Fouse, 80 Wis. 2d at 396. The defendant challenged the necessity of the surgery, the cost of which was included in the total. Id. at 397. The circuit court determined that even if the jury agreed with the defendant's theory, the damages should have been for $393 — the amount of expenses incurred up to the surgery — and therefore the amount of $1,750 the jury actually awarded was perverse. Id. This court then stated the following:

[T]he fault in the award may go deeper. The theory of the defense is that some of the damages resulted from mistaken medical treatment. The rule for awarding damages for injuries aggravated by subsequent mistaken medical treatment was established in Selleck v. Janesville in 1898, and has been followed since. Assuming that the plaintiff exercised good faith and due care in the selection of his treating physician, an assumption borne out by the record in this case, under the Selleck rule the defendants are liable for the full amount of damages caused by the aggravation. However, the plaintiff did not request a jury instruction regarding the defendants' liability for damages aggravated by malpractice or mistake and has not challenged the instructions as given on appeal. We therefore confíne our review to the fault found by the trial court....

Id. at 397-98. The implication of this statement is clear: had the plaintiff requested a Wis JI — Civil 1710 instruction, as a matter of law he would have been entitled to the full $5,400 under Selleck. As noted by the court of appeals, this case is "eerily similar" to Fouse. We agree and conclude the Selleck rule should apply in this case as it did in Fouse.

¶ 23. The defendants argue that there is a difference between unnecessary medical treatment, as opposed to medical malpractice that causes aggravation of injuries. In this case, the defendants contend that there is no causal relationship between the accident and the surgery performed by Dr. Lloyd. Therefore, in the defendant's view, this case should not be subject to a Wis JI — Civil 1710 instruction, because such an instruction "is to be used in cases where there is at issue aggravation of damages because of subsequent negligent medical treatment of injuries sustained in the accident." Wis JI — Civil 1710 Comment. In support of its argument, the defendants point to the testimony of Dr. Pawl who found no spinal pathology causally related to the accident. Additionally, the defendants contend the jury verdict, which awarded solely pre-surgery past medical expenses, demonstrates the jury concluded that the surgery was not causally related to the accident.

¶ 24. Contrary to the defendants' argument, the jury's award of pre-surgery past medical expenses demonstrates that it believed Hanson was injured in the accident, as there was no evidence presented at trial that she had any neck pain prior to the accident. Thus, the jury rejected the defendants' contention at trial that Hanson was not injured in the accident. Applying the Selleck rule to the jury's findings, Hanson was entitled to all of her past medical expenses, if she used ordinary care in selecting her physicians.

¶ 25. One of the defendants' main arguments at trial was that the accident was not causally related to the surgery. The important questions are whether the surgery arose from an initial injury that itself was caused by the accident and whether Hanson used ordinary care in selecting her physician. Here, the jury determined that Hanson was injured in the accident, and while seeking treatment with ordinary care she had an allegedly unnecessary surgery performed. These facts are sufficient to bring this case under the ambit of the Selleck rule.

¶ 26. The defendants also argued at trial that Hanson tends to exaggerate her injuries and has a demonstrated history of medical complaints with no organic cause. The jury rejected this theory and concluded that she did in fact suffer an injury in the accident. For purposes of the Selleck rule, it does not matter if Hanson is a person who is very focused on her physical pain, as long as Hanson used ordinary care in selecting Dr. Lloyd. In this case, there was no dispute that Hanson exercised ordinary care in selecting Dr. Lloyd.

¶ 27. Hanson was referred to Dr. Lloyd by her family doctor because an EMG showed evidence of an acute mild right C5-C6 radiculopathy. Dr. Ma determined that no surgery was indicated, but Dr. Lloyd disagreed. In Dr. Lloyd's opinion, this injury was caused by the automobile accident. Dr. Lloyd may have misdiagnosed those injuries, but they were the reason she was treated. Dr. Pawl even admitted as such. Because Hanson used ordinary care in selecting her physician and that physician subsequently performed an allegedly unnecessary surgery, although one still arising from the original injury caused by Caldwell, the defendants are responsible for the expense of the surgery, consistent with the Selleck rule.

¶ 28. As further support for this conclusion, we cite to Honthaners Restaurants, Inc. v. Labor and Industry Review Commission, 2000 WI App 273, 240 Wis. 2d 234, 621 N.W.2d 660. In that case, Dawn Stanislowski (Stanislowski) injured her arm while working at a George Webb's Restaurant, owned by Honthaners Restaurants, Inc. (Honthaners). Id., ¶ 3. Stanislowski was awarded temporary total disability and a payment of her accrued medical expenses for approximately a six-month time period. Id. Later, she sought additional disability benefits and payment for additional medical expenses. Id., ¶ 4. The Labor and Industry Review Commission ordered Stanislowski's employer to pay temporary total disability and certain medical expenses for another 13 months. Id., ¶ 7. On appeal, Honthaners argued Stanislowski was not entitled to additional benefits because her additional medical treatment and expenses were unnecessary and unreasonable. The court of appeals disagreed, and the order was affirmed.

¶ 29. The court noted that there were two conflicting medical opinions concerning the injury. Id., ¶ 22. One doctor felt that Stanislowski needed prolonged treatment, while the other believed the injury had healed. Id. While we recognize there was no dispute between the parties that Stanislowski suffered an injury, she allegedly took a course of unnecessary treatment. Id. The court of appeals, however, decided she should still be compensated for her alleged additional medical treatment because she accepted the additional treatment in good faith. Id. Similarly, Hanson arguably underwent unnecessary treatment, and in our view, because the jury decided she was injured, she should likewise be compensated for her past medical expenses.

¶ 30. For all of the above reasons, we affirm the court of appeals as to this issue and conclude as a matter of law that Hanson is entitled to all of her past medical expenses.

IV

¶ 31. We next turn to the disputed jury instruction. The court of appeals concluded that the circuit court's instruction on "Damages and Causation" was erroneous and confusing. This instruction created by the circuit court was based on Wis JI — Civil 1710 and Wis JI — Civil 1500. Although defense counsel argued that no aspect of Wis JI — Civil 1710 was necessary, counsel did believe the version was a correct statement of the law. The defendants argue that there was nothing wrong with the instruction, and if there is a problem, it lies with the fact that the trial court may have stated too much.

¶ 32. As read to the jury, the instruction was as follows:⁵

You must decide whether the defendant, Kevin L. Caldwell's, negligence caused the injury suffered by the plaintiff, Jo-El Hanson. The defendant's negligence caused the injury if it was a substantial factor in producing the injuries.

One of the issues in this case for you to decide is whether the medical procedures and treatments used by her treating doctors related to the injuries she received in the accident. Were the injuries treated by her doctors a part of the original injuries, and/or the natural and probable consequence of the defendant's negligence, and/or the normal incidence of medical care necessitated by the defendant's negligence.

If there is a causal connection between the accident and the treatment she received and her damages, your answer to the question on damages for her personal injuries should be for the entire amount of damages sustained and should not be decreased because a defense doctor questions the procedure used by the plaintiffs treating doctors. I think that is a very important comment.

Now there's been talk here about malpractice law, and Tve told you there is no issue of malpractice in this case. It is a difference of opinion as to whether or not the injuries were caused by the accident. It's a superfluous matter about one doctor talking about what another doctor should have done. It is improper in this case as far as I am concerned and should not be considered by you. Any reduction should be — would be — any reduction would be contrary to long, established principles that a defendant who causes injury is responsible for any aggravation that results from improper — the alleged improper medical treatment for that injury as long as the plaintiff has exercised good faith and due care in selecting the treating physicians.

The evidence in this case indicates that the plaintiff used ordinary care in selecting her treating doctors. So what does this basically say ? It says, she went to her doctor, the doctor used a procedure, the procedures were done and they followed. If you relate them to the accident, those injuries, she should receive the entire amount of damages she sustained for that, those procedures.

¶ 33. The Comment to Wis JI — Civil 1710 reveals that the instruction is generally used in situations "where there is at issue the aggravation of damages because of subsequent negligent medical treatment of injuries sustained in the accident." Wis JI — Civil 1710 Comment.

¶ 34. This instruction conveys the "long-established principle that a defendant who causes injury is responsible for any aggravation that results from improper medical treatment, as long as the plaintiff has 'exercised good faith and due care' in selecting his or her treating physicians." Lievrouw, 157 Wis. 2d at 358.

¶ 35. In Lievrouw, an expert for the defense, in an action for personal injuries arising out of an automobile accident, testified that the plaintiff "would have had a better recovery if he had been treated earlier and differently by his physicians." Id. at 357. The expert, however, said he was not accusing the treating physicians of malpractice. Id. The circuit court gave Wis JI — Civil 1710 as a jury instruction, and the defendants claimed that such an instruction was improper because there was no expert testimony concluding that the treating physicians were guilty of malpractice. Id.

¶ 36. The court of appeals disagreed, and held that the expert's testimony was "designed to leave the jury with the impression that part of [the plaintiffs] injuries were caused by his treating physicians and not by the accident," which could have led the jury to reduce damages contrary to the Selleck rule. Id. at 358.

¶ 37. In this case, the circuit court faced a similar problem with regard to the testimony of Dr. Pawl, the defense expert. His video testimony played to the jury, included the following:

MR. PARLEE: And doctor, to a reasonable degree of medical certainty, given all the data you have reviewed in this case, including the medical records, the radiological films, test results, deposition transcripts, was Ms. Hanson’s cervical fusion and related treatment caused by the accident on June 22 of 2000?

DR. PAWL: No.

MR. PARLEE: Did that accident in any way render the fusion and related treatment medically necessary?

DR. PAWL: No, absolutely not.

MR. PARLEE: Do you feel that the surgery on Ms. Hanson was in and of itself medically necessary?

DR. PAWL: No, I do not. I do not feel it was necessary.

¶ 38. On cross-examination, Hanson's counsel asked Dr. Pawl the following:

MR. WARSHAFSKY: You think Dr. Lloyd committed malpractice, isn't that true?

DR. PAWL: I didn't review it to the extent of answering that question, but there is no question in my mind it is my opinion that that surgery was not indicated.

MR. WARSHAFSKY: If a doctor does surgery that's clearly not indicated, isn't it malpractice?

MR. PARLEE: I object in that calls for a legal conclusion. It is also irrelevant to the case.

DR. PAWL: It can be malpractice, but it is not necessarily malpractice.

MR. WARSHAFSKY: Do you think Dr. Lloyd was negligent, or incompetent, or what?

DR. PAWL: No, I think he did a very good job on the surgery.

MR. WARSHAFSKY: A good job on the surgery. Do you think he was incompetent doing the surgery to start with?

DR. PAWL: No, if he were incompetent he wouldn't have done a good job with the surgery.

MR. WARSHAFSKY: Do you think he was incompetent in his diagnosis that led him to do surgery?

DR. PAWL: Yes, I clearly disagree with that, yes.

¶ 39. Although the defendants may not have intended to raise an issue of medical malpractice with this questioning of Dr. Pawl, that is what happened. Clearly though, malpractice was not an issue in the case, as no doctors were named in the lawsuit, and the circuit court believed a curative instruction was necessary. In other words, Dr. Pawl's testimony might have left the jury with the impression that part of Hanson's injuries were caused by Dr. Lloyd and not by the accident. "If believed, this testimony could have led the jury to reduce the award of compensatory damages to [Hanson] accordingly. Such a reduction would have been contrary to the [Selleck rule.]" Lievrouw, 157 Wis. 2d at 358. Thus, the circuit court, in its discretion, concluded that using Wis JI — Civil 1710 was appropriate.

¶ 40. However, Wis JI — Civil 1710 was not used by the circuit court in this case. Instead, the circuit court gave the instruction quoted above. The court of appeals interpreted this instruction as follows:

By telling the jury that it could not consider the doctor's alleged malpractice, and at the same time telling the jury it must find that all treatments were related to the accident, the trial court let the jury decide that the treatment it concluded was unnecessary was not 'caused' by the accident, and was therefore not com-pensable. That is not the law in Wisconsin.... In effect, the trial court told the jury that regardless of whether the surgery was unnecessary, they could not award the cost of the surgery unless the jury 'relate[d] them to the accident, those injuries.'

Hanson, No. 2004AP2065, ¶ 25. We agree with the court of appeals that the instruction, as read to the jury, was an erroneous statement of Wisconsin law. The modified version created by the court was unnecessary and only brought serious confusion into play.

¶ 41. Having concluded that the jury instruction was erroneous because it was directly at odds with current Wisconsin law, we must determine whether a new trial is necessary.

¶ 42. We conclude that based on the jury's awarding of only pre-surgery past medical expenses, this instruction probably misled the jury. That is, although the jury determined that Hanson had been injured in the accident, it granted her only $25,000 in past medical expenses, as opposed to the full amount of $78,123.97. It appears that the amounts awarded for the remaining damages were also limited to damages incurred prior to the surgery. Because the jury misapplied the law as to past medical expenses, there is a reasonable probability of a different outcome with respect to the remaining damages at issue if the jury is correctly instructed on the law. Therefore, we agree with the court of appeals that a new trial is necessary on the remaining damages at issue.

V

¶ 43. We hold that because the jury concluded that Hanson was injured in the accident, she was entitled to all of her past medical expenses, regardless of whether Hanson's treating physician performed an unnecessary surgery, under the rule first enunciated in Selleck, 100 Wis. 157, as Hanson used ordinary care in selecting her doctor. Furthermore, we hold the jury's verdict arose from an erroneous and confusing jury instruction such that there is a reasonable probability of a different outcome on the remaining damages at issue. As such, the decision of the court of appeals is affirmed.

By the Court. — The decision of the court of appeals is affirmed.

1 See Hanson v. Am. Family Mut. Ins. Co., No. 2004AP2065, unpublished slip op. (Wis. Ct. App. Nov. 8, 2005).

2 Apparently, Hanson is not requesting $785.00 in chiropractic fees in her appeal.

3 This rule originated in Selleck v. Janesville, 100 Wis. 157, 163, 75 N.W. 975 (1898). We note that the Selleck court used the term "ordinary care" when referring to the level of care that a plaintiff must exercise in selecting his or her physician. In Fouse v. Persons, 80 Wis. 2d 390, 397-98, 259 N.W.2d 92 (1977), we used the term "good faith and due care" when referring to the necessary level of care under Selleck. The terms "ordinary care" and "good faith and due care" are used synonymously, but for the sake of consistency, we use the term "ordinary care" in this opinion.

4 In Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 285-86, 187 N.W.2d 349 (1971), we cited to the Restatement (Second) of Torts § 457 (1965) in discussing the principle that a tortfeasor is liable for the consequences of treatment that aggravates the original injury. Section 457 is entitled "Additional Harm Resulting From Efforts to Mitigate Harm Caused by Negligence" and reads as follows:

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

Id. at 286 (quoting Restatement (Second) of Torts § 457). As stated in Butzow, this doctrine was adopted by Wisconsin in Selleck.

5 The emphasized portions indicate the relevant deviations the circuit court made from its written instruction.