J. Robert Rogers, Esq.
Edward Kowal, Jr., Esq.
William D. Thompson, Esq. Dustin C. Haley, Esq.
Law Office of J. Robert Rogers Campbell, Woods, Bagley, Emerson,
Hurricane, West Virginia McNeer & Herndon
Attorneys for the Appellants Huntington, West Virginia
Attorneys for the Appellee
W. Matheney, Esq.
Paul T. Farrell, Jr., Esq.
Attorney for Amicus Curiae
West Virginia Trial Lawyers Association
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. A proper objection to the competency of a witness must be made and
the point saved when the witness or his testimony is offered at trial[.] Syllabus Point 3, in
part, First Nat. Bank Of Ronceverte v. Bell, 158 W.Va. 827, 215 S.E.2d 642 (1975).
2. Upon a motion for a [judgment as a matter of law], all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed. Syllabus Point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).
3. An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence. Syllabus Point 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937).
4. In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might property find under the evidence, must be assumed as true. Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
5. In medical malpractice cases, the multiple methods of treatment jury instruction (which states that a health care provider is not negligent if he or she selects and utilizes in a non-negligent manner one of two or more generally recognized methods of diagnosis or treatment within the standard of care) is appropriate where the evidence shows that the challenged method of diagnosis or treatment enjoys such substantial support within the medical community that it is, in fact, widely and generally recognized. The necessity of presenting evidence sufficient to support a multiple methods of jury instruction rests with the defendant.
6. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction. Syllabus Point 2, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330 (1966). 7. The 'mistake of judgment' jury instruction, which this Court first approved in Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), wrongly injects subjectivity into an objective standard of care, is argumentative and misleading, and should no longer be used to instruct the jury concerning the relevant standard of care in a medical malpractice action. Accordingly, we hereby overrule Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), and its progeny, insofar as those cases approve the giving of a 'mistake of judgment' instruction. Syllabus Point 5, Pleasants v. Alliance Corporation, ___ W.Va. ___, 543 S.E.2d 320 (2000).
Jonella Yates and her husband, Donald Yates, the appellants and plaintiffs
below in a medical malpractice case, appeal the final order of the Circuit Court of Cabell
County entered December 3, 1999. The appellants raise several issues on appeal to this
Court. After careful consideration of these issues, we reverse the judgment of the circuit
On May 4, 1994, appellant, Jonella Yates (Mrs. Yates) was hospitalized at
St. Mary's Hospital in Huntington, West Virginia, with complaints of chest pain.See footnote 1
Yates' attending physician at St. Mary's Hospital was Dr. Gretchen Oley, an internal
medicine specialist and employee of the Marshall University School of Medicine which was
governed at this time by the appellee, University of West Virginia Board of Trustees.See footnote 2
On May 6, 1994, a cardiac catheterization was performed on Mrs. Yates by Dr.
Robert Touchon and she was diagnosed with a 60% stenosis of the left circumflex coronary
artery. In order to assess the significance of Mrs. Yates' condition, she underwent a stress
testSee footnote 3
on May 9 which was stopped because she experienced a rapid heart beat and chest pain.
On May 10, Dr. Mark Studeny performed an atherectomy on Mrs. Yates, which
is the insertion of a catheter with a small blade on the end and the cutting away of deposits
from the lining of the artery. Incidental to this procedure, Dr. Studeny discovered that Mrs.
Yates' right iliac artery was blocked. The iliac artery is the artery which branches off from
the abdominal artery and delivers blood to the legs. There is evidence that this blockage was
a rare complication resulting from injury to the internal wall of the artery occurring during
the catheterization procedure of May 6.See footnote 4
Dr. Studeny consulted with Dr. Dennis Burton, a
radiologist, who attempted, the next day, to dissolve the blockage in the right iliac artery
through the performance of an angioplasty, stent placement, and the administration of
urokinase, an enzyme used intravenously to dissolve blood clots.
Subsequent angiogramsSee footnote 5
on May 12 revealed persistent blockage in the iliac
artery and an additional blockage in the trifurcation of the popliteal artery. This artery is
located at the back part of the knee joint and branches into the anterior and posterior tibial
and peroneal arteries.See footnote 6
That evening, Dr. Timothy Robarts, a surgical resident, noted that if
foot not better in a.m. (pulseless now), [Mrs. Yates] will need re-agram and likely
embolectomy and fem fem crossover.See footnote 7
Generally, from the time of the discovery of the
blockage in the right iliac artery, until May 16, when surgery was ultimately performed, the
condition of Mrs. Yates' right foot waxed and waned. Sometimes foot pulses were palpable,
or apparent to the touch, and sometimes not. At times the pulses were dopplerable, or
audible through a hand-held device, and at times they were not. The foot alternated between
being cool to the touch and pale or blue to being pink and warm.
The evidence indicates that on the morning of May 13, Dr. Venkata Raman,
a vascular surgeon, became involved in Mrs. Yates' treatment for the first time. Dr. Raman
was an employee of the Marshall University School of Medicine. Evidence was presented
that Mrs. Yates' right foot had improved by the morning of May 13. Late that night, an
angiogram showed that the iliac artery, the trifurcation, and its adjoining vessels were now
open. Nevertheless, Mrs. Yates' right foot continued to show signs of ischemia, or lack of
oxygen. It was thought that, although all of the major arteries of the right leg were now
open, that Mrs. Yates was suffering from blood clots in the small vessels of the foot which
carry blood from the major arteries to the muscles. For this reason, the infusion of urokinase
was continued to dissolve these clots.
In the early morning hours of May 14, Mrs. Yates suffered a retroperitoneal
hematoma which is a mass of blood in the membrane lining the abdominal cavity apparently
caused by a break in a blood vessel. Evidence was presented that this break in the vessel
may have occurred during the angioplasty and initial infusion of urokinase on May 12. The
hematoma resulted in significant blood loss which was treated with several blood
transfusions. Also, infusions of urokinase and administration of heparin, an anticoagulant
use to prevent clotting, were discontinued at this time in order to aid in stopping the blood
loss. The blood transfusions were successful in treating the hematoma.
However, after the infusion of urokinase and administration of heparin were
stopped, Mrs. Yates' right leg artery reclotted. Also, the condition of her right foot continued
to worsen. As a result, on May 16 Dr. Raman performed an embolectomy on Mrs. Yates to
remove the blood clot and a fasciotomy to release the pressure in her swollen and tender right
calf. It was subsequently discovered that Mrs. Yates had suffered significant muscle death
in her right foot and lower leg, and a below the knee amputation was performed on May 29.
On May 6, 1996, Mrs. Yates and her husband brought a medical malpractice action against all of the doctors involved in her treatment, Radiology, Inc., of which Dr. Burton was an employee, and St. Mary's Hospital. By the time of the trial, in June, 1999, all of the defendants had been dismissed from the case except the University of West Virginia Board of Trustees who was substituted in lieu of defendants Drs. Oley and Raman.
At trial, the appellants' theory was that Dr. Oley, Mrs. Yates' attending
physician, and Dr. Raman, her vascular surgeon, were tardy in their treatment of her right
iliac artery, and this tardiness resulted in the amputation. Specifically, they alleged that when
the blockage was first discovered on May 10, Dr. Oley should have immediately consulted
with a vascular surgeon instead of a radiologist. Also, they alleged that Dr. Raman, upon
becoming involved in Mrs. Yates' treatment on May 13, should have immediately performed
surgery rather than assenting to the continued infusion of urokinase. In support of this
theory, the appellants presented the testimony of Dr. Alex Zachariah, a cardiovascular and
thoracic surgeon, who opined that Dr. Oley deviated from the applicable standard of care by
not consulting a vascular surgeon on May 10, and that Dr. Raman was negligent in not
operating to remove the blood clots on May 13.
In response, the appellee presented the testimony of Dr. John Bergan, a
vascular surgeon, who opined that interventional radiology is an acceptable method of
treating the blockage of an artery so that Dr. Oley was not negligent in consulting a
radiologist rather than a vascular surgeon. Likewise, he testified that Dr. Raman was not
negligent in assenting to the radiology treatment already initiated when he became involved
in the case on May 13.
After a five-day trial, the jury returned a verdict for the appellee. The trial court subsequently denied the appellants' motion to set aside the verdict and for a new trial.
As a result, the appellants now appeal to this Court.
The appellants complain, first, that the trial court abused its discretion in
admitting the expert opinion testimony of Dr. John Bergan because there was no evidence
that Dr. Bergan was licensed to practice medicine in one of the states of the United States as
required by W.Va. Code § 55-7B-7 (1986).See footnote 8
The appellee responds that the appellants
waived this assignment of error by failing to make a timely objection at trial. We agree.
The record shows that prior to Dr. Bergan's testimony, appellants' counsel
objected to Dr. Bergan as a witness on the grounds that Dr. Bergan and Dr. Raman were
friends; Dr. Bergan testified previously on behalf of Dr. Raman in a medical malpractice
case; on the evening prior to Dr. Bergan's scheduled testimony, Dr. Bergan helped Dr.
Raman to prepare for his impending testimony; and Dr. Bergan has not performed vascular
surgery on the arterial system in the last ten years. These objections were rejected by the trial
court, and Dr. Bergan proceeded to testify on Friday, June 18. On cross-examination,
appellants' counsel questioned Dr. Bergan on the matters raised in their objections. On
Tuesday, June 22, following the testimony of Dr. Raman, the defense rested.See footnote 9
At that point,
appellants' counsel moved to strike the testimony of Dr. Bergan because it was not disclosed
whether Dr. Bergan was licensed to practice medicine in a state of the United States.See footnote 10
Our rules clearly indicate that a party who assigns error on appeal based on a
trial court's admission of evidence must timely object to that evidence. Rule 103 of the West
Virginia Rules of Evidence states:
(a) Effect of erroneous ruling. ----- Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(b) Objection. ----- In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of the objection, if the specific ground was not apparent from the context[.]
In addition, this Court has held that [a] proper objection to the competency of a witness must be made and the point saved when the witness or his testimony is offered at trial[.] Syllabus Point 3, in part, First Nat. Bank Of Ronceverte v. Bell, 158 W.Va. 827, 215 S.E.2d 642 (1975).
The appellants did not timely object to Dr. Bergan's testimony when it was offered at trial, despite the fact that they had the opportunity to conduct voir dire of Dr. Bergan or to cross-examine him concerning his licensure to practice medicine. In their reply brief to this Court, the appellants argue that Rule 103 permits either a timely objection or a motion to strike so that they adequately preserved the alleged error. However, the point of Rule of Evidence 103 is that a motion to strike, as well as an objection, must be timely. This is because a timely objection or motion to strike gives both the court and the party's opponent fair warning and a timely opportunity to acknowledge and correct the errors so that cases can be decided squarely on the merits. Franklin D. Cleckley, Handbook On Evidence For West Virginia Lawyers, Vol. 1, § 1-7(B)(7)(a), at 1-62 (4th ed. 2000). A timely objection by the appellants would have given the appellee an opportunity to clarify Dr. Bergan's licensing status, and the trial court could have ruled accordingly. Instead, defense counsel waited four days until Dr. Bergan was no longer available before making its motion to strike. Accordingly, we decline to consider the appellant's first assignment of error.
The appellants next aver that the trial court erred in denying their motions for
a judgment as a matter of lawSee footnote 11
at the close of the evidence and subsequent motion to set
aside the jury verdict.See footnote 12
According to the appellants, Dr. Oley's and Dr. Raman's failure to
timely order and/or perform surgery to remove the clot in Mrs. Yates' iliac artery is an open
and shut case of liability. The appellants conclude that Drs. Oley and Raman did nothing
to treat Mrs. Yates' clotted vessels and that this is not an acceptable standard of care.
We review de novo . . . the denial of the [judgment as a matter of law] made
pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure. Adkins v. Chevron,
USA, Inc., 199 W.Va. 518, 522, 485 S.E.2d 687, 691 (1997). This Court has said that a
judgment as a matter of law should be granted at the close of the evidence when, after
considering the evidence in the light most favorable to the nonmovant, only one reasonable
verdict is possible. Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 481 n. 6, 457 S.E.2d
152, 158 n. 6 (1995). In addition, [u]pon a motion for a [judgment as a matter of law], all
reasonable doubts and inferences should be resolved in favor of the party against whom the
verdict is asked to be directed. Syllabus Point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d
The appellee's evidence indicates that upon discovery of the clot in Mrs. Yates' iliac artery on May 10, 1994, Dr. Oley, her attending physician, consulted with Dr. Studeny, a cardiologist, and it was decided that the clot would be treated by means of interventional radiology instead of surgery. On May 12, Dr. Burton, a radiologist, attempted to dissolve the clot with angioplasty, stent placement, and administration of urokinase, an enzyme used intravenously to dissolve clots. Dr. Raman became involved in Mrs. Yates' treatment on the morning of May 13, and by late that night the major vessels of Mrs. Yates' right leg were open. There was also testimony that it was only after the administration of urokinase was stopped, in order to treat Mrs. Yates' hematoma, that blockages formed in the microscopic vessels of the right foot which ultimately lead to the amputation. Concerning the choice of interventional radiology rather than surgery to treat the blockage in Mrs. Yates' iliac artery, the appellee's expert, Dr. John Bergan, opined that Drs. Oley and Raman did not deviate from the standard of care because both interventional radiology and surgery are valid methods of treatment.
In light of this evidence and resolving all doubts and inferences in favor of the appellee, we do not believe that only one reasonable verdict was possible. Accordingly, we conclude that the trial court was correct to deny the appellants' motion for a judgment as a matter of law at the end of the evidence.
For the same reason, we believe that the trial court did not err in denying the appellants' motion to set aside the jury verdict. An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence. Syllabus Point 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937). Additionally,
[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
Again, we believe that the evidence, set forth above, is sufficient to support the
jury's verdict. There was conflicting evidence whether Mrs. Yates' treatment, performed by
Drs. Oley and Raman, breached the applicable standard of care. The jury obviously found
the evidence presented by the appellee to be more credible, and concluded that Drs. Oley and
Raman were not negligent. Accordingly, we find no error in the trial court's denial of the
appellants' motion to set aside the verdict based on insufficiency of the appellee's evidence.
The third assignment of error raised by the appellants is that the trial court
erred in giving a jury instruction concerning multiple methods of treatment. This instruction
A doctor is not negligent if he selects one of several or more approved methods of treatment within the standard of care. In other words, if there is more than one generally recognized method of diagnosis or treatment and no one method is used exclusively or uniformly by all physicians, a physician is not negligent if, in the exercise of his medical judgment, he selects one of the approved methods within the standard of care -- even if you believe in retrospect that the alternative chosen may not have been the best method of treatment -- as long as he utilizes that method of treatment in a non-negligent manner as otherwise instructed by the Court.
The appellants argue that this instruction is faulty because it allows for the possibility that the only doctors in the world who would choose the alternate treatment are the defendant doctor and his testifying expert. The appellants suggest that this instruction should be abandoned or modified to require that a considerable number of doctors adhere to a method of treatment before it is recognized as a valid alternative treatment method.
We decline to abandon the multiple methods of treatment instruction. Rather, this Court believes that the multiple method of treatment instruction is a necessary recognition that the practice of medicine is an inexact science often characterized by a myriad of therapeutic approaches to a medical problem, all of which may command respect within the medical profession. This instruction properly informs jurors that a physician's professional judgment in choosing the most effective treatment in a given situation is a fundamental and indispensable element of practicing medicine. Also, the instruction relieves jurors of the task of deciding which treatment, among several alternatives, should have been performed by a defendant physician. In addition, the instruction guards against the propensity to assess a physician's judgment with the advantage of hindsight. Finally, our research discovered that a significant number of other jurisdictions continue to utilize the instruction.See footnote 13 13
We do, however, share the appellants' concern that the only doctors in the world who would choose the alternative treatment are the defendant physician and his testifying expert. For this reason, we clarify that it is insufficient to show that there exists only a small minority of physicians who agree with the defendant's challenged treatment. On the other hand, it is not necessary for the defendant to show that the challenged treatment is utilized by the majority of physicians. Rather, the defendant must show that the challenged treatment enjoys such substantial support within the medical community that it truly is generally recognized. In order to make this showing, the defendant's expert must opine that the challenged method of diagnosis or treatment has substantial support and is generally recognized within the medical community. This testimony should usually be supported by sufficient extrinsic evidence such as medical textbooks, treatises, journal articles, or other similar evidence. Upon a proper showing by the defendant, a multiple methods of treatment instruction may properly be given. Once the trial court makes this determination, it is ultimately a question for the jury to determine whether it believes that the challenged method of diagnosis or treatment is generally recognized, and the burden of persuasion on that issue remains with the plaintiff.
Therefore, we hold that in medical malpractice cases, the multiple methods of treatment jury instruction (which states that a health care provider is not negligent if he or she selects and utilizes in a non-negligent manner one of two or more generally recognized methods of diagnosis or treatment within the standard of care) is appropriate where the evidence shows that the challenged method of diagnosis or treatment enjoys such substantial support within the medical community that it is, in fact, widely and generally recognized.
The necessity of presenting evidence sufficient to support a multiple methods of treatment
instruction rests with the defendant.See footnote 14
Applying this standard to the present set of facts, our review of the record
shows that the defendant's evidence on this issue was insufficient to support a multiple
methods of treatment instruction, in that Dr. Bergan opined that Drs. Oley and Raman did
not deviate from the applicable standards of care in their treatment of Ms. Yates but
presented no extrinsic evidence in support of this testimony. Therefore, the defendant did
not meet its burden of proof. In determining the effect of the multiple methods of treatment
instruction, we are mindful that [a]n erroneous instruction is presumed to be prejudicial and
warrants a new trial unless it appears that the complaining party was not prejudiced by such
instruction. Syllabus Point 2, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330 (1966). A
party is prejudiced when his or her substantial rights are affected or when there is a
reasonable probability that the jury's verdict was affected or influenced by the improper
instruction. Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 111, 459 S.E.2d
374, 388 (1995). Because the primary issue in this case concerned the propriety of Drs.
Oley's and Raman's decision to use interventional radiology rather than immediate surgery
as the preferred method of treating Ms. Yates's blockage, we find that there is a reasonable
probability that the jury's verdict was influenced by the improper instruction and, thus,
constitutes reversible error. Upon remand, the burden rests with the appellee to present
additional evidence to support a multiple methods of treatment instruction.See footnote 15
Next, the appellants argue that it was prejudicial error for the trial court to give a jury instruction concerning mistakes in judgment. The appellee responds that any error in giving the instruction was harmless.
The complained of instruction stated:
A health care provider who exercises ordinary skill and care while keeping within recognized and approved methods within the standard of care is not negligent because [of] a reasonable and honest mistake of judgment. On the other hand, it is no defense for a health care provider to say that he exercised his best judgment, if that judgment breached the standard of care.
In the recent case of Pleasants v. Alliance Corporation, ___ W.Va. ___, 543 S.E.2d 320
(2000), we disapproved of the error in judgment instruction and held in Syllabus Point 5:
The mistake of judgment jury instruction, which this Court first approved in Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), wrongly injects subjectivity into an objective standard of care, is argumentative and misleading, and should no longer be used to instruct the jury concerning the relevant standard of care in a medical malpractice action. Accordingly, we hereby overrule Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147 (1906), and its progeny, insofar as those cases approve the giving of a mistake of judgment instruction.
However, we found in Pleasants that the giving of the instruction was harmless error.See footnote 16 16
Again, the primary issue in this case concerned the judgment of Drs. Oley and Raman in choosing to treat Mrs. Yates' blocked artery with interventional radiology rather than immediate surgery to remove the blockage.See footnote 17 17 Accordingly, an instruction which indicates that a mistake in judgment is not negligent as long as it is reasonable and honest more likely than not influenced the jury's decision. Said another way, there is a reasonable probability that the jury's verdict was influenced by the erroneous instruction. Also, any effect that the giving of the instruction had on the jury was compounded by the closing argument of appellee's counsel in which he made several references to it.See footnote 18 18 Finally, many of the courts which have disapproved of the mistake of judgment instruction consequently have reversed the judgment below.See footnote 19 19 Therefore, we conclude that the circuit court's giving of the mistake of judgment jury instruction constitutes reversible error.See footnote 20 20
Reversed and remanded.
[a] method of evaluating cardiovascular fitness.
While exercising, usually on a treadmill or a bicycle
ergometer, the individual is subjected to steadily
increasing levels of work. At the same time, the amount
of oxygen consumed is being determined, and an
electrocardiogram (ECG) is being monitored. If certain
abnormalities are noted in the ECG or chest pain
develops, the test is terminated.
Taber's Cyclopedic Medical Dictionary, supra, 1845.
The applicable standard of care and a defendant's failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. Such expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that . . . . (d) such expert maintains a current license to practice medicine in one of the states of the United States[.]
in his given area of expertise.); DiFranco v. Klein, M.D., 657 A.2d 145, 148 (R.I. 1995)
(disapproving of such phrases as good faith, honest mistake, and honest error in
judgment, but reaffirming rule that as long as a physician exercises the applicable degree
of care, he or she may choose between differing but accepted methods of treatment and not
be held liable.); Riggins v. Mauriello, D.O., 603 A.2d 827, 831 (Del. 1992) (disapproving
of mere error of judgment charge and opining that proper instruction should state that
when a physician chooses between appropriate alternative medical treatments, harm which
results from the physician's good faith choice of one proper alternative over the other is not
malpractice); Ouellette v. Subak, 391 N.W.2d 810, 816 (Minn. 1986) (proper instruction
informs that the fact a doctor may have chosen a method of treatment that later proves to
be unsuccessful is not negligence if the treatment chosen was an accepted treatment on the
basis of the information available to the doctor at the time a choice had to be made); Peters
v. Vander Kooi, 494 N.W.2d 708 (Iowa 1993); Brackett v. Coleman, 525 So.2d 1372 (Ala.
1988); Fridena v. Evans, 127 Ariz. 516, 622 P.2d 463 (1980); Hurst v. Dougherty, M.D., 800
S.W.2d 183, 186 (Tenn.Ct.App. 1990) (citing Tennessee Pattern Instruction, § 6.15 which
provides that [w]hen there is more than one recognized method of diagnosis or treatment,
and no one of them is used exclusively and uniformly by all practitioners of good standing,
a physician [surgeon] is not negligent if, in exercising his best judgment, he selects one of
the approved methods that later turns out to be unsuccessful, or one not favored by certain
other practitioners); Juedeman v. Montana Deaconess Medical Center, 223 Mont. 311, 322,
726 P.2d 301, 307-308 (1986) (where plaintiffs did not dispute the use of the instruction
when supported by the evidence but contended that it was not supported by the evidence, the
court concluded that [w]hile the instruction is subject to some question because it is a
comment upon the evidence . . . it was not reversible error to have given the instruction);
Graham v. Keuchel, D.O., 847 P.2d 342 355 (Okla. 1993) (finding mistake of judgment
instruction to be error when not placed in its proper context--i.e., defines it as a situation in
which the doctor faces a choice of alternative treatments); Watson v. Hockett, 107 Wash.2d
158, 165, 727 P.2d 669, 674 (error of judgment instruction should be limited to situations
where the doctor is confronted with a choice among competing therapeutic techniques or
among medical diagnoses); and Butler v. Naylor, M.D., 987 P.2d 41 (Utah 1999) (finding
sufficient evidence that the surgical procedure used by the defendant is recognized by a
respectable portion of the medical community).
Despite our decision to overrule Corbin, we do
not find reversible error on the basis of the giving of the
mistake of judgment instruction in this case. Since the
remaining instructions properly advised the jury
regarding the elements necessary to prove a case of
medical malpractice, we find the giving of the instruction
to be harmless error. Other appellate courts have
similarly concluded that a new trial is not required
following the giving of a mistake of judgment
instruction, which the court subsequently finds to be in
error, provided the remainder of the charge correctly
stated the standard for proving negligence.
Pleasants, ___ W.Va. at ___, 543 S.E.2d at 331-332 (citations omitted).
[A]n honest mistake of judgment, as long as it is within
that standard of care, does not give rise to damages or a
finding of negligence.
. . . . [Medical malpractice law] even allows mistakes of judgment, as long as those --- as that conduct is within the standard of care.
A doctor is not negligent if there is an honest mistake of judgment. That's the law. That's what Judge Cummings told you.