## Facts

- In 1989, Kim Nowatske developed blurred vision in his right eye and was referred to Mark D. Osterloh, M.D., a retinal specialist, who diagnosed retinal detachment and performed reattachment surgery.
- During postoperative care, the parties disputed whether Dr. Osterloh adequately assessed intraocular pressure and whether he appropriately confirmed Kim’s vision status after surgery.
- Kim did not report postoperative inability to see, believing it might be normal; he later experienced severe pain, and Dr. Osterloh prescribed additional pain medication by telephone without further investigation.
- At a follow-up visit shortly thereafter, Kim learned the blindness in his right eye was permanent.
- In 1991, Kim and Julie Nowatske sued Dr. Osterloh, his insurer, and the Wisconsin Patients Compensation Fund, alleging negligent postoperative care caused the permanent blindness.
- After a jury trial, the circuit court instructed the jury using Wis JI–Civil 1023 (pattern medical malpractice instruction); the jury found Dr. Osterloh not negligent, and the complaint was dismissed.
- On appeal, the Wisconsin Supreme Court accepted certification only on whether Wis JI–Civil 1023 accurately states the law of negligence in medical malpractice cases, and remanded remaining issues to the court of appeals.

## Issues

1. Whether Wis JI–Civil 1023 accurately states the legal standard of negligence in medical malpractice cases, including its reference to the “average specialist” in similar circumstances.
2. Whether the instruction’s phrasing could mislead jurors into treating conformity with customary practice as conclusive of due care rather than evidence bearing on reasonable care.

## Decision

- The Wisconsin Supreme Court held that Wis JI–Civil 1023, read as a whole, was not erroneous and accurately stated Wisconsin law governing medical malpractice negligence.
- The Court recognized the “average specialist” language could be misunderstood and stated the instruction should be improved to clarify the relationship between customary practice and the legal standard of care.
- The Court recommended that the Civil Jury Instruction Committee revise Wis JI–Civil 1023 in light of the decision.
- Because review was limited to the certified instruction issue, the Court did not decide other alleged trial errors and remanded to the court of appeals for further proceedings on those issues.

## Legal Principles

- In Wisconsin medical malpractice cases, the standard of care is reasonable care under the circumstances, informed by professional standards of similarly situated practitioners.
- Evidence of customary medical practice is relevant to whether a physician used due care, but custom does not control the negligence determination.
- A challenged jury instruction is evaluated in context; if the instruction, taken as a whole, correctly conveys the governing law, it will be upheld even if particular phrases could be clarified.

## Conclusion

The court upheld Wisconsin’s pattern medical malpractice negligence instruction as a correct statement of law when read in its entirety, while emphasizing that customary practice is only evidentiary and recommending revisions to reduce the risk that jurors might equate “average” practice with the legal test of reasonable care.


Nowatske v. Osterloh, 198 Wis. 2d 419, 543 N.W.2d 265 (Wis. 1996)