NOWATSKE V. OSTERLOH 543 N.W.2d 265 (1996) CASE BRIEF

NOWATSKE V. OSTERLOH

543 N.W.2d 265 (1996)

NATURE OF THE CASE: Nowatske (Ps) appealed a jury verdict for Osterloh (D) in Ps' medical malpractice claim

FACTS: P noticed an area of blurred vision in his right eye. He was referred to D, a retina specialist who diagnosed him as having a retinal detachment. P signed a consent form explaining the risks and possible complications involved in the proposed treatment. He also viewed a videotape explaining the procedure of retinal reattachment. The parties dispute whether D warned P that 'blindness' or 'loss of vision' could result. D elected to conduct a relatively common procedure, known as scleral buckling, in an effort to reattach the retina. This procedure may raise the intraocular pressure (IOP) in the eye, resulting in blindness. D checked the IOP in P's eye with his finger and then proceeded to attach the buckle. Subsequently, he again checked the IOP with his finger and concluded that it was within an acceptable range. The parties dispute whether the D should have used a tonometer rather than his finger. The next day, D tested P's vision with an ophthalmoscope, shining a light into the eye to check its response. Noting a normal 'back-off' response to the light, he concluded that the surgery had been successful. P went home and experienced severe eye pain. By the next morning, the swelling around P's eye had subsided. With no warning or instruction from D, P remained unconcerned about his continuing inability to see out of his right eye. On a follow-up appointment, D informed P that he would be permanently blind in the right eye. P sued D for malpractice. It was a battle of the experts. At D's request and over P's objection, the circuit court used various paragraphs from the standard jury instruction pertaining to medical malpractice. D was required to use the degree of care, skill, and judgment usually exercised in the same or similar circumstances by the average specialist who was in a similar practice, and that a physician must use reasonable care and that a physician can be found negligent for failing to exercise the degree of care, skill, and judgment in administering treatment. The jury found that D was not negligent. The complaint was dismissed and P appealed.

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LEGAL ANALYSIS:

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