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Nowatske v. Osterloh

Wisconsin Supreme Court
543 N.W.2d 265 (1996)


After experiencing blurred vision in his right eye, Kim Nowatske (plaintiff) was referred to Dr. Mark Osterloh (defendant), a retina specialist who diagnosed Nowatske as having a retinal detachment and recommended a surgical procedure to correct the problem. On the morning following surgery, Dr. Osterloh performed an examination of Nowatske’s eye to assess the success of the procedure. The parties disputed whether Osterloh measured the internal pressure of the eye, known as an IOP. Several days later, Nowatske was seen by Dr. Osterloh for another follow-up appointment. At that time, Dr. Osterloh informed Nowatske that he would be permanently blinded in his right eye. Nowatske, and his wife Julie, filed suit against Dr. Osterloh claiming that the doctor’s negligent treatment, including the physician’s failure to perform the IOP, caused him to lose his eyesight. At trial, both parties presented expert testimony favorable to each side’s position. At the close of the evidence, the trial court read for the jury, over Nowatske’s objection, three paragraphs from the standard jury instruction pertaining to medical malpractice. The first paragraph noted, in part, that Dr. Osterloh 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 practice similar to Dr. Osterloh. The second and third paragraphs noted, in part, that a physician must use reasonable care and that a physician can be found negligent for failing to exercise the required care, skill, and judgment in administering the method chosen, respectively. The jury found for Dr. Osterloh. The trial court dismissed Nowatske’s complaint. Nowatske appealed.

Rule of Law


Holding and Reasoning (Abrahamson, J.)

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