Justice RICE delivered the Opinion of the Court.
We granted certiorari in this medical malpractice case to review whether the "unsuccessful outcome/exercise of judgment" jury instruction patterned after Colorado Jury Instruction-Civil 15:4 (2009) is an accurate statement of the law in Colorado. The court of appeals held that the instruction accurately
Loretta Jean Day was diagnosed with hypothyroidism and a nodule on the left lobe of her thyroid gland. After treatment with medication and a series of ultrasounds, Ms. Day was referred to Dr. Bruce Johnson, a general surgeon, for evaluation and treatment. Dr. Johnson advised Ms. Day that she required surgery. During surgery, Dr. Johnson determined that both lobes of the thyroid required removal. After surgery, Ms. Day had internal bleeding which necessitated an emergency second surgery. The bleeding also caused edema in her trachea; as a result, Ms. Day was on a ventilator for a week. A few weeks later, Ms. Day's vocal cords stopped moving, preventing her from breathing and requiring an emergency tracheotomy. Ms. Day now suffers from a permanent speaking disability which she alleges was caused by the surgery.
The Days brought suit against Dr. Johnson for negligence and loss of consortium. Only the negligence claim is at issue here. In support of the negligence claim, Ms. Day alleged that Dr. Johnson incorrectly assessed her condition, recommended inappropriate treatment, used an improper surgical technique that damaged Ms. Day's nerves and larynx, and improperly removed the right lobe of her thyroid.
The trial court submitted the issue of Dr. Johnson's negligence to the jury. Included in the trial court's instructions to the jury was Instruction 27 submitted by Dr. Johnson stating in part that "[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent." The instruction given mirrored the language of pattern jury instruction CJI-Civ. 15:4. The trial court submitted this instruction over the Days' objection.
The jury found that Dr. Johnson was not negligent. The Days appealed and challenged, among other issues, the use of the jury instruction patterned after CJI-Civ. 15:4. The court of appeals affirmed the trial court holding that the instruction adequately and accurately states the applicable Colorado law.
The Days, along with amicus curiae Colorado Trial Lawyers Association, petitioned this Court for certiorari review. We granted certiorari on the issue of whether the court of appeals properly concluded that CJI-Civ. 15:4, the "unsuccessful outcome/exercise of judgment" instruction, correctly states the law and should be given in medical malpractice cases.
Trial courts have a duty to correctly instruct juries on all matters of law. Krueger v. Ary, 205 P.3d 1150, 1157 (Colo. 2009); Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993). We review de novo whether a particular jury instruction correctly states the law. Fishman v. Kotts, 179 P.3d 232, 235 (Colo.App.2007). In that review, we examine whether the instructions as a whole accurately informed the jury of the governing law. Id. As long as the instruction properly informs the jury of the law, a trial court has broad discretion to determine the form and style of jury instructions. Krueger, 205 P.3d at 1157. Therefore, we review a trial court's decision to give a particular jury instruction for an abuse of discretion. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo. App.1996). A trial court's ruling on jury instructions is an abuse of discretion only when the ruling is manifestly arbitrary, unreasonable, or unfair. Kinney v. People, 187 P.3d 548, 558 (Colo.2008).
First, we address which issues have been preserved for appeal. C.R.C.P. 51 requires parties to object to alleged errors in instructions before they are given to the jury and only the objected-upon grounds will be considered on appeal. See also Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo. App.2009). Alleged errors not objected to are waived. Id. In addition, under the invited error doctrine, we will not review alleged
We begin by examining the objection raised at trial to the jury instruction at issue. Both parties tendered instructions based on CJI-Civ. 15:4. Dr. Johnson tendered an instruction that included all of the language from CJI-Civ. 15:4:
The Days tendered an instruction that mirrored the first two sentences of CJI-Civ. 15:4 and Dr. Johnson's tendered instruction, but omitted the last sentence:
The Days' counsel objected to Dr. Johnson's tendered instruction, arguing that the pattern instruction misstated the law.
On appeal, the Days argue that this Court should hold that CJI-Civ. 15:4's language: (1) conflicted with the standard of care by introducing subjectivity into an objective standard of care; (2) was duplicative; (3) commented on the evidence; (4) overemphasized the defense's theory of the case; and (5) was not supported by the evidence. In opposition, Dr. Johnson argues that the Days only objected to the last sentence of the instruction asserting that the exercise of judgment language "provid[ed] the universal defense to everything." As such, Dr. Johnson contends that this Court need only review the last sentence of the instruction given and that this Court's review should be limited to whether the last sentence is an accurate statement of the law in Colorado.
We agree that our review is limited to whether the last sentence of CJI-Civ. 15:4 accurately states Colorado law. The Days tendered an instruction that was identical to Dr. Johnson's tendered instruction but for the third sentence which contained the exercise of judgment language. Also, no objection was made to the first two sentences of the jury instruction. Accordingly, we decline to address the portion of CJI-Civ. 15:4 that the Days tendered because they waived review by failing to object to those portions and because any potential error resulting from the jury's reliance on those portions is attributable to the Days' tendered jury instruction. The Days' only contemporaneous objection was that the exercise of judgment language contained in the third sentence misstated the law by conflicting with the objective standard of care. Therefore, the Days preserved for appeal the issue of whether the third sentence of CJI-Civ. 15:4 accurately states the law. We will not, however, consider whether the instruction was duplicative, commented on the evidence, overemphasized the defense's theory of the case, or was not supported by the evidence because those issues were not preserved for appeal.
To determine whether CJI-Civ. 15:4 is an accurate statement of the law, we begin by examining Colorado medical malpractice law. A medical malpractice action is a particular type of negligence action. Greenberg v. Perkins, 845 P.2d 530, 534 (Colo. 1993). Like other negligence actions, the plaintiff must show a legal duty of care on
A physician's duty arises out of a contractual relationship when a physician undertakes to treat or otherwise provide medical care to another. Id. at 534. It has long been acknowledged in Colorado that, in the absence of a special contract, the law implies that a physician employed to treat a patient contracts with his patient that: (1) he possesses that reasonable degree of learning and skill which is ordinarily possessed by others of the profession; (2) he will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is employed; and (3) he will use his best judgment in the application of his skill in deciding upon the nature of the injury and the best mode of treatment. Id.; Artist v. Butterweck, 162 Colo. 365, 368, 426 P.2d 559, 560 (1967); Klimkiewicz v. Karnick, 150 Colo. 267, 274, 372 P.2d 736, 739 (1962); Brown v. Hughes, 94 Colo. 295, 304, 30 P.2d 259, 262 (1934); Bonnet v. Foote, 47 Colo. 282, 285-86, 107 P. 252, 254 (1910). Further, if a physician possesses ordinary skill and exercises ordinary care in applying it, he is not responsible for a mistake of judgment. Bonnet, 47 Colo. at 286, 107 P. at 254; see also Foose v. Haymond, 135 Colo. 275, 283, 310 P.2d 722, 727 (1957) (holding that "[t]o avail himself of the defense of a mistake of judgment, it must appear that the physician used reasonable care in exercising that judgment"); Brown, 94 Colo. at 304, 30 P.2d at 262; McGraw v. Kerr, 23 Colo.App. 163, 167-68, 128 P. 870, 873 (1912).
Even when possessing ordinary skill and exercising ordinary care in applying it, a physician does not guarantee a successful outcome. Brown, 94 Colo. at 304, 30 P.2d at 262; Bonnet, 47 Colo. at 286, 107 P. at 254 (a physician "is not responsible for want of success unless it results from a failure to exercise ordinary care or from want of ordinary skill"). For example, in Bonnet, the Court determined that the fact that an injured leg was shorter after it healed was not prima facie evidence of negligence. 47 Colo. at 287-88, 107 P. at 255. Instead, the complaining party had to prove that the defect was a result of a failure to exercise ordinary care to establish negligence on the part of the doctor. Id. And in Brown, the Court required a showing that the alleged negligence of the defendant caused the injury. 94 Colo. at 305-06, 30 P.2d at 263. In so finding, the Court opined that "[a] lamentable result is not of itself evidence of negligence on the part of the defendants." Id., 94 Colo. at 306, 30 P.2d at 263.
Our modern medical malpractice jurisprudence affirms the notion that a poor outcome does not, standing alone, constitute negligence. See Melville v. Southward, 791 P.2d 383, 390 (Colo.1990) ("The mere presence of an infection following surgery ... does not establish a prima facie case of negligence."); Smith v. Curran, 28 Colo.App. 358, 362, 472 P.2d 769, 771 (1970) (proof of a bad or lamentable result is not of itself evidence of negligent treatment by a physician).
Thus, a medical malpractice claim requires more than proving a poor outcome; a breach of the applicable standard of care is required. To establish a breach of the duty of care in a medical malpractice action, the plaintiff must show that the defendant failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant. Melville, 791 P.2d at 387. That standard of care is measured by whether a reasonably careful physician of the same school of medicine as the defendant
Having reviewed the applicable law in Colorado, we now turn to CJI-Civ. 15:4 to determine whether it accurately reflects the law. The portion of CJI-Civ. 15:4 at issue states that: "An exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent."
The Days urge us to abolish the exercise of judgment/unsuccessful outcome portion of CJI-Civ. 15:4. The Days contend that CJI-Civ. 15:4 misstates the law by failing to define "judgment" or "exercise of judgment." They further assert that the instruction injects a subjective analysis into an otherwise objective standard of care. Accordingly, the Days argue, the instruction is an "error in judgment" instruction akin to those rejected by other jurisdictions. Finally, the Days contend that the instruction misstates the law by stating that "judgment is not negligence" and by failing to define negligence or outline the standard of care. Our review of the language of the instruction and the cases in this state and elsewhere lead us to a different conclusion.
First, the petitioners argue that the jury has no way to evaluate what constitutes "judgment." When, as here, "a term, word, or phrase in a jury instruction is one with which reasonable persons of common intelligence would be familiar, and its meaning is not so technical or mysterious as to create confusion in jurors' minds as to its meaning, an instruction defining it is not required." People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo.App.2001) (citing People v. Deadmond, 683 P.2d 763 (Colo.1984); People v. Leonard, 872 P.2d 1325 (Colo.App. 1993)). The term "judgment" and the phrase "exercise of judgment" are commonly used and understood by the general public and are not technical in nature. Moreover, in this case, each party presented an expert that discussed allegations involving the physician's judgment. Therefore, we are not persuaded by this argument.
Next, it is specifically the phrase "an exercise of judgment" that the Days find objectionable as reflected in counsel's objection and the fact that they did not object to the sentence preceding the "exercise of judgment" sentence. In the preceding sentence, the instruction provided that: "An unsuccessful outcome does not, by itself, mean that a physician was negligent." The "exercise of judgment" sentence mirrors the preceding sentence, but adds the layer of an exercise of judgment. The "exercise of judgment" phrase then distinguishes the situation in which no exercise of judgment is at issue— such as a claim for negligence in which the plaintiff asserts a slip of the knife—from the situation in which the exercise of judgment forms the basis for the negligence action— such as the case here in which the plaintiff asserts improper diagnosis and improper choice between alternative treatment options.
Indeed, at times a physician must choose among professionally acceptable alternative diagnoses or therapeutic alternatives and those choices may form the basis for a negligence claim. CJI-Civ. 15:4 is the only instance of the model instructions addressing the issue of alternative treatments or judgment in medical malpractice.
The Days also assert that CJI-Civ. 15:4 subverts the objective standard of care by encouraging jurors to focus on the physician's subjective intent. Therefore, the Days argue, we should reject the instruction as an "error in judgment" instruction following the lead of other jurisdictions.
A distinction exists, however, between the "error in judgment" instructions rejected by other jurisdictions and the Colorado jury instruction before us. Other states have dubbed jury instructions "error in judgment" instructions when the instructions contain potentially subjective terms such as "good faith judgment," "honest mistake," "error in judgment," "bona fide error in judgment," and even "best judgment." See e.g., Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294, 298-99 (1983) (holding that phrases such as bona fide error in judgment imply that only an error in judgment made in bad faith is actionable); Hirahara v. Tanaka, 87 Haw. 460, 959 P.2d 830, 834 (1998) (rejecting a jury instruction stating that "a physician is not necessarily liable for an `error in judgment'"); Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993) (rejecting the phrase "an honest error of judgment"); Day v. Morrison, 657 So.2d 808, 811-15 (Miss. 1995) (rejecting an instruction stating that "a competent physician is not liable per se for a mere error of judgment"); Papke v. Harbert, 738 N.W.2d 510, 526-27 (S.D.2007) (opining that an instruction that stated that a physician was not necessarily negligent because the physician erred in judgment should not be given in ordinary negligence cases, but acknowledging that the instruction may be appropriate if it omits the phrase mere error or mistake); Chu v. Fairfax Emergency Med. Assoc., Ltd., 223 Va. 383, 290 S.E.2d 820, 822 (1982) (rejecting an instruction stating that "the law requires only that the judgment be made in good faith" and expressing disapproval of the terms "honest mistake" and "bona fide error"); Foster v. Klaumann, 42 Kan.App.2d 634, 216 P.3d 671, 692 (2009) (rejecting a jury instruction stating that a surgeon must "use her best judgment" to select a course of treatment). These potentially subjective terms imply that a doctor must exercise bad faith to fail to meet the standard of care or that an exercise of good faith shields the physician from liability. See Logan, 465 A.2d at 298-99; Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571, 577-78 (1984); Chu, 290 S.E.2d at 822. It is, however, these potentially subjective terms that pose the problem rather than the mere recognition that a physician exercises judgment.
We reject the argument that a jury instruction that recognizes the physician's exercise of judgment will necessarily mislead jurors to focus on a physician's subjective intentions rather than on whether the physician's conduct met the objective standard of care.
The Days contend that CJI-Civ. 15:4 instructs a jury that "an exercise of judgment is not negligence." We disagree. CJI-Civ. 15:4 states that "[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician
The Days also take issue with the fact that CJI-Civ. 15:4 does not instruct jurors on the elements of negligence or the applicable standard of care. CJI-Civ. 15:4 is not, however, meant to stand alone. Instead, the instruction must be read in conjunction with the other charged instructions. See People v. Vanrees, 125 P.3d 403, 410 (Colo. 2005); People v. Phillips, 91 P.3d 476, 483 (Colo.App.2004) ("It is unnecessary to give an instruction that is encompassed in other instructions given by the court."). CJI-Civ. 15:4, when given in conjunction with an elemental negligence instruction and a standard of care instruction
Here, the trial court instructed the jury on the elements of negligence with an instruction patterned after CJI-Civ. 9:1
We hold that the portion of Colorado Jury Instruction-Civil 15:4 stating that "[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent" accurately states the law. The instruction does not impose a subjective standard of care on a physician whose exercise of judgment results in an unsuccessful outcome. Rather, it informs juries
Justice MÁRQUEZ does not participate.