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Freitas v. Alaska Radiology Associates11/14/2003
that Instruction No. 18 was "incomplete," because it did not inform the jurors that they could find Dr. Anderson negligent "if she had the necessary knowledge and skill but simply acted in the wrong way."
The Freitases did not raise this objection in the superior court. They advanced other objections to Instruction No. 18 before trial, and the superior court made changes to the instruction in response to those objections. The court gave the parties a final opportunity to object to the instructions, and the Freitases did not make the objection that they now raise. The Freitases consequently did not preserve this objection.
Plain error is therefore the applicable standard for reviewing this instruction.
We perceive no plain error here. Instruction No. 18 could have been clearer, but it was not misleading. Moreover, Instructions No. 16 and 17, which also discussed negligence, were very clear. Instruction No. 16 submitted the statutory standard set out in AS 09.55.540(a). Instruction No. 17 made it clear to the jury that it could find Dr. Anderson negligent if she failed to exercise expertise that she possessed. And in this case there was no dispute about whether Dr. Anderson had the training and experience to practice her specialty. Therefore the instructions as a whole properly instructed the jury. It was consequently not plain error to submit Instruction No. 18 to the jury.
IV. CONCLUSION
Concluding that the trial court did not err in allowing Dr. Farleigh to testify or in giving Instruction No. 18, we AFFIRM the judgment below.
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