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Promen v. Ward12/11/1990
nces and in accordance with the standard of care. As the court's instruction simply contrasted negligence with conformity to a recognized practice, without qualification, it was misleading and constitutes reversible error. Ault, supra; Marshall v. Gibson (1985), 19 Ohio St.3d 10, 19 OBR 8, 482 N.E.2d 583.
Furthermore, this error emphasized the otherwise incomplete nature of the instructions given to the jury. It is the duty of the trial court to include in its charge to the jury a plain, distinct and unambiguous statement of the law applicable to the case at hand. Marshall, supra, at 12, 19 OBR at 10, 482 N.E.2d at 585. In this case, the court gave the jury a standard negligence instruction, but failed to give an instruction on the standard of care as applicable to a medical malpractice case. Because of his relationship with the plaintiff, defendant owed plaintiff more than a duty of ordinary care.
As a board certified orthopedic surgeon, defendant had a duty to act within the standard of care for other reasonable specialists practicing orthopedissurgery. As the jury was not given an instruction on the applicable standard of care, and was instead given an incorrect instruction on recognized procedures and methods, and considering the overwhelming evidence given by plaintiff in this case, the jury could have been misled to plaintiff's prejudice by the instructions given.
Therefore, the judgment is against the manifest weight of the evidence and to the extent that plaintiff's assignments of error raised issues regarding the court's instructions to the jury, they are sustained. The judgment of the trial court is reversed, and the case remanded for a new trial consistent with this opinion and in accordance with law.
Judgment reversed and cause remanded.
JOHN C. YOUNG and CIRIGLIANO, JJ., concur.
JOSEPH E. CIRIGLIANO, J., of the Ninth Appellate District, sitting by assignment.
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