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Bowman v. Songer11/25/1991
deviation from the standard of care if there is competent medical testimony that the patient's injury resulted from the doctor's failure to adhere to the recommendations).
In Hamilton v. Hardy, 37 Colo. App. 375, 380, 549 P.2d 1099, 1104 (1976), our court of appeals cited Crouch v. Most, 78 N. Mex. 406, 432 P.2d 250 (1967), in stating that "a manufacturer's warnings do not set an absolute standard of care. . . . The standard by which a physician's conduct is judged is an objective community standard. Reliance solely on the manufacturer's warnings may or may not have been within the standard of medical practice in Denver at that time." Thus, admission of the excerpt from the Physicians' Desk Reference was proper to aid the jury in determining whether Bowman's actions were consistent with the standard of care, and did not place upon him the product manufacturer's liability.
In addition, as support for his argument that the court of appeals created a separate claim of failure to warn, Bowman now refers to Instructions 11, 11A, 22 and 30. However, only Instructions 11A and 22 were challenged by Bowman at trial. Thus, he waived appellate review of Instructions 11 and 30, and we will consider only Instructions 11A and 22.
We conclude that Instructions 11A and 22, when considered together with the other instructions and the evidence, merely provided two different bases on which Songer could have succeeded under his medical malpractice claim, rather than two different claims for relief. Thus, we agree with the court of appeals that the jury instructions, while not a model of clarity, were generally adequate. Songer, 804 P.2d at 263-64.
IV.
In summary, we hold that a motion for reconsideration of an order granting a new trial is not governed by C.R.C.P. 59, since such order is not a final judgment. We also conclude that the instructions and evidence pertaining to the doctor's failure to warn fell under the plaintiff's claim of negligence and did not create a separate "failure to warn" claim for relief. The judgment of the court of appeals is therefore affirmed.
JUSTICE VOLLACK does not participate.
Disposition
JUDGMENT AFFIRMED
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