                   United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT


                          No. 97-1406


Shirley Ann Klisch, Gary Klisch,
                           *
                           *
         Appellants,       *
                           * Appeal from the United
States
         v.                * District Court for the
                           * District of North Dakota.
MeritCare Medical Group, Inc.,
                           *
formerly known as Fargo Clinic
                           *
MeritCare,                 *
                           *
            Appellee.      *


             Submitted:       November 19, 1997

                                                    Filed:
January 27, 1998


Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.


HEANEY, Circuit Judge.

    Shirley Ann and Gary Klisch appeal from a jury’s
verdict finding MeritCare Medical Group not liable in
this medical malpractice action.      Specifically, the
Klisches challenge four jury instructions as erroneous
and warranting a new trial.    The district court judge
denied the Klisches’ motion for a new trial. We affirm.
                           I.

    On August 13, 1993, Shirley Ann Klisch (Klisch) had
laparoscopic surgery which included tubal sterilization
and a hysterectomy. Klisch had her initial surgery at
the MeritCare Medical Group Clinic (MeritCare) located in
Bemidji,   Minnesota.       Shortly   afterwards   Klisch
experienced medical complications, including a bowel
injury, she claimed were due to the negligence of the
doctors who performed the surgery. MeritCare responded
that such complications were common in this type of
procedure and they were not at fault.

    After receiving follow-up care at the MeritCare
Clinic, Klisch continued to experience great pain.
Thereafter, she went to the University of Minnesota
Hospital in Minneapolis. She underwent emergency surgery
for an infection in her abdominal cavity and a
significant part of her small intestine was removed. She
also lost part of her colon.

    The Klisches brought suit based on MeritCare’s
alleged medical malpractice. After both sides presented
evidence at trial, the jury found for MeritCare.     The
Klisches immediately moved for a judgment as a matter of
law. In response to the Klisches’ motion for a judgment
as a matter of law, the district court judge stated:

        In this case, the plaintiffs argue that the
    substantial weight of the evidence does not
    support a defense verdict.      At trial, both
    parties presented expert testimony to support
    their case. In this court’s opinion, the jury
    could have decided in favor of either party

                            2
based on the evidence presented at trial. The
court notes, however, that the defendants
presented compelling expert testimony supporting
their contention that the plaintiffs’ injuries
could have occurred without any negligence on
the part of the defendant physicians.        The
plaintiffs presented no conflicting expert
testimony.     Therefore, because there was
sufficient evidence upon which a reasonable
juror could find in favor of the defendant, the
plaintiffs’ motion for judgment as a matter of
law is [denied].




                       3
Klisch v. MeritCare Medical Group, Ltd., No. A3-95-123,
at 2 (D. N.D. Jan. 13, 1997).

    On appeal, Klisch argues that her motion for a new
trial should have been granted because the four jury
instructions were improper and were impermissibly biased
in favor of MeritCare.     In essence, she argues that
absent the erroneous jury instructions, the jury would
not have found for MeritCare.

                                       II.

     “We review the district court’s jury instructions for
abuse of discretion.” Aerotronics, Inc. v. Pneumo Abex
Corp., 62 F.3d 1053, 1062 (8th Cir. 1995) (citing
Hoselton v. Metz Baking Co., 48 F.3d 1056, 1062 (8th Cir.
1995). In diversity cases, a federal district court has
wide discretion in formulating jury instructions. Id.
(citation omitted).    When reviewing jury instructions,
this   court’s   review   is   limited  to   whether   the
instructions, viewed on the whole, fairly and adequately
represent the evidence and applicable law in light of the
issues presented to the jury in a particular case. Hose
v. Chicago N.W. Transp. Co., 70 F.3d 968, 977 (8th Cir.
1995).

    In this case, we apply Minnesota substantive law.1
Thus, the jury instructions, viewed on the whole, should


      1
       In both parties’ briefs there was some question as to whether North Dakota or
Minnesota law should be applied. Minnesota clearly has stronger contacts as applied
under North Dakota’s “significant contacts” approach in tort actions. Issendorf v.
Olson, 194 N.W.2d 750, 756 (N.D. 1972).
                                         4
conform to Minnesota state law. Aerotronics, 62 F.3d at
1062.   We first consider whether the court erred in
giving jury instructions 16, 10, and 9. Later we assess
jury instruction 11 for the same purpose.




                           5
    Jury instruction 16,2 “Improved Medical Techniques,”
instructs the jury that it should consider the state of
medical technology at the time of the surgery, 1993, not
at the time of the trial, 1996. Klisch argues that this
confuses the jury because medical technology was not an
actual issue at trial. We disagree. Jury instruction 16
was appropriate because medical technology was an actual
issue at trial. For example, doctors at MeritCare had to
choose what type of technology to use in treating Klisch.
The jurors were aware of this fact during trial; and in
considering the medical technology actually used, it is
important that the jurors considered the available
technology at the time of Klisch’s surgery, not what
would have been available to the doctors at the time of
trial.   Jury instruction 16 reminds jurors, who bring
their own life experiences to a trial, that when
analyzing the type of care Klisch received, they must
look at the state of technology available to Klisch in
1993, not at the time of trial, 1996, when medical
technology may very well have changed.


      2
       Jury instruction 16, “Improved Medical Techniques,” provides:

             You have heard experts testify as to their opinions of the
      appropriate medical procedures to be followed. The field of medicine is
      not static, but progressive, with improved techniques and new methods of
      diagnosis and treatment discovered every day. In determining whether
      the treatment by the defendant in this case constitutes malpractice, you are
      instructed that the defendant is to be judged as of the state of
      advancement of medical knowledge at the time the defendant acted. The
      fact that a particular course of action would be indicated as appropriate
      today does not necessarily mean it was so at the time the defendant acted.

(Appellant's App. at 136.)
                                           6
    Neither party was able to cite a Minnesota case on
point, nor were we able to find one. Nevertheless, after
reviewing other case law on this issue and keeping in
mind the broad discretion a district court judge has in
charging a jury, we believe that the judge’s instruction
was not an abuse of discretion.      See, e.g., Ward v.
United States,




                           7
838 F.2d 182, 187 (6th Cir. 1988) (“regard must be given
to the state of medical science at the time” of
treatment) (citation omitted) (applying Tennessee law);
Nowatske v. Osterloh, 543 N.W.2d 265, 271 (Wis. 1996)
(finding that due regard for the state of medical
technology at the time of treatment should be the
standard by which a physician’s actions are judged).

    Jury instruction 10,3 “Hindsight Prohibited as to
Consideration of Negligence,”    instructs the jury to
weigh the information available to the physicians at the
time of treatment and without the benefit of hindsight.
In particular, Klisch argues that the last part of the
jury charge is clearly erroneous: “Foresight, not
hindsight, is the standard of negligence.” (Appellant’s
App. at 129.)

    Despite Klisch’s argument, jury instruction 10 is
directly supported by decisions of the Minnesota Supreme
Court. Schmidt v. Beninga, 173 N.W.2d 401, 409 (Minn.
1970); Jacobs v. Draper, 142 N.W.2d 628, 632-33 (Minn.
1966); Dellwo v. Pearson, 107 N.W.2d 859, 862 (Minn.
1961).     It appears that the confusion lies in
distinguishing between negligence, where one uses

      3
       Jury instruction 10, “Hindsight Prohibited as to Consideration of Negligence,”
provides:

      Negligence is always a question of what a reasonably prudent person,
      exercising reasonable care, would or should have done under the same
      circumstances, in light of the information available at that time. Foresight,
      not hindsight, is the standard of negligence.

(Appellant’s App. at 129.)
                                           8
foresight, and proximate cause, where one uses hindsight
in determining whether there was a breach of the standard
of care. See Schmidt, 173 N.W.2d at 409 (“‘[N]egligence
is tested by foresight but proximate cause is determined
by hindsight.”) (citation omitted).      Thus, appellant
seems to have simply




                            9
confused the two standards, and the district court judge
clearly did not abuse his discretion in offering this
jury instruction.

    Jury instruction 9,4 “Highest Degree of Skill and Care
Not Required,” instructs the jury that a physician should
not be held to a standard of infallibility, but rather
should be compared to those with the skill and knowledge
ordinarily possessed by those within the same speciality
who are similarly situated.5 Klisch is correct that there
is no Minnesota case directly on point as to the
instruction offered to the jury. Neither party, however,
is able to provide a cite that is particularly helpful in
resolving this issue. Nevertheless, we believe, viewing
the jury instructions on the whole, that the district
court judge did not abuse his discretion in offering this
instruction.




      4
       Jury instruction 9, “Highest Degree of Skill and Care Not Required,” provides:

      The law does not require of a physician absolute accuracy, either in his
      practice or in his judgment. It does not hold him to the standard of
      infallibility nor does it require of him the utmost degree of skill and
      learning known only to a few in his specialty but only to that degree of
      knowledge and skill ordinarily possessed by members of the specialty
      similarly situated and in like situations.

(Appellant's App. at 128.)
      5
       Similarly situated, for example, could mean those working in a rural area, as
opposed to those working in an urban area, and having the same technology available
to them.
                                         10
    Jury instruction 9 could be construed to clarify an
earlier instruction, jury instruction 8,6 in terms of how
one should define the standard of care as applied to




      6
       Jury instruction 8, “Physician’s Standard of Care,” provides:

      In performing professional services, a physician has a duty to exercise
      such reasonable care, diligence and skill as are ordinarily possessed and
      exercised by, and expected of, physicians in the same general line of
      practice.

(Appellant’s App. at 127.)
                                         11
similarly-situated   doctors.     Jury  instruction   9,
recognizing physician fallibility, read in conjunction
with jury instruction 8, requiring similarly-situated
physicians to provide reasonable care, skill and
diligence, appears to clarify for the jury that a doctor
need not be perfect when providing treatment. This, in
our judgment, is akin to telling the jury that a
physician is not necessarily negligent because his/her
treatment is unsuccessful. See Ouellette v. Subak, 391
N.W.2d 810, 816 (Minn. 1986) (a doctor is not negligent
simply because the treatment was unsuccessful if the
treatment was medically accepted according to available
information at the time the choice had to be made).

    We agree with Klisch that the district court could
certainly have been more clear in this jury instruction.
However, considering the court’s broad discretion in
formulating jury instructions, and after viewing the jury
instructions in their entirety, we are unable to find an
abuse of discretion.




                           12
    Jury   instruction   11,7  “Alternative   Methods   of
Diagnosis or Treatment,” is the most problematic. Klisch
properly argues that the term “best judgment,” offered as
part of jury instruction 11, has been discredited by the
Minnesota Supreme Court in the Ouellette decision.
Ouellette, 391 N.W.2d at 816. In Ouellette, the Minnesota
Supreme Court set forth new jury instructions for a
Minnesota trial court to use in medical malpractice cases:

      A doctor is not negligent simply because his or
      her efforts prove unsuccessful.       The fact a
      doctor may have chosen a method of treatment that
      later proves to be unsuccessful is not negligence
      if the treatment chosen was an accepted treatment
      on the basis of the information available to the
      doctor at the time a choice had to be made; a
      doctor must, however, use reasonable care to
      obtain the information needed to exercise his or
      her professional judgment, and an unsuccessful
      method of treatment chosen because of a failure
      to use such reasonable care would be negligence.

Ouellette, 391 N.W.2d at 816.




      7
       Jury instruction eleven -- “Alternative Methods of Diagnosis or Treatment,”--
provides:

              Where there is more than one recognized method of diagnosis or
      treatment, and not one of them is used exclusively and uniformly by all
      practitioners of good standing, a physician is not negligent if, in exercising
      his best judgment, he selects one of the approved methods, which later
      turns out to be a wrong selection, or one not favored by certain other
      practitioners.

(Appellant’s App. at 130.)
                                            13
    Although the district court judge relied on earlier
Minnesota case law in charging the jury,8 the honest error
in judgment (or the equivalent “best judgment”) language
he




    8
        Kinning v. Nelson, 281 N.W.2d 849 (Minn. 1979).
                                       14
provided the jurors was improper under Ouellette. When
instructing a jury, as it relates to a physician’s choice
of alternative methods of treatment, language such as
using his/her “professional judgment” rather than “best
judgment” is appropriate in determining whether a doctor
was negligent. Ouellette, 391 N.W.2d at 816.9

    The distinction between best judgment and professional
judgment is worth noting because the former suggests a
subjective standard and the latter suggests an objective
standard of analysis.     To assess medical malpractice
consistently with Minnesota law, and as incorporated in
the model Minnesota jury instructions, one must use an
objective standard of review. Id.

    Although Klisch correctly points out a flaw in jury
instruction 11, we do not view it in isolation and believe
that the flaw was cured when considering all twenty-nine
jury instructions. When reading the entire jury charge,
negligence was sufficiently defined to suggest that
objective, not subjective, standards must be applied. For
example, in defining medical malpractice, jury instruction
6 reads in relevant part that “[m]edical negligence
(malpractice), by definition, is the failure to treat a
patient in accordance with proper accepted medical
practice, resulting in harm to the patient.” (Appellant’s
App. at 125.) Similarly, jury instruction 8 provides that
“a physician has a duty to exercise reasonable care . . .
ordinarily possessed . . . by . . . physicians in the same


      9
       In this regard, the jury instruction offered by the court in Ouellette has been
incorporated in the model Minnesota jury instructions. 4 Minn. Dist. Judges Ass’n,
Minnesota Practice, JIG, 425 (3d ed. 1986).
                                          15
general line of practice.” (Id. at 127.) Thus, as we
stated in Davis v. Merrill Lynch, 906 F.2d 1206, 1212 (8th
Cir. 1990), a “single erroneous instruction [does not]
necessarily require reversal if the error was cured by a
subsequent instruction or by consideration of the entire
charge.” (citation omitted).




                            16
    Klisch   additionally   argues   that   the   phrase
“alternative methods of treatment,” also part of jury
instruction 11, was misleading since it was never
specifically introduced at trial.      Contrary to her
assertion, there were competing views offered by expert
witnesses in terms of how one should treat Klisch and
which alternative methods of treatment were appropriate.
Therefore, this part of the instruction was properly
presented to the jury.

    On the whole, we found the jury instructions
balanced.10 The jury could have decided for either side,


      10
         It is worth noting, however, that had the district court judge simply instructed
the jury as to model Minnesota jury instruction 425, perhaps many of the problems and
confusion stemming from the jury instructions could have been avoided. Model
instruction 425 provides:

             In performing professional services for a patient, a doctor . . . must
      use that degree of skill and learning which is normally possessed and used
      by doctors . . . in good standing in a similar practice, in similar
      communities and under like circumstances. In the application of this skill
      and learning the doctor . . . must also use reasonable care.

      A doctor is not negligent simply because [his or her] efforts prove
      unsuccessful. The fact a doctor may have chosen a method of treatment
      that later proves to be unsuccessful is not negligence if the treatment
      chosen was an accepted treatment on the basis of the information
      available to the doctor at the time a choice had to be made; a doctor must,
      however, use reasonable care to obtain the information needed to exercise
      [his or her] professional judgment, and an unsuccessful method of
      treatment chosen because of a failure to use such reasonable care would
      be negligence.

4 Minn. Dist. Judges Ass’n, Minnesota Practice, JIG, 425 (3d ed. 1986).
                                            17
but in weighing the evidence, found for MeritCare.  We
will not upset the jury’s decision unless there was an
abuse of discretion by the district court judge in the
jury charge.    There was not.  We recognize that Mrs.
Klisch has been




                          18
through much pain and suffering; but for the reasons
discussed above, we believe the jury’s decision should
stand.

                          III.

    Accordingly, we affirm.

JOHN R. GIBSON, Circuit Judge, dissenting.

    I respectfully dissent. The court today recognizes
the flaw in instruction number 11, but concludes that when
the instructions are read together, there was no error.
I respectfully differ. I conclude that instruction number
11 was contrary to existing Minnesota law, the standard
the district court was required to follow, was in conflict
with other instructions, and that it sufficiently affected
the trial of this case that reversal is required.

    There were but six instructions that dealt with the
issue of negligence. Three do not mention the standard of
care. One defines medical negligence, one sets forth the
elements of medical negligence, and one that a bad result
is not negligence. (Instructions 6, 7 and 12).

    Only three instructions dealt with the standard of
care, and they are set forth in full in the court's
opinion. Instruction 8 properly defines the standard of
care required of physicians as that ordinarily possessed
and exercised by, and expected of, physicians in the same
general line of practice. Instruction 9 reiterates this
standard,   with   argumentative   statements  concerning
absolute   accuracy   and   infallibility.    These   two

                              19
instructions define an objective standard. Instruction 11
tells the jury that where there is more than one
recognized method of diagnosis or treatment "a physician
is not negligent if, in exercising his best judgment," he
selects one of the above methods.       The best judgment
language inserts a subjective standard.




                           20
    The first error in giving Instruction 11 is that the
Minnesota Supreme Court in Ouellette v. Subak, 391 N.W.2d
810, 816 (S. Ct. Minn. 1986), held that an instruction
containing the phrase "honest error in judgment," language
quite similar to that before us, was inappropriate, and
suggested an instruction referring to reasonable care and
professional judgment. We have in Pearce v. Cornerstone
Clinic, 938 F.2d 855 (8th Cir. 1991), reversed where the
instruction language "using the best judgment" inserted
subjective considerations into the objective standard
created by Arkansas statutes.

    The second infirmity of the instructions as a whole is
that there is direct conflict between the two instructions
defining the degree of care as that ordinarily possessed
and exercised by physicians in the same line of practice,
and instruction 11 that the exercise of best judgment is
not negligence.     It is well established that when
instructions submit conflicting theories and a general
verdict is returned, it may not stand.     See Francis v.
Franklin, 471 U.S. 307, 320-25(1985).

    The situation before us is even more pernicious as the
jury,   after   being  given   the   proper  standard   in
instructions 8 and 9, is, in instruction 11, given a
preemptive direction that the physician is not negligent
when he selects a recognized method of treatment
"exercising his best judgment."       The instruction the
Minnesota court held should be no longer given thus trumps
the correct instructions.

    I believe this to be prejudicial error. Having so
concluded, I will not further comment on the fact that

                            21
many of the instructions are riddled with argumentative
statements, some having no part in this case.

    I would reverse the judgment and remand for retrial
based on error in the instructions.




                          22
    A true copy.

           Attest:

               CLERK,   U.   S.        COURT   OF   APPEALS,   EIGHTH
CIRCUIT.




                                  23
