dissenting.
I would hold that the trial court erred in not instructing the jury under both SCRA 1986, 13-1101 (Repl.1991), and SCRA 1986, 13-1102 (Repl.1991). The majority having decided otherwise, I respectfully dissent.
The trial court has the duty to “instruct the jury regarding the law applicable to the facts of the cause unless such instructions be waived by the parties.” SCRA 1986, 1-051(B) (Repl.1992). A party is entitled to jury instructions that describe his or her theory of the case if the evidence supports that theory. See State v. Venegas, 96 N.M. 61, 62, 628 P.2d 306, 307 (1981). It is undisputed that Defendant held himself out as a specialist in the field of surgery. However, the fact that Defendant was a specialist is not dispositive of which instruction should be given; SCRA 13-1102 states that it applies when the defendant both holds himself out as a specialist and undertakes to treat the plaintiff in that specialized field. Plaintiff presented evidence supporting his theory that, when Defendant diagnosed the decedent, Defendant was acting as a general practitioner, not as a specialist. For that reason, I believe Plaintiff was entitled to have the jury instructed on the general duty of a general practitioner. See SCRA 13-1101. Defendant, on the other hand, contended and presented evidence that he was acting as a surgeon when he diagnosed the decedent. Thus, Defendant was entitled to an instruction on the duty of a specialist. See SCRA 13-1102.
The trial court decided to instruct the jury only on the duty of a specialist under SCRA 13-1102. In my view, this determination deprived Plaintiff of the opportunity to fairly argue its theory of the case — that Defendant was acting as a general practitioner when he diagnosed the decedent and should be expected to have the knowledge of a general practitioner. Because it was disputed whether Defendant was treating the decedent as a surgeon or as a general practitioner, I believe that both instructions should have been given. See Jordan v. Bogner, 844 P.2d 664, 667 (Colo.1993) (“In a medical malpractice action, if the evidence is disputed as to whether the physician is in fact a specialist, a trial court should give both a nonspecialist instruction and a specialist instruction with proper modification.” (Emphasis added.)); see also Sisson ex rel. Allen v. Elkins, 801 P.2d 722, 726 (Okla.1990). Although the committee’s comments do not expressly state that both SCRA 13-1101 and SCRA 13-1102 can be given together, neither do they prohibit it. An additional instruction explaining to the jury why both are being given should perhaps be presented at the same time, permitting opposing counsel to argue their respective theories. Without the jury having the benefit of SCRA 13-1101, Plaintiffs counsel’s closing argument fell on deaf ears.
I thus disagree with the majority that Plaintiffs counsel’s closing argument cured the defect; the jury was bound to apply the only instruction given, which clearly stated that Defendant had “the duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified specialists in the same field -of medicine ____” SCRA 13-1102 (emphasis added). The clear implication is that Defendant only had a duty to use and apply his knowledge as a general surgeon, and not his general knowledge of the practice of medicine. Thus, by giving only SCRA 13-1102, the jury was deceived into thinking that Defendant, a general surgeon, was not required to have the knowledge of a general practitioner. Even if the jury was not so deceived, the jury had no opportunity to apply any other standard (than the specialist standard) to Defendant’s acts because SCRA 13-1101 was not given.
Additionally, I am not persuaded by the majority’s reliance on Oko v. Rogers, 125 Ill.App.3d 720, 81 Ill.Dec. 72, 74, 466 N.E.2d 658, 660 (Ct.1984). The rule stated in Oko (that it is error to hold a defendant specialist only to the skill and care of a general practitioner) would apply where the defendant is alleged to have acted only as a specialist.
I realize that Plaintiff did not expressly request that both instructions be given. Nonetheless, I do not believe that failure to do so precluded the trial court from presenting both instructions. First, Plaintiff clearly requested that the jury be instructed under SCRA 13-1101 and thus preserved that claim of error. Second, I believe the record is ambiguous concerning whether Plaintiff was willing to allow both instructions to be given; since Defendant was requesting that SCRA 13-1102 be presented, the trial court could have granted both requests. Third, our Supreme Court has held that “it is the duty of the court at every trial to give to the jury the fundamental law applicable to the facts of the case and unless waived by the parties, instructions to that extent at least, must be given whether requested or not----” Gerrard v. Harvey & Newman Drilling Co., 59 N.M. 262, 273, 282 P.2d 1105, 1112 (1955). Instructing the jury on the correct standard of duty in a medical malpractice case would surely be considered fundamental. Thus, the fact that no party explicitly requested that both instructions be given would not bar the remedy I propose.
In this case, the giving of an instruction under SCRA 13-1102, the specialist standard of care, resulted in clear prejudice to Plaintiff. Although, as a general rule, the specialist instruction is supposed to require a higher standard of care, here it was essentially used to permit defense counsel the opportunity to argue improperly that Defendant should be held to a lower standard of care than general practitioners because Defendant could not be expected to have the knowledge of a general practitioner. Instead, what the jury here should have been made to understand clearly was that a specialist is required to meet both the higher standard of a specialist’s duty and the standard of a general practitioner’s duty. In this case, I do not believe the jury was permitted to see the case in that light. Instead defense counsel was permitted to make an argument that the jury could have understood essentially as follows: “How can you possibly hold Defendant to the standard of a mere physician, a general practitioner? He cannot be expected to know that — after all, he is a general surgeon — a specialist. You must hold him to that standard alone. And you have been so instructed by the judge.” I believe that the jury may have bought this interpretation simply because SCRA 13-1101 was not given, thus prejudicing Plaintiff.
In light of the low threshold of prejudice that Plaintiff must show, see Jewell v. Seidenberg, 82 N.M. 120, 124, 477 P.2d 296, 300 (1970) (“In determining whether [deviation from the uniform jury instructions] is reversible error, we will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice.”), I would reverse and remand for a new trial with instructions that the jury be instructed under SCRA 13-1101.