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 re*1362spectfully 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 ease 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 Ml 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 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.
The first error in giving Instruction 11 is that the Minnesota Supreme Court in Ouellette v. Subak, 391 N.W.2d 810, 816 (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, 105 S.Ct. 1965, 1974-77, 85 L.Ed.2d 344(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 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.