specially concurring.
I concur in the opinion of the court and, with respect to instruction number 18, strongly urge that this kind of instruction should not be given a jury. It is argument, and it is confusing. Thus, it is incorrect to say that physicians and surgeons are not liable for mere errors of judgment. They are liable for error of judgment if those errors result from negligence, that is “the failure to exercise the skill, diligence and knowledge * * * reasonably * * * exercised * * * by members of the profession in good standing and in the same line of practice.”
The balance of instruction number 18 seems to say that if the acts and omissions of the defendants are an exercise of honest judgment, and not unreasonable, defendants are not liable. This likewise is misleading and a questionable statement of law. The question is not whether the judg*550ment of the physician and surgeon was honest or dishonest but whether the physician failed to exercise the skill, diligence, and knowledge reasonably exercised by others. Instruction number 18 states as a matter of law that a physician who acts honestly and reasonably is not liable. What if he acts honestly and unreasonably —or acts dishonestly and reasonably? This kind of instruction is exceedingly confusing. More than that, the instruction as a whole seems to say in lay terms that a physician who acts honestly in reaching a judgment is not liable. That is not a correct statement of the law.
In the vast majority of these kinds of cases, it is enough to define for the jury negligence and cause in simple terms, as stated in instruction number 10 and other instructions found in the court’s opinion.
Where a significant portion of the responsible medical community approves two different treatments for the same injury or condition, it is not negligence for a physician to choose one treatment over the other. For me, that does not involve an error of judgment at all. It is simply not negligence to choose either treatment. An example of two medical procedures for treating the same condition is the treatment of a ruptured disc. Neurologically the disc is removed without fusion. Orthopedically the vertebrae are fused. Both courses of treatment are common, accepted by the responsible medical community, and it generally is not negligence to treat a ruptured disc in either fashion.
An error is a mistake. A mistake may or may not result from negligence. But what is gained by telling the jury that an error carefully made does not result in liability? It is argumentative. It is confusing. It is a clever play on words which implies to the jury that a physician is not liable for an error in judgment. To balance the instructions, if number 18 is given, the court ought to advise the jury that a mere error in judgment is negligence for which a physician or surgeon is liable if such error results from negligence. As stated, it is better that neither instruction be given but that the term negligence be simply defined for the jury.
THOMAS, Justice,concurring specially.
I am in accord only with the result reached by the majority opinion. I have some views of my own with respect to the difficulties engendered by Instruction No. 18, and those views may accommodate more closely to the objection to that instruction by the plaintiffs as quoted in the separate opinion of Justice Brown. I perceive Instruction No. 18 as requiring the jury to accept the approval of the defendants’ conduct by expert witnesses so long as that approval was honestly made and was reasonable. In his separate opinion, Chief Justice Cardine has pointed out some internal inconsistency in that instruction.
Beyond its inherent departure from established legal rules, my perception of the instruction is that it does create a standard for recovery which conflicts with other instructions which were given by the court and are quoted in the majority opinion. Particularly, it appears to me to be antithetical to Instruction No. 12.
Furthermore, it is not consistent with the general instruction, Instruction No. 1, which addresses the jury’s role with respect to credibility of all witnesses. It is even more inconsistent with Instruction No. 6 relating to expert witnesses which reads as follows:
“A person is qualified to testify as an expert if he has special knowledge, skill, expertise, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. “Duly qualified experts may give their opinions on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert.
“You are not bound to accept such an opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such *551opinion if you find it to be unreasonable.”
This court has articulated clearly the proposition that it is the prerogative of the trier of fact to determine what evidence is most dependable. E.g., State ex rel. Wyoming Worker’s Compensation v. Colvin, 681 P.2d 269 (Wyo.1984); Cederburg v. Carter, 448 P.2d 608 (Wyo.1968); Cimoli v. Greyhound Corporation, 372 P.2d 170 (Wyo.1962). The vice in Instruction No. 18 is that, subject to the conditions attached, the jury is required by the instruction to accept the expert testimony. That is not, and should not, be the law. The jury is not required to accept it even if they find it to be honest and reasonable.
In addition, this court also has assigned specifically to the jury the evaluation of expert witnesses, suggesting that their testimony need not be accepted. E.g., Oukrop v. Wasserburger, 755 P.2d 233 (Wyo. 1988); Thomas v. Metz, 714 P.2d 1205 (Wyo.1986); Reed v. Hunter, 663 P.2d 513 (Wyo.1983). An additional vice in Instruction No. 18 is the statement that the jury must find for the defendants based upon the approval of the “respectable portion of competent and reputable physicians or surgeons.” The tenor of the instruction is antithetical to the function heretofore assigned to the jury by our cases.
These problems with Instruction No. 18 were exacerbated by other rulings of the district judge. His limitation on the use of expert witnesses by the plaintiff and the limitation of testimony by some of those witnesses was troublesome. The members of the jury could have concluded that, in addressing these matters as he did, the trial judge clearly indicated his position that the expert witnesses called by the plaintiff were not among that “respectable portion of competent and reputable physicians or surgeons.” The demand for a “respectable portion of competent and reputable physicians or surgeons” also is contrary to the judge’s ruling with respect to cumulative testimony. These matters, together with the refusal of the court to permit the plaintiffs to call the defendants as adverse witnesses in presenting their case in chief which was then followed by directed verdicts for lack of proof, all made painfully obvious the deprivation of a fair trial so far as the plaintiffs were concerned.
I add that denying the plaintiffs the right to call the defendants as adverse witnesses in presenting their case in chief is not a neutral ruling. When called in the case presented by the defendants, counsel have a clear opportunity to tailor the testimony in chief. Cross-examination then can be severely limited to the scope of the direct examination, and it may turn out to be impossible for the plaintiffs to present the significant points supporting their theory. Furthermore, a substantial difference exists between the presentation by the plaintiffs, through questions permitted on cross-examination of salient points followed by an explanation, and the converse in which the defendants first of all present their story and counsel for the plaintiffs must then try to attack a prepared and planned presentation. In the context of weighing testimony, the latter is far less favorable to a plaintiff, which is why a plaintiff is permitted to call a defendant as an adverse witness in his case in chief.