Special Justice, dissenting. The majority concludes that the burden of proof issues raised by this appeal cannot be reached on the theory of the “law of the case doctrine.” I disagree.
The first trial of this case in 1985 was so severely flawed by attorney misconduct, I am of the opinion that the case went back to the trial court on its all fours as a re-trial de novo. The court used the language “reversed and remanded” in Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986). I would allow all issues to be opened anew and not restrict the remand. The majority opinion following the first appeal in no way was a limited remand and is a new trial. I do not think the appellate court has to use the magic words “reversed and remanded for a new trial” to avoid the harsh ruling that results by applying the law of the case doctrine. Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949); Deason & Keith v. Rock, 149 Ark. 401, 232 S.W. 583 (1921). The court in Deason at page 402 stated,
Where the remanding of a cause for further proceedings is general and no specific directions are made by this court to the lower court in the mandate, the lower court may proceed further with any matter in the cause which was not inconsistent with the opinion of the court on appeal.
I contend Alexander v. Chapman, supra, was a broad remand. The cases cited by the majority in upholding the law of the case are in conflict with the cases that stand for the general proposition of a broad remand. There was no clarification by this court as to whether or not the case was broadly remanded and all issues were open for trial anew the same as if there had been no trial. The dictum by the majority does not clear up the confusion.
Appellant, Elsie Alexander, Individually and as Administratrix of the Estate of John Alexander, deceased, filed a medical negligence suit against Jerry C. Chapman, M.D. and Crestview Family Clinic, P.A., alleging that Jerry C. Chapman failed to diagnose and treat John Alexander who died of a heart attack secondary to arteriosclerotic heart disease. The date of death was October 1, 1979.
The second trial was concluded on August 10,1987, the jury finding for Jerry C. Chapman, M.D. and Crestview Family Clinic, P.A. This appeal by Elsie Alexander followed.
Appellant argues on appeal that the giving of jury instruction AMI 203 in conjunction with AMI 1501 is not a correct statement of the law as to the burden of proof in medical malpractice cases. Appellant contends that the proper statement of the law as to the burden of proof is found in the Arkansas Malpractice Act as codified in Ark. Code Ann. §§ 16-114-201' —16-114-209 (1987), particularly section 16-114-206 entitled “Burden of Proof.” The language in AMI 1501, which defines the standard of care applicable to a medical care provider within the context of “using his best judgment,” is at the heart of the appellant’s argument that the circuit court gave improper jury instructions.
Dr. Chapman and Crestview Family Clinic argue that AMI 1501 correctly states the standard of care required of a medical care provider. Further, the appellees argue that AMI 1501 does not create a subjective standard of care and that the instruction is not in conflict with or superseded by section 16-114-206.
The circuit court’s alleged error in the giving of AMI 203 in conjunction with AMI 1501 in the instructions given was preserved by compliance with the Arkansas Rules of Civil Procedure, Rule 51. See City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989). Not only did the appellant give a timely objection to the instructions, with valid reasons, but offered proposed instructions on the burden of proof and standard of care issues. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).
The appellant asked this court to set aside the common law language in AMI 1501 as outlined in the case of Dunman v. Raney, 118 Ark. 337, 176 S.W. 339 (1915). This I would do. The court in Dunman, at page 346, stated the following:
Appellant does not contend that the instruction was erroneous in other respects, and it was not. A physician or surgeon is not required to exercise the highest skill possible. He is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing, practicing in the same line, and in the same general neighborhood or in similar localities. He must use reasonable care in the exercise of his skill and learning, and act according to his best judgment in the treatment of his patients. (Emphasis supplied.)
The ARKANSAS MODEL JURY INSTRUCTIONS (Civil), now in its third edition, incorporated the language in Dunman. The first paragraph of AMI 1501 reads as follows:
In [diagnosing the condition of] [treating] [operating upon] [obtaining the informed consent of] a patient, a [physician] [surgeon] [dentist] [medical care provider] must possess, and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same [type of practice] [or] [specialty] in the locality in which he practices, or in a similar locality. A failure to meet this standard is negligence.
The Arkansas Supreme Court’s Committee on Jury Instructions stated in the comments to AMI 1501 that, “Although the phrase, ‘using his best judgment,’ is not included in the statutory definition of the standard of care owed by a medical care provider, the Committee has elected to retain it in this instruction pending resolution of the issue by the Supreme Court of Arkansas.”
The duty set forth in the first paragraph of AMI 1501 has been approved and has been well settled throughout the cases. See Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975); Dunman, supra; Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552 (1950).
AMI 203 and AMI 1501 given together had been court approved instructions as a correct statement of the law in medical malpractice cases until the Arkansas legislature passed Act 709 of 1979. Ark. Code Ann. § 16-114-206 (1987) (formerly Ark. Stat. Ann. § 34-2614). Subsection (a) of the statute reads as follows:
(a) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
This court approved the language of section 16-114-206(a) in the cases of Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), and Sexton v. St. Paul Fire and Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). I would hold that this legislation, which is in derogation of the common law, should be strictly construed. Hackney v. Southwest Hotels, Inc., 210 Ark. 234, 195 S.W.2d 55 (1946). “Using his best judgment” modifies the standard of care outlined in section 16-114-206. Failure of a medical care provider, as defined in section 16-114-201(2), to meet the standard of section 16-114-206(a), is negligence. Deviation from this standard should not be excused by the exercise of the provider’s best judgment.
To avoid further confusion between the legislation, AMI 203 and AMI 1501, I would hold that in all future medical injury cases that come within the purview of the Arkansas Medical Malpractice Act (Act 709 of 1979) the court’s instruction in lieu of AMI 203 (burden of proof against damages based upon negligence) and AMI 1501 (duty of physician, surgeon, dentist or other medical care provider) should read as follows:
In an action for medical injury, the plaintiff has the burden of proving the following three elements:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which the — practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with such standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
If you find by a preponderance of the evidence in this case that each of the elements has been proved, then your verdict should be for _, and against (Plaintiff (s)) _; but if, on the other hand, you find by a (Defendant(s)) preponderance of the evidence that any of these elements has not been proved, then your verdict should be for the __Ark. Code Ann. § 16-114-206(a)
I would further hold that the present “Note on Use” of AMI 1501, as outlined in the ARKANSAS MODEL JURY INSTRUCTIONS (Civil), Third Edition, Will apply for the burden of proof instruction as now covered by Ark. Code Ann. § 16-114-206(a). The second paragraph of AMI 1501 should be used where the facts and proof of a medical injury case so warrant. If no expert testimony is required in Plaintiffs proof, AMI 102 would be a correct instruction. See Prater, supra, and Sexton, supra.
I would reverse and remand.
Holt, C.J., and Glaze, J., join in this dissent.