dissenting.
For the following reasons I respectfully dissent from the majority opinion.
In both his brief and oral argument, plaintiff contends that the District Court committed error when it failed to instruct the jury on one of his theories of malpractice; and that the defendant was negligent in not properly diagnosing the growth behind plaintiffs left knee after defendant exposed it during the course of surgery and prior to its excision by defendant.
It is true, as the majority opinion notes, that the trial court has a duty to instruct the jury upon all issues presented by the pleadings which are supported by the evidence. Laux v. Robinson, 195 Neb. 601, 239 N. W. 2d 786 (1976). However, a careful review of the record in this case shows clearly that the plaintiff never sought, either by his pleadings or otherwise during the course of the trial, to have the jury instructed upon defendant’s duty to diagnose the growth behind plaintiff’s left knee after it had been exposed during the course of surgery. Both plaintiff’s pleadings and his requests to the court, by their language, related to defendant’s duty to make an adequate diagnosis prior to undertaking surgery upon the growth behind plaintiff’s left knee.
In an amendment to his amended petition, plaintiff asserted that the defendant was negligent: “In failing to conduct proper and adequate diagnostic tests to determine the true nature of the growth behind Plaintiff’s left knee before undertaking surgery thereon(Emphasis supplied.) Plaintiff never further amended his pleadings. Plaintiff requested that the court instruct the jury as follows: “The Plaintiff claims that the Defendant was guilty of one or more of the following specifications of negligence: 1. in failing to conduct proper and adequate diagnostic tests to determine the nature of the *228growth behind Plaintiff’s left knee before undertaking surgery thereon.” (Emphasis supplied.) At the instruction conference, plaintiff’s counsel, taking exception to the court’s failure to give his tendered instruction, stated that the court should instruct the jury on the obligation of the defendant to make an adequate and proper diagnosis of the tumor which he contemplated surgically removing before undertaking surgery thereon.
The District Court refused to instruct the jury as ostensibly requested by the plaintiff on the basis that there was no evidence that the defendant had departed from any standards of the community or of similar communities in regard to preliminary diagnosis. This ruling was correct. There was no evidence in the record to indicate that the defendant should have done any more than he did in examining the lump behind plaintiffs left knee. The failure of the District Court to instruct the jury on plaintiff’s theory of malpractice as presented to this court was the result of plaintiff’s failure to so request, or to present its theory to the District Court in a clear and unequivocal manner. A party cannot be heard to complain of an error which he himself has been instrumental in bringing about. Ballantyne v. Parriott, 172 Neb. 215, 109 N. W. 2d 164 (1961).
In any event, it is clear that plaintiff received a fair submission of his case to the jury. Plaintiff was allowed to present his evidence. Plaintiff’s disability results from the removal of approximately 1 inch of his peroneal nerve. Plaintiff contends that defendant was negligent in removing this portion of nerve. Defendant testified that he removed this portion of the nerve because (1) he did not think that the tumor could be dissected from the nerve, or be enucleated, and (2) he felt that the tumor was probably malignant and was concerned about seeding the area with malignant cells. At trial, plaintiff, through his evidence, attacked both of these judgments.
*229Instruction No. 2, given to the jury by the court, read, in part: “In his petition, plaintiff alleges that defendant was negligent in the following particulars: 1. In excising approximately one inch of nerve tissue from behind plaintiff’s left knee when it was not necessary or proper to do so.” (Emphasis supplied.)
The proper procedure to follow, plaintiff suggested, was to do a wedge biopsy on the tumor to determine conclusively whether it was benign or malignant, prior to making a determination to excise it along with a portion of the nerve. Defendant’s failure to have a wedge biopsy taken, according to the plaintiff, was negligence. Dr. John Walburn, plaintiff’s witness testified that, in his opinion, the standards of medical practice prevailing in Omaha in 1970 required that a frozen section of the tumor be taken before causing permanent damage to the nerve by surgery.
Dr. Moran testified that the tumor was of sufficient size to permit the taking of a wedge biopsy. He further testified that it did not surprise him that the tumor was sent to him in its entirety, rather than a simple wedge biopsy, because that was a fairly common practice in the community. Defendant testified that it is not the practice in Omaha to perform a biopsy on a tumor of the size of plaintiff’s. Defendant testified that it is the general practice of surgery in Omaha for the surgeon, in the exercise of his judgment during the course of surgery, to make a determination of the lesion or tumor which he is operating on. In his opinion, the procedures which he followed conformed with the standards of practice in Omaha. In response to a hypothetical question, Dr. Claude H. Organ testified that the surgeon, based upon the assumed facts, “exercised good judgment and I know of no things in the surgical management of this that was not done.’’ Dr. Monson testified that, in his opinion, the defendant complied with good surgical practices of the community in the diagnosis of this *230tumor and the judgments that he reached in the method of its removal and in the management of the patient during the course of that operation. Dr. Kenneth Browne, a neurosurgeon practicing in the Omaha community for 25 years, stated that he has never seen a tumor of the peroneal nerve. He testified that such tumors are so rare that it cannot be said there was a standard approach to these tumors in Omaha.
Instruction No. 7, given to the jury by the court, stated in part: “By ‘negligence’, commonly referred to as malpractice in this type of case, is meant the doing of some act under the circumstances surrounding or leading up to the incident complained of which a doctor, who is a general surgeon, of ordinary prudence would not have done, or the failure to do some act or to take some precaution which a doctor, who is a general surgeon, of ordinary prudence would have done or taken, according to prevailing recognized medical standards.” (Emphasis supplied. )
The issue of whether or not defendant, according to prevailing recognized medical standards, under the circumstances of this case, should have caused a wedge biopsy to be taken on the growth behind plaintiff’s left knee prior to making a determination to excise the growth and portion of the peroneal nerve was submitted to the jury.
Instructions to the jury should be considered as a whole and if they fairly submit the case and cover the issues, there is no prejudical error. Hadenfeldt v. State Farm Mut. Auto. Ins. Co., 195 Neb. 578, 239 N. W. 2d 499 (1976). Much of the evidence in this case was conflicting. A verdict by a jury based upon conflicting evidence will not be set aside on appeal unless it is clearly wrong. Grady v. Denbeck, 197 Neb. 795, 251 N. W. 2d 164 (1977).
Defendant entered the operating room believing that he would remove a Baker’s cyst from behind *231plaintiff’s left knee. During the course of the operation, as he cut through the fascia and exposed the growth, he realized that the growth behind plaintiff’s left knee was not a Baker’s cyst, but instead a tumor of the peroneal nerve.
Defendant determined that plaintiff’s tumor had a good possibility of being malignant. He did not attempt to enucleate the tumor or dissect the nerve fibers from the tumor because he did not think that this could be surgically done, and, believing the tumor to be malignant, he was concerned about seeding the area with cancerous cells.
Defendant testified as to why he thought that plaintiff’s tumor was probably malignant: “It was a hard tumor. There was some redness on either end and over the top of it. And it was my judgment, after having seen many tumors over the years, that this had a good possibility of being malignant.”
Defendant’s determination that this tumor was probably malignant was not lightly reached. Surgery was suspended for about 15 minutes after the tumorous mass was exposed, while defendant and Dr. Monson discussed the tumor. The tumor was palpated and closely examined. Dr. Monson agreed with defendant that the tumor was probably malignant. The record shows that defendant has been practicing surgery in the Omaha community since 1939, with the exception of 4 years in the Army during which time he was stationed at a neurosurgical center. He obviously has encountered numerous tumors, though admittedly never one of this specific nerve, such tumors being very rare.
In response to a hypothetical question, Dr. Browne stated that a fully encapsulated, 8-year-old tumor of the peroneal nerve which was not causing any particular problems to the patient, would in his judgment probably be benign. However, regarding the specific facts of this case, Dr. Browne testified: “According to the testimony that I am acquainted *232with, they felt it was probably a malignant growth and this would certainly be a reasonable conclusion, so far as I can tell from all the testimony that’s been given.”
Defendant’s determination that plaintiff’s tumor was probably malignant was certainly a reasonable one. It was a judgment based upon almost 40 years of surgical experience. It was a judgment shared in by Dr. Monson.
It is clear from the record that had plaintiff’s tumor in fact been malignant, the course of action taken by the defendant, excision of the tumor and portion of the nerve, was without qualification the proper way to proceed.
Plaintiff suggests that even though defendant thought the tumor malignant, he should have conducted a wedge biopsy prior to excising it along with the nerve, to determine conclusively whether or not it was in fact malignant. Given defendant’s reasonable conclusion that the tumor was malignant, such a course of action - taking a wedge biopsy - would have constituted the grossest negligence by defendant.
Dr. Monson testified that even with a frozen section, it is sometimes not possible to tell whether a tumor is malignant or not. Defendant, believing the tumor malignant, did not wish to surgically invade the tumor and risk seeding the area with cancerous cells. He testified that there was no way to protect against seeding the area with malignant cells. Plaintiff’s witness, Dr. Walburn, agreed that the seeding of malignant cells is a danger to be considered in all frozen sections and acknowledged that any time one surgically invades a tumor, such as in conducting a wedge biopsy that is malignant, there is a substantial risk of seeding the area with malignant cells. Dr. Organ testified that even though a surgeon thinks that a tumor is probably benign, he must protect against the possibility of seeding the *233area with malignant cells and that this ordinarily means removing the tumor in its entirety.
Plaintiff, and a majority of the members of this court, place defendant in a position where he is damned if he doesn’t order a wedge biopsy (for fear that the tumor, even though thought malignant, might turn out in fact to be benign) and damned if he does order a wedge biopsy (should the tumor turn out to be malignant as originally thought and the area seeded with malignant cells as a result). Such a position is certainly not condusive to the development of sound medical practice.
Defendant thought the tumor malignant and decided to excise it along with a portion of nerve. Defendant did not think that the tumor could be enucleated or the nerve fibers dissected out. Dr. Monson agreed and assisted with this course of action. Dr. Walburn would have conducted a wedge biopsy prior to making a decision on whether or not to excise the tumor. Drs. Minette and Das Gupta would have attempted to dissect the nerve fibers from the tumor. They felt that this could be done.
Plaintiff’s evidence, viewed most favorably to him, merely shows that defendant had other options in dealing with this tumor and that other doctors would have acted differently.
What we recently held in Kortus v. Jensen, 195 Neb. 261, 237 N. W. 2d 845 (1976), is appropriate here: “It is not enough merely to present the testimony of a doctor who would have acted differently, or who is willing to express the opinion that the operation should have been performed differently. The Supreme Court of Washington was presented with similar evidence in Hayes v. Hulswit, 73 Wash. 2d 796, 440 P. 2d 849 (1968). The court there concluded: ‘In the last analysis, all that plaintiff’s evidence establishes is a difference of professional opinion as to diagnosis and treatment. This alone is not evidence of malpractice. * * * The testimony of other physi*234cians that they would have followed a different course of treatment than that followed by the defendant, or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence. In such cases the court must hold that there is nothing upon which the jury may pass, the reason being that the jury may not be allowed to accept one theory to the exclusion of the other.’ ”
The judgment of the District Court is correct and should be affirmed.