dissenting:
The majority reverses the verdict for Dr. Jacobson, concluding that Judge Wright erred by not modifying a particular instruction requested by Dr. Pannu and by not giving that instruction to the jury. Since I conclude that Judge Wright’s decision was correct; that the majority’s modification would not have eliminated the potential for prejudice to Dr. Jacobson that could have resulted from giving the instruction; that, in any event, Dr. Pannu suffered no harm from the failure to give the instruction; and that the instructions given “as a whole, fairly and accurately state[d] the applicable law,” Nelson v. McCreary, 694 A.2d 897, 901 (D.C.1997) (quoting Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 625 (D.C.1986)) (internal quotation marks omitted), I must dissent. I also dissent from the majority’s sweeping statements with respect to the obligations of trial judges with respect to jury instructions.
Dr. Pannu’s argument for reversal of the judgment pertains solely to Judge Wright’s decision not to give either Civil Jury Instruction 5-3 or a modified version *200of that instruction tailored to the facts of this case. An understanding of Instruction 5-3 is useful to an understanding of the issues confronting us on this appeal. Instruction 5-3 reads:
Negligence is a relative concept. A reasonable person changes [his] [her] conduct according to the circumstances or according to the danger that [he] [she] knows or should know, exists. Therefore, as the danger increases, a reasonable person acts in accordance with those circumstances. Similarly, as the danger increases, a reasonable person acts more carefully.
This concept was first articulated by our court in the case of D.C. Transit Sys., Inc. v. Carney, 254 A.2d 402 (D.C.1969).
As counsel for Dr. Jacobson correctly and successfully argued to Judge Wright, the Carney standard, incorporated into Instruction 5-3, is a “reasonable man” standard that the jurors are considered competent to determine for themselves, but it is inapposite in the context of medical malpractice where the performance of a doctor is evaluated by the jury based upon expert testimony from other doctors. Indeed, it is worth noting that the carefully crafted Standardized Civil Jury Instructions for medical malpractice cases do not include any instruction similar to Instruction 5-3. That instruction leaves completely unanswered how a jury should determine what heightened awareness should exist or what greater measures should be taken when “the danger increases”'•during neurosurgery and leaves the jury to speculate about those issues. As Judge Wright pointed out, the jury is to decide “based upon what a reasonable neurosurgeon would be doing; not a reasonable person.”1 Thus, Judge Wright ruled that he would not give Instruction 5-3, but invited counsel to submit a version of Instruction 5-3 that was modified for a malpractice case.
The modified version of the instruction thereafter submitted on behalf of Dr. Pan-nu read:
Negligence is a relative concept. A reasonable doctor under the standard of care changes [his] [her] conduct according to the circumstances or according to the danger [he] [she] knows, or should know, exists. Therefore, as the danger increases, a reasonable doctor under the standard of care acts in accordance with those circumstances. Similarly, as the danger increases, a reasonable doctor under the standard of care acts more carefully.
The majority concludes, and I agree, that Judge Wright did not err in refusing to give this instruction. The majority bases its conclusion on the idea that if Dr. Jacobson “had already been acting as carefully as required by the heightened danger even prior to the onset of that increased danger ... it would not be necessary for *201[him] to act even more carefully following the initial tear of the dura, or to change his conduct.” Thus, the majority recognizes, the proposed instruction would have misled the jury to believe that Dr. Jacobson “was obliged to affirmatively modify his actions subsequent to that incident.”
Nonetheless, despite agreeing that neither Instruction 5-3 nor the version modified by Dr. Pannu’s counsel was appropriate, the majority concludes that yet a third version of this instruction, which it has now formulated, should have been given in order to include the Carney concept that—
the care required is always reasonable care ... [and] depends upon the dangerousness of the activity involved. The greater the danger, the greater the care which must be exercised.
Carney, supra, 254 A.2d at 403. Thus, the majority holds that the instruction that should have been given, even though never requested by Dr. Pannu, was the following:
Negligence is a relative concept. A reasonable doctor under the standard of care conforms his conduct according to the danger he knows, or should know, exists. Therefore, as the danger increases, a reasonable doctor under the standard of care acts in accordance with those circumstances.
Supra (emphasis added). In my view, this instruction was not only unnecessary, but imports into the medical malpractice area a concept that has not heretofore been included, so far as I can find, for any professional negligence case in this jurisdiction. Any reaction to increased danger is for the medical community, not this court, to define as reasonable within the standard of care.
In support of its conclusion that Judge Wright erred by not giving an instruction essentially like this, the majority relies upon Morrison v. MacNamara, 407 A.2d 555 (D.C.1979). There, the issue was whether the defendant, a nationally certified medical laboratory, should be held to a national or to a local standard of care. But Morrison includes no discussion of the Carney rule — no mention of “changing” or “conforming” conduct according to the circumstances or because of increased danger. Rather, in a section relied upon by the majority entitled “General Principles,” Morrison simply states:
The elements which govern ordinary negligence actions are also applicable in actions for professional negligence. The plaintiff bears the burden of presenting evidence “which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.” In negligence actions the standard of care by which the defendant’s conduct is measured is often stated as “that degree of care which a reasonable prudent person would have exercised under the same or similar circumstances.”
Supra, 407 A.2d at 560 (internal citations omitted).
Addressing medical malpractice specifically, Morrison noted that the “duty of care is generally formulated as that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances.” 407 A.2d at 561. Thus, even in this context, there is no discussion of the concept that as the danger increases a reasonable doctor changes his conduct according to the circumstances or according to the danger that he knows or should know exists, nor of the concept that as the danger increases, a reasonable doctor acts more carefully. Indeed, a review of all of the cases citing Carney — and there are many — shows not one involving professional negligence of this type. Rather, the cases where increased danger has been discussed have *202been primarily those addressing the duty of care owed by common carriers to passengers 2 — cases in which jurors are generally deemed competent to decide whether there has been a deviation from the standard of care without the assistance of expert testimony.
Moreover, instructions that tell jurors that there is an increased duty of care when there is increased danger have been criticized even in the context of general negligence cases that utilize no experts. As one authority has written:
In the general negligence case, the defendant’s obligation is to use the care of a reasonable person under the circumstances. The standard does not change even if the situation is fraught with danger. The circumstances clause allows for infinite flexibility, but the standard itself, which takes all those circumstances into account, remains the same. Put differently, the standard remains the same in all cases, but the safety-seeking conduct required by the standard will vary with the circumstances.
See 1 Dan B. Dobbs, Law of ToRts 302 (West Group 2001).
In addition, with respect to jury instructions that emphasize danger, Dobbs points out that these instructions unfairly emphasize the defendant’s side of the case. Id. at 308. I am aware that this unfair emphasis on the defendant’s position was a consideration taken into account by the majority that led it to modify the language from “changes conduct” to “conforming conduct.” In the end, however, both formulations suggest to the jury that Dr. Jacobson should have modified his conduct. While “conform” is a slightly softer word than “change,” inherent in the concept of “conforming” is the idea of changing behavior. Thus, the unfair prejudice to Dr. Jacobson was not eliminated by the majority’s formulation of this instruction. Indeed, the changes from Dr. Pannu’s modified instruction to the instruction the majority finds acceptable seem de mini-mus and insufficient to support a conclusion that Judge Wright abused his discretion.
The theory of the case instruction that Judge Wright gave the jurors during the final instructions, to which there was no objection, set out precisely what the issues were that they needed to decide. Having completed the general instructions, he began the negligence portion of the instructions by informing them as follows with respect to Dr. Pannu’s theory of the case:
A lawsuit such as this for medical negligence is a claim against a doctor or other health care provider. The plaintiff, Doctor Pannu, claims that the defendant, Doctor Jacobson, failed to treat him with the same degree of skill, care or knowledge required of a doctor acting in the same or similar circumstances and that the defendant’s failure was a proximate cause of injury to the plaintiff. Now, the plaintiffs theory of this case is that the defendant was negligent in performing the surgery on Doctor Pannu by failing to maintain complete control of the drill while he was drilling near the already exposed and torn dura and by failing to use adequate precautions to prevent injury to the nerves in that area.
(Emphasis added). These were precisely the issues before the jurors, and the jury’s duty was to determine whose experts they *203believed. Dr. Jacobson presented two experts who testified that his procedures were squarely within the standard of care. Thus, based upon the testimony from the experts he presented, there would have been no need for him to “change” or “conform” his conduct.
On the other hand, if the jury had accepted the testimony of Dr. Pannu’s experts that Dr. Jacobson was negligent by not maintaining complete control of the drill while he was drilling near the already exposed dura and by failing to use adequate precautions to prevent injury to the nerves in that area, there again would have been no need for any form of the Carney instruction, since that would have amounted to a finding of negligence that would have resulted in a verdict for the plaintiffs. Because I conclude that the version of the rule formulated by the majority does not dispel the prejudice of suggesting that Dr. Jacobson was negligent in not “changing” or “conforming” his conduct, and that the instructions “as a whole, fairly and accurately state[d] the applicable law,” Nelson, supra, 694 A.2d at 901, I cannot conclude that Judge Wright erred.
In any event, given the clarity with which Judge Wright instructed the jury, including on Dr. Pannu’s theory of the case, I must conclude, contrary to the majority, that even if there was error, which I firmly believe there was not, the “judgment was not substantially swayed” by that error. See id. at 902.
I must also register my disagreement with the majority’s formulation of the obligation of the trial judges with respect to instructions. The majority cites to the Fourth Circuit case of Management Sys. Assocs., Inc. v. McDonnell Douglas Corp., 762 F.2d 1161, 1177 (4th Cir.1985), which quotes 9 Wright & Miller, FedeRal Prao-tice and Prooedure § 2556, at 654-55 (1977 ed.), for the proposition that “the court must instruct the jury properly on the controlling issues in the case even though there has been no request for an instruction or the instructions are defective.” I fear this citation gives a dangerous misimpression that could mislead attorneys into believing that they had lesser obligations than they in fact have with respect to the proper formulation of jury instructions. Whatever may be the practice in the Fourth Circuit, the Superior Court Rules, particularly with respect to civil cases, make it crystal clear that attorneys neglect to focus on jury instructions at their peril. The obligations to assist the judge with civil jury instructions begins with the pretrial statement. Superior Court Civil Rule 16(e), unlike its federal counterpart, requires that the joint pretrial statement filed by the parties before the pretrial conference include a list of both the Standardized Civil Jury Instructions, by number, and “the complete text of any jury instruction not found” in the Standardized instructions that the parties wish to have given. Moreover, Superior Court Civil Rule 51 gives the parties additional opportunities to file written requests with the court and bars a party from assigning error for the court’s giving or failing to give an instruction unless that party objects before the jury retires to consider its verdict.3 Thus, the idea that the predominant burden for correct jury instructions lies heavily on the shoulders of judges and lightly on the shoulders of attorneys misconstrues the co-operative relationship anticipated by our civil rules.
. It is also worth noting that during this discussion, Dr. Pannu’s counsel expressed concern that the 9-series pertaining to instructions addressing medical malpractice did not define negligence. He was mistaken. Judge Wright instructed the jury that—
a doctor is not negligent if he or she adheres to the standard of care in the field. You must decide whether the defendant failed to perform according to the professional standard of care. To make this decision, you must answer this question: Did the defendant do what a reasonable and prudent professional in his or her field would have done under similar circumstances?
Judge Wright also gave Jury Instruction 9-6, which explains that if a "doctor's performance [fell] below the standard of care and thereby proximately caused the patient’s injuries, then the doctor was negligent,” and that "it is no defense to a charge of negligence that the doctor did the best that [he] could and that those efforts simply were unsuccessful.”
. See, e.g., Pazmino v. Washington Metro. Area Transit Auth., 638 A.2d 677, 679 (D.C.1994); Sebastian v. District of Columbia, 636 A.2d 958, 962 (D.C.1994). Indeed, many of those cases do not even mention the concept that "the greater the danger, the greater the care which must be exercised.” See, e.g., Washington Metro. Area Transit Auth. v. O’Neill, 633 A.2d 834, 841 n. 13 (D.C.1993).
. See also Super. Ct. Crim. R. 52(b) (providing that the "plain error” standard applies to error or defects in the proceedings that have not been brought to the attention of the court, a provision with necessarily includes the instructions given to juries).