* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. This Court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 15 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BONNIE SUE CRAIG,

Plaintiff - Appellant,

v. JAMES W. MURPHREE, M.D.,

Defendant - Appellee, and UNITED STATES OF AMERICA,

Defendant. No. 00-7134 (D.C. No. 99-CV-448-S) (E.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , BALDOCK , and LUCERO , Circuit Judges.

In this case, plaintiff Bonnie Sue Craig, a breast cancer patient, alleges that-2-

her radiologist, defendant James W. Murphree, negli gently misinterpreted her mammograms as negative for indications of malignanc y. Craig appeals the district court’s denial of her motion for a new tri al, which was based on the district court’s refusal to give jury instructions regarding joint duty and concurrent causation theories. Exercising jurisdic tion pursuant to 28 U.S.C. § 1291, we reverse the district court’s judgment an d remand for further proceedings.
I Craig, who has an extensive family history of breas t cancer and breast lumps, was diagnosed with breast cancer in 1995 aft er the cancer had spread to her lymph nodes. The cancer developed in the same area that had been needlebiopsied by treating physician Dr. Hope Balluh in 1 993 after Dr. Balluh felt a palpable mass there. Dr. Balluh was employed by th e federal government at W.W. Hastings Indian Hospital. In 1994, a mammogram showed the presence of several micro-calcifications in that same area, whi ch, according to Craig’s experts, were clinically indicative of early cancerand merited further testing and evaluation. Craig sued the United States for medical malpractic e under the Federal Tort Claims Act. At trial, Craig presented expert testi mony that Dr. Balluh negligently failed to properly biopsy the breast mass in 1993, negligently relied on a negative-3-

needle biopsy, negligently failed to independently view the 1994 mammograms and order further testing based on the presence of micro-calcifications, and negligently failed in 1994 to order further tests t o ascertain whether palpable fibrocystic changes in her left breast were maligna nt. (See Appellant’s App. at 104–07.) Craig also stated a claim against Dr. Murphree, a r adiologist in private practice, for medical malpractice under state law. Craig alleged that Dr. Murphree negligently misinterpreted the 1994 mammog rams as negative for indications of malignancy. Expert testimony supported her claim that Dr. Murphree breached the standard of care by failing t o report the microcalcification changes on the mammogram to Dr. Ballu h and by failing to recommend or order further testing that could have conclusively ascertained whether those changes were malignant. (See id. at 73–74.) Furthermore, Craig presented expert testimony that, but for the failur e to timely diagnose and treat the cancer, she would have had a greater than fifty per cent chance of a complete cure and that the one-year delay of treatment until afte r metastasis of the cancer left her with the probability of not surviving more thanten years after its diagnosis. At trial, the jury was instructed on, and decided o nly the issue of, Dr. Murphree’s negligence, even though it heard alm ost all the evidence1 The district court denied Craig’s request for an ad visory jury verdict on Dr.

Balluh’s negligence. -4- regarding both Dr. Murphree’s and Dr. Balluh’s alle ged negligence. 1 On the issue of Dr. Murphree’s negligence, the court instructed the jury as follows: [Craig] has the burden of proving each of the follo wing propositions: First, that she has sustained injury; and Second, that the party from whom she seeks to recover damage was negligent; andThird, that such negligence was a direct cause of the injury su stained by plaintiff. “Negligence” is the failure to exercise ordinary ca re to avoid causing damage to another. “Ordinary care” is that degree of care which a reasonably careful person of the same age, capacity and experience would use under the same or similar circumstances. The law does not say how a reasonably careful person would act u nder those circumstances. That is for you to decide. Thus, u nder the facts in evidence in this case, if a person failed to do som ething which a reasonably careful person would [] do, or did something which a reasonably careful person would not do, such personwould be negligent. “Direct cause” means a cause which in a natural and continuous sequence produces injury, and without which the inj ury would not have happened. For negligence to be a direct cause , it is necessary that some injury to the person in plaintiff’s situation must have been a reasonably foreseeable result of negligence. As used in these instructions, the term “injury’ me ans a loss, harm, damage or an impairment to the person of the plaint iff, directly caused by the negligence of defendant. A physician who holds himself out to be a specialis t in a particular field of medicine owes to his patient the duty of p ossessing and using that degree of learning and skill ordinarily posses sed and used by other specialists of good standing in the same spec ial field under similar circumstances. This is a higher degree of learning and skill-5-

than that of a general practitioner. A physician w ho holds himself out to be a specialist impliedly guarantees that he will use ordinary care in the exercise of his skill and the applicati on of his knowledge and experience to accomplish the purpose for which he is employed, and that he will use his best judgment in the exerc ise of his skill in diagnosing the condition and in treating the patien t. He does not guarantee a cure and is not responsible for the lac k of success, unless that lack results from his failure to exercise ordi nary care, or from his lack of ordinary learning, skill, and experienc e. If you find the plaintiff . . . proved all the esse ntial elements of her negligence cause of action against the defendant, J ames Murphree, MD then your verdict shall be for the plaintiff . .

. . (Id. at 29–31.) Craig proffered two additional uniform jury instruc tions on the issues of concurrent causation and joint duty of care. The c oncurrent causation instruction provided: “There may be more than one direct cause of an injury. When an injury is the result of the combined negligence of two or more persons, the conduct of each person is a direct cause of the inj ury regardless of the extent to which each contributes to the injury.” Okla. Unif. Jury Instructions Civil 2d No. 9.7 (1996). The proposed joint duty instruction st ated: “Where two or more physicians owe the same duty to a patient, and the acts of each contribute to the same breach of duty, the wrong and injury, if any, to the patient are regarded as the result of joint action of the physicians, and b oth physicians are liable.” Id. No. 14.9. Craig contended that the instructions we re factually and legally proper because she had presented evidence that both physic ians had a duty to review the-6-

1994 mammogram, identify the visibly suspicious are a, and order further testing, making them potentially concurrent tortfeasors unde r Oklahoma law as to that portion of her claim. (Appellant’s App. at 39.) W ithout the instructions, Craig argued, “the jury [would] be hopelessly confused” b ecause the general direct cause instruction gave insufficient guidance on the issue of causation in the circumstance in which it would be asked to decide o nly Dr. Murphree’s negligence. (Id. at 40.) According to Craig, the concurrent cause instruction “exactly fit[] the facts of this case” (id. ) and would help the jury understand that “there may be more than one cause of an injury.” ( Id. at 41.) Without comment, the court denied Craig’s request to submit the two instructions to the jury. The jury returned a verdict in favor of Dr. Murphre e, and six months later, the district court returned a verdict in favor of D r. Balluh. Craig does not appeal the latter judgment.
II When a motion for a new trial is predicated, as her e, upon a challenge to the jury instructions, we consider the instructions given as a whole. In reviewing the instructions, we cons ider all the jury heard, and from the standpoint of the jury, decide not whether the charge was faultless in every particular, but wheth er the jury was misled in any way and whether it had understanding of the issues and its duties to determine these issues. Patty Precision Prods. Co. v. Brown & Sharpe Mfg. C o. , 846 F.2d 1247, 1252 (10th Cir. 1988) (citations and quotations omitted) . “We review the record as a-7-

whole to determine whether the instructions state t he law which governs and provided the jury with an ample understanding of th e issues and the standards applicable.” Woolard v. JLG Indus., Inc. , 210 F.3d 1158, 1177 (10th Cir. 2000) (quotations omitted). “The admission or exclusion of a jury instruction is within the discretion of the trial court,” and “[c]halleng es which merely pertain to the trial judge’s language or formulation of the charge are reversible only for an abuse of discretion.” Richards v. Attorneys’ Title Guar. Fund, Inc. , 866 F.2d 1570, 1575, 1573 (10th Cir. 1989). When a party ar gues, as here, that the jury was not fully or sufficiently instructed on its the ory of the case, “[t]he question of whether a jury was properly instructed is a questio n of law, and thus, our review is de novo .” United States v. Lee , 54 F.3d 1534, 1536 (10th Cir. 1995); accord Woolard , 210 F.3d at 1177. We begin with the general principle that a party is entitled to an instruction based on its theory of the case whenever it produce s sufficient evidence to support it and submits an instruction that is a correct statement of the law. FDIC v. Schuchmann , 235 F.3d 1217, 1222 (10th Cir. 2000). “It is noterror,” however, “to refuse to give a requested instruction if the s ame subject matter is adequately covered in the general instructions.” Id. (quotation omitted). There is no question that the uniform instructions requested by Craig correctly stated Oklahoma tort law. See 12 Okla. Stat. Ann. tit. 577.2; Fontenot-8-

v. State , 881 P.2d 69, 85 (Okla. Crim. App. 1994) (“General ly speaking, when a jury must be instructed on a certain subject, the r elevant uniform instruction shall be used unless the court determines that it does no t accurately state the law.” (quotation omitted)). A concurrent causation instruction is warranted when “there is evidence that the injury mayhave been produced by two or more concurrent causes.” Okla. Unif. Jury Instructions Civil 2d No . 9.6, notes on use (emphasis added). Based on our review of the record, we conc lude that Craig presented evidence to support a finding of joint duty and con current causation arising from the 1994 examination. We address Dr. Murphree’s contentions that a new tr ial is not warranted because (1) he and Dr. Balluh acted independently; (2) the jury did not hear all of the evidence relating to and did not decide the iss ue of Dr. Balluh’s alleged negligence; (3) Craig did not appeal the judgment i n favor of Dr. Balluh; and (4) he and Dr. Balluh did not owe the “same” duty a nd thus could not be jointly responsible for Craig’s injury.
A Dr. Murphree’s first contention—that the proposed i nstructions were unwarranted because he and Dr. Balluh acted indepen dently—is without merit. In Radford-Shelton Associates Dental Laboratory v. Sai nt Francis Hospital, Inc. , 569 P.2d 506, 509 (Okla. Ct. App. 1976), the Oklahoma C ourt of Appeals stated that-9-

“[c]oncurrent tortfeasors [are] those whose indepen dent , negligent acts combined or concurred at one point in time to injure a third party.” Id. (emphasis added).
B Similarly, the jury’s failure to hear the totality of the evidence against Dr. Balluh is not determinative. Juries often determin e the negligence of only one alleged tortfeasor (e.g., when other alleged tortfe asors settle before trial). That the jury is not asked to determine the existence ordegree of negligence of all tortfeasors does not mean that their actions did no t concurrently cause plaintiff’s injury. Although the jury heard all of Craig’s evidence reg arding Dr. Balluh’s alleged negligence, it did not hear all of Dr. Ball uh’s defense evidence. This circumstance does not detract from the jury’s knowl edge that Craig alleged that both physicians directly caused her loss of chance of survival by negligently failing to further evaluate the changes evidenced i n the mammograms. In light of the evidence presented to the jury and the districtcourt’s refusal to instruct on joint duty and concurrent causation, we are not sat isfied that the jury understood the issues to be resolved and its duty to resolve them. We are not satisfied that the jury understood that even if Dr. Balluh, as the treating physician and last physician with a duty to view the mammograms and/orto order further testing, breached her duty, Dr. Murphree could still be held liable for any independent-10-

failure to properly interpret the mammograms, report changes, and order further testing.
C We also reject Dr. Murphree’s claim that Craig’s fa ilure to appeal the judgment in favor of Dr. Balluh forecloses her right to a new trial on the issue of Dr. Murphree’s negligence. A conclusion that Dr. B alluh did not breach the standard of care in regard to viewing the mammogram s does not mean that Dr. Murphree was not negligent for failing to properly report the micro-calcifications and recommend further evaluations. Dr. Murphree ad mitted that he did not mention the micro-calcifications on his report, and Dr. Balluh testified that she did not independently notice the micro-calcificatio ns and that Dr. Murphree’s report that the mammograms were negative for cancerwas reassuring to her. (Appellant’s App. at 53–54; Appellee’s App. at 218. ) Dr. Balluh testified that if a radiologist had reported the micro-calcifications, stated that they were possibly new growth, and recommended further evaluation, she would have followed those recommendations. (See Appellant’s App. at 54; Appellee’s App. at 218.) Furthermore, the propriety of a jury instruction is determined as of the time the case goes to the jury, not with the hindsight o f a later trial court finding that one defendant was not in fact negligent. As the no tes to the Uniform Jury Instructions state, the concurrent causes instructi on should be used if there is2 The cases cited by Dr. Murphree are distinguishable and not persuasive.

One addresses a factual situation involving success ive tortfeasors whose negligence caused separate injuries. See Radford-Shelton , 569 P.2d 506. In another, the court’s focus was on the proximate cau se doctrine in a situation in (continued...) -11- evidence that an injury mayhave been produced by two or more concurrent causes. In addition to the evidence discussed abov e, the jury heard expert testimony that, given Craig’s history, Dr. Balluh w as additionally independently negligent for (1) having failed to order a full bio psy of the mass in 1993 that would have excluded cancer as the cause of the palp able abnormality and (2) having failed to further evaluate a palpable area o f fibrosis in the upper left breast quadrant in 1994. (Appellant’s App. at 99, 103–06. ) The requested instructions would have allowed the jury to understand that phys icians who concurrently provide medical services to a patient have a joint duty to their patients; that there may be more than one direct cause of injury to a patient; and that the jury had a duty to hold Dr. Murphree liable if it found that h e was negligent notwithstanding any alleged concurrent negligence of Dr. Balluh. T he instructions, as given, did not clarify the confusion created by evidence demon strating joint duties and concurrent negligence where the jury would be deter mining the liability of only one physician. The general negligence and direct c ause instructions did not inform the jury of the law of joint duty of physici ans or of concurrent causes of injury. 22 (...continued)

which one defendant created a condition and the sec ond defendant committed an extraordinary and unexpected act that actually caused the injury. See Janow v. Lewis , 172 P.2d 315 (Okla. 1946). -12- D Finally, we address Dr. Murphree’s contention that the joint duty of physicians instruction was inapplicable because he and Dr. Balluh did not have the same duty and thus could not be jointly respons ible for Craig’s loss of chance. We disagree. The duty that physicians owe to a pat ient, whether in interpreting a physical examination of the patient or interpreting x-ray reports, is to follow the relevant medical standard of care. See Benson v. Tkach , 30 P.3d 402, 404 (Okla. Ct. App.), cert. denied(July 3, 2001). At trial, Craig argued that both physicians concurrently breached their duties to independentlynotice clinical changes that, given her extensive family history of breast cancer , merited further tests and evaluations. Both Dr. Murphree and Dr. Balluh perf ormed examination and diagnosis techniques intended to discover any earlysigns of breast cancer. In that regard, the duty they both owed to Craig was the “s ame”—to properly diagnose her condition. Their continuing duty, whether in i nterpreting Craig’s physical examination or her x-ray reports, was to follow the relevant medical standard of

care. Given the testimony of Craig’s experts, the jury co uld have found that Dr.-13-

Murphree breached his standard of care, contributin g to Craig’s decreased chance of survival. The tendered joint duty of physicians instruction thus would have clarified that Dr. Murphree’s negligence, if any, w ould not be excused by the negligence of Dr. Balluh, if any. Without this ins truction, the jury was not fully informed of the law of physicians’ joint duties and liabilities.
III We conclude that the jury was not fully instructed on governing law that “provided [it] with an ample understanding of the i ssues and the standards applicable.” Woolard , 210 F.3d at 1177 (quotation omitted). We hold th at the court abused its discretion in refusing to submit the tendered joint duty and concurrent causes instructions to the jury. The judgment of the district court is REVERSED , and the case is
REMANDED for a new trial.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge