In a 1991 decision, Wasfi v. Chaddha, the U.S. Supreme Court affirmed the "principle that where the treatment or procedure is one of choice among competent physicians, a physician cannot be held [legally responsible] for malpractice in selecting the one which, according to his best judgment, is best suited to the patient's needs." The plaintiff, Donna Nethercott, sued the defendant, Dr. Matthew Dukehart, alleging that in April 2007 he negligently performed laparoscopic gall bladder surgery. Nethercott alleged that the defendant surgeon transected her common bile duct, and she required additional surgery and medical procedures. The plaintiff's expert, Dr. Cohen, criticized Dr. Dukehart's surgical technique, which involved dissecting toward the common bile duct, as opposed to away from the common bile duct. The defendant's expert, Dr. Bell, testified that most surgeons, like Dr. Dukehart, dissect toward the common bile duct and that Dr. Dukehart complied with the standard of medical care. The jury answered "no" to the jury interrogatory that asked whether the plaintiff proved, by a fair preponderance of the evidence, the medical standard of care. The jury returned a defendant's verdict, and the plaintiff moved to set aside the verdict and for a new trial and argued that the court wrongly instructed the jury about alternate medical treatment. The trial court's instructions to the jury complied with the Supreme Court's 1991 decision in Wasfi v. Chaddha. To prevail, the plaintiff was required to prove, by a preponderance of the evidence: 1.) the standard of care for medical treatment; 2.) the defendant departed from the standard of care; and 3.) a causal connection existed between the defendant's departure and the plaintiff's injuries. The jury reasonably could have returned a verdict for the defendant surgeon. The court denied the plaintiff's motion to set aside the verdict and for a new trial.

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