Update: New post discussing the Court of Appeals' opinion in this matter.
Wild v. Catholic Health System:
In this medical malpractice action, the Court of Appeals will have the first opportunity in almost forty years to address the rule about loss of a chance of a better outcome. At Mercy Hospital, the plaintiff’s decedent had difficulty breathing and emergency room doctors decided to insert a breathing tube. The doctors unsuccessfully attempted to intubate the decedent multiple times before inserting the tube properly. The decedent suffered a perforated esophagus that was not diagnosed until days later. When eventually diagnosed, the damage was irreparable and the plaintiff needed a permanent feeding tube.
The trial court gave a “lost chance” instruction based on the theory that had the perforated esophagus been timely diagnosed, the perforation might have been fixed by immediate surgery. The instruction at issue allowed the jury to find for the plaintiff where “the defendant’s actions or omissions deprived Mrs. Horn of a substantial possibility of avoiding the consequence of having a permanent feeding tube. The instruction noted that “to be substantial, [the chance of avoiding the need for a permanent feeding tube] does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight.” The defense will argue in the Court of Appeals, among other things, that this instruction improperly reduced the plaintiff’s burden for proving causation to “more than a slight chance.”
The Appellate Division, Fourth Department, had partially rejected that argument, noting that the instruction was partly in error but that the error was harmless. The Fourth Department held that the lost chance instruction was appropriate for the plaintiff’s failure to diagnose the perforation but was not appropriate for creating the perforation. In the Fourth Department’s view, though, the finding of negligent intubation “necessarily entailed a finding of proximate cause,” making the causation instruction harmless as to the intubation.
Oral argument will be Wednesday, April 24, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.
Wild v. Catholic Health System:
In this medical malpractice action, the Court of Appeals will have the first opportunity in almost forty years to address the rule about loss of a chance of a better outcome. At Mercy Hospital, the plaintiff’s decedent had difficulty breathing and emergency room doctors decided to insert a breathing tube. The doctors unsuccessfully attempted to intubate the decedent multiple times before inserting the tube properly. The decedent suffered a perforated esophagus that was not diagnosed until days later. When eventually diagnosed, the damage was irreparable and the plaintiff needed a permanent feeding tube.
The trial court gave a “lost chance” instruction based on the theory that had the perforated esophagus been timely diagnosed, the perforation might have been fixed by immediate surgery. The instruction at issue allowed the jury to find for the plaintiff where “the defendant’s actions or omissions deprived Mrs. Horn of a substantial possibility of avoiding the consequence of having a permanent feeding tube. The instruction noted that “to be substantial, [the chance of avoiding the need for a permanent feeding tube] does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight.” The defense will argue in the Court of Appeals, among other things, that this instruction improperly reduced the plaintiff’s burden for proving causation to “more than a slight chance.”
The Appellate Division, Fourth Department, had partially rejected that argument, noting that the instruction was partly in error but that the error was harmless. The Fourth Department held that the lost chance instruction was appropriate for the plaintiff’s failure to diagnose the perforation but was not appropriate for creating the perforation. In the Fourth Department’s view, though, the finding of negligent intubation “necessarily entailed a finding of proximate cause,” making the causation instruction harmless as to the intubation.
Oral argument will be Wednesday, April 24, 2013. The Court streams oral arguments online. To watch them live, you can visit the New York Court of Appeals website on Wednesday after 2:00 p.m. and click on the “Oral Arguments Webcast” link on the right-hand side of the page.
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