Monday, January 30, 2012

Court of Appeals Grants Leave in "Loss of Chance" Case

On January 10th, the Court of Appeals granted leave to appeal in Wild v. Catholic Health System.  At issue is the proper jury charge in a "loss of chance" case.  The case also addresses whether the court must order a new trial where multiple theories of liability have been presented to the jury, and there is an error as to one of those theories, but only a general verdict was requested. 

In this case, the plaintiff alleged two categories of negligence.  First, the plaintiff claimed that the defendant, Dr. Martin, was negligent during an intubation procedure causing a perforated esophagus.  Second, the plaintiff claimed that Dr. Martin failed to chart or to follow-up on the perforation, thereby delaying the diagnosis and depriving the decedent of some possibility that the perforation could be repaired and a feeding tube avoided.  The lower court instructed the jury using the loss of chance instruction in PJI 2:150.  The Fourth Department held that while that instruction was correct for the first category of claims (referred to as omission theories), it was error to have charged the jury with that instruction for the second category of negligence claims (referred to as commission theories).  For those theories the proper charge is the standard negligence charge found in PJI 2:70.  

The Fourth Department, however, went on to find that the charge was harmless error.  The Court held that while generally reversal is required when a general verdict has been used, and there is an error affecting one of the many theories of liability, in this case reversal was not warranted because the defendant did not object to the general verdict.

If the Court of Appeals takes the case on full briefing, oral argument would not be anticipated until later this year. 

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