Birth Deformity – Shoulder Dystocia – Plaintiff Verdict

Jury Instructions-IL > Medical Malpractice > Birth Deformity – Shoulder Dystocia – Plaintiff Verdict

7/30/08

Ronnie Davis II, a minor, by his parents, Lori Davis and Ronnie Davis, and Lori Davis and Ronnie Davis, Individually vs. Anita Arora, M.D., Advocate Health and Hospitals dba Christ Hospital 04 L 4223

Birth Deformity – Shoulder Dystocia

Plaintiff settled with hospital, and proceeded to obtain a jury verdict of $925,000 in 2008 against the obstetrician who allegedly failed to diagnose that the “fetus was large for gestational age” and offer a cesarean section. During labor they encountered “moderate shoulder dystocia” which required maneuvers using “excessive traction” to deliver the child. This resulted in “right brachial plexus palsy” causing shoulder deformities and disfigurement to the boy.

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IPI 1.01 Preliminary Cautionary Instructions

The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party should receive your same fair consideration.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The testimony of Dr. Michael Bednar, Dr. Scott Fuhr, and Dr. Jacob Neufeld was presented on videotape to the jury. You should give their testimony the same consideration you would give it had the witnesses personally appeared in court to testify in person.

IPI 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person

enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

You have heard witnesses give opinions about matters requiring knowledge and

skill. You should judge their testimony in the same way you judge the testimony from any other witness. The fact that such persons have given opinions does not mean that you are required to accept them. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

12.05 Negligence—Intervention of Outside Agency

If you decide that the defendant was negligent and that this negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury. However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.

IPI 20.01 – ISSUES – Negligence

The Plaintiffs in this case are: Ronnie Davis Jr., a minor, by his Parents, Lori Davis and Ronnie Davis.

The Defendant in this case is: Dr. Anita Arora

The plaintiffs claim that Ronnie Davis Jr. was injured and that the defendant, Dr. Anita Arora was negligent in one or more of the following respects:

Failed to advise of the need for a cesarean section based upon the fetal weight; or
Used inappropriate traction to relieve shoulder dystocia.

The plaintiffs further claims that one or more of the foregoing was a proximate cause of the injuries to Ronnie Davis Jr.

The defendant denies that she did any of the things claimed by the plaintiffs, denies that she was negligent in doing any of the things claimed by the plaintiffs and denies that any claimed act or omission on the part of the defendant was a proximate cause of the claimed injuries to Ronnie Davis Jr.

The defendant further denies that Ronnie Davis Jr. was injured or sustained damages to the extent claimed.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

IPI 21.02 – BURDEN – NO COMPARATIVE

The plaintiffs have the burden of proving each of the following propositions:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiffs as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that Ronnie Davis Jr. suffered injuries or damages;

Third, that the negligence of the defendant was a proximate cause of Ronnie Davis Jr.’ injuries or damages;

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiffs.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.

30.01 et seq Damage Instructions, Measure of Damages

If you decide for the plaintiffs on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate Ronnie Davis Jr. for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury.

The disfigurement resulting from the injury.

The disability experienced and reasonably certain to be experienced in the future as a result of the injury.

Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries

Whether any of these elements of damages has been proved by the evidence is for you to determine.

31.09 Action Personal Representative/Modified for a Minor

The plaintiffs, Lori and Ronnie Davis, bring this action in a representative capacity by reason of being the parents of Ronnie Davis Jr., a minor.

However, Ronnie Davis Jr. is the real party in interest in this lawsuit, and in that sense, he is the real plaintiff whose damages you are to determine if you decide for Lori and Ronnie Davis in their representative capacity as Parents of Ronnie Davis Jr., a minor.

34.01-4 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

If you find that the plaintiffs are entitled to damages arising in the future because of injuries, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long Ronnie Davis Jr. is likely to live.

According to a table of mortality in evidence, the life expectancy of a person aged 10 is 60.2 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 10. It may be considered by you in connection with other evidence relating to the probable life expectancy of Ronnie Davis Jr. in this case, including evidence of his health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to the defendant.

105.01 Duty of a Non–Specialist Professional—Professional Negligence [General]

“Professional Negligence” by an obstetrician is the failure to do

something that a reasonably careful obstetrician would do, or the doing of something that a reasonably careful obstetrician would not do, under circumstances similar to those shown by the evidence.

The phrase “deviation from or violation of the standard of care” means the same

thing as “professional negligence.”

To determine what the standard of care required in this case, you must rely

upon the opinion testimony from qualified witnesses. You must not attempt to determine this question from any personal knowledge you have.

The law does not say how a reasonably careful obstetrician would act under these circumstances. That is for you to decide based upon opinion testimony from qualified witnesses.

B45.01 – FORMS OF VERDICT

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The Plaintiffs in this case are: Ronnie Davis Jr., a minor, by his Parents, Lori Davis and Ronnie Davis.

The Defendant in this case is: Dr. Anita Arora

If you find for the Plaintiffs and against Defendant, then you should use Verdict Form A.

If you find for all of the Defendant and against the Plaintiffs, then you should use Verdict Form B.

VERDICT FORM A

We, the jury, find for the Plaintiffs and against the Defendant. We assess the

damages in the sum of $__________________________________, itemized as follows:

The disfigurement resulting from the injury. $_________________

The disability experienced and reasonably certain

to be experienced in the future as a result of the injury. $_________________

Pain and suffering experienced and reasonably certain to be

experienced in the future $_________________

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find for the Defendant and against the Plaintiffs.

[Signature Lines ]

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(Foreperson

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