Delay of Diagnosis – Partial Amputation – 45 minute verdict for Defendant
Jury Instructions-IL > Medical Malpractice > Delay of Diagnosis – Partial Amputation – 45 minute verdict for Defendant
Jeannine Riske v. Dr. Kamal Ibrahim, M & M Orthopaedics and Dr. Edwin Harris 07 L 8707
A pediatric orthopedic surgeon charged with a delay in diagnosing post surgical degrading of circulation in foot leading to necrosis of the toes and eventual amputation of part of the foot. The teenage patient was underogoing a series of surgeries for club foot but experienced what the defense termed a rare and unforeseen surgical risk that metabolic demands upon wounded bone to heal deferred blood and oxygen to the healing site. There was no criticism of the surgery.
Verdict for the defendants after 45 minutes of deliberation.
FINAL (corrected) DRAFT OF JURY INSTRUCTIONS
[MARKED, CONTINUOUS, PER INSTRUCTION CONFERENCE ON 1/13/10]IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)
Now that the evidence has concluded, I will further instruct you as to the law and your duties. 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, whether a corporation or an individual, should receive your same fair consideration.
I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.
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.
The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them
You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.
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 3.02 Witness Who Has Been Interviewed by Attorney
An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the testimony of the witness.
3.03 Liability Insurance/Collateral Source
If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.
IPI 3.04 Circumstantial Evidence
A fact may be proved by circumstantial evidence. Circumstantial evidence consists of the proof of facts or circumstances which leads to a reasonable inference of the existence of other facts sought to be established.
3.07 General Limiting Instruction
Evidence that was limited to one party should not be considered as to any other party.
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.
IPI 41.03 Two or More Defendants
The Plaintiff in this case is: Jeannine Riske
The Defendants in this case are: Dr. Kamal Ibrahim and M & M Orthopaedics
Dr. Edwin Harris
The rights of the defendants, Dr. Kamal Ibrahim, M & M Orthopaedics, and Dr. Edwin Harris, are separate and distinct. Each is entitled to a fair consideration of its own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. Each defendant’s case must be governed by the instructions applicable to that case.
50.01 Principal Sued But Not Agent—No Issue as to Agency
The Plaintiff in this case is: Jeannine Riske
The Defendants in this case are: Dr. Kamal Ibrahim
M & M Orthopaedics
Dr. Edwin Harris
The defendants, M & M Orthopaedics and Dr. Kamal Ibrahim, are sued as principal and agent. The Defendant, Dr. Kamal Ibrahim, was the agent of the defendant, M & M Orthopaedics, at the time of this occurrence. Therefore, any act or omission of Dr. Kamal Ibrahim at that time was, in law, the act or omission of M & M Orthopaedics.
50.11 A Corporation Acts Through Its Employees
The defendant, M & M Orthopaedics, Inc., is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of M & M. Orthopaedics.
105.01 Duty of a Non–Specialist Professional—Professional Negligence
“Professional Negligence” by an orthopedic surgeon is the failure to do something
that a reasonably careful orthopedic surgeon would do, or the doing of something that a reasonably careful orthopedic surgeon would not do under circumstances similar to those shown by the evidence.
“Professional Negligence” by a podiatrist is the failure to do something that a
reasonably careful podiatrist would do, or the doing of something that a reasonably careful podiatrist doctor 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 orthopedic surgeon or podiatrist would act under these circumstances. That is for you to decide based upon the expert testimony in this case.
IPI 15.01 – Proximate Cause
When I use the expression “proximate cause,” I mean a cause which, in natural or probable course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.
IPI 20.01 – ISSUES – Negligence
The plaintiff claims that she was injured and that the defendants were negligent in one or more of the following respects:
As to Dr. Kamal Ibrahim:
Failed to properly and timely order tests or diagnose the cause of plaintiff’s dusky toes prior to her April 14, 2006 discharge from Hinsdale Hospital;
Failed to remove the K-wires from plaintiff’s right mid-foot in a timely manner prior to her April 14, 2006 discharge from Hinsdale Hospital;
As to Dr. Edwin Harris:
Failed to properly and timely order tests or diagnose the cause of plaintiff’s dusky toes prior to her April 14, 2006 discharge from Hinsdale Hospital;
Failed to recommend to Dr. Kamal Ibrahim with regard to the removal of the K-wires from plaintiff’s right mid-foot in a timely manner prior to her April 14, 2006 discharge from Hinsdale Hospital;
The plaintiff further claims that one or more of the foregoing was a proximate cause of her injuries and damages.
Each defendant denies doing any of the things claimed by the plaintiff, denies negligence in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the part of any defendant was a proximate cause of the plaintiff’s claimed injuries or damages.
Each defendant further denies that the plaintiff 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 she has the burden of proof is more probably true than not true.
IPI 21.02 – BURDEN
As to a plaintiff’s claim of negligence, the plaintiff has the burden of proving each of the following propositions as to a defendant:
First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Second, that the plaintiff was injured;
Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
You are to consider these propositions as to each defendant separately
If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff as to any one or more of all defendants, then your verdict shall be for the plaintiff as to that defendant or those defendants.
On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved as to any one, or more, or all of the defendants, then your verdict should be for that defendant or those defendants.
IPI 12.04 Concurrent Negligence Other Than Defendant’s
More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
IPI 12.05 Negligence—Intervention of Outside Agency
If you decide that a defendant was negligent and that his 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 30.01 et seq Damage Instructions, Measure of Damages
If you decide for the plaintiff, Jeannine Riske, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her 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.
Disfigurement as a result of the injuries Loss of Normal Life experienced or reasonably certain to be experienced in the future.
30.04.02 Loss of a Normal Life—Definition
When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspect of life.
Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries
The reasonable expense of past medical and medically related expenses, and the present cash value medical and medically related expenses reasonably certain to be received in the future
Whether any of these elements of damages has been proved by the evidence is for you to determine.
34.02 Damages Arising in the Future—Discount to Present Cash Value
In computing the damages arising in the future because of future medical expenses, you must determine their present cash value.
“Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the medical expenses at the time in the future when the expenses must be paid.
Damages for pain and suffering, loss of a normal life and disfigurement are not reduced to present cash value.
IPI 34.04 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case
According to a table of mortality in evidence, the life expectancy of a person aged 20 is 61.4 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 20. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of her occupation, 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 that defendant.
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 Plaintiff in this case is: Jeannine Riske
The Defendants in this case are: Dr. Kamal Ibrahim and M & M Orthopaedics
Dr. Edwin Harris
If you find for the Plaintiff and against one or more of the Defendants, then you should use Verdict Form A.
If you find for all of the Defendants and against the Plaintiff, then you should use Verdict Form B.
VERDICT FORM A
We, the jury, find for the Plaintiff, Jeannine Riske, and against the following Defendant or Defendants:
Dr. Kamal Ibrahim and M & M Orthopaedics, Ltd. YES _____ NO _____
Dr. Edwin Harris YES _____ NO _____
We find the total amount of damage suffered by Jeannine Riske as a proximate result
of the occurrence in question is $____________________________________________,
itemized as follows:
Disfigurement $_________________
Loss of Normal Life experienced. $_________________
Loss of Normal Life reasonably certain to be experienced in the future $_________________
Pain and suffering experienced $_________________
Pain and suffering reasonably certain to be experienced in the future $_________________
The reasonable expense of past medical and medically related expenses $_________________
The present cash value of the reasonable expense of future medical and
medically related expenses reasonably certain to be received in the future $_________________
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(Foreperson
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VERDICT FORM B
We, the jury, find for all of the defendants and against the plaintiff.
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(Foreperson
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