Med Mal – Res Ipsa – Sole Prox Cause

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Malpractice – Res Ipsa Loquitor – Sole Prox Cause

Hogan v. Northwest Comm Hospital, Cynthia Barlo, Cora Villanueva, Pamela Wright, Dr. Richard Mannion, Dr. Gerard Marty and Dr. Somasundaram Thamilavel. 05 L 9816

In this March of 2010 trial the plaintiff alleged that a “surgical team” injured her ulnar nerve to the right arm during a low back lamminectomy, claiming that this injury could not have occurred without negligence by members of the surgical team who improperly positioning the plaintiff during the surgery. The defendants countered with a sole proximate cause defense, claiming that there was pre-existing ulnar nerve neuropathy (caused by her anatomy, old age,and smoking) which emerged during a customary post surgical recovery in hospital, not the surgery. Verdict for the defendants.

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 hospital 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 2.01 – Evidence Deposition

The testimony of some witnesses was presented by video tape and the reading of testimony. You should give this testimony the same consideration you would give it had the witnesses personally appeared in court.

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 reflect adversely on the truth of the testimony of the witness.

41.03 Two or More Defendants

The rights of the defendants Northwest Community Hospital, Cynthia Barlo, R.N., Cora Villanueva, R.N., Pamela Wright, O.R.T., Richard Mannion, M.D, Gerard Marty, M.D.,. and Somasundaram Thamilavel, M.D. are separate and distinct. Each is entitled to a fair consideration of his or her 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 Both Principal and Agent Sued—No Issue as to Agency – Northwest & Nurses

The Plaintiff in this case is: Rosemary Hogan

The Defendants in this case are: Northwest Community Hospital

Cynthia Barlo, R.N.

Cora Villanueva, R.N.

Pamela Wright, O.R.T.

Richard Mannion, M.D.

Gerard Marty, M.D.

Somasundaram Thamilavel, M.D.

As to the defendants Northwest Community Hospital, Cynthia Barlo R.N., Cora Villanueva, R.N., and Pamela Wright, O.R.T., they are sued as principal and agent. The defendant, Northwest Community Hospital, is the principal and the defendants, Cynthia Barlo, Cora Villanueva, and Pamela Wright, are its agents.

If you find that the defendants, Cynthia Barlo, Cora Villanueva, or Pamela Wright, is liable, then you must find that the defendant, Northwest Community Hospital, is also liable.

However, if you find that Cynthia Barlo, Cora Villanueva, and Pamela Wright, are not liable, then you must find that Northwest Community Hospital is not liable.

IPI 3.08 – Opinion Testimony

You have heard witnesses give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. 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 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.

105.01 Duty of a Non–Specialist Professional—Professional Negligence

The Plaintiff in this case is: Rosemary Hogan

The Defendants in this case are: Northwest Community Hospital

Cynthia Barlo, R.N.

Cora Villanueva, R.N.

Pamela Wright, O.R.T.

Richard Mannion, M.D.

Gerard Marty, M.D.

Somasundaram Thamilavel, M.D.

“Professional Negligence” by a surgeon, anesthesiologist, a nurse, or Operating

Room Technician is the failure to do something that a reasonably careful surgeon, anesthesiologist, a nurse, or operating room technician would do, or the doing of something that a reasonably careful surgeon, anesthesiologist, a nurse, or operating

room technician 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.

12.05 Negligence—Intervention of Outside Agency

If you decide that the defendants or any of them was negligent and that such 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 a defendant or defendants, then your verdict should be for the defendant.

IPI 15.01 Proximate Cause—Definition (updated Sept 2009)

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary 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 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.

B105.09 Res Ipsa Loquitur—Burden of Proof—Professional Negligence

The plaintiff has the burden of proving each of the following propositions:

First: That Rosemary Hogan was injured.

Second: That the injury occurred while she was under the defendants’ control or management in the operating room at Northwest Community Hospital on May 25, 1999.

Third: That “in the normal course of events”, the injury would not have occurred if the defendants had used a reasonable standard of professional care while she was under the defendants’ control or management in the operating room at Northwest Community Hospital on May 25, 1999

Whether the injury “in the normal course of events” would not have occurred if the defendants had used a reasonable standard of professional care while Mrs. Hogan was under the defendants’ control or management must be determined from expert testimony presented in this trial. You must not attempt to determine this question from any personal knowledge you have.

If you find that each of these propositions has been proved, the law permits you to infer from them that the defendants were negligent while the plaintiff was under the defendants’ control or management in the operating room at Northwest Community Hospital on May 25, 1999

If you do draw such an inference, and if you further find that Rosemary Hogan’s injury was proximately caused by that negligence, your verdict should be for the plaintiff.

On the other hand, if you find that any of these propositions has not been proved, or if you find that the defendants used a reasonable standard of professional care for the safety of Rosemary Hogan while she was in their control or management in the operating room at Northwest Community Hospital on May 25, 1999, or if you find that the defendants’ negligence, if any, was not a proximate cause of Rosemary Hogan’s injury, then your verdict should be for the defendant.

30.01 et seq Damage Instructions, Measure of Damages

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

The disfigurement resulting from the injury.
The reasonable expense of necessary medical care, treatment and services received as a result of the injuries.
The pain and suffering experienced as a result of the injuries.
The loss of a normal life experienced as a result of the injuries.

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 aspects of life.

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

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

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: Rosemary Hogan

The Defendants in this case are: Northwest Community Hospital

Cynthia Barlo, R.N.

Cora Villanueva, R.N.

Pamela Wright, O.R.T.

Richard Mannion, M.D.

Gerard Marty, M.D.

Somasundaram Thamilavel, M.D.

If you find for the plaintiff and against any 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

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the plaintiff, Rosemary Hogan. and against the following defendant or defendants:

Northwest Community Hospital/Cynthia Barlo, R.N. YES _______ NO _______

Northwest Community Hospital/Cora Villanueva, R.N. YES _______ NO _______

Northwest Community Hospital/Pamela Wright, O.R.T. YES _______ NO _______

Richard Mannion, M.D. YES _______ NO _______

Gerard Marty, M.D. YES _______ NO _______

Somasundaram Thamilavel, M.D. YES _______ NO _______

We assess the damages in the sum of $________________________________________, itemized as follows:

Disfigurement $__________________________

Reasonable expense of necessary medical care $__________________________

Pain and suffering experienced $__________________________

Loss of Normal Life/Disability experienced $__________________________

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*IPI4501.C

VERDICT FORM B

We, the jury, find for all of the defendants, Northwest Community Hospital, Cynthia Barlo, R.N., Cora Villanueva, R.N., Pamela Wright, O.R.T., Richard Mannion, M.D., Gerard Marty, M.D., and Somasundaram Thamilavel, M.D., and against the plaintiff, Rosemary Hogan..

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(Foreperson)

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