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Retractor Damages Femoral Nerve; Jury Instruction on Remote Cause


A board-certified colorectal surgeon and a fifth-year surgical resident performed abdominal surgery on a woman. During this procedure, the surgeons used a device called a Bookwalter retractor, a flat metal ring that was positioned above the incision and had retractors attached to the ring that held the abdominal wall away from the surgery site. The retractor allowed the surgeons to see and operate on the surgical area. The Bookwalter retractor was used routinely in abdominal surgery, but its use carried known risks. One risk was damage to the femoral nerve, one of the major nerve conduits to the leg. However, damage to the femoral nerve was a risk of abdominal surgery even when a Bookwalter retractor was not used.

 

While in the hospital recovering from surgery, the woman experienced numbness in her left leg and, as a result, was unable to stand. The colorectal surgeon sought the expertise of a neurologist, who ran a nerve-conduction study and other tests on the woman. The study showed nerve damage, and further tests ruled out other common causes of femoral-nerve damage, such as diabetes and hematoma. The woman was released from the hospital in a wheelchair. She improved with time and therapy, but there was some permanent impairment which required her to walk with a cane.

 

The woman filed a claim for relief against the colorectal surgeon, the surgical resident, and the hospital, alleging that medical malpractice caused her femoral-nerve damage. At trial before the Summit County Court of Common Pleas, the colorectal surgeon testified that in performing the surgery, and specifically, in placing the Bookwalter retractor, he conformed to or exceeded the proper standard of care. But he also stated that he believed the woman's injury was caused by the retractor during surgery, as did the neurologist.

 

The woman’s medical expert testified that femoral-nerve damage caused by the Bookwalter retractor was not a foreseeable risk of this kind of operation unless the retractor blades were not properly placed and that only physician negligence could have caused her injury. The defense expert acknowledged that the proper standard of care could eliminate femoral nerve injuries caused by retractor blades. But he also testified that other factors may cause such injuries, and the appropriate standard of care cannot reduce the risk of femoral-nerve injuries to zero. The defense expert testified that the colorectal surgeon did not deviate from the standard of care.

 

The trial judge instructed the jury on the legal questions at issue in the trial. He explained that negligence alone was insufficient to prove liability because to prove liability, the plaintiff must also prove proximate cause. He explained that proximate cause occurs when the injury was the natural and foreseeable result of the act or failure to act. As the defense requested, the judge added the following “remote-cause instruction”: “A person is not responsible for damages to another if his negligence is a remote cause and not a proximate cause. A cause is remote when the result could not have been reasonably foreseen or anticipated as being a natural or probable cause of any damage.”

 

The judge told the jurors that if they found in favor of the woman, they should sign the general-verdict form in favor of the woman and answer the interrogatories about damages the woman suffered. The trial judge misspoke while instructing the jurors and did not clarify that they should not answer Interrogatory Nos. 3 and 4 in the event they answered Interrogatory Nos. 1 and 2 for the defense. After the instructions were given, the jurors deliberated. The jurors returned, having signed Verdict Forms A and B finding for defendants “on the issue of liability.” They had also circled “No” on Interrogatory Nos. 1 and 2, indicating their finding that the defendants were not negligent in the care and treatment of the woman. The jurors also circled “No” on Interrogatory Nos. 3 and 4, indicating their finding that the defendants' negligence did not cause injury to the woman. Neither the judge nor the parties raised concerns about the manner in which the jurors had completed the interrogatory and verdict forms or noted any inconsistencies between them. The judge then accepted the jury's verdicts and findings as consistent.

 

The woman filed a timely motion for judgment notwithstanding the verdict or a new trial arguing that the verdicts could not be reconciled with the evidence, which was that a femoral-nerve injury caused by retractor placement always resulted from medical malpractice. As evidence that the jury had lost its way, the woman cited the jury's completion of the interrogatories on causation (Interrogatory Nos. 3 and 4) and argued that answering these would have been unnecessary unless the jury had already found negligence. The trial court denied the motion, holding that the function of jury interrogatories was to test the correctness of the general verdict. The court found that the interrogatories supported the general verdicts for the defense and entered judgment on the jury verdicts in favor of the defendants.

 

The woman appealed arguing, among other errors, that because the trial court had instructed the jury on remote cause, the jury engaged in a logical impossibility—finding no causation for negligence that it did not find occurred. The Ninth District Court of Appeals affirmed in part, reversed in part, and remanded. The court of appeals held that although the trial court had properly denied the woman’s motion for judgment notwithstanding the verdicts because an expert had testified that the surgeon did not deviate from the standard of care, it reversed the judgment and remanded for a new trial because the remote-cause instruction was clearly not warranted. The court of appeals found all other assignments of error moot and did not address them. The physicians filed a discretionary appeal.

 

The Supreme Court of Ohio reversed the court of appeals and remanded the cause for the court of appeals to consider the assignments of error it previously determined were moot. The court held that the erroneous jury instruction on remote causation did not materially affect the patient's substantial rights, and thus was not reversible error.

 

Even an erroneous jury instruction may not be sufficiently prejudicial to justify a reversal on appeal. To conclude that a party's substantial rights were materially affected, an appellate court must find that the instruction was so misleading and prejudicial as to result in an erroneous verdict. The court held that when a jury's answers to interrogatories make it clear that the jurors found that the defendant was not negligent and the jury's verdict is consistent with that finding, a remote-cause jury instruction, even if improper, cannot be found to have misled the jury in a manner materially affecting a substantial right.

 

When a jury's general verdict and its answers to interrogatories are consistent, the appropriate judgment upon the verdict and answers shall be entered. The court found that the jurors' answering Interrogatory Nos. 3 and 4 in favor of the defense, while unnecessary, was not inconsistent with answering “No” to Interrogatory Nos. 1 and 2, because Verdict Forms A and B, which the jurors also signed, state that the jurors find for the defendants “on the issue of liability.” The jury's answers to interrogatories made it clear that the jurors found that the colorectal surgeon had not been negligent, which was consistent with the general defense verdicts. Although the remote-cause instruction was improper, the record did not indicate that the instruction resulted in the jurors' completing the causation interrogatories. The court held that the appellate court’s speculation that the remote-cause instruction spawned juror confusion materially affecting the woman's substantial rights was erroneous.

 

The Supreme Court of Ohio reversed holding that the court of appeals erred in holding that a remote-cause jury instruction in a medical-malpractice case resulted in prejudicial error that required a new trial. The court remanded to the court of appeals to address the assignments of error that it determined to be moot and did not address.

 

See: Hayward v. Summa Health Sys./Akron City Hosp., 2014 WL 1813918, 2014 -Ohio- 1913 (Ohio, May 8, 2014)(not designated for publication).

 

 

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