Jury Instruction on Loss-of-Chance Theory of Liability Not Improper; ER Physician Liable for Improper Intubation

An 83-year-old woman was rushed to a hospital after her husband found her unresponsive and on the floor of their home. At the hospital, the emergency room physician concluded that the woman had difficulty breathing and may have suffered a stroke. Attempts were made to insert an endotracheal tube in her throat, including two unsuccessful attempts by the emergency room physician, during one of which the emergency room physician inserted the tube into her esophagus. After several failed attempts an anesthesiologist successfully intubated her.


During the intubation procedure the emergency room physician observed a subcutaneous emphysema under the woman's skin. However, not until days later did physicians finally discover that her esophagus had been perforated during intubation. Surgical attempts at repair proved unsuccessful, and, as a consequence, for the three remaining years of her life, until her death of an unrelated cause, the woman was unable to consume foods or liquids by mouth, and required a feeding tube, as well as the daily assistance of her husband, for her nutritional intake.


The woman sued the emergency room physician for medical malpractice. At trial, the jury charge included the following: “The negligence of any of the defendants may be considered a cause of the injuries to [decedent] if you find the defendant[s'] actions or omissions deprived [decedent] of a substantial possibility of avoiding the consequences of having a permanent feeding tube. The chance of avoiding a need for a permanent feeding tube to be substantial, does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight.”


The jury found the emergency room physician solely liable and returned a one million dollar plaintiffs' verdict of $500,000 for the decedent's pain and suffering and $500,000 for the husband's loss of consortium. On appeal, the emergency room physician contended that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted this theory, and the charge relaxed the plaintiffs' burden of proof. The plaintiff argued that the emergency room physician's challenge based on the viability of a loss-of-chance theory of liability under New York law was unpreserved, and that regardless, the jury charge was proper.


The Appellate Division unanimously affirmed, on plaintiffs' stipulation to a reduction of the loss of consortium damages to $200,000. The doctor appealed arguing that the jury charge improperly reduced the plaintiffs' burden of proof.


The Court of Appeals of New York affirmed. The court held that the emergency room physician’s challenge based on the viability of a loss-of-chance theory of liability under New York law was unpreserved. The emergency room physician did not present the trial court with a direct challenge to the underlying theory of negligence propounded during the trial and eventually charged to the jury. Instead, the emergency room physician challenged the jury charge on the ground that the facts of this case did not support a loss-of-chance charge, not that such a charge was wholly unavailable under New York law. Thus, the concern raised with the trial court was that the plaintiffs had failed to present a factual basis for the charge, not that as a legal matter, regardless of the evidence, such a charge was prohibited under New York law.


The court also held that the jury charge was proper. It noted that it is well settled that a plaintiff must generally show that the defendant's negligence was a substantial factor in producing the injury to satisfy the burden of proving a prima facie case in a medical malpractice action. Here, the trial court recited the proximate cause charge directly from the standard jury instructions and explicitly instructed the jury as to plaintiffs' burden of proof in the case. The court charged the jury using the language from standard jury instruction 2:70, as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Further, at the outset of the charge, the court instructed the jury that “the burden of the proof in this case rests with the plaintiffs,” and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants' negligence. Taking the jury charge as a whole, the court did not find support for the emergency room physician's contention of an improper alteration of the causation standard or plaintiffs' burden of proof.


See: Wild v. Catholic Health System, 2013 WL 2435075, 2013 N.Y. Slip Op. 04043 (N.Y., June 6, 2013) (not designated for publication).


See also Medical Risk Law, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care.