May 2017

In May 2017, Noel Halpin obtained a defense verdict on behalf of a general surgeon following a jury trial in Grayson County, Kentucky.  It was alleged that the surgeon was negligent in his removal of a PEG tube and in the subsequent follow-up care that he provided.  The Plaintiff went on to develop a small bowel obstruction which she attributed to the surgeon’s technique in removing the PEG tube, and she underwent surgery.  Fifteen months later she developed another obstruction, caused by adhesions, which required another surgery.  The proof showed that while the PEG tube removal technique may have been a contributing factor to the first obstruction, it was not the substantial factor.  The defense proved that adhesions in the small intestine also played a role in causing both obstructions.  After deliberating for approximately three hours, the jury returned with a defense verdict.  The Plaintiff was awarded nothing.

The Plaintiff subsequently appealed, but was unsuccessful.  The Plaintiff’s appeal was focused on the jury instructions used at the trial, which required the jury to answer separate questions regarding breach of the standard of care and whether any such breach was a substantial factor in causing the alleged injuries.

On appeal, the Plaintiff argued that having the jury answer two separate questions regarding the two-prong test for liability created a “higher burden” for the plaintiff and risked confusing the jury. The Court of Appeals disagreed, holding “[t]he separate instructions merely asked the jury whether [the plaintiff] had met her burden at trial for each element of her alleged medical negligence claim,” and “… it seems to us that use of the separate interrogatories would assist the jury in understanding the necessity of considering each element of a negligence claim.”

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