Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
PLAINTIFF’S NEW TRIAL MOTION cont.
Conversely, in Smith it is undisputed that although there are two potential alternative methods for diagnosing DRD, the only method contemplated by the Defendant Dr. Hill was a trial dose of L-dopa.
In Maher v. Saad (2000) 82 Cal.App.4th 1317, it was held to be error to give this instruction when there was no evidence that the particular procedure actually utilized was a recognized and approved method of diagnosis or treatment for the patient’s condition. Maher v. Saad, supra, 82 Cal.App.4th at pp. 1318-1319, 1327. In Maher, Plaintiff’s argued that the so-called T incision used by the surgeon was below the standard of care. Although the Defendant’s expert did not say its use violated the standard of care, no one testified in that situation that it was a recognized or approved method of treatment. The court, over objection, gave jury instruction BAJI 6.03, but granted a new trial when the jury found no negligence.
The trial court and the appellate court held that Jury BAJI 6.03 prevented plaintiff’s from receiving a fair trial on their negligence claim. (Maher v. Saad, supra, 82 Cal.App.4th at p. 1325.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
As recognized by the court in Maher, that instruction, as with the predecessor of CACI 506, if given without evidentiary support, inappropriately removes the issue of standard of care away from the jury and denies plaintiff’s an opportunity to prove the standard of care was violated. Even if the jury could still have found the defendant not negligent, the instruction, if unsupported by evidence, is error and prejudicial to plaintiff. A jury not instructed with BAJI No. 6.03 still could have found defendant’s use of the technique satisfied the standard of care. However, if the technique was not approved or recognized for this circumstance, BAJI No. 6.03 inappropriately removed the issue of standard of care away from the jury and denied plaintiff’s an opportunity to prove the standard of care was violated. (Maher v. Saad, supra, 82 Cal.App.4th at p. 1326.) (See Part 6 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.