Trial Court Commits Prejudicial Error In Sacramento Malpractice Suit, Part 4 of 10

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.)


Code of Civil Procedure Section 657(1) provides a new trial may be granted based upon any irregularities in the proceedings of the court, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial. Section 657(7) provides for vacating a verdict and ordering a new trial due to an error of law which occurred at trial.

The grant of a new trial is a proper remedy for the giving of an erroneous jury instruction when the improper instruction materially affected the substantial rights of the aggrieved party. [C.C.P. §657.] …’When a new trial was granted on the basis of an erroneous instruction, the order will not be disturbed unless the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury …’ (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1325 citing Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205, quoting Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 871; See also Brignoli v. Seabound Trans. Co. (1947) 29 Cal.2d 782, 791 : “Where it appears that an erroneous instruction confused or misled the jury, a new trial is justified.”) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It Was Substantial Error to Give the CACI 506 Instruction
The order allowing CACI 506, when there was no evidence that Dr. Hill followed an approved or alternative method of diagnosis, was erroneous as a matter of law. This instruction presumptively was prejudicial to Plaintiff, as evidenced by the jury’s note.

The giving of CACI 506 is only appropriate in a case where there are divergent opinions among health practitioners as to the desirability of one particular medically accepted medical procedure over another as it applies to the particular patient. [Clemens v. Regents of University (1970) 8 Cal.App.3d 1, 13.] In Clemens, the court cited Meier v. Ross General Hospital (1968)69 Cal.2d 420, for the proposition that …when a physician chooses one of alternative accepted methods of treatment, with which other physicians disagree, and which is in fact unsuccessful, the jury may not automatically deem him negligent. Meier v. Ross General Hospital (1968) 69 Cal.2d 420,434. Unlike the case at bar, the court in Meier found testimony to support the application of the instruction where a key issue was which method, the use of physical restraint or chemotherapy, was appropriate to employ in order to protect the suicidal decedent. Meier v. Ross General Hospital, supra, 69 Cal.2d at p. 434. (See Part 5 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Contact Information