 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Harding v. Deiss6/27/2000
s negligent. As to this defense, the defendants have the burden of proving the following:
8. That the plaintiff (Candice Shuck) was negligent.
9. That plaintiff's (Candice Shuck) negligence was the cause of Plaintiff's injury .
Appellant claims that these two instructions "in essence put before the jury the notion that they could determine whether Candice Shuck was legally negligent and then compare her negligence to the negligence of the [Respondents]." Appellant asserts that giving comparative negligence instructions in a medical malpractice case presents an opportunity to nullify every possible case against a physician for malpractice.
Respondents assert that a jury instruction on comparative negligence is appropriate in this action because it was Candice's negligence which caused her injury . They further claim that the jury never reached the issue of Candice's negligence because they concluded that Respondents were not negligent, and therefore, the issue of the jury instruction is moot.
We review jury instructions in a civil case for abuse of discretion. Federal Mutual Insurance Co. v. Anderson, 1999 MT 288, 44, 297 Mont. 33, 44, 991 P.2d 915, 44.
Furthermore,
district court has broad discretion in deciding whether to give or refuse a party's proposed jury instruction. In reviewing whether a particular jury instruction was properly given or refused, we must consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial. In re Estate of Lande, 1999 MT 162, 44, 295 Mont. 160, 44, 983 P.2d 308, 44 (citing Moore v. Imperial Hotels Corp., 1998 MT 248, 21, 291 Mont. 164, 21, 967 P.2d 382, 21).
Appellant states, " e urge that this issue of comparative negligence in a case like this because of some prior acts by the Plaintiff has simply never come up before or if it did it was simply rejected and never got appealed." While Appellant correctly asserts that this issue has not been directly addressed in Montana, other jurisdictions have given the matter significant consideration, often in the context of the related defense of contributory negligence. We find other jurisdictions' analyses of the defenses of contributory and comparative negligence in medical malpractice actions helpful in resolving this issue.
According to one author, " ase law is replete with instances where the physician charged the plaintiff with contributory negligence for behavior that occurred before the patient sought treatment, but courts generally agree that the prior conduct should not be considered in assessing damages." Madelynn R. Orr, Comment, Defense of a Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665, 667, (1992). Courts have, however, acknowledged the propriety of the defense of contributory or comparative negligence in certain circumstances. In an action for medical malpractice, the improper diagnosis of a patient's medical condition coupled with improper treatment resulted in the amputation of the patient's foot. Durphy v. Kaiser, 698 A.2d 459, 466 (D.C. 1977). Defendants raised the defense of contributory negligence claiming that the patient had failed to cooperate in his treatment. In discussing the standard for contributory negligence the court stated, " n medical malpractice cases, contributory negligence is a valid defense if the patient's negligent act occurs with that of the physician and creates an unreasonable risk of improper medical treatment." Durphy, 698 A.2d at 467. See also Champs v. Stone 58 N.E. 2d 803 (Ohio Ct. App. 1944) (patient was contributorily negligent w
Page 1 2 3 4 5 6 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|