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EISNER v. FIELDS9/8/1999
W.2d 355 (1997).
Based upon the testimony presented at the trial, we cannot say that the judge abused his discretion in not giving the instruction. Dr. Insler, appellee's expert witness stated,
As far as whether I have an opinion within a reasonable degree of medical certainty as to what caused that infection, I think it is going to be difficult to prove where the infection came from because it is a very abnormal infection. . . . I'm going to tell the jury that I think that most likely the infection came from somewhere in Dr. Eisner's clinic. . . . As far as whether Mr. Fields could have been in contact with the microbacteium at any point within the next few days after he left Dr. Eisner's office, anything is possible, but that is not likely what happened. . . .
Dr. Wolfe, one of appellee's physicians, stated that he was not sure how or when the appellee came into contract with the bacteria that caused the infection, that the appellee could have had the bacteria on his eye lids when the surgery was performed and that with the epithelial barrier broken, the infection could have gotten into the eye. Dr. Eisner testified that he did not know of anything that he did to cause the infection and that he does not believe that the bug was in his office. Dr. Lee Nordan, an expert witness presented by appellants, stated that there was no way to tell to any degree of reasonable certainty from where the microbacterium came. He also stated that he did not believe that it was caused by the compression keratoplasty.
It is clear that a duty of care was owed by appellants to appellee; however, based upon this evidence, we cannot say that the judge abused his discretion in not allowing the instruction because there was substantial evidence that the infection was not caused by the thing or instrumentality under the control of the appellant, and that appellee could have contracted the infection at a place other than Dr. Eisner's clinic.
Appellee also asserts that the court was correct in granting a new trial because it erroneously instructed the jury that the fact that an injury has occurred is not, of itself, evidence of negligence on the part of anyone. This instruction is AMI Civ. 3d 603. Appellee contends that the instruction is unconstitutional because
it is a comment on the evidence, and it requires the jury to draw an inference and it is impermissible for the trial court to instruct the jury to draw an inference. Moreover, appellee suggests that this court should "abolish AMI 603." He also argues that Lambert v. Markley, 255 Ark. 851, 503 S.W.2d 162 (1973), is on point in this case and it held that when a case is submitted to a jury only upon the issue of res ipsa loquitur and ordinary care, it is proper for the trial court to decline to give AMI Civ. 3d 603.
The supreme court has held that AMI Civ. 3d 603 is a correct statement of the law. See Taylor v. Riddell, 320 Ark. 394, 896 S.W.2d 891 (1995), and Pilkington v. Riley, 271 Ark. 746, 610 S.W.2d 570 (1981). This court cannot overrule a decision by the supreme court and thereby abolish AMI 603. Kearse v. State, 65 Ark. App. 144, 986 S.W.2d 423 (1999).
Further, unlike Lambert v. Markley, supra, appellee's case was not submitted solely on the doctrine of res ipsa loquitur. Appellee asserted other acts of negligence, including that appellants failed to obtain informed consent, that appellee was not a good candidate for the surgeries, and for failing to inform appellee of the risks involved in the surgeries.
Based upon the foregoing, we cannot say that the judge abused his discretion by instructing the jury that just because an injury occurred, it was not, in an
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