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McDowell v. Our Lady of Bellefonte Hospital2/14/2003
kell's opinion established causation by his testimony that the nurses should have notified Dr. Garcia of a change in McDowell's condition:
Q: Do you have an opinion within a reasonable degree of medical probability whether or not the nurses failure to notify Doctor Garcia of the changes in Mr. McDowell's condition affected Mr. McDowell?
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A: As a surgeon taking care of a patient, any information I can get that may jog me to think "Is something else going wrong; am I missing something; do I need to get any more tests?" is valuable information because it often leads to those tests. I cannot say what would have happened had they notified Doctor Garcia. I think they needed to do that, but I don't know what he would have done.
McDowell argues that the trial court should have let the jury decide, because no witness could ever testify "as to what another person would do with the same information."
Circumstantial evidence may be sufficient to prove reasonable probability or proximate cause, where it reasonably establishes a causal connection between the alleged negligence and the injury . Here, Dr. Heiskell could not say and did not know. This falls far short of establishing the essential causal connection. A jury may not be permitted to reach a verdict upon speculation or conjecture. We find no error.
The final issue McDowell raises is whether the verdict is supported by substantial evidence. McDowell acknowledges Dr. Aaron's testimony that Dr. Garcia did not breach the standard of care, but contends this was "insufficient," because it was refuted by other evidence. In essence, McDowell is trying to shift his burden of proof to Dr. Garcia. "Proximate causation between negligence and the injury complained of in a medical malpractice case must be established by expert testimony....
On the other hand, the defendant need not disprove causation. Rather, he must produce credible evidence which tends to discredit or rebut the plaintiff's evidence."
We do not determine the weight of the evidence.
e are to determine the question as to whether or not the verdict is palpably contrary to the evidence. It is not for this court to reverse a judgment because the evidence was conflicting.... Nothing short of a conclusion that the verdict is flagrantly against the evidence will give this court authority to disturb it on the ground insisted.
We affirm the judgment of the Greenup Circuit Court, entered April 24, 2001.
ALL CONCUR.
Page 1 2 Kentucky Personal Injury Attorneys
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