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Bara v. Clarksville Memorial Health Systems9/12/2002
St. Thomas Hospital, 983 S.W.2d 225, 229 (Tenn. 1998).
These cases make clear that Plaintiffs were not required to prove that death was foreseeable, but merely that some harm could have foreseeably resulted from Defendants' action or inaction and, through the exercise of reasonable diligence, could have been foreseen. This foreseeability instruction standing alone might not constitute reversible error under T.R.A.P. 36(b) but nonetheless is error and should be corrected on re-trial.
CONCLUSION
The issue asserted by Appellant that the verdict is against the overwhelming weight of the evidence presents no issue for appellate review since T.R.A.P. 13(d) provides in part: "Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict."
We find no error in the verdict and judgment in favor of Clarksville Memorial Hospital and indeed Appellant all but concedes as to the hospital at the bar of this court. We find, however, that the charge to the jury concerning the burden of proof on causation is erroneous, confusing, and misleading and reversible error. We further find the charge as to foreseeability to be in error.
The judgment in favor of Clarksville Memorial Hospital is in all respects affirmed with costs in that case assessed against Appellant. The judgment in favor of Dr. Miller is reversed and remanded for a new trial with costs assessed to the appellee Miller.
This case is remanded to the trial court for proceedings in conformity with this opinion.
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