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England v. Costa11/10/2005
nt of an impossible burden, in effect, renders the requirement of correct instructions on the law meaningless. Id.; see also Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996). On the other hand, we have also held that the error may be rendered harmless by other factors in the case. See Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). This court noted in Skinner, supra, that examples of harmless error would be where the jury demonstrably was not misled because the jury rejected the theory of the erroneous instruction, or where the erroneous instruction was obviously cured by other correct instructions. Skinner, 313 Ark. at 435.
Thus, we must consider whether the giving of the improper instruction constituted harmless error. The Englands frame the issue before the jury as follows: Given that the hospital nurses did not timely contact Dr. Costa concerning the decelerations on the fetal monitoring strip, was Dr. Costa under an independent duty to discover those decelerations himself, and if so, was his failure to do so a proximate cause of Morgan England's brain damage? The crux of the Englands' argument is that the giving of AMI 602 answered the first of these two questions in the negative, by informing the jury that he had the right to assume that the nurses were not behaving negligently (even though they admittedly were negligent in failing to inform him of the decelerations on the monitor strip). And in giving the erroneous instruction, the trial court essentially prevented the jury from considering whether Dr. Costa's failure to read the strip, in and of itself, constituted a failure to meet the standard of care of "possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing in the same or a similar locality."
Dr. Costa, on the other hand, asserts simply that there was overwhelming evidence that his negligence had nothing to do with the baby's brain damage; he points out that experts on both sides testified that Morgan England was perfectly healthy and normal until approximately 2:10 a.m. on January 5, 1998. Accordingly, the doctor claims, his failure to notice the decelerations on the monitor strip earlier in the day on January 4, 1998, could not have been the proximate cause of Morgan's injuries.
Had the jury not been given the AMI 602 instruction, Dr. Costa might have had a valid argument. Without the giving of the erroneous instruction, it would have been clear that the jury determined that Dr. Costa "possessed and applied with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or in a similar locality," and that there was no negligence on his part that was the proximate cause of Morgan's injuries.
Here, however, the verdict form asked the jury to answer the question, "Do you find from a preponderance of the evidence that there was negligence on the part of Dr. Costa, which was a proximate cause of any damages?" The jury answered no. Given this general verdict, coupled with the jury having been given the erroneous instruction, it is impossible to determine whether the jury believed that Dr. Costa was not negligent because he comported himself in accordance with the standard of care required of all physicians, as described above, or whether the jury determined that he was not negligent because he was entitled to assume that the nurses were not negligent, which was an incorrect statement of the law.
As noted above, this court has held that, in cases involving a trial court's givin
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