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Carver v. El-Sabawi3/24/2005
In this appeal, we consider whether a "mere happening instruction" and a res ipsa loquitur instruction, given to the jury in a medical malpractice case, were so conflicting that absent additional evidence, the judgment on the jury verdict should be reversed and this case remanded for a new trial. We conclude that they were.
FACTS
Appellant Jerry D. Carver suffered a nerve injury to his left arm and hand sometime during or after an appendectomy. He filed suit against anesthesiologist Rashad El-Sabawi, M.D., the respondent, and surgeon Ronald Rosen, M.D., alleging negligence.
At trial, the district court gave a mere happening instruction that largely tracked language found in Gunlock v. New Frontier Hotel. The instruction read:
The mere fact that an unfortunate or bad condition resulted to the patient involved in this action is not sufficient of itself to predicate liability. Negligence is never presumed, but must be established by competent evidence.
The district court also gave a res ipsa loquitur instruction, based upon NRS 41A.100(1)(d). The instruction stated:
The law provides for a rebuttable presumption that a personal injury was caused by negligence where the personal injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto.
If you find by a preponderance of the evidence that an injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto then the rebuttable presumption operates to shift to the defendants the burden of proving, by a preponderance of the evidence, that the personal injury was not caused by negligence.
If, on the other hand, you do not find by a preponderance of the evidence that an injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto, then the burden of proving by a preponderance of the evidence consisting of expert medical testimony or material from recognized medical texts or treatises that the personal injury was caused by negligence remains with the plaintiff.
Recognizing the potential for conflict between these two instructions, the district court approved a separate stock instruction for clarification, which stated:
The Court has given you instructions embodying various rules of law to help guide you to a just and lawful verdict. Whether some of these instructions will apply will depend upon what you find to be the facts.
The jury returned a verdict for both doctors. Carver appeals.
DISCUSSION
Carver argues that the district court erred in giving the mere happening instruction because it inappropriately raised his burden of proof, negated the res ipsa loquitur instruction, and contained language that would confuse the jury. In response, Dr. El-Sabawi asserts that competing instructions alone do not constitute reversible error because each litigant is entitled to have the jury instructed on all theories of his or her case supported by the evidence and the court's clarifying instruction reconciled any perceived conflict between the competing instructions. Even if the mere happening instruction was given in error, Dr. El-Sabawi argues that Carver failed to demonstrate from the partial record on appeal how that error affected the jury verdict.
Jury instructions that tend to confuse or mislead the jury are erroneous. However, a judgment will not be reversed by reason of an erroneous instruction, unless upon consideration of the entire case, including the evidence, it
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