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Carver v. El-Sabawi3/24/2005
the instruction suggested by the majority.
However, I dissent regarding the appropriate remedy for this jury instruction error. The standard for reversal requires that " rejudice is not presumed," and that " he burden is upon the appellant to show the probability of a different result." Establishing that a jury instruction error had a prejudicial effect on a party usually requires presenting the trial transcript or a statement of the evidence. However, the majority simply presumes that prejudice occurred given the conflicting instructions.
Carver had the affirmative duty to present evidence to establish that, but for the error, a different result might have been reached. The record before us consists of the jury instructions; a transcript of the argument settling instructions; and a transcript of the defense expert's testimony who opined that: (1) Dr. El-Sabawi met the standard of care, (2) there was no evidence that there was improper positioning or inadequate padding during surgery, and (3) the medical records are not consistent with the claim that the ulnar nerve injury occurred during anesthesia and surgery. This limited record does not contain sufficient evidence to establish prejudice; therefore, I conclude that Carver failed to meet this burden, and respectfully dissent as to the majority's reversal and grant of a new trial.
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