Summary
The Nevada Supreme Court considered whether a mere happening instruction and a res ipsa loquitur instruction improperly conflicted in a medical malpractice case involving a nerve injury sustained during or after an appendectomy. The court held that the instruction stating that negligence is never presumed conflicted with the res ipsa loquitur instruction, prejudiced the appellant, and required reversal and a new trial. The court directed that the mere happening instruction be modified to omit the statement that negligence is never presumed.
Topics
Practice areas
Questions Presented
- Whether a mere happening jury instruction stating that negligence is never presumed conflicts with a res ipsa loquitur instruction in a medical malpractice case.
- Whether the conflicting instructions were prejudicial and required reversal of the defense judgment and a new trial.
- Whether the mere happening instruction should be modified in cases where the jury is also instructed on res ipsa loquitur.
Holdings
- A mere happening instruction stating that negligence is never presumed conflicts with a res ipsa loquitur instruction because res ipsa loquitur permits negligence to be presumed when its statutory conditions are met.
- The conflicting instructions were prejudicial because Carver reasonably contended that a different result might have been reached absent the error, requiring reversal.
- When a district court instructs the jury on res ipsa loquitur, it must omit from the mere happening instruction the language stating that negligence is never presumed.
Key quotations
“To instruct the jury that negligence is never presumed and then proceed to further instruct the jury of a scenario where negligence may in fact be presumed is prima facie prejudicial because it raises the strong possibility of confusing and misleading the jury.” (107 P.3d at 1286)
“In such cases, the district court must omit from the mere happening instruction the Gunlock language stating that negligence is never presumed.” (107 P.3d at 1286)
Factual background
Jerry D. Carver suffered a nerve injury to his left arm and hand sometime during or after an appendectomy. He alleged negligence against anesthesiologist Rashad El-Sabawi and surgeon Ronald Rosen. At trial, the district court gave a mere happening instruction stating that negligence is never presumed and a res ipsa loquitur instruction providing for a rebuttable presumption of negligence when an injury occurs during treatment to a body part not directly involved in the treatment or proximate thereto.
Procedural history
Carver sued anesthesiologist Rashad El-Sabawi and surgeon Ronald Rosen after suffering a nerve injury to his left arm and hand during or after an appendectomy. The district court gave both a mere happening instruction containing the statement that negligence is never presumed and a res ipsa loquitur instruction under NRS 41A.100(1)(d), along with a general clarifying instruction. The jury returned a verdict for both doctors; Rosen settled and was dismissed from the appeal. The Nevada Supreme Court reversed the judgment against El-Sabawi and remanded for a new trial.
Remand instructions
The matter was remanded for a new trial. In any new trial in which the jury is instructed on res ipsa loquitur, the mere happening instruction must omit the language stating that negligence is never presumed.