Recent Blog Posts in November 2008

In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.

The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.

Issue: Whether the district court's "mere happening" instruction misstated the law.

The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.

The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.

You can find the full opinion here. 124NevAdvOpNo85.pdf

In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.

The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.

Issue: Whether the district court's "mere happening" instruction misstated the law.

The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.

The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.

You can find the full opinion here. 124NevAdvOpNo85.pdf

From the Associated Press' Kevin Freking:

Top scientists and career employees at the Food and Drug Administration opposed agency regulations that weaken consumers' ability to sue drug makers, congressional investigators said Wednesday.

The report said the FDA has yet to provide a complete set of documents that would show communications between the White House and the agency, but some documents suggested the agency and the White House would not go forward with a rule on labeling until the pre-emption changes were included.