By Damian D. Capozzola, Esq.
News: Recently, the Virginia Supreme Court ordered a new trial in a medical malpractice case in which a woman was awarded $1.6 million. The plaintiff claimed that she suffered a seizure and fell after her physician failed to treat her low blood sodium. The trial saw multiple experts testify on both sides of the issue of causation — a key element in proving any negligence lawsuit.
The defendants (hospital and doctor) argued that the plaintiff’s fall could have been caused by several other factors, rather than malpractice. They asked the court to instruct the jury that, if there were multiple possible causes of the plaintiff’s injury, then the jury should return a finding that defendants were not liable. The trial court refused, and the jury ultimately found for the woman and awarded her $1.6 million in damages.
The verdict was affirmed by the Court of Appeals. However, on appeal to the Virginia Supreme Court, the court found that the trial court erred by refusing to give the defendants’ proposed jury instruction on the issue of alternative causation to the jury. In its opinion, the Virginia Supreme Court clarified the law on jury instructions with reference to longstanding legal principles. It overturned the Court of Appeals and remanded the case for a new trial.
Background: The plaintiff sought medical treatment at the defendant hospital for abdominal pain and nausea, where the defendant doctor diagnosed her with hyponatremia, a condition characterized by low blood sodium levels. Despite this diagnosis, the plaintiff claimed she was not informed of it and was discharged without proper instructions regarding her condition.
At trial, several experts testified on both sides regarding the cause of the plaintiff’s fall and subsequent injuries. Paramedics and physicians, serving as expert witnesses, differed in their opinions, with some attributing her condition to a hyponatremia-induced seizure and the experts of the defendants claiming that alternative causes, such as medication side effects or a mechanical trip and fall, were responsible for the woman’s head injury.
The jury instructions provided by the court included those addressing proximate cause and multiple causation. The jury instruction that the judge gave explained that “[t]here may be more than one proximate cause of an injury,” but if “the negligence of a defendant proximately caused injury to [the plaintiff], then the negligence of that defendant is a proximate cause of [the plaintiff]’s injury even if there were other acts or omissions that caused her injuries.”
The defendants proffered a different instruction. They wanted the judge to instruct the jury that “[i]f you believe from the evidence that the injury to [the plaintiff] might have resulted from either of two causes, for one of which [the defendant doctor] might have been responsible and for the other of which [the defendant doctor] was not responsible, and if you are unable to determine which of the two causes occasioned the injury complained of, then the plaintiff cannot recover.”
On appeal to the state’s Court of Appeals (the intermediate reviewing court), the trial court’s decision was affirmed, but on the grounds that the defendants waived their argument that the injury was caused by a mechanical trip-and-fall by raising it for the first time on appeal. But the Virginia Supreme Court disagreed, first ruling that the defendants did not waive the issue for appeal, and then ruling that the refusal of the trial court to give the defendants’ instruction to the jury was reversible error. The Virginia Supreme Court held that defendants’ proffered jury instruction — that the jury must find for the defendants if they cannot determine which cause occasioned the plaintiff’s injury — was the correct instruction.
The Virginia Supreme Court centered its ruling on legal fundamentals. It explained that, to establish negligence, the evidence must show that the defendant’s actions were the cause of the injury. This is straightforward enough. But in situations where the evidence reasonably shows that there may have been more than one cause of the injury, the trial court must instruct the jury that if it believes there may be alternative causes of the injury, they should return a verdict for the defendant. The Virginia Supreme Court found that jury instructions should be given if they correctly state the law and are supported by evidence presented during the trial.
During the trial, the evidence did suggest that factors beyond the defendants’ alleged negligence could have caused the plaintiff’s injury. These included the plaintiff’s medication and the possibility of a mechanical trip and fall. The Virginia Supreme Court held that there was more than a “scintilla” of evidence presented suggesting that factors other than the defendants’ alleged negligence could have led to the plaintiff’s injury, such as the potential side effects of the plaintiff’s medication, drugs the plaintiff was given, or a trip and fall.
What this means for you: Jury instructions are a critical part of a trial. After all the evidence has been heard and the witnesses have testified and the lawyers for both sides have given their closing arguments, the judge instructs the jury on how to deliberate. The jurors receive a series of instructions. Many are commonplace instructions given in most or all trials, but some — and usually the ones on the issues pivotal to the particular case — are specially drafted by the parties in an effort to spin the law to their own advantage. The judge must decide in such circumstances whether to give the jury both, one, or none of the competing instructions. The judge’s decision in such circumstances is critically important to both the verdict outcome at trial and protecting the integrity of the trial on appeal.
This case also highlights the importance of expert witnesses. Often called “the battle of the experts,” complex medical actions often rely heavily on expert witnesses to prove, or contest, a medical negligence case. Expert witnesses are required to establish the standard of care that physicians must meet to discharge their duties to patients, who can become plaintiffs when they feel that the physician failed to meet that standard. In this case, the expert witnesses were focused on the issues of causation: Was it the defendant doctor’s failure to correctly diagnose the plaintiff who was the cause of her injury, as the plaintiff’s experts opined, or was there some other cause of her injuries?
In cases where there are a multitude of expert witnesses testifying persuasively on similar topics, the decision to use one of two competing jury instructions becomes all the more important. Even an attentive, perceptive jury can be left unsure of what to believe, and how to apply their beliefs concerning what the evidence showed in rendering a verdict. Juries need the direction of the court to properly instruct them on the law.
For defense practitioners and defense-side experts, the Virginia Supreme Court’s ruling may be encouraging. If the defense can offer plausible, believable expert opinions on different theories of causation, it may mean the difference between a $1.6 million verdict and a victory for the defense. Or, at least, defense-side practitioners can be reassured that the jury will be instructed to reach verdicts for the defense if it cannot determine the true cause of injury among multiple competing theories. Sowing that doubt about the plaintiff’s theory of causation is crucial.
For plaintiff practitioners and plaintiff-side experts, this case highlights the importance of persuasive testimony on the element of causation — opinion testimony that is strong enough to rule out alternative causation theories. Although this case is yet to be retried in the trial court, this decision raises the bar for plaintiffs. It is critical not only for the plaintiffs to offer persuasive causation testimony, but they also must effectively rule out alternative causes of the injury. That is a tall order when faced with competent defense counsel with persuasive experts. Rebuttal testimony and effective cross-examination become all the more important as well. The jury must feel comfortable ruling out alternative causes that will sink the plaintiff’s
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Reference
- Decided on April 4, 2024, in the Supreme Court of Virginia, Case No. 230199.
Recently, the Virginia Supreme Court ordered a new trial in a medical malpractice case in which a woman was awarded $1.6 million. The verdict was affirmed by the Court of Appeals. However, on appeal to the Virginia Supreme Court, the court found that the trial court erred by refusing to give the defendants’ proposed jury instruction on the issue of alternative causation to the jury.
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