As previously reported, Raff and Raff represented the Estate of Keisha Flood in a complex medical malpractice and wrongful death case. The case went to trial towards the beginning of 2012. During trial, settlements were reached with most of the defendants and the case proceeded against the remaining doctor. The allegation was that the radiologist was negligent in the reporting of a serious bowel obstruction, which should have been promptly treated with surgery. It was not, and Ms. Flood died of a rupture in her small bowel, which caused sepsis and heart failure.
We argued that the judge should have used the model jury charge with model jury questions. The defense suggested different questions. The trial judge departed from the model jury interrogatories and the jury ultimately decided that the radiologist deviated from the standard of care, and her deviation increased the risk of harm, but the increased risk was not a “substantial factor” in bringing about Ms. Flood’s injuries and/or death. This third point (was the increase risk a substantial factor) is NOT something that appears on the model jury questions.
Daniel Levy of the firm filed an appeal, arguing that it was error for the trial judge to depart from the model jury questions. Oral argument before the three judge panel occurred in January, 2013. On June 13, 2013, the Appellate Division delivered a 32 page published opinion. Unfortunately, the Appellate Division affirmed the trial judge, and surprisingly, rejected the model questions that trial judges across the state typically use. This was puzzling since the defendant was not even arguing that the model questions were wrong – she argued that that questions that were used were just as good.
The case was discussed in an article in this week’s New Jersey Law Journal.
Medical malpractice suits can be difficult to try, especially when jurors must sort out liability issues involving multiple doctors and pre-existing conditions.
A state appeals court held Thursday that standard jury interrogatories used in those situations are “erroneous” and called on the Model Civil Jury Charge Committee to fix them.
Until the committee acts or the Supreme Court weighs in, trial judges face the dilemma of whether to keep using the interrogatories or abide by Flood v. Aluri-Vallabhaneni, A-4248-11, a precedential decision.
The decision throws the entire system of model jury questions to the wind and we are now in a state of flux. Ultimately, the Supreme Court of the committee on model jury charges (or both) will need to weigh in on this issue.