Instruction errors are "harmless", Doctor's insurer taxes $59,000 in costs after verdict

A woman whose saphenous nerve was apparently severed during surgery brought a malpractice action against the orthopaedic surgeon who performed the surgery, Dr. Anthony De Bari.  In Scott-Mason v. De Bari, a Saginaw judge allegedly erred in several rulings, and the reviewing court admitted that it erred with respect to the jury instructions, but the verdict was not overturned.  The Court held that it was "likely" that the court's errors did not influence the jury or change the outcome.  We are uncomfortable with that conclusion, however, and with the appellate courts' increasing reluctance to insist upon a properly-charged jury. 

This principle is demonstrated, we think, in one of the errors that occurred in this case.  During opening statement, the Defense attorney claimed that his client did nothing wrong because "the saphenous nerve was not in his operative field":  according to the appellate court, during trial, the experts called to defend the doctor admitted that the nerve was in the operative field.  In essence, the defense was allowed to change its theory mid-trial, and to confuse the standard of care.  It was the Court's duty to prevent this kind of machination, and the less sophisticated jurors should not be expected to "catch" this kind of behavior in their first exposure to a civil trial.

In our experience, if an incorrect instruction or an error admitting evidence significantly weakens a party's claim, there is a spill-over effect on the jury's perception of the entire claim.  In other words, if a jury is certain--because of an error in evidence or instruction--that a party cannot prove causation of an injury, it is far less likely to respect the case in general and the attorneys and experts who are advocating it. The glaring problem with the case taints the entire case.

In any event, the Appeals panel deemed the Saginaw judge's errors to be "harmless" and rejected the victim's appeal.  It upheld the trial court's award of almost $60,000.00 in sanctions to the doctor's insurer, thus, adding insult to injury.  Go in for surgery; an unrelated nerve is apparently severed; you are denied any compensation; and you must pay an exorbitant fee for your day in court, and for the malpractice insurer's confused and inconsistent defense of the claim.  Something is wrong with this picture, but it is not an isolated picture in Michigan.