stating that, generally, a defense verdict will almost always be supported by substantial evidence, because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence
How later courts described this case
- stating that, generally, a defense verdict will almost always be supported by substantial evidence, because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence
Written by the judges who cited it.
The opinion
PHILLIP T. WHITEAKER, Judge, concurring.
I concur in the majority’s analysis. I write separately solely to emphasize that the jury verdict was supported by the evidence and was determined by the manner in which the evidence was presented to the jury.
The facts can be boiled down to the following: Ms. Thomas suffered from chronic diverticulitis. In September 2005, Dr. Sharon removed the sigmoid portion of her colon and performed an anastomosis (Surgery # 1). When the anastomosis failed, Dr. Sharon performed a second surgery to repair the damage (Surgery # 2). During Surgery # 2, Dr. Sharon failed to remove a six-inch surgical clamp from Thomas’s abdomen. Surgery # 2 was performed at St. John’s Hospital — Berryville. When Thomas began to manifest symptoms of respiratory distress, Thomas was transferred to a hospital in Springfield, Missouri. A CT scan was subsequently performed, which revealed the retained clamp. A third surgery was performed |10to remove the clamp. During that surgery, infection unrelated to the retained clamp was discovered. That infection would have eventually resulted in the third surgery, even if the clamp had not been mistakenly retained during Surgery #2.
Ms. Thomas subsequently filed suit against two parties. First, she alleged that Dr. Sharon was negligent in performing Surgery # 1, which resulted in the failed anastomosis, and that he negligently failed to remove the surgical clamp during Surgery #2 1 Dr. Sharon denied negligence for his performance in Surgery # 1, but stipulated that he was negligent in failing to remove the surgical clamp in Surgery # 2. However, he denied that his' admitted negligence in Surgery #2 was the proximate cause of Ms. Thomas’s injuries. Ms. Thomas also sued St. John’s Hospital — Berryville, the facility where Surgery #2 was performed. Like Dr. Sharon, the hospital stipulated to negligence in Surgery # 2, but denied that this negligence was the proximate cause of any of Ms. Thomas’s damages.
At trial, Ms. Thomas’s expert testified that Dr. Sharon was negligent in performing Surgery # 1 and that the negligence in Surgery # 1 and Surgery # 2 combined to cause Ms. Thomas’s damages. Thomas had the burden of proof on her damages. Thomas failed to differentiate the damages from each respective surgery for the jury. Rather, the damages were lumped together without clearly identifying for the jury which damages were caused by the alleged negligence in Surgery # 1 or the stipulated negligence in Surgery # 2. Then, when the trial court instructed the jury at the close of the case, the instructions also did not separate the [ntwo surgeries as separate causes of action. 2 Rather, the jury was simply instructed that Thomas had the burden of proving that she had sustained damages; that Dr. Sharon and St. John’s Hospital (or one of them) was negligent; and that such negligence was the proximate cause of Thomas’s damages. Thus, the jury was allowed to find that Thomas failed to meet her burden of proving that she suffered any damages related to Surgery # 2. And, given our deference to jury verdicts, especially the deference given to verdicts for the defense, 3 the majority properly concludes that the jury verdict was supportable.
. Thomas does not appeal the jury's finding of negligence from Surgery # 1.
. The jury instruction referenced here was proffered by Thomas.
.See Thomas v. Olson, 364 Ark. 444 , 220 S.W.3d 627 (2005) (stating that, generally, a defense verdict will almost always be supported by substantial evidence, because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence).