Kennelly v. Burgess

CHASANOW, Judge.

The issue this Court must resolve in the instant case is whether, in a medical malpractice case, a jury instruction that “an unsuccessful result following medical treatment is not evidence 0/negligence” is erroneous. We must also consider whether, having given this “mere happening” type of instruction, the trial court should have given an additional instruction that an expert witness may infer negligence from the negative results of a medical procedure. We hold that the instruction as given was erroneous. We further hold that, even had the first instruction been a proper “mere…