“Two Issue Rule” Saves General Verdict For Doctor In Medical Malpractice Case

Wanda Boone died after her surgeon did not remove a cancerous tumor from her colon during a first surgery. The tumor was removed during a second surgery five days later. Wanda’s estate sued the surgeon, James Boffa, for medical malpractice, claiming Wanda died from the stress of the second surgery.

After trial, a jury found in favor of Dr. Boffa. The jury’s finding was a general verdict – i.e., the jury was not asked, and did not say, what defense theory it relied upon.

Dr. Boffa had two theories of defense. The First District Illinois Appellate Court rejected one of those theories — that there was another sole proximate cause for Wanda’s death — for lack of evidence. Wanda’s estate argued that the general verdict for Dr. Boffa therefore should be reversed.

The appellate court disagreed. The court relied on the “two issue rule” in affirming the doctor’s verdict. Here’s how the appellate court explained it:

“… [W]hen the jury returns a general verdict for the defendant, the ‘two issue rule’ is applied by focusing on the defenses * * *.” … Thus, “where two or more defense theories are presented to the jury and it returns a verdict for the defense, an appellate claim of error as to one defense theory will not result in reversal since the verdict may stand based on another theory.” …

In the instant case, defense counsel asserted two proximate cause defenses. First, the decedent’s preexisting health problems, which included congestive heart failure, diabetes, and renal failure. Dr. Boffa opined that the decedent died from multisystem organ failure beginning with the decedent’s impaired kidney function, which affected her heart and lungs.

And second, the failure of gastroenterologist Dr. Nasiff to precisely pinpoint the location of the tumor in his colonoscopy report. Defense counsel contended the decedent was required to undergo a second colon surgery because the colonoscopy report misled Dr. Boffa as to the precise location of the tumor during the first surgery. [This was the “other sole proximate cause defense the appellate court rejected.]

Because the jury rendered a general verdict for defendant and could have relied upon the first proximate cause defense to find no liability and because there was ample evidence supporting this defense …

The whole case, Robinson v. Boffa, No. 1-07-1128 (6/14/10), is available by clicking here.