Medical Malpractice Case Illustrates Tension In Review Of Judgment Notwithstanding Verdict

Katherine Bergman’s baby died during child birth. She sued the doctor and the hospital for medical malpractice. Katherine got a verdict for more than $1.5 million. The doctor appealed, and among other things, claimed he was entitled to judgment notwithstanding the verdict (jnov). The First District Illinois Appellate Court affirmed the judgment.

This opinion points to an important inconsistency in appeals from jury verdicts. The court identified the standard of review of a denial of a motion jnov: de novo review.

On his motion jnov, the doctor asserted “that there was no basis for plaintiff’s theory that the standard of care required Dr. Kelsey [defendant doctor] to give plaintiff antibiotics upon admission to the hospital.” There was conflicting expert testimony on this issue. Affirming the jury verdict, the appellate court stated: “This conflicting evidence regarding the standard of care for administering antibiotics was properly submitted to the jury, and this court will not usurp the function of the jury and substitute its judgment for that of the jury.”

So while stating that the standard of review was de novo — requiring the appellate court to make its own assessment of the evidence — the court gave deference to the jury verdict. But de novo review is inconsistent with giving deference to the jury. If you’re deferring to the judgment of the jury, then you’re not doing a fresh assessment − i.e., doing a de novo review.

You can read the whole opinion (which does not consider this problem), in Bergman v. Kelsey, No. 1-06-1296 (8/2/07), by clicking here.

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