Doctors must request special verdict to appeal a finding of malpractice on evidential insufficiency grounds

August 23, 2013

Pratt v. Petelin, — F.3d —, 2013 WL 4405694 (10th Cir. 2013)

The Tenth Circuit has recently delivered an important decision with regard to appellate procedure in the medical malpractice area.

This decision involved a patient whose suit against her doctor relied on four different malpractice theories.  The doctor did not request special verdicts on those allegations. After trial, the jury delivered a general verdict against the doctor. The doctor appealed this verdict on evidential insufficiency grounds.

The Tenth Circuit ruled that the doctor’s failure to request special verdict form as to each factual theory developed by the patient precluded him from challenging sufficiency of the evidence supporting the patient’s case. The patient’s successful showing that there was sufficient evidence to support one factual basis of the alleged malpractice dooms the doctor’s appeal. The appellate court will proceed on the irrebuttable assumption that jurors used this basis in delivering their verdict.

The court also clarified that, in a diversity case, the content of jury instructions is controlled by state substantive law, whereas the determination of whether an instruction was erroneously given is governed by federal procedural law.

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