As a Pennsylvania medical malpractice lawyer, I was interested to see a recent decision from neighboring Ohio on whether an entire medical malpractice case must be retried when one element must be retried. In State ex rel. Mullins v. Curran et al., the Ohio Supreme Court took away a writ of prohibition that would have barred the trial court from retrying negligence and damages in a medical malpractice case as well as a missing jury instruction. Lisa Mullins sued Dr. Gregory McDaniel and Comprehensive Pediatric and Adult Medicine for alleged negligence leading to the death of her husband, Charles Mullins. After Mullins won, the defendants successfully appealed, winning a new trial. On remand, Lisa asked for a writ prohibiting the court from retrying the liability and verdict, which was granted by the appeals court but overturned by the high court.
Mullins sued in 2004 and a jury found for her in 2007. The opinion does not detail the facts of the case except to say that the jury found negligence by McDaniel and Comprehensive, which it determined was a proximate cause of the death of Charles Mullins. The defendants appealed the trial court’s refusal to instruct the jury on possible contributory negligence by Lisa Mullins, and the denial of a new trial. They won, and in the opinion granting this, the Court of Appeals “remand[ed] this matter to the trial court for further proceedings.” Mullins filed a request to keep the verdict and jury findings while retrying only the issue of contributory negligence. The trial judge denied this, saying a full retrial was consistent with the appeals court’s mandate, so Mullins filed with the appeals court for a writ limiting the retrial to the issue of contributory negligence. She won this over objections from the judge, the Court of Common Pleas and the defendants, who appealed to the Ohio Supreme Court.
The high court found the judge reasonable in his conclusion that the appeals court intended to order a retrial. The appeals court did not specifically limit what should be reviewed, the Supreme Court noted, and its original opinion was less than clear. Because it later granted the writ of prohibition to Mullins, the court noted, it’s now clear that the appeals court did want to limit the retrial to contributory negligence. Nonetheless, it said Mullins has an adequate remedy under the law to argue the point, if necessary, by appealing after the retrial. If it were to conclude otherwise, the court found, it would bar the defendants from challenging the merits of the appeals court’s decision to order a limited recall. Thus, it reversed the appeals court. Two justices concurred, pointing out that contributory negligence is a defense to negligence and cannot be tried separately. A dissenter found the retrial “clearly limited” by the appeals court’s language and well supported by its granting of the writ.
As a Philadelphia birth injury lawyer, I understand the concerns that led Mullins to pursue this case. After all, a retrial of the full case invites the possibility that Mullins may lose before a different jury, which would lose her the case even though the law and facts underlying the original victory were not questioned. The court is right to observe that contributory negligence — the degree to which a plaintiff like Lisa Mullins may be responsible for the injury — may be a defense to negligence. But as a Pennsylvania medical negligence lawyer, I suspect it may be difficult to prove that Lisa Mullins bore most of the responsibility for a death originally attributed to doctors’ mistakes.
Based in Philadelphia, Rosenbaum & Associates represents families across eastern Pennsylvania who suffered injuries or deaths because of a medical professional’s mistake. If you or someone you love was hurt and you’d like to learn more, call us today at 1-800-7-LEGAL-7 or send us a message online.
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