Arkansas Medical Malpractice Defendant Failed To Preserve Issues For Appeal

162017_132140396847214_292624_nIn an Arkansas medical malpractice case decided by the Arkansas Court of Appeals on March 8, 2017, the Arkansas medical malpractice defendant argued that the plaintiff had failed to prove negligence during the trial, contending that the evidence was insufficient to show that his failure to perform an endorectal ultrasound prior to performing the surgery on the plaintiff was negligent, and that the evidence was insufficient to show that he had failed to obtain informed consent from the plaintiff prior to performing the surgery.

The Arkansas Court of Appeals held that neither of these specific arguments was presented to the trial court and therefore the Arkansas medical malpractice defendant failed to preserve his arguments on appeal. The Arkansas Court of Appeals affirmed on this issue without reaching the merits of the defendant’s arguments.

The Underlying Facts

The plaintiff was referred to the defendant surgeon after a biopsy of a lesion in the plaintiff’s colon indicated cancer. The defendant subsequently performed an abdominal perineal resection (APR) on the plaintiff that removed the plaintiff’s rectum. Pathology studies, however, revealed that the tumor in the plaintiff’s rectum was not cancerous. As a result of the surgery, the plaintiff is required to wear a permanent colostomy.

The plaintiff filed his Arkansas medical malpractice case against the defendant surgeon in which he alleged that the defendant was negligent in both his failure to perform sufficient diagnostic testing procedures prior to surgery to determine the stage of the tumor and his failure to obtain the plaintiff’s informed consent.

The Arkansas medical malpractice jury found that the defendant surgeon was negligent and awarded the plaintiff $1 million in compensatory damages pursuant to a general verdict form. After the judgment was entered, the plaintiff filed a motion seeking prejudgment interest and costs, which the trial court subsequently granted, finding that the plaintiff was entitled to prejudgment interest from the date of the surgery. The defendant appealed, challenging both the sufficiency of the evidence supporting the Arkansas medical malpractice jury’s verdict and the trial court granting prejudgment interest.

The Arkansas Court Of Appeals Opinion

The Arkansas Court of Appeals stated that Arkansas Rule of Civil Procedure 50(a) (2016) provides, in part, that a “motion for a directed verdict shall state the specific grounds therefor,” and that the purpose of this requirement is to ensure that the specific ground for a directed verdict is brought to the trial court’s attention. In order to preserve for appeal the issue of sufficiency of the evidence, the party moving for a directed verdict must state the specific ground upon which it seeks such relief. Failure to state the specific grounds for relief in a directed-verdict motion precludes the review of the issue on appeal.

On appeal, the defendant argued that the plaintiff failed to prove negligence: that the evidence was insufficient to show that his failure to perform an endorectal ultrasound prior to performing the surgery on the plaintiff was negligent. The defendant also argued that the evidence was insufficient to show that he failed to obtain informed consent from the plaintiff prior to performing the surgery.

The Arkansas Court of Appeals stated, however, that it was clear that the defendant surgeon’s directed-verdict motion stated nothing more than that he “would move for a directed verdict on all issues in the case, damage, proximate cause, and standard of care,” and that his motion mentioned proximate cause only generically and did not specifically mention negligence or informed consent at all.

The Arkansas Court of Appeals held that neither of the defendant’s specific arguments was presented to the trial court and therefore the defendant failed to preserve his arguments for appeal.

Award Of Prejudgment Interest

With regard to the trial court’s award of prejudgment interest (prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment), the Arkansas Court of Appeals stated that the general rule is that prejudgment interest is not recoverable on claims that are neither liquidated as a dollar sum nor ascertainable by fixed standards: prejudgment interest is allowable where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion.

The Arkansas Court of Appeals held that the plaintiff was not entitled to prejudgment interest where only a general verdict is returned which includes an award for personal injuries. The Arkansas Court of Appeals agreed with the defendant’s argument that the general verdict did not assign a precise computation or specific dollar value to any of the elements of damage and therefore it is not possible to compute the amount without reliance on opinion or discretion for any of them; moreover, there was no way to ascertain the plaintiff’s damages at the time of loss.

Source Williams v. Shackelford, 2017 Ark. App. 149.

If you or a loved one may be the victim of medical malpractice in Arkansas or in another U.S. state, you should promptly consult with an Arkansas medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.

Click here to visit our website or telephone us toll-free in the United States at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your medical malpractice claim.

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This entry was posted on Saturday, March 18th, 2017 at 5:18 am. Both comments and pings are currently closed.

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