State Appellate Court Calls for New Trial: Omitting ‘If/Then’ Language From Proposed Med-Mal Jury Instruction Was Prejudicial

“Here, we agree with the estate that instruction sixteen as presented to the jury misled the jury by its phrasing. By omitting the operative ‘if/then; language from the proposed instruction, the instruction transformed from an instruction asking the jury to decide whether an alternative approved method of treatment was used (which, if so found, would preclude a negligence finding) to an instruction directing the jury that Cloos did employ an alternative approved method of treatment and was not negligent,” Judge Paul B. Ahlers wrote.