Michael Rine, an Infant and Incompetent, by and Through His Mother, Natural Guardian and Next of Friend, Traci L… (West Virginia 1992)

Summary

The court reversed a defense verdict in a medical malpractice action and remanded for a new trial. It held that an initially negligent physician may be liable for foreseeable aggravation caused by subsequent negligent medical treatment undertaken to mitigate the original harm, and that the jury was not adequately instructed on that theory. The court also found that two jurors should have been struck for cause and that deposition testimony from an available witness was improperly admitted without a showing of unavailability.

Holding

Liability for subsequent negligent medical treatment. A negligent physician is liable for aggravation of injuries resulting from subsequent negligent medical treatment when the treatment is foreseeable and was undertaken to mitigate the harm caused by the physician's own negligence.

Jury instruction on subsequent negligent treatment. The trial court erred by refusing the plaintiffs' instruction on the physician's liability for foreseeable subsequent negligent treatment because the charge did not adequately present that theory to the jury.

Challenges for cause to prospective jurors. The trial court abused its discretion by failing to strike two prospective jurors for cause where their employment, relationships, and statements created doubts about their impartiality.

Admission of deposition testimony from an available witness. The deposition of the plaintiff's sister should not have been used because the proponent did not show that she was unavailable, and the testimony was prejudicial because it concerned the child's condition at birth, a key issue in the case.

Leading questions by an adverse party's counsel. When an adverse party or a witness favorable to the adverse party is called by the opponent, leading questions by the adverse party's own counsel on cross-examination will usually not be allowed.

Michael Rine, an Infant and Incompetent, by and Through His Mother, Natural Guardian and Next of Friend, Traci L…

Summary

Holding

Cited authorities

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