In an opinion issued in December 2014 that recently became final, the Kentucky Supreme Court issued important guidance on proper jury instructions concerning causation of a plaintiff’s injury or death. In Branham v. Rock, 2012-SC-707, a decision authored by Justice Michelle Keller arising out of a medical malpractice action, the Court held that a so-called “Deutsch v. Shein” instruction — asking the jury whether the defendant’s negligence caused the event that resulted in injury or death, as opposed to causing the injury or death itself — is appropriate only when the defendant has claimed that there was an intervening superseding cause and the trial court has determined that the intervening event was not a superseding cause as a matter of law. In the absence of such a defense and finding, the jury should be asked only whether the alleged negligence caused the injury complained of or death, as opposed to a particular event that resulted in injury or death.
Incidentally, foreseeability of an intervening (subsequent) event causing injury normally precludes a finding that the event was a superseding cause as a matter of law. The classic example of this concept is the traditional rule that a tortfeasor is also theoretically responsible for further injury that the victim might suffer as a result of negligent medical treatment necessitated by the original injury (though in reality that situation is more likely to be the subject of a claim by the plaintiff against the health-care provider, an apportionment instruction, or an indemnity claim).
Also, a claim of intervening superseding cause is an affirmative defense that must be pleaded under CR 8.03, for which the defendant bears the burden of proof. Thus, a defendant should presumably be able to argue persuasively against a Deutsch v. Shein instruction proffered by the plaintiff even if a causation defense was protectively pleaded.
The Branham decision also upheld the trial court’s exclusion of evidence concerning the defendant physician’s prior unrelated medical licensure discipline as irrelevant, as well as the trial court’s finding that impeachment of the physician’s testimony about the irrelevant licensure action would have been collateral and was thus inadmissible.
The decision became final on January 8, 2015, and will be published soon in the South Western Reporter.
David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
