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No expert needed for intervening negligence instruction


A surgeon who placed a stent that was later sheared off during a subsequent surgery and ended up in the patient’s heart was properly allowed to beat back a negligence lawsuit by arguing that the second doctor had committed negligent acts of his own, even though no expert witness testimony directly addressed the issue at trial, the North Carolina Court of Appeals has ruled.

Delacey Miles underwent a surgery in 2011 during which Dr. Andrew Hearn inserted a stent, about 60 mm in length, to unblock her innominate vein, which carries oxygen-depleted blood back to the heart and had become blocked, probably from previous catheter placements for her dialysis treatments.

Three days later, Miles needed a “permacath placement” in her jugular vein to establish new access for her dialysis. To create that access, another surgeon, Dr. Gregory Schnier, passed a catheter from the jugular vein through a larger vein, the superior vena cava, and into the right atrium of the heart. There was no evidence that Schnier knew that the stent Hearn has placed three days prior was obstructing the larger vein.

During the procedure Miles experienced an abnormal heart rhythm, and the hospital staff discovered a “foreign body” in her right ventricle, which turned out to be part of the stent that Hearn had inserted and had broken off. Miles remained hospitalized for several weeks until she entered a nursing home and subsequently died from other causes.

Her estate sued both Hearn and Schnier for medical negligence, but at trial, before opening statements, it dismissed Schnier from the suit, leaving Hearn as the only defendant. The estate alleged that he had improperly placed the stent that was broken during the subsequent procedure and lodged into her heart, causing severe, permanent, and disabling injuries.

What they say about two wrongs

After the close of evidence, Alamance County Superior Court Judge A. Graham Shirley, at Hearn’s request, gave an instruction on the theory of intervening negligence, telling the jury that if it determined that Schnier had acted negligently, that would insulate Hearn from liability for any negligence of his own. The jury ultimately returned a verdict finding Hearn not negligent.

Miles’ estate appealed, arguing that Shirley had erred by giving the instruction because it wasn’t supported by the evidence and shouldn’t have been given because no expert witness directly established the standard of care Schnier owed, that he breached that standard of care, or that such a breach proximately caused Miles’ injury.

Judge Philip Berger Jr., writing for a unanimous panel in a Jan. 21 opinion, disagreed, holding that direct expert testimony establishing the elements of intervening negligence isn’t required for such a jury instruction, and enough evidence was presented for the jury to decide whether any negligence on Hearn’s part was insulated by a superseding cause, given that both sides’ expert witnesses testified that Hearn had no reasonable ground to anticipate Schnier’s subsequent conduct. Since two theories of proximate cause were presented at trial, the trial court didn’t err in giving the instruction.

“In order to warrant an instruction on intervening negligence, there needs to be evidence tending to show an intervening cause, whether culpable, intentional or negligent, broke the connection of the original wrongdoer and that the original wrongdoer had no reasonable ground to anticipate it,” Berger wrote.

Intervening negligence is an extension of proximate cause, Berger wrote, and case law demonstrates that “if the evidence at trial, whether plaintiff’s own evidence or other evidence, reveals that a cause may have been a sufficient intervening cause of the injuries alleged, an instruction on intervening negligence is proper. As long as the intervening cause is ‘an independent force, entirely superseding the original action and rendering its effect in the causation remote,’ an instruction may be warranted.”

Some things you can’t foresee

Even if a third party isn’t a party at trial, as was the case with Schnier, an intervening negligence instruction may be given if the evidence shows that the third party’s conduct was a sufficient “intervening cause.” In this case, Hearn had presented enough evidence at trial to permit the jury to decide whether he was insulated from any negligence he may have committed.

Both of his experts testified that the fracture of the stent was unforeseeable and that Hearn complied with the statutory standard of care. The estate’s expert testified that Hearn could anticipate subsequent procedures being needed or performed on a patient like Miles, but told jurors that it wasn’t foreseeable that the stent Hearn had placed would be fractured and that had Schnier performed his procedure properly, the likelihood of having a sheared off stent was low.

“Here, sufficient evidence demonstrates that Dr. Hearn could not anticipate Dr. Schnier’s subsequent conduct,” Berger wrote.

Gray Wilson of Nelson Mullins Riley & Scarborough in Winston-Salem, who represented Hearn, said the decision provided a valuable reminder to attorneys about the importance of jury instructions.

“We were delighted with the opinion of the Court of Appeals,” Wilson said, particularly as the court recognized the sufficiency of evidence that was presented with regard to intervening negligence. “The plaintiff’s own expert opined that [Dr. Schnier] was negligent—that’s the intervening cause right there.”

John J. Korzen of the Wake Forest University School of Law Appellate Clinic, who represented Miles’ estate, did not respond to a request for comment.

The 19-page decision is Hampton v. Hearn (Lawyers Weekly No. 011-022-20). The full text of the opinion is available online at

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