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Seventh Circuit Affirms Denial Of Negligence Per Se Jury Instruction In Medical Malpractice Case


HLD, v. 30, n. 1 (January 2002)

Seventh Circuit Affirms Denial Of Negligence Per Se Jury Instruction In Medical Malpractice Case

Plaintiff Lisa Cooper was approximately thirty weeks pregnant while vacationing in Eagle River, Wisconsin. After experiencing severe cramping, she sought treatment at Eagle River Memorial Hospital (Eagle River). Diego Perez, a nurse practitioner, examined Cooper, diagnosed her with mild dehydration and hypoglycemia, and discharged her. Cooper's pain worsened, and she subsequently sought treatment at Howard Young Medical Center (Howard Young). Cooper received an emergency Cesarean section, and her baby required an emergency transfer to a different clinic. Cooper's baby died eight days later. Cooper filed a medical malpractice claim against Eagle River, alleging that it negligently failed to arrange a physician consultation, failed to conduct standard medical monitoring procedures, and failed to immediately transfer her to Howard Young. A jury found in favor of Eagle River, and Cooper appealed. Cooper also appealed Eagle River's award of $17,697 in costs.

The Seventh Circuit affirmed the decision of the district court. First, the appeals court held that the district court did not err in refusing to provide the jury with a negligence per se instruction based on Eagle River's alleged violation of two provisions of the Wisconsin administrative code. The appeals court rejected Cooper's argument that a per se instruction was necessary because the nurse practitioner failed to consult with a physician and because Eagle River failed to maintain written policies regarding emergency care. The appeals court held that, under Wisconsin law, a negligence per se instruction would be appropriate only if Eagle River violated a "safety statute." The appeals court determined that Cooper did not establish that the two administrative code provisions at issue constituted "safety statutes" because they were regulatory in nature and did not "evince a clear and unambiguous legislative desire to establish civil liability." The appeals court further determined that a "negligence per se instruction would improperly focus the jury's attention on whether Perez complied with the licensure statute governing nurse practitioners. Instead, the appropriate inquiry should have been, as the district court instructed, whether Perez's care for Cooper fell within the appropriate standards of care for nurse practitioners."

In addition, the appeals court held that the district court did not err in excluding evidence regarding Eagle River's written operating policies and procedures because Cooper did not present evidence to establish that those written policies were in effect at the time she received treatment at Eagle River. The appeals court also upheld the testimony of a family physician, who testified, on Eagle River's behalf, as an expert on the appropriate standard of care for nurse practitioners. The appeals court noted that trial court judges have broad discretion in determining expert qualifications, and the judge's decision in the instant action was not manifestly erroneous. The appeals court also rejected Cooper's argument that Eagle River should be "judicially estopped" from presenting the physician's testimony because Eagle River objected in a motion in limine to non-nurse practitioners testifying regarding the proper standard of care. The appeals court noted that the district court judge overruled Eagle River's objection and therefore Eagle River was free to follow the judge's decision. Finally, the court affirmed the award of costs because Cooper failed to comply with Fed. R. Civ. P. 54(d)(1) by filing her objection within five days of the entry of the order.

Cooper v. Eagle River Mem'l Hosp., Nos. 00-3943, 01-1040, 2001 WL 1285550 (7th Cir. Oct. 25, 2001) (13 pages).

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