Cases

Plaintiffs’ son was struck by a foul ball while watching a major league baseball game, knocking him unconscious for approximately one minute. He was treated by the doctor who operated the emergency first aid station at the stadium who, after a brief examination, advised plaintiffs’ son that he had a bump on the head but appeared to be all right and that he could return to his seat. That same night, plaintiffs’ son was admitted to the hospital, where he died four days later from an intracerebral hemorrhage.

In a wrongful death action against the baseball club and the doctor operating its emergency medical facility, plaintiffs’ experts testified that the doctor was negligent in treating decedent, and that his failure to immobilize decedent during the period immediately following his injury probably prevented the hemorrhage from spontaneously stopping as the result of the body’s normal healing processes. Plaintiffs’ experts also testified, however that decedent could have been saved by emergency surgery after being admitted to the hospital. Such surgery was never performed.

During oral argument, defendants’ counsel argued that the hospital’s negligence in not performing the surgery was the legal cause of decedent’s death, and not any negligence on behalf of the defendant. Plaintiffs’ request for an instruction that the intervening conduct of the hospital contributing to decedent’s death was no defense to defendants’ liability for negligence, was denied. The jury subsequently returned a verdict in favor of defendants.

1. The claimed negligence of the defendant doctor and the hospital were concurrent causes of decedent’s death, and that it was no defense to plaintiffs’ claim based on defendant’s negligence that the conduct of the hospital was also a substantial factor contributing to decedent’s death.
2. The trial court erred in refusing the requested instruction advising the jury of the rule applicable to concurrent causation, and the error was prejudicial.
3. Since the jury was instructed that if it found the doctor to be not liable, then the baseball club was also not liable, there was no occasion for the jury to consider the issue of agency or ostensible agency, and thus the judgment in favor of the baseball club also required reversal.