The jury returned a 50/50 verdict likely due to evidence that the plaintiff did not follow-up after the surgery with his providers. Jury instructions 27 and 28 focused on Plaintiff’s failure to use reasonable care to provide for his own health and safety. Instruction 27(2) stated, “In this action, Dr. Landau claims that Mr. Taylor failed to use reasonable care in the following respects: By not following up to see Dr. Landau at any time following the urological procedure at issue, including not following up after complications started to arise.”

Defense counsel summarized the issues at trial as follows:

“The main issue in this case was whether the patient was told he had a stent placed, and whether he was told to follow-up to have the stent removed. There was no mention of a stent in the informed consent and no mention of a stent in the hospital discharge instructions, so Plaintiff argued he had no idea that a stent was ever placed. The only defense we had was a discharge summary dictated two weeks late that mentioned that the patient was informed of the stent and the need to return for removal. Plaintiff countered that the patient was doped up on IV narcotics at the time of this alleged conversation and would not have remembered this discussion (even if it had occurred). None of the defense witnesses had any memory the care and treatment from 7 years ago. The Defense argued contributory negligence (i.e., that the Plaintiff failed to return for any follow-up even after he experienced the alleged 8 or 9 urinary tract infections over an 18-month period).”

You can find the final jury instructions here and the special verdict form here.