S.A. v. Freedman
Plaintiffs, a minor, and his mother, as guardian ad litem, sued defendant and respondent for medical malpractice, alleging that Dr. Freedman negligently performed a hydrocelectomy on Sean, causing the boy to lose one of his testicles. Plaintiffs case was submitted to the jury under dual theories of general negligence and conditional res ipsa loquitur, giving the jury the option of finding Dr. Freedman negligent either because the surgery was performed below the standard of care expected of urologists in similar circumstances (general negligence) or because Seans injury ordinarily would not have occurred in the absence of Dr. Freedmans negligent performance (res ipsa loquitur).
Plaintiffs timely appeal raises two issueswhether the trial court erred in granting Dr. Freedmans motion for JNOV and whether the trial court abused its discretion in ordering a new trial for insufficient evidence. As to the first issue, our independent review discloses substantial evidence of negligence based on res ipsa loquitur to support plaintiffs verdict. Nevertheless, our deferential review finds support for the trial courts discretionary new trial order. Court therefore reverse the trial courts entry of a judgment notwithstanding the verdict, but affirm the granting of the new trial motion.
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