Appellate Law

Notice Of Appeal Saves Doctor From Forfeiting Reversal Argument

By Steven R. Merican

A baby sustained serious injuries at birth. His parents sued the doctor who performed the delivery for medical malpractice. The parents got a favorable trial verdict, so the doctor appealed.

In the appellate court, the doctor claimed he should have been awarded a directed verdict by the trial court ?because there was a total failure of proof on the element of proximate causation.? But the doctor?s brief asked for a new trial, but did not ask the appellate court to reverse based on insufficient evidence.

The Second District Illinois Appellate Court ruled that the doctor forfeited ?in [his] brief? the argument that the judgment should be reversed for lack of evidence. The court then reviewed the doctor?s notice of appeal, which did ask to ?vacate or reverse the judgment, to enter judgment notwithstanding the verdict in their [parent?s] favor ? and to grant any other relief warranted by the applicable law and record on appeal.?

The appellate court acknowledged that notices of appeal should be construed liberally, and decided to consider the doctor?s ?alternative argument that they [doctor] are entitled to a directed verdict or a judgment n.o.v. [notwithstanding the verdict].?

The lesson is: Make sure your notice of appeal asks for a broad range of relief. There should be no harm done if you later decide to forego some aspect of the relief requested in the notice. But if it arguably is not there, you might unwittingly be forfeiting it.

Get the whole opinion, Northern Trust v. Burandt and Armbrust, No. 2-08-0193 (7/27/10), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on October 31, 2010 (boomark / email).