¶1concurring and concurring specially.
¶2I agree with everything said in the majority opinion, but write separately to emphasize that, as an appellate court, we are not called upon, nor authorized, to decide the ultimate issue of whether Dr. Abend was negligent in treating Suzanne Mercker. After reviewing the record, I cannot dispute that Mercker is suffering from truly distressing circumstances. At trial, both parties presented expert witnesses who gave conflicting testimony concerning whether the care rendered by Dr. Abend proximately caused her injuries. In light of that conflicting testimony, I agree with the majority that the trial court was required to instruct the jury on hindsight.
¶3Although our decisions on issues concerning jury charges and evidence may at times appear hyper-technical, I believe it is important for Mercker and the public to understand that the integrity of our jury trial system rests on such rulings. Ultimately, questions of negligence must be resolved by a jury if the evidence is conflicting, and both the trial and appellate courts strive to ensure that the jury’s decision is based upon competent evidence and sound legal principles. This is an onerous task, especially in a case like this. But the trial court’s rulings were legally correct, and we must, therefore, affirm.