This section contains the nature of the case and procedural background.

P was born an unusually large baby whose mother suffered from gestational diabetes which contributed to difficulties during delivery. Dr. Rogatnick (D), the obstetrician who had charge of the ante partum care of P's mother and who delivered P, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that Dr. Harris (D), the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant's condition after birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate acts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice. Dr. Rogatnick's negligence contributed to Josephine's brain damage. The medical testimony demonstrated that Dr. Harris' negligence was also a substantial contributing cause of the injury. There was no evidence presented where the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors. The court instructed the jury that if it was not possible to determine what proportion each contributed to the injury, they could find each responsible for the entire injury even though the act of one may not have caused the entire injury, and even though the acts of negligence were not equal in degree. The court also instructed the jury that if they found both defendants responsible for the plaintiff's injury 'then you will evaluate their respective faults in contributing to the infant's condition.' The jury returned a verdict for P in the total amount of $2,750,000 attributing 80% of the 'fault' to Dr. Rogatnick and 20% of the 'fault' to Dr. Harris. Dr. Harris (D) appealed.

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