Medical Malpractice Jury Instructions
Plaintiff’s Jury Instruction No. 1
MPJI-Cv 1:1
Introduction
a. Instructions at Beginning of Trial
(1) Explanation of Trial Procedure
Members of the jury, in this case the plaintiff, (name), has sued the defendant, (name), claiming damages for (brief description of claim).
The trial will proceed in the following way. You will first hear opening statements by the lawyers. Each party has the right to make an opening statement for the purpose of outlining for you what the party expects to prove. The plaintiff’s lawyer will make the first opening statement and then the defendant’s lawyer may choose whether to make an opening statement.
The plaintiff will then present evidence. After the plaintiff’s case has been presented through witnesses and exhibits, the defendant will then have an opportunity to present evidence. Each witness is first examined by the party who calls the witness to testify and then the opposing party is permitted to cross‑examine the witness.
During the trial the lawyers may make objections to the introduction of evidence, or make motions concerning the law. Arguments in connection with objections or motions are usually made out of the hearing of the jury, either here at the bench or after the jury has been excused from the courtroom. This is because questions of law and admissibility of evidence do not involve the jury; they are decided by the judge. It is the duty of a lawyer to make objections and motions which the lawyer believes are proper. You should not be influenced by the fact that a lawyer has made objections or by the number of objections which have been made. You should draw no conclusions from my rulings, either as to the merits of the case or as to my views regarding any witness or the case itself.
After the conclusion of all of the evidence, I will instruct you as to the law which is applicable to this case. You must follow and apply the law as I will explain it to you. After these instructions, the lawyers will make their closing arguments. In their arguments, the lawyers will point out to you what they contend the evidence has shown and the conclusions they would like you to draw from the evidence. The plaintiff’s lawyer will make the first closing argument, then the defendant’s lawyer will make a closing argument. After the defendant’s argument, the plaintiff will have an opportunity to make an argument in rebuttal to the defendant’s argument. What the lawyers say in their opening statements, in their closing arguments, and in making objections or motions during the trial, is not evidence. The reason the plaintiff goes first in each instance is because the plaintiff has the burden of proof.
After closing arguments, you will retire to the jury room and begin your deliberations. It will then be your function and responsibility to decide the facts. You must base your findings only upon the testimony, the exhibits received and the stipulation[s] of the parties and any conclusions which may fairly be drawn from that evidence.
(2) General Principles
The following general principles are intended to assist you in judging the evidence and to guide you in the performance of your duties as jurors during the course of the trial: (MPJI-Cv 1:3, 1:4, 1:5, 1:6, 1:7 and 1:8, to the extent they are applicable, are to be used here.)
(3) Admonitions as to Juror Conduct
This case will probably take (insert number) days to conclude. During that period, there will be recesses and adjournments of court when you will be excused. From this point forward, until the case is over and you have rendered your verdict, you may not discuss the case with anyone who is not on the jury. You may not discuss the case even with each other during the trial. You must wait until after you have heard (1) all of the evidence, (2) my instructions as to the law, and (3) closing arguments. In fairness to all the parties to this case, you should keep an open mind throughout the trial. You should reach your final conclusions only during your deliberations after having heard all of the evidence, my instructions as to the law and the lawyers’ closing arguments. Until the trial is over, you must avoid all contact of any kind with any of the participants in the trial, except for common courtesy such as the exchange of greetings. That includes the parties, the lawyers, the witnesses and any persons whom you see in close contact with these individuals. Do not visit the scene of any incident mentioned in the testimony or seek advice from friends or acquaintances as to any issues in this case or otherwise conduct investigation outside the courtroom. The reason for this is that you must decide the case only on the evidence which you have heard and seen in the courtroom and on nothing else.
b. Instructions at End of Trial
Members of the jury, the time has come for the Court to give you its instructions with respect to the law which is applicable in this case. You must apply the law as I explain it to you. Any comments I may make about the facts are only to help you and you are not required to agree with them. It is your function and responsibility to decide the facts. You must base your findings only upon the testimony, the exhibits received and the stipulation[s] of the parties, including any conclusions which may be fairly drawn from that evidence. Opening statements and arguments of the lawyers are not evidence in this case. If your memory of any of the testimony is different from any statement that I might make during the course of these instructions or that counsel might make in argument, you must rely on your own memory.
c. Witness and Party
Any person who testifies, including a party, is a witness.
Plaintiff’s Jury Instruction No. 2
MPJI-Cv 1:2
Questions of Law During Trial
During the course of the trial, it has been my duty to rule on a number of questions of law, such as objections to the admissibility of evidence, the form of questions, and other legal points. You should not draw any conclusions from these rulings either as to the merits of the case, or as to my views regarding any witness, party, or the case itself.
It is the duty of a lawyer to make objections which that lawyer believes are proper. You should not be influenced by the fact that these objections were made, no matter how the court may have ruled on them. You must disregard any evidence which I have ordered stricken.
Plaintiff’s Jury Instruction No. 3
MPJI-Cv 1:3
Witness Testimony Consideration
You are the sole judges of whether testimony should be believed. In making this decision, you may apply your own common sense and everyday experiences.
In determining whether a witness should be believed, you should carefully judge all the testimony and evidence and the circumstances under which each witness has testified. Among the factors that you should consider are the following:
(1) the witness’ behavior on the stand and way of testifying;
(2) the witness’ opportunity to see or hear the things about which testimony was given;
(3) the accuracy of the witness’ memory;
(4) did the witness have a motive not to tell the truth?;
(5) does the witness have an interest in the outcome of the case?;
(6) was the witness’ testimony consistent?;
(7) was the witness’ testimony supported or contradicted by other evidence?; and
(8) whether and the extent to which the witness’ testimony in the court differed from the statements made by the witness on any previous occasion.
You need not believe any witness even though the testimony is uncontradicted. You may believe all, part, or none of the testimony of any witness.
Plaintiff’s Jury Instruction No. 4
MPJI-Cv 1:6
Inferences From Statements of Court
You should not conclude from any conduct or words of mine that I favor one party or another, or that I believe or disbelieve the testimony of any witness. You, not I, are the sole judges of the believability of witnesses and the weight of the evidence. You must not be influenced in any way by my conduct during the course of the trial.
Plaintiff’s Jury Instruction No. 5
MPJI-Cv 1:7
Burden of Proof - Preponderance of
Evidence Standard
a. Preponderance of the Evidence
The party who asserts a claim or affirmative defense has the burden of proving it by what we call the preponderance of the evidence.
In order to prove something by a preponderance of the evidence a party must prove that it is more likely so than not so. In other words, a preponderance of the evidence means such evidence which, when considered and compared with the evidence opposed to it, has more convincing force and produces in your minds a belief that it is more likely true than not true.
In determining whether a party has met the burden of proof you should consider the quality of all of the evidence regardless of who called the witness or introduced the exhibit and regardless of the number of witnesses which one party or the other may have produced.
If you believe that the evidence is evenly balanced on an issue, then your finding on that issue must be against the party who has the burden of proving it.
Plaintiff’s Jury Instruction No. 6
MPJI-Cv 1:13
Conclusion — Unanimous Verdict
In order to reach a verdict in this case, each of you must agree upon it. Your verdict must be unanimous.
Plaintiff’s Jury Instruction No. 7
6. HEALTHCARE - MEDICAL NEGLIGENCE
- Medical Negligence - Introduction [revised 12/2/98].................................................... ‰ 6.1A
DEFINITION OF MEDICAL NEGLIGENCE
Under a Delaware statute, a healthcare provider that does not meet the applicable standard of care commits medical negligence:
The standard of skill and care required of every healthcare provider in rendering professional services or healthcare to a patient shall be that degree of skill and care ordinarily employed, in the same or similar field of medicine as [the] defendant, and the use of reasonable care and diligence.
The law requires that Dr. Volatile’s conduct be judged by the degree of care, skill, and diligence exercised by doctors of the same or similar medical specialty, practicing at the time when the alleged medical negligence occurred.
On the one hand, if you find that Dr. Volatile failed to meet this standard and that this failure was a proximate cause of some injury to Mrs. Smith, then your verdict must be for Mrs. Smith. (I shall explain what "proximate cause" means in a moment.) On the other hand, if Dr. Volatile did meet this standard, then your verdict must be against Mrs. Smith.
{if applicable, add the following paragraph:}
You have heard testimony that [__national / regional / local__] standards of care were applicable to the treatment received by [plaintiff's name] on [__date(s) of treatment__]. In reaching your verdict, you must decide whether those standards applied to [defendant's name] at that time.
Each physician and healthcare provider is held to the standard of care and knowledge commonly possessed by members in good standing of his or her profession and specialty. It is not the standard of care of the most highly skilled, nor is it necessarily that of average members of this profession, since those who have somewhat less than average skills may still possess the degree of skill and care to treat patients competently. When a physician chooses between appropriate alternative medical treatments, harm resulting from a physician's good-faith choice of one proper alternative over the other is not medical negligence. Mrs. Smith cannot prove that Dr. Volatile committed medical negligence merely by showing that another healthcare provider would have acted differently from Dr. Volatile.
Delaware law further requires that to prove liability, Mrs. Smith must present
"expert medical testimony" showing that "the alleged deviation from the applicable standard of care" caused the injury. You may not guess about the standard of care that applies to Dr. Volatile, or whether a departure from that standard injured Mrs. Smith. You must consider only expert testimony, when you determine the applicable standard, decide whether it was met, and -- if it wasn't -- determine what caused Mrs. Smith’s injury. If the expert witnesses have disagreed on the applicable standard of care, on whether it was met, or on the question of cause, you must decide which view is correct.
No presumption of medical negligence arises from the mere fact that the patient's treatment had an undesirable result. Medical negligence is never presumed. The fact that a patient has suffered injury while in the care of a healthcare provider does not mean that the healthcare provider committed medical negligence.
Comment: This revised instruction reflects the abolition of the "locality" rule, see 18 Del. C. ' 6854 (1996), and other changes in wording made in 18 Del. C. '' 6801(7), 6852(a)(2), 6854 (1998). The revised instruction may apply only to instances of alleged medical negligence arising on or after July 7, 1998, the date on which the relevant revisions to the medical negligence statutes became effective. See Tyler v. Dworkin, Del. Super., C.A. No. 94C-01-54, Herlihy, J. (Nov. 9, 1998)(Bench ruling that change in locality rule is substantive in nature and may not be applied retroactively to claims of malpractice allegedly arising before July 7, 1998); but see Whitt v. Milford Mem. Hosp., Del. Super., C.A. No. 94C-06-284, Bifferato, R.J. (Jan. 26, 1998)(Bench ruling: jury instructed that locality rule no longer applies).}
Source:
18 Del. C. '' 6852; 6801(7), 6852, 6853, 6954; Balan v. Horner, Del. Supr., 706 A.2d 518, 520-21 (1998)(noting physicians with different specialties may share concerns about the diagnosis and treatment of a common medical condition, and where there are concurrent fields of expertise, a common standard of care may be shared); McKenzie v. Blasetto, Del. Supr., 686 A.2d 160, 163 (1996)(application of a national standard of care may be used when that standard is found to be the same as the relevant Delaware standard); Medical Ctr. of Delaware v. Lougheed, Del. Supr., 661 A.2d 1055, 1057-59 (1995); Greco v. University of Delaware, Del. Supr., 619 A.2d 900, 903-04 (1993); Baldwin v. Benge, Del. Supr., 606 A.2d 64, 68 (1992); Riggins v. Mauriello, Del. Supr., 603 A.2d 827, 829-31 (1992); Register v. Wilmington Med. Ctr., Del. Supr., 377 A.2d 8, 10 (1977); Colemen v. Garrison, Del. Supr., 349 A.2d 8, 10 (1975); DiFillippo v. Preston, Del. Supr., 173 A.2d 333, 336-37 (1961); cf. Peters v. Gelb, Del. Supr., 314 A.2d 901, 903-04 (1973)(expert witness who remained in good professional standing but had not actually practiced the particular procedure upon which his opinion was sought could be found by the court as not qualified to testify as an expert).
Sostre v. Swift, Del. Supr., 603 A.2d 809, 812 (1992); Burhart v. Davies, Del. Supr., 602 A.2d 56, 59-60 (1991), cert. denied, 112 S. Ct. 1946, 118 L.Ed.2d 551 (1992); Russell v. Kanaga, Del. Supr., 571 A.2d 724, 732 (1990); Loftus v. Hayden, Del. Supr., 391 A.2d 749 (1978); Ewing v. Beck, Del. Supr., 520 A.2d 653 (1987); Larrimore v. Homeopathic Hosp. Ass'n of Delaware, Del. Super., 176 A.2d 362, 367-68 (1961), aff'd, Del. Supr., 181 A.2d 573, 576-77 (1962)(standard of care for nurses, as for physicians, is a matter of applying the appropriate standard required of the nursing profession in the given circumstances).
Plaintiff’s Jury Instruction No. 8
10. PROXIMATE CAUSE
- Proximate Cause........................................................................................................... § 10.1
PROXIMATE CAUSE
A party's negligence, by itself, is not enough to impose legal responsibility on that party. Something more is needed: the party's negligence must be shown by a preponderance of the evidence to be a proximate cause of the injury.
Proximate cause is a cause that directly produces the harm, and but for which the harm would not have occurred. A proximate cause brings about, or helps to bring about, the injury, and it must have been necessary to the result.
{If applicable}:
There may be more than one proximate cause of an injury.
Source:
Duphily v. Delaware Elec. Coop., Inc., Del. Supr., 662 A.2d 821, 828 (1995); Money v. Manville Corp. Asbestos Disease Comp. Trust Fund, Del. Supr., 596 A.2d 1372, 1375-76 (1991); Culver v. Bennett, Del. Supr., 588 A.2d 1094, 1099 (1991).
Plaintiff’s Jury Instruction No. 9
6. HEALTHCARE - MALPRACTICE
- Agency Of Treating Doctors and Nurses......................................................................... § 6.3
AGENCY OF TREATING DOCTORS AND NURSES
Mrs. Smith seeks to recover damages from the Dickinson Medical Group on grounds that it is liable for the negligence of the Dr. Volatile whose conduct is the subject of this lawsuit.
{If agency is not contested, insert the following}:
Because the medical personnel, that being Dr. Volatile, who treated Mrs. Smith, is an employee or agent of the Dickinson Medical Group the Medical Group is responsible for his acts.
{If agency is contested, see Jury instr. No. 18.1 for additional language.}
Source:
Greco v. University of Delaware, Del. Supr., 619 A.2d 900, 903-04 (1993); Reyes v. Kent General Hosp., Inc., 487 A.2d 1142, 1144 (1984); Timblin v. Kent Gen. Hosp., Del. Super., C.A. No. 90C-03-122, Quillen, J. (Oct. 4, 1995) (jury instruction).
Plaintiff’s Jury Instruction No. 10
10. PROXIMATE CAUSE
- Plaintiff Unusually Susceptible § 10.4
PLAINTIFF SUSCEPTIBLE TO INJURY
The law provides that the defendant in a personal-injury case must take the plaintiff as he finds her. One who causes personal injury to another is liable for all the resulting injuries to the plaintiff, regardless of the nature or severity of those injuries.
{Comment: It may be necessary that the above instruction be used with Jury Instr. Nos. 21.2 and 21.3, "Damages - Pre-Existing or Independent Condition" and "Damages - Aggravation of Pre-Existing Condition."}
Source:
Reese v. Home Budget Ctr., Del. Supr., 619 A.2d 907, 910 n.1 (1992); Lipscomb v. Diamiani, Del. Super., 226 A.2d 914, 918 (1967). See also Prosser & Keeton On Torts ' 43 (5th ed. 1984).
Plaintiff’s Jury Instruction No. 11
MPJI-Cv 10:26
Mortality Table — Life Expectancy
According to life expectancy tables, the life expectancy of a person of 66 years of age is 19 years.
This figure is to assist you in determining the probable life expectancy of the plaintiff as it bears on future losses and damages. It is not conclusive proof of the life expectancy, and you are not bound by it. It is only an estimate based on average experience.
Plaintiff’s Jury Instruction No. 12
21. DAMAGES
- Measure of Damages - Personal Injury.......................................................................... ' 21.1
DAMAGES - PERSONAL INJURY
If you do not find that Mrs. Smith has sustained her burden of proof, the verdict must be for Dr. Volatile. If you do find that Mrs. Smith is entitled to recover for damages proximately caused by the surgery on December 10, 2007, you should consider the compensation to which she is entitled.
The purpose of a damages award in a civil lawsuit is just and reasonable compensation for the harm or injury done. Certain guiding principles must be employed to reach a proper damages award. First, damages must be proved with reasonable probability and not left to speculation. Damages are speculative when there is merely a possibility rather than a reasonable probability that an injury exists. While pain and suffering are proper elements on which to determine monetary damages, the damages for pain and suffering must be fair and reasonably determined and may not be determined by a fanciful or sentimental standard. They must be determined from a conclusion about how long the suffering lasted, the degree of suffering, and the nature of the injury causing the suffering.
If you find for Mrs. Smith you should award to her the sum of money that in your judgment will fairly and reasonably compensate her for the following elements of damages that you find to exist by a preponderance of the evidence:
(1) compensation for pain and suffering that she has suffered to date;
(2) compensation for pain and suffering that it is reasonably probable that she will suffer in the future;
(3) compensation for permanent impairment;
(4) compensation for reasonable and necessary medical expenses incurred to date;
(5) compensation for reasonable and necessary medical expenses that it is reasonably probable that [plaintiff's name] will incur in the future;
(6) compensation for loss of earnings suffered to date; and
(7) compensation for earnings that will probably be lost in the future.
In evaluating pain and suffering, you may consider its mental as well as its physical consequences. You may also consider such things as discomfort, anxiety, grief, or other mental or emotional distress that may accompany any deprivation of usual pleasurable activities and enjoyments.
In evaluating impairment or disability, you may consider all the activities that Mrs. Smith used to engage in, including those activities for work and pleasure, and you may consider to what extent these activities have been impaired because of the injury and to what extent they will continue to be impaired for the rest of her life expectancy. It has been agreed that a person of Mrs. Smith’s age ( 66 ) and sex would have a life expectancy of 19 years.]
The law does not prescribe any definite standard by which to compensate an injured person for pain and suffering or impairment, nor does it require that any witness should have expressed an opinion about the amount of damages that would compensate for such injury. Your award should be just and reasonable in light of the evidence and reasonably sufficient to compensate Mrs. Smith fully and adequately.
{Comment: This instruction almost always needs to be tailored to the particular facts of each claim for damages.}
Source:
Medical Ctr. of Delaware, Inc. v. Lougheed, Del. Supr., 661 A.2d 1055, 1060-61 (1995)(discussing issue of excessive awards for damages); Jardel Co. v. Hughes, Del. Supr., 523 A.2d 518, 527-32 (1987)(discussing compensatory and punitive damages); McNally v. Eckman, Del. Supr., 466 A.2d 363, 371 (1983)(allowances for likely promotions and pay increases proper in award of damages); Thorpe v. Bailey, Del. Supr., 386 A.2d 668, 668-70 (1978)(reduction of award to present value); Steppi v. Stromwasser, Del. Supr., 297 A.2d 26, 27-28 (1972)(future earnings must be reduced to present value); Henne v. Balick, Del. Supr., 146 A.2d 394 (1958)(requiring evidence of reasonable probability for loss of future earnings); Biggs v. Strauss, Del. Super., C.A. No. 81C-OC-46, Poppiti, J. (October 22, 1984), aff'd, Del. Supr., 525 A.2d 992 (1987); Baker v. Streets, Del. Super., C.A. No. 84C-MR-18, Taylor, J. (July 25, 1985); Coleman v. Garrison, Del. Super., 281 A.2d 616, 619 (1971); Biddle v. Griffin, Del. Super., 277 A.2d 691, 692 (1970); J.J. White, Inc. v. Metropolitan Merchandise Mart, Del. Super., 107 A.2d 892, 894 (1954)(measure of damages in the absence of any willful, wanton, or intentional wrong-doing is the loss or injury resulting from the wrongful act of the defendant); Kane v. Reed, Del. Super., 101 A.2d 800, 802-04 (1954); Prettyman v. Topkis, Del. Super., 3 A.2d 708, 710-12 (1939); Balick v. Philadelphia Dairy Products Co., Del. Super., 162 A. 776, 779 (1932).
Respectfully submitted,
MILLER & ZOIS, LLC
Ronald V. Miller, Jr.
Empire Towers, Suite 615
7310 Ritchie Highway
Glen Burnie, Maryland 21061
410-553-6000
Attorney for the Plaintiff
- Malpractice Jury Instructions (short version in Maryland malpractice case)
- Jury Instructions
- Medical Malpractice Lawsuits in Maryland (an overview of the malpractice litigation process)