Medical Malpractice Jury Instructions

Below are jury instructions we sought - and mostly received - in a medical malpractice trial we tried in Montgomery Maryland in 2012. juryinstructions

These instructions give you some idea of what the law is that jurors use to decide a malpractice claim. This stuff blows past jurors so it is incumbent upon counsel to use blow ups of the critical instructions and explain why follwing the law necessitates the outcome your client desires.

And, oh, not for nothing, the jury in this case awarded our client $2.5 million. The defendant doctor made no effort to settle the case and made no offer.

Plaintiff’s Jury Instruction No. 1

IN THE CIRCUIT COURT FOR BALTIMORE COUNTY, MARYLAND
Civil Division

KATHLEEN E. Denning, et al.
Plaintiff,
v.
DAVID B. Manning, MD
Defendant.

Case No. 337718V

***************************************************************************** PLAINTIFF’S JURY INSTRUCTIONS

Plaintiff, Kathleen Denning, individually, and as Personal Representative for the Estate of Lawrence Denning, Michael Denning, and Elizabeth Lessig, Plaintiffs herein, by and through their attorneys, Rodney M. Gaston and Miller & Zois, LLC, requests that the Court present the jury with the following instructions:

1. 1.1 INTRODUCTION
2. 1.2 QUESTIONS OF LAW DURING THE TRIAL
3. 1.3 WITNESS TESTIMONY CONSIDERATION
4. 1.5 IMPARTIALITY IN CONSIDERATION
5. 1.6 INFERENCES FROM STATEMENTS OF COURT
6. 1.7 BURDEN OF PROOF-PREPONDERANCE OF THE EVIDENCE
7. 1.12 CASE SUBMISSION ON ISSUES
8. 1.13 UNANIMOUS VERDICT
9. 10.1 INTRODUCTORY STATEMENT
10.10.2 COMPENSATORY DAMAGES FOR BODILY INJURY
11.19.1 DEFINITION NEGLIGENCE
12.19.3 FORESEEABLE CIRCUMSTANCES
13. 27.1 HEALTH CARE PROVIDERS – STANDARD OF CARE
14.10:21 DAMAGES WRONGFUL DEATH – SPOUSE
15.10:23 DAMAGES WRONFUL DEATH – CHILD
16.10:24 DAMAGES WRONGFUL DEATH – ESTATE

Respectfully submitted,
MILLER & ZOIS, LLC

Ronald V. Miller, Jr.

Rodney M. Gaston
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (facsimile)
Attorney for Plaintiff

Instructions at Beginning of Trial 1.1

(i) Explanation of Trial Procedure

Members of the jury, in this case the plaintiffs, Cindy Denning, individually, and as Personal Representative for the Estate of Lawrence Denning, Larry Denning, and Amanda Denning, has sued the defendant, David B. Manning, M.D., claiming medical malpractice .....

The trial will proceed in the following way. You will first hear opening statements [learn more about opening statments and review sample 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 plaintiffs’ lawyer will make the first opening statement and then the defendant’s lawyer may choose whether to make an opening statement.

The plaintiffs will then present evidence. After the plaintiffs’ 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 [learn more about closing arguments and review sample closing statements]. 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 plaintiffs’ lawyer will make the first closing argument, then the defendant’s lawyer will make a closing argument. After the defendant’s argument, the plaintiffs 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 plaintiffs go first in each instance is because the plaintiffs have 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.
(ii) 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:
(iii) Admonitions as to Juror Conduct

This case will probably take 3-4 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.

Questions of Law During Trial 1.2

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.

Witness Testimony Consideration 1.3

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.

Impartiality in Consideration 1.5

You must consider and decide this case fairly and impartially. All persons, including corporations, stand equal before the law and are entitled to the same treatment under the law. You should not be prejudiced for or against a person because of that person’s race, color, religion, political or social views, wealth or poverty. You should not even consider such matters. The same is true as to prejudice, for or against, and sympathy for any party.

Inferences From Statements of Court 1.6

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.

Burden of Proof — Preponderance of Evidence Standard 1.7

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.

Case Submission on Issues 1.12

In this case, it will be your duty to return your verdict in the form of written answers to the written questions which are submitted to you by the Court. Your answers will constitute your verdict. Each answer is to be written in the space provided after each question. Before making each answer, all of you must agree upon it. It is your duty to answer each of these questions in accordance with the evidence in the case.

Conclusion — Unanimous Verdict 1.13

In order to reach a verdict in this case, each of you must agree upon it. Your verdict must be unanimous.

Introductory Statement 10.1

In the event that you find for the plaintiff on the issue of liability, then you must go on to consider the question of damages. It will be your duty to determine what, if any, award will fairly compensate the plaintiff for the losses.
The burden is on the plaintiff to prove by the preponderance of the evidence each item of damage claimed to be caused by the defendant. In considering the items of damage, you must keep in mind that your award must adequately and fairly compensate the plaintiff, but an award should not be based on guesswork.

Compensatory Damages for Bodily Injury 10.2

In an action for damages in a personal injury case, you shall consider the following:
(1) The personal injuries sustained and their extent and duration;
(2) The effect such injuries have on the overall physical and mental health and well‑being of the plaintiff;
(3) The physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future;
(4) The disfigurement and humiliation or embarrassment associated with such disfigurement;
(5) The medical and other expenses reasonably and necessarily incurred in the past.
In awarding damages in this case you must itemize your verdict or award to show the amount intended for:
(1) The medical expenses incurred in the past;
(2) The “Noneconomic Damages” sustained in the past and reasonably probable to be sustained in the future. All damages which you may find for pain, suffering, inconvenience, physical impairment, disfigurement, or other nonpecuniary injury are “Noneconomic Damages”;

Definition 19.1

Negligence is doing something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances.

Foreseeable Circumstances 19.3

A reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully.

Health Care Providers — Standard of Care 27.1

A health care provider is negligent if the health care provider does not use that degree of care and skill which a reasonably competent health care provid­er, engaged in a similar practice and acting in similar circumstances, would use.

DAMAGES WRONGFUL DEATH — SPOUSE 10.21

In determining the damages which will reasonably and adequately compensate the spouse of the deceased as a result of the death, you shall consider both economic and non-economic loses.

The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably could have been expected to furnish. You may consider the deceased’s earnings and future earning capacity for the probable time both had been expected to live to determine the amount that the surviving spouse could reasonably have expected to receive.

The non-economic loses to be considered are the mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, attention, advice or counsel the surviving spouse has experienced or probably will experience in the future.

DAMAGES WRONGFUL DEATH — child 10.23

In determining the damages which will reasonably and adequately compensate [each] [a] surviving child of deceased parent as a result of the death of a parent you shall consider both economic and non-economic losses.

The economic losses to be considered include the financial support as well as the replacement value of the services that the deceased furnished or probably would have been expected to furnish.

The non-economic losses to be considered are the mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, parental care, attention, advice, counsel, training, guidance or education which the child has experienced or probably will experience in the future.

DAMAGES WRONGFUL DEATH — ESTATE 10.24

In determining the damages to be awarded to the estate of the deceased as a result of the death you shall consider both economic and non-economic losses.

The economic losses to be considered include the fair and reasonable medical expenses which were incurred by the deceased, and the loss of earnings from the time of the injury to the time of death. You shall also consider the funeral expensed up to $5,000.

The non economic losses to be considered are any conscious pain, suffering or mental anguish that the deceased experienced as a result of the injury until death.

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