Utah Medical Malpractice Jury Instructions

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CV301B Elements of a medical negligence claim.

To establish that (name of defendant) was at fault, (name of plaintiff) has the burden of proving two things, a breach of the standard of care, and that the breach was a cause of (name of plaintiff)’s harm.

CV301C “Standard of care” defined.

A [health care provider] [doctor] is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent [providers] [doctors] in good standing practicing in the same [specialty] [field]. This is known as the “standard of care.” The failure to follow the standard of care is a form of fault known as either “medical negligence” or “medical malpractice.” (They mean the same thing.)

The standard of care is established through expert witnesses and other evidence. You may not use a standard based on your own experience or any other standard of your own. It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. If so, it will be your responsibility to determine the credibility of the experts and to resolve the dispute.

CV302 “Standard of care” for nurses defined.

A nurse is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent nurses in good standing practicing in the same [specialty] [field]. This is known as the “standard of care.” The failure to follow the standard of care is a form of fault known as either “nursing negligence” or “nursing malpractice.” (They mean the same thing.)

CV303 Care owed by nurse under varying circumstances.

The amount of care required of a nurse is measured by the patient’s condition, the danger to the patient involved in the treatment, the service undertaken by the nurse, the information and instructions given to the nurse by the attending physician or surgeon, and other surrounding circumstances. These circumstances may require continuous attention or service, or they may justify lesser vigilance. These are matters for you to consider in deciding whether the nurse followed the standard of care.

CV304 Duty to disclose material medical information.

[Name of defendant] had a duty to disclose to [name of plaintiff] information concerning [name of plaintiff]’s condition that was unknown to [name of plaintiff], if the information would be important to a reasonable person in making decisions about health care, and if disclosure of the information would not be expected to make [name of plaintiff]’s health worse.

CV305 Duty to refer.

If [name of defendant] knew or should have known that [he] did not possess the necessary expertise to properly treat [name of plaintiff]’s condition, and a referral to another who has the appropriate expertise could reasonably have been made under the circumstances, then [name of defendant] had a duty to offer that referral.

CV306 Duty to warn of how to avoid injury.

[Name of defendant] had a duty to warn [name of plaintiff] how to avoid injury [to the area treated] following treatment.

CV307 Duties of hospital to patients.

A hospital has a duty to act with reasonable care towards its patients. In this action, [name of plaintiff] alleges that [name of defendant hospital] failed to do so in the following respects:

(1)

(2)

(3)

If you find that [name of hospital] failed to act with reasonable care toward [name of plaintiff] in any of these respects, then you must determine whether that failure was a cause of [name of plaintiff]’s harm.

CV308 Physicians may assume compliance with orders.

A physician may assume that appropriate orders and instructions to hospital nurses and other personnel for the care and management of a patient will be carried out. A physician is not at fault if hospital personnel fail to do so, unless that failure is brought to the physician’s attention, and the physician then fails to take steps to remedy the situation.

CV309 “Cause” defined.

[If you find that (name of defendant) breached the standard of care, then you must determine whether that failure was a cause of (name of plaintiff)’s harm.]

As used in the law, the word “cause” has a special meaning, and you must use this meaning whenever you apply the word.

“Cause” means that:

(1) (name of defendant)’s act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence; and

(2) (name of defendant)’s act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

CV310 Duty to obtain informed consent. “Informed consent” defined.

A physician has a duty to obtain the patient’s informed consent to proposed care. Consent is informed if the patient gives consent after the physician outlines the substantial and significant risks of serious harm from the care and the reasonable alternatives to the care.

Section 78B-3-407 has added a new limitation on actions brought against health care providers arising out of refusal of parents or guardians to consent to recommended treatment. There are other consent statutes scattered throughout the Utah Code. See for example, Sections 15-2-5 (parental consent not required for minor’s blood donation), 26-6-18 (minor’s power to consent to treatment for sexually transmitted diseases), 76-7-304.5 and -305 (abortions), and 62A-6-105 (sterilization).

The committee has not intended to provide an exhaustive list of every possible instruction that may be needed in any case alleging lack of consent. For this, we refer the reader to Chapter 5 of Professor Eade’s comprehensive work, R.A. Eades, Jury Instructions on Medical Issues (LexisNexis, 6th ed. 2007).

CV311 Elements of an informed consent claim.

To establish a claim for the failure to obtain informed consent, [name of plaintiff] has the burden to prove all of the following:

(1) that a physician-patient relationship existed between [name of plaintiff] and [name of defendant];

(2) that [name of defendant] provided care to [name of plaintiff];

(3) that the care posed a substantial and significant risk of causing serious harm;

(4) that [name of plaintiff] was not informed of the substantial and significant risk or of reasonable alternatives,

(5) that a reasonable person in [name of plaintiff]’s position would [not have consented to] [would have rejected] the care after having been informed of the substantial and significant risks and alternatives; and

(6) that the care that was not consented to was a cause of [name of plaintiff]’s harm.

CV312 “Substantial and significant risk” defined.

A risk is “substantial and significant” if it occurs frequently enough and is serious enough that a reasonable patient would want to be informed about it.

CV313 Standard for judging patient’s consent.

To determine whether a reasonable person would [not have consented to] [have rejected] the care, you must take the viewpoint of a reasonable person in [name of plaintiff]’s position before the care was provided and before any harm occurred.

CV314 Consent to or refusal of treatment.

A [consent to/refusal of] treatment is binding even if it is not in writing.

CV315 Consent is presumed.

If a person submits to health care, the care was authorized, unless proved otherwise.

CV316 Common knowledge defense.

You must decide whether the risk of harm was commonly known to the public. If the risk of harm was commonly known to the public, then [name of plaintiff] cannot succeed on a claim that informed consent was not obtained.

CV317 Refusal of information defense.

You must decide whether [name of plaintiff] refused to be informed of the risk of harm. If [name of plaintiff] refused to be informed of the risk of harm, then [he] cannot succeed on a claim that informed consent was not obtained.

CV318 Reasonable non-disclosure defense.

You must decide whether [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]’s condition. If [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]’s condition, then [he] was not required to make that disclosure.

CV319 Written consent defense.

A written consent is a defense to a claim for failure to obtain informed consent, unless:

[(1) [Name of plaintiff] proves by a preponderance of the evidence that the person giving consent lacked the capacity to do so.]

[(2) [Name of plaintiff] proves by clear and convincing evidence that [name of defendant] obtained the consent by fraudulent misrepresentation or fraudulent failure to state facts important to a reasonable person in making decisions about health care.]

CV320 Patient’s duty of care.

A patient has the duty to use reasonable care to provide for his own health and safety. In this action, [name of defendant] claims that [name of plaintiff] failed to use reasonable care in the following respects:

(1)

(2)

(3)

If you find that [name of plaintiff] failed to act with reasonable care in any of these respects, then you must determine whether that failure was a cause of [his] harm.

CV321 Patient’s negligence in failing to follow instructions.

[Name of plaintiff] had a duty to follow [name of health care provider]’s reasonable instructions. You may consider the failure to do so in deciding whether the [name of plaintiff] was at fault and whether any of [name of plaintiff]’s fault was a cause of [his] harm.

CV322 Patient’s negligence in giving medical history.

A patient must use ordinary care in giving an accurate history to [his] treating physician. In determining whether this was done, you may consider whether the physician’s questions were sufficient to alert the patient of the need to disclose particular aspects of that history.

CV323 Reserved.

CV324 Use of alternative treatment methods.

The standard of care may include more than one acceptable method of treatment.

CV325 Timely filing claim. “Discovery of injury” defined.

[Name of plaintiff] must file a medical malpractice claim within two years from the date [he] discovered the injury or the claim is barred. You must decide the date by which [name of plaintiff] should have discovered the injury.

“Discovery” of an injury from medical malpractice occurs when a patient knows or through reasonable diligence should know each of the following:

(1) that [he] sustained an injury;

(2) the cause of the injury; and

(3) the possibility of a health care provider’s fault in causing the injury.

CV326 Expert testimony required.

You must use only the standard of care established through evidence presented in this trial by expert witnesses and through other evidence admitted for the purpose of defining the standard of care. You may not use a standard based on your own experience or any other standard of your own.

CV327 Inference of fault (res ipsa loquitur).

You may infer that [name of defendant] was at fault if three things are proved by a preponderance of the evidence:

(1) that [name of plaintiff]’s injury was of a kind that, in the ordinary course of events, would not have happened if due care had been observed;

(2) that [name of plaintiff]’s actions were not responsible for the injury; and,

(3) that the cause of the injury was under the exclusive control of [name of defendant].

If you find that all three of these things have been proved, this is sufficient to support a finding of fault by [name of defendant] without expert testimony, unless proved otherwise. [Name of defendant] may introduce evidence to rebut the inference of fault.

CV328 Common knowledge and need for expert testimony.

Expert testimony is not needed to establish the [standard of care/cause] if the medical procedure is of a kind, or the outcome so offends commonly held notions of proper medical treatment, that the [standard of care/cause] can be established by the common knowledge, experience and understanding of jurors.

CV329 Patient may rely on advice.

A patient may rely on the physician’s professional skill and advice. A patient is not required to determine whether the physician’s advice is correct.

CV330 No recovery for oral promises.

To be enforceable, a guarantee, warranty, contract or assurance regarding a result to be obtained from the health care must be in writing and signed by [name of defendant] or [his] authorized agent.

CV399A Verdict Form – One Defendant (No Comparative Fault)

MEMBERS OF THE JURY:

Please answer the following questions in the order they are presented. If you find that the issue has been proved by a preponderance of the evidence, answer “Yes.” If you find that the evidence is equally balanced or that the greater weight of evidence is against the issue, answer “No.”

At least six jurors must agree on the answer to each question, but they need not be the same six on each question. When six or more of you have agreed on the answer to each question that is required to be answered, your foreperson should sign and date the form and advise the bailiff that you have reached a verdict.

(1) Was [name of defendant] at fault? (Check one.)
Yes
No
(If you answer “Yes,” please answer Question 2. If you answer “No,” stop here, sign the verdict form and advise the bailiff.)

(2) Was this fault a cause of any harm to [name of plaintiff]? (Check one.)
Yes
No
(If you answer “Yes,” please answer question 3. If you answer “No,” stop here, sign the verdict form and advise the bailiff.)

(3) Was [name of plaintiff] also at fault? (Check one.)
Yes
No
(If you answer “Yes,” please answer Question 4. If you answer “No,” please skip Questions 4 and 5 and go on to Question 6.)

(4) Was [name of plaintiff]’s fault a cause of [his] own harm?
Yes
No
(If you answered Question 4 “Yes,” please answer Question 5. If you answered Question 4 “No,” please skip Question 5 and go on to Question 6.)

(5) Assuming all of the fault that caused the harm totals 100%, what percentage is attributable to:
[Name of Defendant]: ________________________      ____________ %
[Name of Plaintiff]: ________________________      ____________ %
Total:      100 %
Stop here if [name of plaintiff]’s fault is 50% or more; do not answer Question (6).
(Please answer Question 6 if you checked “Yes” on both Questions (1) and (2). Do not deduct from the damages any percentage of fault that you have assessed to plaintiff. The judge will make any necessary deductions later.)

(6) What amount would fairly compensate [name of plaintiff] for [his] harm?

(a) Economic Damages:
(1) Past Medical Expenses $ __________________
(2) Future Medical Expenses: $ __________________
(3) Past Lost Wages: $ __________________
(4) Future Lost Wages: $ __________________
(5) Other Economic Damages: $ __________________

(b) Noneconomic Damages: $ __________________
Total Damages: $ __________________
(When six or more of you have agreed on the answer to each question that is required to be answered, your foreperson should sign and date the form and advise the bailiff that you have reached a verdict.)

Date __________________ Jury Foreperson__________________

Utah Medical Malpractice Jury Instructions

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