Plain English Jury Instructions
Section 7. Medical Malpractice
Table of Contents
[Name of plaintiff] claims that [he/she] was injured by [name of defendant]’s medical malpractice. To win [his/her] case, [name of plaintiff] has to prove all three of the following things:
(1) That a reasonably skillful, careful, or prudent health care professional engaged in a similar kind of practice under the same or similar circumstances would have had a particular degree of knowledge or skill or would normally have exercised a particular degree of care; and
(2) That [name of defendant] did not have this degree of knowledge or skill, or did not exercise this degree of care; and
(3) That [name of defendant]’s lack of knowledge or skill, or [his/her] failure to exercise this degree of care, was a cause of [name of plaintiff]’s injuries and those injuries would not have happened otherwise.
If the issue has not been raised
during the trial, add the following language to end of element (1): “regardless
whether or not the [“doctor” or other description of the Defendant] is
practicing in the State of
medical treatment is not successful, or a person’s health gets worse, even
though [the doctor] was not at fault. That is why it is not enough under
this case [name of defendant] claims that [name of plaintiff] did not start
[his/her] lawsuit in time. We have a two year time limit in
[Name of defendant] has the burden of proving [his/her/its] claim that [name of plaintiff] did not start [his/her] lawsuit in time. To prove this case was filed too late, [name of defendant] must persuade you that, before [insert the last day that the claim could have been brought if the discovery rule does not apply (The date will be the day after the last day that the civil action could have been commenced)], [name of plaintiff] either knew or should have known each of the following facts:
When I say [name of plaintiff] “knew or should have known” these facts, I mean that either [he/she] actually knew them, or that a person of ordinary intelligence in [his/her] position would have discovered or known about them.
If [name of defendant] proves these three things, [name of plaintiff] started [his/her} lawsuit too late and cannot recover.
If it is deemed necessary, the Judge might also tell the jury that, “The reason for the time limit is to keep old lawsuits from being brought at a time when witnesses have died or disappeared and documentary evidence has been lost or destroyed.”
“(T)he purpose of a statute of limitations is to require the bringing
of an action within a reasonable time and thus prevent fraudulent and stale
claims from being brought at a time when witnesses have died or disappeared and
documentary evidence has been lost or destroyed.” Thayer
v. Herdt, 155
“Statutes of limitations . . . represent a pervasive legislative
judgment that it is unjust to fail to put the adversary on notice to defend
within a specified period of time and that “the right to be free of stale
claims in time comes to prevail over the right to prosecute them.” Investment
Properties, Inc. v. Lyttle, 169
The discovery rule requires discovery that the particular Defendant
might be at fault. The statute of
limitations accrues for purposes of the statute of limitations at that point in
time when it is possible to identify “the basic elements of a cause of action:
an injury caused by the negligence or breach of duty of a particular
In this case, [name of plaintiff] claims that [name of defendant] was wrong when [he/she] chose to (describe procedure) instead of (describe alternative(s).)
When there is more than one appropriate medical procedure to treat a patient, liability depends on whether the doctor exercised reasonable judgment in choosing which procedure to follow.
A doctor is liable if [he/she] fails to act with reasonable care and skill in exercising [his/her] judgment. A doctor is not liable if [he/she] does act with reasonable care and skill in exercising [his/her] judgment.
This instruction is based on the decision of the Oregon Supreme Court
In Rooney, the Vermont Supreme Court held that it was
reversible error to instruct a jury in a medical malpractice case that a doctor
is not liable for medical malpractice if the claimed error was a “mere error of
judgment, provided she exercises reasonable judgment in bringing to bear the
level of knowledge, skill and care” required by the medical malpractice
statute. According to the Vermont
Supreme Court, this was tantamount to instructing the jury that a doctor who
did not live up to the applicable standard of care was not liable if she
nevertheless used her best judgment and was reasonably careful in the exercise
of whatever skill or knowledge she did posses, however limited.
The standard of care is an objective standard. It is reversible error to permit the jury to consider the standard of care to be a subjective standard by giving an ambiguous instruction that suggests that a doctor is not liable for a mere error of judgment.
In a case where the jury must pass judgment on both the choice made and the degree of skill used by the doctor after the choice of procedures was made, the jury must be given more than this instruction. The jury must also be given an instruction about the standard of care in performing the procedure chosen among the competing alternatives.
In this case, [name of plaintiff] claims [he/she] was harmed because [name of defendant] performed a [type of treatment/procedure] without first giving [him/her] enough information about the risks of, benefits of and alternatives to the [treatment/procedure].
A [describe defendant’s profession/specialty] has to give [his/her/its] patient enough information about the treatment before it starts so that the patient can make an informed decision whether or not to have the treatment. If not, then [he/she/it] may be responsible for harm to the patient even though the medical treatment itself was done properly.
To win this claim, [name of plaintiff] must prove all three of the following:
(1) [Name of defendant] failed to tell [name of plaintiff] enough about the risks of, benefits of and alternatives to the [treatment/ procedure], and
(2) If [name of plaintiff] had known about these risks, benefits and alternatives, [he/she] probably would not have agreed to have the [treatment/procedure], and
(3) The [treatment/procedure] caused [name of plaintiff]’s harm.
If [name of plaintiff] has proved all of these things, then your verdict must be in [his/her] favor. If not, then your verdict must be for [name of defendant.].
[Alternative to preceding paragraph if justification is an issue: If you decide that [name of plaintiff] has proved all of these things, then you must also decide whether [name of defendant] was excused from providing the information to [name of plaintiff.] [Insert or read to the jury the instruction on JUSTIFICATION FOR LACK OF INFORMED CONSENT.] If [name of defendant] was not required to give the information, your verdict must be in [his/her] favor. Otherwise, your verdict must be for [name of plaintiff.]
[Optional introductory paragraph: If you decide that [name of defendant] did not tell [name of plaintiff] enough about the [describe the treatment or procedure] you have to decide whether or not [name of defendant] was required to give the information before starting the [describe the treatment or procedure.]]
[1 . . . about the risks that are widely known and not substantial; or]
[2 . . . if [name of plaintiff] said beforehand that [he/she] wanted the [describe treatment/procedure] regardless of the dangers involved; or]
[3 . . . if [name of plaintiff] told [name of defendant] that [he/she] did not want to be told about the risks of the [treatment/procedure]; or about other options; or]
[4 . . . if, under the circumstances, it was not possible for [name of defendant] to get the necessary consent before performing the [treatment/procedure]; or]
[5 . . . if a person in [name of plaintiff]’s position would have had the [describe the treatment or procedure] even if [name of defendant] had explained all of the risks beforehand.]]