Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 7.        Medical Malpractice

 

Table of Contents

7.0       Elements of a Medical Malpractice Claim

7.1       Injury Alone Is Not Proof of Malpractice

7.2       Statute of Limitations in Medical Malpractice —Generally

7.3       Errors of Judgment

7.4       Lack of Informed Consent

7.5       Justification for Lack of Informed Consent

 

 

7.0     Elements of a Medical Malpractice Claim

            [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.

 

Reporter’s Notes

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 Vermont.

 

7.1     Injury Alone Is Not Proof of Malpractice

            Sometimes 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 Vermont law for [name of plaintiff] to prove that [he/she] was injured. In order to be entitled to an award of compensation, [he/she] must prove that what [name of defendant] did or did not do was malpractice and that [he/she] was injured because of that malpractice, as I have explained it to you in the previous instruction.

 

7.2     Statute of Limitations in Medical Malpractice (Generally)

            In 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 Vermont for bringing a lawsuit like this one.

            [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:

  1. that [he/she] had an injury;
  2. what caused the injury; and
  3. that the injury might be [name of defendant]’s fault, that is, that [name of defendant] might be sued for it.

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.

 

Reporter's Notes

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 Vt. 448, 451 (1990).

 

“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 Vt. 487, 492 (1999), (citing Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 88 L.Ed. 788 (1944)).  “The time limits represent a balance, affording the opportunity to plaintiffs to develop and present a claim while protecting the legitimate interests of defendants in timely assertion of that claim.”  Railroad Telegraphers, 321 U.S. at 249.

 

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 defendant.”  Earle v. State, 170 Vt. 183, 193 (1999); see also University of Vermont v. W.R. Grace, 152 Vt. 287 (1989) (emphasis supplied).

 

7.3     Errors of Judgment

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.

 

Reporter’s Notes

This instruction is based on the decision of the Oregon Supreme Court in Rogers v. Meridian Park Hospital, 772 P.2d 929 (Ore. 1989).  The Rogers opinion was cited with approval by the Hawaii Supreme Court in Hirahara v. Tanaka, 959 P.2d 830 (Haw. 1998) after a discussion of the issue raised by the Vermont Supreme Court in Rooney v. Medical Center Hospital of Vermont, 162 Vt. 513 (1994).

 

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.  Id. at 520.  The issue is better explained in terms of using reasonable judgment in choosing between possible courses of action, each of which met the standard of care, and executing the option chosen in accordance with the standard of care.

 

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.

 

7.4     Lack of Informed Consent

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.]

 

7.5     Justification for Lack of Informed Consent

[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.]]

In Vermont a [describe defendant’s practice or specialty] does not have to give a patient . . . [use any of the following information as appropriate in the lawsuit:

[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.]]