CV301B "Standard of care" defined. "Medical malpractice" defined. Elements of claim for medical
malpractice.
A [health care provider/doctor] is required to use the same degree of learning, care, and skill ordinarily used by other
qualified [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 "medical malpractice."
To establish medical malpractice, [name of plaintiff] has the burden of proving three things:
(1) first, what the standard of care is;
(2) second, that the [provider/doctor] failed to follow this standard of care; and
(3) third, that this failure to follow the standard of care was a cause of [name of plaintiff]'s harm.
If you find that the [name of defendant] breached the standard of care in any of these respects, then you must
determine whether that failure was a cause of [name of plaintiff]'s harm.
CV302 "Standard of care" for nurses defined. "Nursing negligence" defined. Elements of claim for
nursing negligence.
A nurse is required to use the same degree of learning, care, and skill ordinarily used by other qualified nurses in
good standing providing similar care. This is known as the "standard of care." The failure to follow the standard of
care is a form of fault known as "nursing negligence." In order to establish nursing negligence, [name of plaintiff]
has the burden of proving three things:
(1) what the standard of care is;
(2) that the nurse failed to follow this standard of care; and,
(3) that this failure to follow the standard was a cause of [name of plaintiff]'s harm.
If you find that the [name of defendant] breached the standard of care in any of these respects, then you must
determine whether that failure was a cause of [name of plaintiff]'s harm.
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.
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.
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) the person'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) the person'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.
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.
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.
When there is more than one method of [diagnosis/treatment] that is approved by a respectable portion of the medical
community, and no particular method is used exclusively by all providers, it is not medical malpractice for a
provider to select one of the approved methods, even if it later turns out to be a wrong selection, or one not favored
by some other providers. The provider has the burden to prove that the method used is approved by a respectable
portion of the medical community.
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.
