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III Medical Malpractice Case

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil III
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 36. Illustrative Sets of Instructions
III Medical Malpractice Case
John Smith, a construction worker, strained himself while lifting heavy objects on his job. Mr. Smith consulted Dr. Jones, a physician and surgeon engaged in the general practice of medicine and surgery. Dr. Jones diagnosed the case as a left inguinal hernia and recommended surgery to repair it. John Smith consented to the surgery and entered the county hospital under the care of Dr. Jones. On the second hospital day Dr. Jones performed the operation. Following the operation John Smith did not void for twenty-four hours, and he had an elevated temperature. Attempts to catheterize the patient were unsuccessful. He was taken back to surgery and exploration revealed that infection and secondary edema had closed the urethra. The infected tissue was removed by Dr. Jones and the patient recovered; however, he was in the hospital a week longer than normal for a hernia repair and had permanent damage to his kidney and bladder. Smith brought suit against Dr. Jones alleging that the doctor did not properly sterilize his instruments.
A suggested set of instructions in recommended sequence:
1.103.Respective Duties of Judge and Jury—Cautionary Instructions.
2.105.Credibility of Witnesses.
3.107.Expert Witnesses.
4.108.Circumstantial Evidence.
5.202.Meaning of Burden of Proof and Preponderance of the Evidence.
6.203.Issues—Claim for Damages Based on Negligence—Burden of Proof.
7.1501.Duty of Physician, Surgeon, Dentist or other Medical Care Provider.
8.501.Proximate Cause—Concurring Proximate Cause—Definition.
9.603.No Presumption of Negligence from Happening of Injury.
10.2201.Measure of Damages—General Instruction.
(a)2202.Measure of Damages—The Nature, Extent, Duration, and Permanency of the Injury.
(b)2204.Measure of Damages—Medical Expense—Past and Future.
(c)2205.Measure of Damages—Pain, Suffering, and Mental Anguish—Past and Future.
11.2215.Measure of Damage—Collateral Sources.
12.3501.Closing Instructions.
Text of Suggested Instructions
1. (AMI 103)
  • (a) The faithful performance of your duties as jurors is essential to the administration of justice.
  • (b) It is my duty as judge to inform you of the law applicable to this case by instructions, and it is your duty to accept and follow them as a whole, not singling out one instruction to the exclusion of others. You should not consider any rule of law with which you may be familiar unless it is included in my instructions.
  • (c) It is your duty to determine the facts from the evidence produced in this trial. You are to apply the law as contained in these instructions to the facts and render your verdict upon the evidence and law. You should not permit sympathy, prejudice, or like or dislike of any party to this action or of any attorney to influence your findings in this case.
  • (d) In deciding the issues, you should consider the testimony of the witnesses and the exhibits received in evidence. The introduction of evidence in court is governed by law. You should accept without question my rulings as to the admissibility or rejection of evidence, drawing no inferences that by these rulings I have in any manner indicated my views on the merits of the case.
  • (e) Opening statements, remarks during the trial, and closing arguments of the attorneys are not evidence but are made only to help you in understanding the evidence and applicable law. Any argument, statements, or remarks of attorneys having no basis in the evidence should be disregarded by you. However, an admission of fact by an attorney is binding on his or her client.
  • (f) I have not intended by anything I have said or done, or by any question that I may have asked to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.
2. (AMI 105)
You are the sole judges of the weight of the evidence and the credibility of the witnesses. In determining the credibility of any witness and the weight to be given his testimony, you may take into consideration his demeanor while on the witness stand, any prejudice for or against a party, his means of acquiring knowledge concerning any matter to which he testified, any interest he may have in the outcome of the case, and the consistency or inconsistency of his testimony, as well as its reasonableness or unreasonableness.
3. (AMI 107)
An expert witness is a person who has special knowledge, skill, experience, training, or education on the subject to which his or her testimony relates.
An expert witness may give an opinion on questions in controversy. You may consider the expert's opinion in the light of his or her qualifications and credibility, the reasons given for the opinion, and the facts and other matters upon which the opinion is based.
You are not bound to accept an expert opinion as conclusive, but should give it whatever weight you think it should have. You may disregard any opinion testimony if you find it to be unreasonable.
4. (AMI 108)
A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case.
5. (AMI 202)
A party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. “Preponderance of the evidence” means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.
6. (AMI 203)
Mr. Smith claims damages from Dr. Jones and has the burden of proving each of three essential propositions:
  • First, that he has sustained damages;
  • Second, that Dr. Jones was negligent;
  • And third, that such negligence was a proximate cause of Mr. Smith's damages.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for Mr. Smith; but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for Dr. Jones.
7. (AMI 1501)
In operating upon a patient, a surgeon must possess and apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing, engaged in the same type of service or specialty in the locality in which he practices, or in a similar locality. A failure to meet this standard is negligence.
In determining the degree of skill and learning the law required and in deciding whether Dr. Jones applied the degree of skill and learning which the law required, you may consider only the expert testimony provided by Dr. Jackson and Dr. Johnson.
In deciding whether any negligence of Dr. Jones was a proximate cause of injuries to Mr. Smith that would not otherwise have occurred, you may consider only the expert testimony provided by Dr. Jackson and Dr. Johnson.
In considering the evidence on any other issue in this case, you are not required to set aside your common knowledge, but you have a right to consider all the evidence in light of your own observations and experiences in the affairs of life.
8. (AMI 501)
The law frequently uses the expression “proximate cause,” with which you may not be familiar. When I use the expression “proximate cause,” I mean a cause which, in a natural and continuous sequence, produces damage and without which damage would not have occurred.
9. (AMI 603)
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.
10. (AMI 2201)
If you decide for Mr. Smith on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following three elements of damage sustained which you find were proximately caused by the negligence of Dr. Jones:
(a) (AMI 2202) First: The nature, extent, duration, and permanency of any injury.
(b) (AMI 2204) Second: The reasonable expense of any necessary medical care, treatment, and services received.
(c) (AMI 2205) Third: Any pain and suffering experienced in the past and reasonably certain to be experienced in the future.
(End of AMI 2201) Whether any of these three elements of damage has been proved by the evidence is for you to determine.
11. (AMI 2215)
In assessing the damages of Mr. Smith, do not reduce the amount of the damages by any payment or benefit received or to be received by, or on behalf of Mr. Smith. Any reduction required by law will be made by the Court.
12. (AMI 3501)
You have now heard all the evidence and the instructions on the law you must apply in reaching your verdict. You soon will hear the lawyers’ closing arguments and then go to the jury room to decide this case. I have a few final instructions for you on how to proceed.
(a) Remember that you are to decide this case fairly, based only on the evidence presented in this courtroom and the law as instructed by me. Do not consider information from any other source. And do not allow sympathy, prejudice, or like or dislike of any party or any attorney in this case to influence your decision. Keep in mind that the Basic Rule I have explained to you throughout the trial continues to apply during your deliberations: You are to discuss the case only among yourselves. Do not communicate about this case and the places and persons involved by any means whatsoever with anyone else at all, or look for or receive any information whatsoever about this case—including through Electronic Devices—other than the evidence in this courtroom and the law as I have instructed you, until your jury duty is complete and I have discharged you.
(b) Any notes you may have taken during the trial may be taken to the jury room to use during your deliberations. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are a substitute for your own memory or other jurors’ memory. Leave your notes in the jury room when you have concluded your deliberations.
(c) Do not begin deliberations until all of you are assembled in the jury room. Once you are all there, the first thing for you to do is to elect one of you to act as foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that every one of you has a fair opportunity to be heard.
(d) If any of you needs to communicate with me for any reason, write me a note and give it to (the bailiff) (court personnel). In your note do not disclose any vote or division among yourselves.
At least nine of you must agree to arrive at a verdict.
If your verdict is unanimous, only the foreperson will sign your verdict form.
If your verdict is not unanimous, but nine or more of you agree on the verdict, then each of you who agrees must sign the verdict form. Those of you who do not agree must not sign the verdict form.
We, the Jury find in favor of John Smith, the plaintiff, and against Dr. Jackson, the defendant, and award damages in the following amount:
We, the Jury find in favor of Dr. Jackson, the defendant, and against John Smith, the plaintiff.
End of Document