History of the Connecticut Judicial Seal Home Home BannerBanner


 

 

 

 

 

   

3.8-3  Medical Malpractice

Revised to February 1, 2013

The plaintiff in this case, <name of plaintiff>, claims that (he/she) has been injured through the negligence of the defendant, <name of defendant>. Negligence is the violation of a legal duty which one person owes to another.

The legal duty that a health care provider, such as Dr. <name>, owes to a patient, such as <name of patient>, has been established by our legislature.

We have a statute which provides that “[i]n any civil action to recover damages resulting from personal injury . . . in which it is alleged that such injury resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving by a preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." 1

Because the health care provider in this case, Dr. <name>, has been certified by the appropriate American board as a specialist, a "similar health care provider" in this case is, according to our statute, "one who: 1) is trained and experienced in the same specialty; and 2) is certified by the appropriate American board in the same specialty." 2

In this case, Dr. <name>’s specialty is <insert defendant’s specialty>. The prevailing professional standard of care that applies to (him/her) is thus the level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent board certified <insert type of specialists>. This standard applies to both diagnosis and treatment. In order to establish liability, the plaintiff must prove by a fair preponderance of the evidence that Dr. <name>’s conduct represented a breach of the prevailing professional standard of care that I have just described.

The standard of care is the standard prevailing at the time of the treatment in question. The treatment in question occurred in <year>.

A <specialist> such as Dr. <name> is held to the same prevailing professional standard of care applicable to <specialists> across the nation. For this reason, the particular state in which an expert witness has practiced is unimportant. You should consider the testimony of all the experts who have testified in light of their familiarity or lack of familiarity with the standard of care to which I have referred.

A doctor does not guarantee a good medical result. A poor medical result is not, in itself, evidence of any wrongdoing by the health care provider. The question on which you must focus is whether the defendant has breached the prevailing professional standard of care.

As I have already mentioned, the plaintiff has the burden of proving by a fair preponderance of the evidence that Dr. <name>’s conduct represented a breach of the prevailing professional standard of care. Under our law, the plaintiff must prove this by expert testimony. More specifically, (he/she) must establish through expert testimony both what the standard of care is and (his/her) allegation that Dr. <name>'s conduct represented a breach of that standard. Finally, (he/she) must establish, through expert testimony, that the breach of that standard of care was the proximate cause of the injuries that (he/she) claims.

<Review the specifications of negligence in the complaint.>

[<Insert if a claim of lost chance of survival is made:> In this case, <name of plaintiff> claims [in part] that <name of patient> suffered a lost chance of survival which was proximately caused by the negligence of <name of defendant>, because if <name of defendant> was not negligent, <name of patient> would have had a greater than 50 percent chance of surviving. This is called a “loss of chance” claim. To prove (his/her) claim, <name of plaintiff> must prove, by a preponderance of the evidence:

  1. that <name of patient> was in fact deprived of a chance of survival, and
  2. that (his/her) decreased chance of survival more likely than not resulted from the negligence of <name of defendant>.
In order to establish this claim, <name of plaintiff> must prove that absent <name of defendant>’s professional negligence, <name of patient> had a greater than 50 percent chance of survival. It is not sufficient for <name of plaintiff> to prove that the negligent conduct deprived <name of patient> of some chance of survival. <Name of plaintiff> must prove that the negligent conduct more likely than not affected the actual outcome. In other words, if <name of patient> probably would not have survived, even if (he/she) was treated properly, (his/her) death was caused by (his/her) medical condition, and not <name of defendant>’s negligence.

However, if you find that if <name of patient> had been properly treated, more likely than not (he/she) would have survived, then (his/her) death would be the result of <name of defendant>’s negligence and not (his/her) underlying condition.]

_______________________________________________________

1 General Statutes § 52-184c (a).

2 General Statutes § 52-184c (c).

Authority

General Statutes § 52-184c; Jarmie v. Troncale, 306 Conn. 578, 587-88 (2012); Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 659 n.31 (2006); Boone v. William W. Backus Hospital, 272 Conn. 551, 573-75 (2005); Peterson v. Ocean Radiology Associates, P.C., 109 Conn. App. 275, 277-79 (2008); LaBieniec v. Baker, 11 Conn. App. 199, 207-08 (1987).

Notes

The standard of care in negligence actions against health care providers is governed by statute. General Statutes § 52-184c. This instruction is an affirmative description of what medical malpractice is under the controlling statute. It intentionally avoids argumentative statements, sometimes found in pre-statutory common-law cases, of what malpractice is not. Instructional statements of the latter description are unnecessary under the controlling statute and should ordinarily be avoided.

The charge would, of course, be given in addition to Expert Witnesses, Instruction 2.5-3.

The Committee regards a lost chance of survival claim as an issue of causation and not as a separate action for medical malpractice or as a separate element of damages. But see Borkowski v. Sacheti, 43 Conn. App. 294, 311, cert. denied, 239 Conn. 945 (1996).  


 

Attorneys | Case Look-up | Courts | Directories | Educational Resources | E-Services | Español | FAQ's | Juror Information | Media | Opinions | Opportunities | Self-Help | Home

Common Legal Words | Contact Us | Site Map | Website Policies and Disclaimers

Copyright © 2013, State of Connecticut Judicial Branch