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3.8-3 Medical Malpractice
Revised to January 1, 2008
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 to care for the
safety of that person.
The legal duty that a health care
provider, such as Dr. <name>, owes to a patient, such as <name>,
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."
Because the defendant 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."
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 doctor. 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 of doctor>'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.>
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