5.50A Duty and Negligence model jury charge medical malpractice
In
this case, the plaintiff(s), [insert plaintiff(s) name(s)], contend(s)
that the defendants], [insert defendant(s) name(s)], was (were)
negligent in the diagnosis and [/or] treatment of [insert name], and
that such negligence was a substantial factor in causing the plaintiff(s), [insert
plaintiff(s) name(s)], to be injured.
Negligence
is conduct which deviates from a standard of care required by law for the
protection of persons from harm.
Negligence may result from the performance of an act or the failure to
act. The determination of whether a
defendant was negligent requires a comparison of the defendant's conduct
against a standard of care. If the defendant's conduct is found to have fallen
below an accepted standard of care, then he or she was negligent.
In
this case the defendant(s) is/are [describe the profession]. Therefore, to decide this case properly you
must know the standard of care imposed by law against which the defendant's
(s') conduct as a [describe the profession] should be measured.
Note
to Judge
For the standard of care, the appropriate paragraph of
Options A or B (as follows) may be read.
[Option
A: Specialist.] The defendant(s) in this case is (are) a medical
specialist(s) in the field of [insert appropriate specialty description].
Specialists in a field of medicine represent that they will have and employ not
merely the knowledge and skill of a general practitioner, but that they have
and will employ the knowledge and skill normally possessed and used by the
average specialist in the field. Thus, when a physician holds himself/herself
out as a specialist and undertakes to diagnose and treat the medical needs of a
patient, the law imposes a duty upon that physician to have and to use that degree
of knowledge and skill which is normally possessed and used by the average
specialist in that field, having regard to the state of scientific knowledge at
the time that he/she or she attended the plaintiff.
[Option
B: General Practitioner.] The defendant(s) in this case is (are) a general
practitioner(s). A person who is engaged
in the general practice of medicine represents that he/she or she will have and
employ knowledge and skill normally possessed and used by the average physician
practicing his/her profession as a general practitioner.
[Remainder
of Charge.]
Given
what I have just said, it is important for you to know the standard of care
which a general practitioner/specialist in [insert appropriate specialty
description, if applicable] is required to observe in his/her treatment of
a patient under the circumstances of this case.
Based upon common knowledge alone, and without technical training,
jurors normally cannot know what conduct constitutes standard medical practice.
Therefore, the standard of practice by
which a physician's conduct is to be judged must be furnished by expert
testimony, that is to say, by the testimony of persons who by knowledge,
training or experience are deemed qualified to testify and to express their
opinions on medical subjects.
You
as jurors should not speculate or guess about the standards of care by which
the defendant physician(s) should have conducted himself/herself/themselves in
the diagnosis and treatment of the plaintiff. Rather, you must determine the applicable
medical standard from the testimony of the expert witness(es) you have heard in
this case.[1]
Where
there is a conflict in the testimony of the medical experts on a subject, it is
for you the jury to resolve that conflict using the same guidelines in
determining credibility that I mentioned earlier. You are not required to accept arbitrarily the
opinions offered. You should consider
the expert's qualifications, training, and experience, as well as his/her
understanding of the matters to which he/she or she testified.
Where
an expert has offered an opinion upon an assumption that certain facts are
true, it is for you, the jury, to decide whether the facts upon which the
opinion is based are true. The value and
weight of an expert's testimony in such instances is dependent upon, and no
stronger than, the facts upon which it is predicated.
When
determining the applicable standard of care, you must focus on accepted
standards of practice in [insert general practice or specialty involved]
and not on the personal subjective belief or practice of the defendant doctor.[2]
The
law recognizes that the practice of medicine is not an exact science.
Therefore, the practice of medicine according to accepted medical standards may
not prevent a poor or unanticipated result.[3] Therefore, whether the defendant doctor was
negligent depends not on the outcome, but on whether he/she adhered to or
departed from the applicable standard of care. Ibid.
Note to Judge
Where the defendant has satisfied the burden of proving
that medical judgment is involved in the case, insert Charge 5.50G, Medical
Judgment, here.
If you find that the defendant(s) has (have)
complied with the accepted standard of care, then he/she/they is/are not liable
to the plaintiff regardless of the result. On the other hand, if you find that
the defendant(s) has (have) deviated from the standard of care resulting in
injury or damage to plaintiff, then you should find defendant(s) negligent and
return a verdict for plaintiff.
Note to Judge
The standard charge for proximate cause and burden of
proof should be used, deleting, however, the word "malpractice" where
used and inserting in its place the word "negligence." Likewise, in those cases in which a jury will
be permitted to supply the standard of care without the need for expert
testimony, the standard charge should be used, but the phrase "guilty of
malpractice" should be deleted and the word "negligence"
inserted in its place.
As to any other charge which may be relevant to a case
involving professional negligence, the Committee suggests that the use of the
term "malpractice" or the phrase "guilty of malpractice"
not be used and that the general term "negligence" be used in its
place.
[1] If references
to medical treatises were permitted under N.J.R.E. 803(c)(18), then the
jury could further be charged that if an expert was permitted to refer to or
rely on material from medical textbooks, articles, or the like, to support
his/her opinion on the issue of the standard of care, then you may consider such
material as evidence of the applicable standard of care. Jacober v. St.
Peter's Medical Center, 128 N.J. 475 (1992).
[2] Morlino v.
Medical Center of Ocean County, 295 N.J.
Super. 113 (App. Div. 1996), aff'd.152 N.J. 563 (1998). See
also, Fernandez v. Baruch, 52 N.J. 127, 131 (1968), Carbone
v. Warburton, 11 N.J. 418, 425 (1953), Schueler v. Strelinger, 43 N.J. 330, 346 (1964), Ziemba v.
Riverview Medical Center, 275 N.J. Super. 293 (App. Div. 1994), Nguyen v. Tama, 298 N.J. Super.
41 (App. Div. 1997).
[3] Morlino, supra.
Aiello v. Muhlenberg Regional Medical Center, 159 N.J. 618
(1999), Velazquez v. Portadin, 163 N.J. 677 (2000).
