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Finish Strong: Jury Charges and Jury Interrogatories
Moderator:
Judge Will Crain Court of Appeal, First Circuit
Panelists:
Judge Rosemary Ledet Court of Appeal, Fourth Circuit
Benjamin Mouton
McGlynn, Glisson & Mouton
C. William “Bill” Bradley Bradley, Murchison, Kelly & Shea
2015 Evidence and Procedure Seminar LOUISIANA JUDICIAL COLLEGE
LOUISIANA ASSOCIATION FOR JUSTICE
February 26, 2015 . Windsor Court Hotel . New Orleans, Louisiana
2
Finish Strong: Jury Charges and Jury Interrogatories
INDEX
1. The Court’s Duty To Instruct The Jury On The Law 3
2. Plain Civil Jury Instructions 3 – 6
3. Appellate Review 6 – 10 4. Select Examples – Application of
Review Standards 10 – 16
5. Attachment 1 – Part R, Rule XLIV of The Rules of the Supreme Court of Louisiana – Plain Civil Jury Instructions
6. Attachment 2 – Jury Charge Issues and Sample Special Jury Charges
7. Attachment 3 – Sample – Jury Interrogatories (multiple plaintiffs/multiple defendants
3
8. Attachment 4 – Sample – Defendant Proposed
Jury Interrogatories (wrongful death and loss of chance)
9. Attachment 5 – Sample – Defendant Proposed Jury Interrogatories (loss of chance)
10. Attachment 6 – Sample – Plaintiff Proposed Jury Interrogatories (single defendant enrolled with Patient’s Compensation Fund)
11. Attachment 7 – Sample – Plaintiff Proposed Jury
Interrogatories (multiple defendants enrolled with Patient’s Compensation Fund, one settled for $100,000 before trial)
4
1. The Court’s Duty To Instruct The Jury On The Law
The trial court is required to instruct the jurors on the law applicable to the
cause submitted to them. La. Code Civ. Pro. Art. 1792B. At any time during the
trial, the jury may be instructed on the law applicable to any issue in the case. La.
Code Civ. Pro. Art. 1792A. After the presentation of all evidence and argument,
the jury shall be instructed on the law applicable to the case. La. Code Civ. Pro.
Art. 1792B.
Correlative to the trial court’s duty to charge the jury is the responsibility of
ensuring that the jury receive only the correct law. Adams v. Rhodia, Inc., 07-2110
(La. 5/21/08), 983 So. 2d 798, 804. The trial court has broad discretion in deciding
what law is applicable or inappropriate to the case and in formulating jury
instructions. See Adams, 983 So. 2d at 804. A party may file written requests that
the court instruct the jury on the law set forth in the requests; however, the trial
court is under no obligation to give any specific jury instructions that may be
submitted by either party. See La. Code Civ. Pro. Art. 1793A; LeBlanc v. Landry,
08-1643 (La. App. 1 Cir. 6/24/09), 21 So. 3d 353, 359, writ denied, 09-1705 (La.
10/2/09), 18 So. 3d 117.
2. Plain Civil Jury Instructions
In formulating the instructions to be given to the jury, the trial court must be
mindful of its responsibility to reduce the possibility of confusing the jury. See
5
Adams, 983 So. 2d at 804. In 2011, the Louisiana Supreme Court established The
Committee to Study Plain Civil Jury Instructions, composed of H. Alston Johnson,
III, esq. (committee chair), Honorable James E. Stewart, Honorable Rosemary
Ledet, Honorable Guy Holdridge, and Julie J. Baxter, esq.. The committee was
tasked with drafting opening, interim and closing jury instructions that correctly
stated the law, but are clearer and easier to understand for the jurors. As a result of
the committee’s efforts, and after input from state judges at the 2012 LSBA/LJC
Summer School, followed by publication and an opportunity for public comment
in early 2013, the Supreme Court adopted the “Plain Civil Jury Instructions,”
(attached as “Attachment 1”) effective October 5, 2014. See Supreme Court Rule
XLIV.
Supreme Court Rule XLIV sets forth that the general opening, interim, and
closing jury instructions provided in the “Plain Civil Jury Instructions” should be
used in all civil jury trials in the State. The rule specifies, however, that the
general civil jury instructions are not intended to replace the need for a charge
conference relative to special jury instructions. While the enabling language of the
rule states that the “Plain Civil Jury Instructions” should be used, the clear
expectation of the supreme court, as reflected in the various communications by
them relative to the instructions, is that they will be used. The “Plain Civil Jury
6
Instructions” are a welcomed step toward statewide uniformity in this important
area of trial practice.
The “Opening Instructions” give the jury an overview of their role and
responsibility throughout the course of the trial. Being present to do a job, it is
important to let the jurors know what that job is as soon as possible. Some of the
“Opening Instructions” suggest that they may be given to the whole venire. Which
are preferable for the whole venire, rather than for the selected jury?
Note that some of the “Advance” Closing Arguments are given only if
appropriate for the case. That requires that these matters be determined early,
preferably before the trial begins. This includes an explanation for the use of
depositions as evidence, and whether the standard of persuasion is by “clear and
convincing evidence”, among others. These matters should be addressed as early
in the trial preparation process as possible so that “juror” time is not wasted, since
wasting time is the most frequent complaint of jurors.
The “Interim Instructions” are to be given at the point during the course of
the trial that the issue arises, so that the jury can understand the significance of
those issues.
The “Closing Instructions” provide for the inclusion of special requested
charges. Again, to make the charges clear and correct, incorporating the special
7
charges will take TIME. Start early preparing the charges and working with the
court so that the jury is given clear and correct instructions.
3. Appellate Review
Ordinarily, a jury’s factual findings are accorded great weight and may not
be disturbed on appeal in the absence of manifest error or unless the findings are
manifestly erroneous. See Rosell v. ESCO, 549 So. 2d 840, 844. However, when
the jury verdict is based on instructions which are faulty in a critical regard, the
verdict is tainted and not entitled to a presumption of regularity. Everett v. State
Farm Fire & Cas. Ins. Co., 09-1699 (La. App. 1 Cir. 3/26/10), 37 So. 3d 456, 461;
Wilson v. National Union Fire Ins. Co. of Louisiana, 27,702 (La. App. 2 Cir.
12/6/95), 665 So. 2d 1252, 1258-59; Coutee v. State Farm Mut. Auto. Ins., 95-269
(La. App. 3 Cir. 11/2/95), 664 So. 2d 542, 544; Yuspeh v. Koch, 02-698 (La. App.
5 Cir. 2/25/03), 840 So. 2d 41, 49, writs denied, 03-1134 (La. 6/27/03), 847 So.2d
1277 and 03-1144 (La. 6/27/03), 847 So. 2d 1279.
For a party to preserve an objection to the giving or the failure to give an
instruction, the party must object before the jury retires to consider its verdict or
immediately after the jury retires, and must state specifically the matter to which
he objects and the grounds therefor. La. Code Civ. Pro. art. 1793C. Failure to
comply with this mandatory requirement precludes a party from raising the issue
on appeal. See Willis v. Ochsner Clinic Foundation, 13-627 (La. App. 5 Cir.
8
4/23/14), 140 So. 3d 338, 349. However, where the jury instructions contain a
“plain and fundamental” error, the contemporaneous objection requirement is
relaxed and appellate review is not prohibited. Wegener v. Lafayette Ins. Co., 10-
0810 (La. 3/15/11), 60 So. 3d 1220, 1230 n.10 (where jury interrogatories
“essentially misstated the law” and thus contained a plain and fundamental error,
resulting in the court reviewing the issue despite there being no contemporaneous
objection and without the parties raising the issue on appeal); Abney v. Smith, 09-
0794 (La. App. 1 Cir. 2/8/10), 35 So. 3d 279, 286-87, writ denied, 10-0547 (La.
5/7/10), 34 So. 3d 864 (finding that jury interrogatories and a supplemental
instruction on the issue of whether the jury had to assess damages in favor of each
of the plaintiffs misstated the law and thus contained a plain and fundamental error
leading the court to relax the contemporaneous objection requirement); see also
Berg v. Zummo, 00-1699 (La. 4/25/01), 786 So. 2d 708, 716 n.5 (finding that jury
instructions and interrogatories regarding the assessment of punitive damages
misstated the law and thus contained a plain and fundamental error, leading the
court to relax the contemporaneous objection requirement).
The appellate court must exercise great restraint before upsetting a jury
verdict because of an error in the jury instructions. See Adams, 983 So. 2d at 804.
The appellate court must consider the entirety of the jury instructions to determine
if the instructions adequately provide the correct principles of law as applied to the
9
issues framed in the pleadings and the evidence and whether the instructions
adequately guided the jury in its determination. Wooley v. Lucksinger, 09-0571
(La. 4/1/11), 61 So. 3d 507, 574. Mere discovery of an error in the jury
instructions does not constitute reversible error or justify the appellate court
conducting de novo review. See Adams, 983 So. 2d at 805. The court must
measure the gravity or degree of the error and consider the instructions as a whole,
as well as the circumstances of the case. See Adams, 983 So. 2d at 805. The
complaining party must also show that it has been injured or prejudiced thereby.
See Wooley, 61 So. 3d at 574; Adams, 983 So. 2d at 804-05. “The ultimate inquiry
on appeal is whether the jury instructions misled the jury to such an extent that the
jurors were prevented from dispensing justice.” Wooley, 61 So. 3d at 574.
If the court finds that the jury was erroneously instructed and the error
probably contributed to the verdict, it must set aside the verdict. Wooley, 61 So. 3d
at 574. Typically, when a legal error is found to have interdicted the fact finding
process and the record is otherwise complete, the appellate court should conduct its
own de novo review of the record to reach a conclusion, rather than remanding the
case for a new trial. See Wegener, 60 So. 3d at 1233; Gonzales v. Xerox Corp.,
254 La. 182, 320 So. 2d 163, 165-66 (La. 1975). However, in some cases, the
particular facts and circumstances presented will necessitate remand for new trial
to prevent a miscarriage of justice. See Wegener, 60 So. 3d at 1233-34. The
10
determination of whether a particular case should be reviewed de novo or
remanded for new trial is largely within the discretion of the reviewing court.
Wegener, 60 So. 3d at 1234.
Similar to jury instructions, jury interrogatories must fairly and reasonably
point out the issues to guide the jury in reaching an appropriate verdict. Marroy v.
Hertzak, 11-0403 (La. App. 1 Cir. 9/14/11), 77 So. 3d 307, 312. If the verdict
form does not adequately set forth the issues to be decided by the jury, whether
because it is misleading or confusing, such interrogatories may constitute
reversible error. See Abney, 35 So. 3d at 283. As with jury instructions, the trial
court has wide discretion with regard to the interrogatories submitted to the jury.
See La. Code Civ. Pro. art. 1812; Wiltz v. Brothers Petroleum, L.L.C., 13-332 (La.
App. 5 Cir. 4/23/14), 140 So. 3d 758, 773, writs denied, 14-1252 (La. 10/10/14),
151 So. 3d 581 and 14-1298 (La. 10/10/14), 151 So. 3d 583; Schram v. Chaisson,
03-2307 (La. App. 1 Cir. 9/17/04), 888 So. 2d 247, 254. And the same mandatory
procedural rule required to preserve an objection to the jury instructions applies to
preserve an objection to jury interrogatories. See Willis, 140 So. 3d at 349; Hebert
v. Old Republic Ins. Co., 01-355 (La. App. 5 Cir. 1/29/02), 807 So. 2d 1114, 1127.
It is only when the jury interrogatories are so inadequate or incorrect as to preclude
the jury from reaching a verdict based on the law and facts that the appellate court
11
may disregard the manifest error standard generally applicable to the jury’s factual
findings. See Wiltz, 140 So. 3d at 773.
4. Select Examples – Application of review standards
Harris v. St. Tammany Parish Hosp. Serv. Dist. No. 1, 11-0941 (La. App. 1 Cir. 12/29/11) (unpublished), 2011WL6916523, writs denied, 12-0585, 12-0678 (La. 4/20/12), 85 So. 3d 1275, 1277.
A negligence suit against a hospital and funeral home was consolidated with
a medical malpractice suit, with the cause of action that was the focus of the
appeal arising from the failure of the hospital to obtain an autopsy of the
decedent as ordered by her treating physician. On appeal, the court found
that the jury instructions and verdict form did not “adequately set forth the
entirety of the issues pled and tried”, and “omit[ted] essential legal
principles as to the defendant”, because they failed to include the negligent
infliction of emotional distress claims related to the autopsy issue. The court
vacated a defense verdict and conducted de novo review, resulting in a
judgment for the plaintiff.
Medine v. Roniger, 03-3436 (La. 7/2/04), 879 So. 2d 706.
In this medical malpractice suit, the supreme court found no abuse of
discretion where the trial court refused to give two jury charges, one
12
concerning a medical review panel member’s dual role as panelist and expert
witness for the defendant, and one concerning the obligation of a psychiatrist
(defendant doctor’s medical specialty) treating a person with a history of
depression or suicidal tendencies to restrict medication dispensed to the
smallest feasible amount. After reviewing the jury charges in their entirety,
the supreme court concluded that the charges adequately provided the
correct principles of law as applied to the issues as framed in the pleadings
and evidence and adequately guided the jury in its deliberation.
LeBlanc v. Landry, 08-1643 (La. App. 1 Cir. 6/24/09), 21 So. 3d 353, writ denied, 09-1705 (La. 10/2/09), 18 So. 3d 117.
In defining the plaintiff’s burden of proof in a medical malpractice case,
the trial court instructed the jury that the plaintiff must prove the degree of
care ordinarily exercised by physicians “licensed to practice in Louisiana”,
and actively practicing a particular medical specialty, and struck the
language “in a similar community or locale.” The appellate court found that
the jury instructions as a whole did not mislead or confuse the jury to the
extent that it was prevented from dispensing justice, while noting that the
testimony of all of the experts made it clear that no local standard was
applied, and there was no evidence that the Louisiana standard of care
13
differed from the national standard. The instructions as a whole were
determined to adequately and fairly advise the jury of the applicable law and
the jury was not precluded from dispensing justice. De novo review was not
warranted.
Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So. 2d 102, writ denied, 97-2788 (La. 1/30/98), 709 So. 2d 708.
The jury instructions were confusing as to the burden of proof required of
the plaintiff. The instructions stated that the Medical Review Panel found
that the evidence did not support a conclusion that the defendant doctor
failed to meet the applicable standard of care (and did not explain the
evidentiary significance of the medical review panel opinion), then stated
that the law “presumes” that a medical practitioner possesses reasonable
knowledge and skills required of him, and that this “presumption” should
control the jury’s deliberations. The court found, after reviewing the
instructions in their entirety, that even though the instructions also included
the correct burden of proof for the plaintiff, the erroneous statement of the
law and the placement of the erroneous charge at the end of the instructions
“prejudiced the case and resulted in the adverse verdict”. The court
conducted de novo review.
14
Thorne v. Doe, 98-1083 (La. App. 4 Cir. 11/18/98), 724 So. 2d 242,
The jury was instructed that “the law accords physicians and nurses the
presumption that they have done their duty,” and that “the burden is on the
plaintiff to prove by a preponderance of the evidence that a doctor or nurse’s
treatment fell below the standard of care”. On appeal, the court
distinguished Williams, and held that the jury was properly instructed as to
the plaintiff’s burden under Louisiana Revised Statute 9:2794C, that the jury
was not misled or confused by the use of the word “presumption,” as the
trial court did not instruct the jury that a “presumption” should control its
deliberations, and when read in their entirety the charges were clear and
accurate.
Pickering v. Paraguya, 07-1581 (La. App. 3 Cir. 4/15/09), 9 So. 3d 320, writ denied, 09-1101 (La. 10/2/09), 18 So. 3d 116.
The case involved the treatment of a diabetic foot infection by a board
certified endocrinologist. After being requested by the jury during
deliberations for further instructions relative to whether the plaintiff proved
the applicable standard of care, the trial judge essentially read Louisiana
Revised Statute 9:2794A(1), but inserted the defendant’s name so that it read
“… actively practicing in a similar community or locale and under similar
15
circumstances as Dr. Paraguya.” Because the defendant was plaintiff’s
treating physician, the trial court also instructed the jury “to accord more
weight to Dr. Paraguya’s testimony because he was Mr. Pickering’s treating
physician”. All of plaintiff’s experts were from out of state, while all of the
defendant’s experts were from Louisiana. The issue presented was whether
the standard of care required certain actions as testified to by the plaintiff’s
experts, or whether those actions were optional as testified to by the
defendant and his experts. The appellate court found that the instruction was
erroneous, that a national standard of care was applicable and the
defendant’s testimony was not entitled to extra weight, that the erroneous
instruction effectively prohibited the jury from considering the opinions of
plaintiff’s experts, and, therefore, the jury was prevented from rendering a
proper verdict based upon the law and the facts. De novo review was
conducted resulting in a plaintiff verdict.
Doyle v. Ramos, 13-1143 (La. App. 3 Cir. 3/5/14), 134 So. 3d 92.
A jury interrogatory combined the elements of breach of the standard of
care and causation as follows: “Do you find, by a preponderance of the
evidence, that Dr. Liwliwa Ramos breached the applicable standard of care
owed to Doris Doyle, and if so, was this breach a proximate cause of
16
injuries, if any, to Doris Doyle?” The jury answered “No.” Plaintiff argued
that combining the issues of breach of the standard of care and causation in a
single interrogatory, and failing to ask whether plaintiff proved the
applicable standard of care, confused the jury. Recognizing that a
misleading or confusing jury interrogatory only warrants reversal if it
prevents the jury from reaching a verdict based upon the law and the facts,
the court found that “it is clear that, in total, the jury concluded that Ms.
Doyle failed to sustain her burden of proof.” Significantly, the court also
pointed out that the plaintiff did not object to the jury verdict form as
submitted to the jury.
Braud v. Woodland Vill. L.L.C., 10-0137 (La. App. 4 Cir. 12/8/10), 54 So. 3d 745, writ denied, 11-0311 (La. 4/1/11), 60 So. 3d 1254. The decedent was placed in a nursing home facility due to dementia, where
he suffered a fatal heart attack. Despite orders for him to be checked every fifteen
minutes, the evidence at trial established that he had last been checked at least
forty-five minutes before he was found breathless and pulseless by the nursing
home staff. The jury was charged regarding wrongful death and survival damages,
but was not instructed regarding loss of chance for survival damages. The jury
returned a plaintiff verdict for wrongful death. The court found that there was no
evidence to support a wrongful death claim because no-one testified that the
17
defendant caused the fatal heart attack. However, evidence was presented that the
decedent lost a chance for survival. Even though the defendant had not objected to
the absence of a loss of chance of survival instruction, the appellate court found
clear legal error in failing to allow the jury to quantify potential damage awards for
loss of chance for survival, and that the fact-finding processes were clearly and
wrongfully affected. The court remanded the case for a new trial.
Held v. Aubert, 02-1486 (La. App. 1 Cir. 5/9/03) 845 So. 2d 625.
A medical malpractice action was instituted against an obstetrician for
vacuum extractor and forceps injuries sustained by an infant during birth.
The jury awarded $100,000.00 to each parent as by stander damages under
Louisiana Civil Code article 2315.6 for witnessing their child’s traumatic
birth. The jury verdict form included an award of Article 2315.6 damages,
even though the jury had not been instructed on the law applicable to Article
2315.6 damages. The appellate court rejected the plaintiff’s contention that
the jury instructions relative to the award of general damages adequately
covered by stander damages under Article 2315.6, and found that the
absence of an instruction on that issue constituted legal error which
interdicted the fact-finding process. De Novo review was conducted and
judgment was rendered for the defendant on that element of damages.
1
Jury Charge Issues and Sample Special Jury Charges
1. Burden of proof in a medical malpractice case.
PLAINTIFF PROPOSED JURY INSTRUCTION In a medical malpractice action against a physician, the patient carries a two-
fold burden of proof; plaintiff must first establish by a preponderance of the
evidence that the physician’s treatment fell below the ordinary standard of care
expected of physicians in his medical specialty, and must then establish the causal
relationship between the alleged negligent treatment and the injury sustained.
Hoot v. Woman’s Hosp. Foundation, 96-1136 (La. App. 1 Cir. 5/27/97), 691 So. 2d 786, writ denied, 97-1651 (La. 10/3/97). Lefort v. Venable, 95-2345, 95-2346 (La. App. 1 Cir. 6/28/96), 676 So. 2d 218. Torbert v. Licciardi, 94-2026 (La. App. 4 Cir. 4/24/96), 673 So. 2d 1213, writs denied, 96-1168, 96-1302 (La. 6/21/96), 675 So. 2d 1082. Morris v. Ferriss, 95-1790, 95-1791, 95-1792 (La. App. 4 Cir 2/15/96), 669 So. 2d 1316, writ denied, 96-0676 (La. 4/26/96), 672 So. 2d 671. Evans v. Haynie, 26,135 (La. App. 2 Cir. 9/21/94), 643 So. 2d 273, writ denied, 94- 2589 (La. 12/16/94), 648 So. 2d 391.
PLAINTIFF PROPOSED JURY INSTRUCTION
A medical malpractice plaintiff need not show that the defendant’s conduct
Attachment No. 2
2
was the only cause of the harm, nor must he negate all other possibilities; rather, he
must show by a preponderance of the evidence, or more probably than not, that he
suffered injury because through medical testimony that it is more probable than not
that the injuries were caused by the substandard care of the defendant’s conduct.
The test for determining the causal connection is whether the plaintiff provided
care.
LeBlanc v. Barry, 00-709 (La. App. 3 Cir. 2/28/01), 790 So. 2d 75, writ denied, 01-1275 (La. 6/15/01), 793 So. 2d 1251. Dumont v. Maaliki, 99-1850 (La. App. 1 Cir. 9/22/00), 769 So. 2d 1230. Gordon v. Louisiana State University Bd. of Sup’rs, 27,966 (La. App. 2 Cir. 3/1/96), 669 So. 2d 736, writ denied, 96-1038 (La. 5/31/96), 674 So. 2d 263. Clark v. Baton Rouge General Medical Center, 94 2239 (La. App. 1 Cir. 6/23/95), 657 So. 2d 741, writ denied, 95-1911 (La. 10/27/95), 661 So. 2d 1347, writ denied, 95-1794 (La. 10/27/95), 661 So. 2d 1352.
PLAINTIFF PROPOSED JURY INSTRUCTION The defendant must take his victim as he finds him.
As a result, if the plaintiff’s pre-existing conditions or diseases were
aggravated by the negligence of the defendant, then you can still award damages
for the worsening of the condition or disease.
Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70. Lasha v. Olin Corp., 625 So. 2d 1002 (La. 1993).
3
DEFENDANT PROPOSED JURY INSTRUCTION
If plaintiffs fail to prove any one of the three essential elements of their case
by a preponderance of the evidence, you must render judgment in favor of
defendant.
La. R.S. 9:2794
DEFENDANT PROPOSED JURY INSTRUCTION To recover for medical malpractice, the plaintiffs must prove not only that
the physician failed to comply with the applicable standard of care, but also that
her substandard conduct caused an injury that the plaintiffs would not otherwise
have suffered. If you find from the evidence that plaintiffs’ alleged injuries were
attributable to factors other than the physician’s alleged negligence, your verdict
should be for the defendant.
La. R.S. 9:2794
Byrd v. State Through Dept. of Public Safety and Corrections, 93-2765 (La. 5/23/94), 637 So. 2d 114. Culver v. Ochsner Foundation Hosp., 474 So. 2d 984 (La. App. 5 Cir.), writ denied, 477 So. 2d 705 (La. 1985).
4
DEFENDANT PROPOSED JURY INSTRUCTION A physician is not required to exercise the highest degree of care possible,
nor is she held to an absolute standard of precision.
Boudoin v. Crawford and Marshall, Ltd., 97-244 (La. App. 5 Cir. 1/14/98), 709 So. 2d 798.
DEFENDANT PROPOSED JURY INSTRUCTION The standard of care owed by a physician is not to exercise the highest
degree of skill and care possible but, rather, to exercise that degree of skill and care
which is usually possessed and exercised by members of her profession and use
reasonable care and diligence, along with her best judgment, in the application of
her skill to the case before her.
Fusilier v. Dauterive, 00-0151 (La. 7/14/00), 764 So. 2d 74. Walker v. Corsetti, 04-784 (La. App. 5 Cir. 3/29/05), 900 So. 2d 991, writs denied, 05-1101 (La. 6/17/05), 904 So. 2d 700, and 05-1110 (La. 6/17/05), 904 So. 2d 702. Harwell v. Pittman, 428 So. 2d 1049 (La. App. 1 Cir.), writ denied, 434 So. 2d 1092 (La. 1983). Smith v. State, 523 So. 2d 815 (La. 1988).
2. Is expert testimony necessary to determine the standard of care?
5
PLAINTIFF PROPOSED JURY INSTRUCTION
In medical malpractice actions, opinions from medical experts are necessary
to determine both the applicable standard of care and whether that standard was
breached, and it is for you the jury to evaluate conflicting expert opinions in
relation to all of the circumstances of the case.
Lefort v. Venable, 95-2345, 95-2346 (La. App. 1 Cir. 6/28/96), 676 So.2d 218. Roland v. Tedesco, 616 So. 2d 780 (La. App. 2 Cir.), writ denied, 619 So. 2d 579 (La. 1993), abrogated on other grounds by Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So. 2d 1228.
PLAINTIFF PROPOSED JURY INSTRUCTION
There is no presumption that the doctor possessed the required skill or
knowledge.
Williams v. Golden, 95-2712 (La. App. 4 Cir. 7/23/97), 699 So. 2d 102, 106, writ denied, 97-2788 (La. 6/30/98), 709 So. 2d 708.
PLAINTIFF PROPOSED JURY INSTRUCTION Expert testimony is not required in a medical negligence case when the
physician commits an obvious careless act from which a lay person can infer
negligence.
Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So. 2d
6
1228. Mitter v. Touro Infirmary, 03-1608 (La. App. 4 Cir. 4/21/04), 874 So. 2d 265, 269. Hinson v. Glen Oak Retirement Home, 34,281 (La. App. 2 Cir. 12/15/00), 774 So. 2d 1134,1139.
DEFENDANT PROPOSED JURY INSTRUCTION
The fact that the plaintiffs have brought a lawsuit and are seeking money
damages creates no inference at all that they are entitled to a judgment for any
amount. Anyone may make a claim or file a lawsuit and the fact that a claim is
made by itself in no way tends to establish it.
Not every injury that occurs gives rise to a cause of action upon which the
party injured may recover damages from someone else. Injuries do occur for
which no one is liable for damages, and often no one is to blame legally. The mere
fact that an injury happens and that the damage occurs does not raise any
presumption of fault on the part of anyone. The party who alleges fault must prove
it by a preponderance of the evidence.
La. R.S. 9:2794.
Broussard v. Pennsylvania Millers Mut. Ins. Co., 406 So. 2d 574 (La. 1981). Boudreaux v. American Ins. Co., 264 So. 2d 621 (La. 1972).
7
Musso v. St. Mary Parish Hospital Service Dist. No. 1, 345 So. 2d 129 (La. App. 1 Cir.), writ denied, 347 So. 2d 262 (La. 1977). Minton v. Continental Ins. Co., 110 So. 2d 789 (La. App. 1 Cir. 1959). Knight v. Travelers Ins. Co., 32 So. 2d 508 (La. App. 1 Cir. 1947). Sumrall v. Aetna Cas. & Sur. Co., 124 So.2d 168 (La. App. 2 Cir. 1960). Walker v. Union Oil Mill, Inc., 360 So. 2d 894 (La. App. 3 Cir. 1978). Covington v. Loffland Bros. Co., 152 So.2d 108 (La.App. 3 Cir. 1963). City of New Orleans v. Williams, 292 So.2d 744 (La.App. 4 Cir. 1974). Denneker v. Pecoraro, 64 So.2d 510 (La.App. Orl. 1953). Lawson v. D. H. Holmes Co., 200 So. 163 (La.App. Orl. 1941).
DEFENDANT PROPOSED JURY INSTRUCTION Injury alone does not raise a presumption that the physician committed
malpractice.
La. R.S. 9:2794(C).
Galloway v. Baton Rouge General Hosp., 602 So. 2d 1003 (La. 1992). Malbrough v. Hamsa, 463 So. 2d 639 (La. App. 5 Cir. 1984), writs denied, 466 So. 2d 462, 475 (La. 1985). Britt v. Taylor, 37,378 (La. App. 2 Cir. 8/20/03), 852 So. 2d. 1128.
DEFENDANT PROPOSED JURY INSTRUCTION
8
The law accords medical practitioners the presumption that they have done
their duty, in the absence of any evidence to the contrary, and in a suit for injury
caused by alleged malpractice the burden is on the plaintiffs to prove the want of
reasonable or ordinary care or skill. You are further instructed that the burden of
proof is not shifted to the defendant by showing that an unsuccessful result has
attended the treatment of the patient.
Bryant v. St. Paul Fire and Marine Ins. Co., 382 So. 2d 234 (La. App. 3 Cir. 1980). Pizzalotto v. Wilson, 411 So. 2d 1150 (La. App. 1 Cir. 1982), rev’d, 437 So. 2d 859 (La. 1983). Thorne v. Doe, 98-1083 (La. App. 4 Cir. 11/18/98), 724 So. 2d 242. Meyer v. St. Paul-Mercury Indem. Co., 73 So. 2d 781 (La. 1953), overruled, Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d 1331 (La. 1978).
3. Does res ipsa apply?
PLAINTIFF PROPOSED JURY INSTRUCTION
The doctrine of res ipsa loquitur applies when (1) the accident would not
normally occur in the absence of negligence, (2) there is an absence of direct
evidence to explain the activities leading to the injury, and (3) the accident or
injury was caused by an agency or instrumentality with the actual or constructive
control of the defendant.
9
Dean v. Ochsner Medical Foundation Hospital and Clinic, 99-466 (La. App. 5 Cir. 11/10/99), 749 So. 2d 36, 40. Levy v. Our Lady of the Lake Regional Medical Center, 546 So. 2d 592, 593 (La. App. 1 Cir.), writ denied, 550 So. 2d 653 (La. 1989). Bergeron v. Houma Hospital Corp., 514 So. 2d 1192, 1195 (La. App. 1 Cir. 1987), writs denied, 517 So. 2d 812 (La. 1988).
PLAINTIFF PROPOSED JURY INSTRUCTION
Res ipsa loquitur applies when circumstances suggest the defendant’s
negligence as the most plausible explanation of the plaintiff’s injury.
Dean v. Ochsner Medical Foundation Hospital and Clinic, 99-466 (La. App. 5Cir. 11/10/99), 749 So. 2d 36, 40. Levy v. Our Lady of the Lake Regional Medical Center, 546 So. 2d 592, 593 (La. App. 1 Cir.), writ denied, 550 So. 2d 653 (La. 1989). Smith v. State through Dept. of Health and Human Resources Admin., 523 So. 2d 815, 822 (La. 1988).
DEFENDANT PROPOSED JURY INSTRUCTION
The doctrine of res ipsa loquitur does not apply in medical malpractice cases
where the injury complained of is a recognized complication of the surgery
performed on the plaintiff, even if the complication is a remote one.
Pommier v. ABC Insurance Co., 97-1342 (La. App. 3 Cir. 7/15/98), 715 So. 2d 1270, 1275, writs denied, 98-2439 (La. 11/20/98), 729 So. 2d 559; 98-2455 (La. 11/20, 98), 729 So. 2d 562; 98-2456 (La. 11/20/98), 729 So. 2d 562.
10
Dardeau v. Ardoin, 97-144 (La. App. 3 Cir. 11/5/97), 703 So. 2d 695, 698, writ denied, 98-0359 (La. 3/27/98), 716 So. 2d 889. Elkins v. Key, 29,977 (La. App. 2 Cir. 10/29/97), 702 So. 2d 57. James v. Gordon, 95-1472 (La. App. 3 Cir. 12/4/96), 690 So. 2d 787, writ denied, 97-0756 (La. 5/1/97), 693 So. 2d 738.
4. Local versus national standard of care.
PLAINTIFF PROPOSED JURY INSTRUCTION
A physician holding himself out as a specialist in the treatment of a
particular disease, organ, or type of injury is bound to exercise not only the degree
of skill exercised by the average general practitioner, but also that special degree of
skill or knowledge possessed by specialists in the same field, regard being made to
the state of scientific knowledge at that time.
White v. Edison, 361 So. 2d 1292, 1295 (La. App. 1 Cir.), writ denied, 363 So. 2d 915 (La. 1978). Iseah v. E.A. Conway Memorial Hospital, 591 So. 2d 767, 772 (La. App. 2 Cir. 1991), writ denied, 595 So. 2d 657 (La. 1992). Parmelee v. Kline, 579 So. 2d 1008 (La. App. 5 Cir.), writ denied, 586 So. 2d 564 (La. 1991).
PLAINTIFF PROPOSED JURY INSTRUCTION
11
A mistaken diagnosis constitutes malpractice when the physician fails to
exercise that standard or degree of care in diagnosing which should have been used
by a competent member of his specialty.
Martin v. East Jefferson General Hospital, 91-0393 (La. 6/21/91), 582 So. 2d 1272, 1278-9.
PLAINTIFF PROPOSED JURY INSTRUCTION
The basic rules of medicine require that doctors rule out all of the life-
threatening illnesses that the symptoms could have indicated.
Martin v. East Jefferson General Hospital, 91-0393 (La. 6/21/91), 582 So. 2d 1272, 1279. Sewell v. United States, 629 F.Supp. 448 (W.D. La. 1986).
PLAINTIFF PROPOSED JURY INSTRUCTION
The duty of care owed to patients by a hospital is not governed by the
locality rule.
Griffen v. Kinberger, 595 So. 2d 645 (La. 1992). Keyworth v. Southern Baptist Hospitals, Inc., 524 So. 2d 56, 58 (La. App. 4 Cir.), writs denied, 525 So. 2d 1058, 1061 (La. 1988).
DEFENDANT PROPOSED JURY INSTRUCTION
A general practitioner is obligated to possess the degree of knowledge or
skill possessed, and to exercise the degree of care ordinarily exercised, by
12
physicians actually practicing in a similar community under similar circumstances.
Pitre v. Opelousas General Hospital, 530 So. 2d 1151, 1156 (La. 1988).
5. Vicarious liability (agency issue) for ER, hospitalists, etc., and the hospitals they serve.
PLAINTIFF PROPOSED JURY INSTRUCTION
A principal generally is not liable for the negligence of an independent
contractor while performing his contractual duties. Two exceptions to this general
rule exist (1) where the work is ultra hazardous, and (2) if the principal reserves the
right to supervise or control the work of the independent contractor.
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 807, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558.
Thomas v. Albertsons, Inc., 28,950 (La. App. 2 Cir. 12/11/96), 685 So. 2d 1134, writ denied, 97-0391 (La. 3/27/97).
PLAINTIFF PROPOSED JURY INSTRUCTION
In determining whether a principal is liable for the negligence of an
independent Contractor, is whether the principal retains the right to control the
work. The important question is whether, from the nature of the relationship, the
right to do so exists, not whether supervision and control is actually exercised.
13
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 807, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558. Hickman v. Southern Pacific Transport Co., 262 So. 2d 385 (La. 1972). Roberts v. State, through La. Health, 404 So. 2d 1221 (La. 1981).
PLAINTIFF PROPOSED JURY INSTRUCTION
Whether an emergency room physician is an employee or an independent
contractor is a factual issue turning on the control exercised by the hospital over
his activities. In fact, a hospital's duty and corresponding liability for breach of
that duty is in direct proportion to its right to control the medical treatment
rendered there.
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 807, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986) Sibley v. Board of Supervisors of Louisiana State University, 490 So. 2d 307, 314 (La. App. 1 Cir.), writ denied, 496 So. 2d 325 (La. 1986).
PLAINTIFF PROPOSED JURY INSTRUCTION
The absence of specific orders by the treating physician is not fatal to a
14
plaintiff's personal injury claim alleging hospital negligence because the patient is
entitled to rely upon the hospital's expertise and independent professional judgment
to supplement the treating physician’s direct orders when necessary to afford the
patient the safe and reasonable health care the hospital is obligated to provide.
Likewise, strict adherence to the physician’s orders cannot excuse the failure to
provide safe and reasonable care to the Patient or preclude a finding of negligence
on the part of the hospital.
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 807, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558. Brown v. E.A. Conway Memorial Hospital through State, 588 So. 2d 1295 (La. App. 2 Cir. 1991). Bossier v. DeSoto General Hospital, 442 So. 2d 485, 490 (La. App. 2 Cir. 1983), writ denied, 443 So. 2d 1122 (La. 1984).
PLAINTIFF PROPOSED JURY INSTRUCTION
When a hospital holds itself out as an emergency services provider without
qualification; as such, patients are entitled to reasonably infer that they are to
receive competent emergency room services. In fact, as far as emergency room
services are concerned, the emergency room physician's employment status may be
irrelevant if the physician is simply fulfilling the hospital’s duty to provide
15
competent emergency room services.
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 809, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558.
6. MRP procedure. How much explanation to jury is enough/too much?
PLAINTIFF PROPOSED JURY INSTRUCTION
The medical review panel is a pre-trial screening procedure designed to give
both parties a preliminary view of the merits of the case. The findings of the
medical review panel are not to have preemptive or dispositive effect on
subsequent litigation.
Everett v. Goldman, 359 So. 2d 1256, 1264 (La. 1978).
PLAINTIFF PROPOSED JURY INSTRUCTION
The opinion of the medical review panel is not binding on the litigants.
Derouen v. Kolb, 397 So. 2d 791 (La. 1981).
Maxwell v. Soileau, 561 So. 2d 1378 (La. App. 2 Cir.1990), writs denied, 567 So. 2d 1123, 1124.
PLAINTIFF PROPOSED JURY INSTRUCTION
The medical review panel is not a court. The physician members of a
medical review panel are not allowed to weigh evidence or resolve material issues
16
of fact. The sole duty of the medical review panel is to issue an expert opinion
based on the evidence submitted for their review.
McElveen v.LeJeune, 427 So. 2d 643, 644 (La. App. 5 Cir.), rev’d, 432 So. 2d 263 (La. 1983). Derouen v. Kobb, 397 So. 2d 791 (La. 1981).
7. Informed consent.
JOINT PROPOSED JURY INSTRUCTION The informed consent doctrine is based on the principle that every adult of
sound mind has the right to determine what will done to his or her own body.
A plaintiff in an informed consent medical malpractice case bears the burden
of proof, and must show:
(1) the existence of a material risk which the physician must disclosed;
(2) the failure of the physician to inform the patient of a material risk;
(3) the occurrence of the material risk; and
(4) a casual connection between the failure to inform the patient of the risk and
realization of the risk.
The plaintiff has brought a cause of action pertaining to a lack of informed
consent. Under the Louisiana informed consent doctrine, a physician is required to
17
provide his patient with sufficient information to permit the patient to make an
informed and intelligent decision on whether to submit to the proposed course of
treatment. This information should include, if possible, the nature of the pertinent
ailment or condition, the general nature of the proposed treatment or procedure, the
risks involved therein, the prospects of success, the risks of failing to undergo any
treatment or procedure at all, and the risks of any alternate methods of treatment.
A physician must also inform the patient of any alternatives that exist to a surgical
procedure. Neither the Louisiana Uniform Consent Law nor the presence of a
written consent form precludes a physician from offering otherwise relevant
evidence to rebut a patient’s claim of lack of informed consent.
A physician has a duty to disclose to a patient the material risks of the
medical procedure. The first step is to define the existence and nature of the risk
and the likelihood of its occurrence. Generally, expert testimony is required to
establish this aspect of materiality because only an expert is capable of judging
what risk exists and the likelihood of its occurrence. The second step for the fact
finder, you the jury have to determine is the probability of that type of harm is a
risk that a reasonable patient would consider in deciding on treatment. This second
step does not require expert testimony. To recover damages for a doctor’s failure
to disclose a material risk, a plaintiff must also establish causation. Causation is
established only if adequate disclosure reasonably would be expected to have
18
caused a reasonable person to decline treatment because of the disclosure. A
physician may not act beyond his patient’s authorization, except when a situation
seriously threatens the health or life of the patient.
The plaintiff bears the burden of proving the existence of a material risk
unknown to the patient, a failure to disclose the risk on the part of the physician,
that disclosure of the risk would have led a reasonable patient in plaintiff’s position
to reject the medical procedure or choose a different course of treatment and
inquiry.
The test is an objective one and not subjective, i.e., whether a reasonable
patient in the plaintiff’s position would have consented to the treatment or
procedure had the material information had been disclosed.
A plaintiff may not recover in an action based on lack of informed consent
where it is shown that the plaintiff would have consented to the operation of
treatment if the patient had known of the risks.
Additionally, the plaintiff in a lack of informed consent case must not only
prove that the physician failed to disclosed all material information, but also that
there was a casual relationship between the physician’s failure to disclose and the
damages claimed by the patient. Otherwise, the physician’s conduct, however
wrongful, is legally inconsequential.
La. R.S. 40:1299.40
19
Snider v. Louisiana Medical Mutual Insurance Co., 13-0579 (La. 12/10/13), 130 So. 3d 922, 930-939. Hondroulis v. Schuhmacher, 553 So. 2d 398, 411 (La. 1988).
DEFENDANT PROPOSED JURY INSTRUCTION
The physician who will perform the surgical procedure must also “disclose
reasonable therapeutic alternatives and risks association with such alternatives….
Thus, “[u]nder the Louisiana informed consent doctrine, a physician is required to
provide [her] patient with sufficient information to permit the patient to make an
informed and intelligent decision on whether to submit to the proposed course or
treatment.
Pertuit v. Tenant Louisiana Health Systems, 10-0654, 10-0655, 10-0656 (La. App. 4 Cir. 9/22/10), 49 So. 3d 932, 936.
DEFENDANT PROPOSED JURY INSTRUCTION
Although a physician should inform a patient of alternatives that exist to the
surgical procedure, “a physician has no duty to disclose alternative treatments or
procedures which are not accepted as feasible.”
Pertuit v. Tenant Louisiana Health Systems, 10-0654, 10-0655, 10-0656 (La. App. 4 Cir. 9/22/10), 49 So. 3d 932, 937.
DEFENDANT PROPOSED JURY INSTRUCTION
A plaintiff in an action based on a failure to obtain informed consent must
prove four elements: (1) the existence of a material risk unknown to the patient; (2)
the physician’s failure to disclose the risk; (3) disclosure of the risk would have led
a reasonable patient in the patient’s position to reject the medical treatment or
choose a different course of treatment; and (4) the patient suffered injury.
R.S. 40:1299.40. Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So. 3d 922, 939.
DEFENDANT PROPOSED JURY INSTRUCTION
“The informed consent doctrine is based on the principle that every human
being of adult years and sound mind has the right to determine what shall be done
to his or her own body,” and, therefore, physicians are “required to provide their
patients with sufficient information to permit the patient himself to make an
21
informed and intelligent decision on whether to submit to the proposed course of
treatment.”
Snider v. Louisiana Medical Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So. 3d 922, 930 (citing Hondroulis v. Schuhmacher, 553 So. 2d 398, 411 (La. 1988)).
PLAINTIFF PROPOSED JURY INSTRUCTION (when informed consent is not an issue at trial)
Plaintiff’s awareness of the general risks of surgery, which are typically
contained in the consent documents signed by the patient before surgery, is not a
defense available to the surgeon against a claim that he deviated from the
applicable standard of care. While the patient may consent to risks associated with
a particular surgery, she does not consent to negligent medical or surgical care.
Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 (Conn. S. Ct. 8/7/2007); Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (Va. S. Ct. 2004); Waller v. Aggarwal, 116 Ohio App. 3d 355, 688 N.E.2d 274 (1996).
8. Loss of chance versus full recovery.
PLAINTIFF PROPOSED JURY INSTRUCTION
The plaintiff need not show that he would have obtained a perfect outcome
in the absence of the malpractice; rather, he can recover on a showing that the
defendant’s negligence denied him a chance of a better outcome.
Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099 (La. 7/5/94), 639 So. 2d 216, 219. Graham v. Willis-Knighton Medical Center, 27,338 (La. App. 2 Cir. 9/29/95), 662 So. 2d 161, 164. Coleman v. Deno, 99-2998 (La. App. 4 Cir. 4/25/01), 787 So. 2d 446, 470, affirmed in part, modified in part, and remanded, 01-1517 (La. 1/25/02), 813 So. 2d 303.
PLAINTIFF PROPOSED JURY INSTRUCTION
When a patient dies, to prove causation, the plaintiff need only prove that the
defendant’s malpractice (negligence) resulted in a loss of a chance of survival, and
is not faced with the unreasonable burden of demonstrating that the patient would
have survived if properly treated.
Campbell v. Hospital Serv. Dist. No. 1, 33,874 (La. App. 2 Cir. 10/4/00), 768 So. 2d 803, 807, writ denied, 00-3153 (La. 1/12/01), 781 So. 2d 558. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La. 1986).
23
Martin v. East Jefferson General Hospital, 582 So. 2d 1272 (La. 1991).
9. The PCF as statutory intervenor after settlement.
PLAINTIFF PROPOSED JURY INSTRUCTION
In this case, Dr. ____________ has admitted his liability as a matter of law,
so his fault is established. It is also established that his admitted fault caused at
least $100,000.00 in damages to the plaintiffs.
Pendleton v. Barrett, 95-2066 (La. 5/31/96), 675 So.2d 720, 726, abrogated by Graham v. Willis-Knighten Medical Center, 97-0188 (La. 9/9/97), 699 So. 2d 365. La. R.S. 40:1299.44.C.5(e) Graham v. Willis Knighton Medical Center, 97-0188 (La. 9/9/97), 699 So. 2d 365, 372. Conner v. Stelly, 02-0280 (La. 1/30/02), 807 So. 2d 827 (per curiam). Hall v. Brookshire Bros., Ltd., 02-2404 (La. 6/27/03), 848 So. 2d 559.
PLAINTIFF PROPOSED JURY INSTRUCTION
When a health care provider, such as Dr. _________, admits and establishes
liability by payment of $100,000.00 pursuant to the Act under 40:1299.44(C)(5),
the plaintiff is relieved of the obligation to prove a causal connection between the
admitted malpractice and his/her original and primary harm. However, if the
plaintiff is asserting claims for secondary damages, then he/she has the burden to
prove this secondary harm was caused by the medical negligence.
Pendleton v. Barrett, 95-2066 (La. 5/31/96), 675 So.2d 720, 726, abrogated by Graham v. Willis-Knighten Medical Center, 97-0188 (La. 9/9/97), 699 So. 2d 365.
10. Affirmative Defenses - Third Party and Plaintiff Fault.
PLAINTIFF PROPOSED JURY INSTRUCTION
When apportioning fault between parties involved in an action for
negligence, you should consider the following factors: (1) whether the harmful
conduct resulted from inadvertence or involved an awareness of danger; (2) the
greatness of the risk created by the conduct; (3) the significance of what was
sought by the conduct; (4) the capacities of the actor, whether superior or inferior;
25
and (5) any extenuating circumstances which might have required the actor to
proceed in haste, without proper thought.
La. Civ. Code art. 2323. Conner v. Stelly, 02-549 (La. App. 3 Cir. 10/30/02), 830 So. 2d 1102, 1109-10, writs denied, 03-0039 (La. 3/21/03), 840 So. 2d 551; 03-0129 (La. 3/21/03), 840 So. 2d 540 (citing Watson v. State Farm, 469 So. 2d 967 (La. 1985)).
11. Witness Credibility Issues in Medical Malpractice Cases.
PLAINTIFF AND DEFENDANT PROPOSED JURY INSTRUCTION
The testimony of a treating physician is entitled to greater weight than the
testimony of a physician who examines the patient only once or twice or a
physician who has never seen or examined the patient at all.
Wells v. Allstate Ins. Co., 510 So. 2d 763, 767-68, (La. App. 1 Cir.), writ denied, 514 So. 2d 463 (La. 1987). Berthelot v. Imes, 459 So. 2d 1384 (La. App. 1 Cir. 1984). Cason v. Diamond M Drilling Co., 436 So. 2d 1245 (La. App. 1 Cir.), writs denied, 441 So. 2d 1221 (La. 1983), cert. denied, 466 U.S. 1911, 104 S.Ct. 1911, 80 L.Ed.2d 460.
PLAINTIFF PROPOSED JURY INSTRUCTION
The finder of fact should assess the credibility of witnesses, expert or lay, to
determine the most credible and realistic evidence… In researching conclusions,
the finder of fact need not accept all of the testimony of lay witnesses as being true
or false and may believe and accept a part or parts of a witness’ testimony and
refuse to accept any part or parts thereof… The opinions of expert witnesses are
not binding on the finder of fact and are to be weighed the same as any other
evidence… The weight to be given expert testimony is dependent upon the
professional qualifications and experience of the expert and the facts upon which
the opinion is based.
Howze v. Commercial Union Insurance Companies, 506 So.2d 847 (La App. 1 Cir.), writ denied, 508 So. 2d 72 (La. 1987). Holmes v. Southeastern Fidelity Ins. Co., 422 So. 2d 1200, 1203-1204 (La. App. 1 Cir. 1982), writ denied, 429 So. 2d 133 (La. 1983).
DEFENDANT PROPOSED JURY CHARGE
The opinions of a specialist as to matters within his field are entitled to
greater weight in a medical malpractice action than an opinion on the same subject
by a specialist in another field.
Mitchell v. Kedia, 94-89 (La. App. 5 Cir. 10/12/94), 645 So. 2d 730.
27
Harmon v. Levenson, 534 So. 2d 486 (La. App. 5 Cir. 1988).
Ferrell v. Minden Family Care Center, 30,088 (La. App. 2 Cir. 12/19/97), 704 So. 2d 969, writ denied, 98-0392 (La. 3/27/98), 716 So. 2d 891.
Coleman v. Deno, 99-2998 (La. App. 4 Cir. 4/25/01), 787 So. 2d 446, affirmed in part, modified in part, and remanded, 01-1517 (La. 1/25/02), 813 So. 2d 303.
PLAINTIFF NO. ____________________ ____ JUDICIAL DISTRICT COURT VERSUS PARISH OF __________________ DEFENDANT STATE OF LOUISIANA FILED:_______________________ ____________________________ DEPUTY CLERK
SAMPLE - JURY INTERROGATORIES (multiple plaintiffs/multiple defendants)
1) Do you find that Plaintiffs proved the standard of care applicable to Defendant #1?
YES _____NO _____ If you answered “YES”, go to question 2. If you answered “NO”, go to question 4.
2) Do you find that Plaintiffs proved that Defendant #1 breached the standard of
care he owed to the decedent?
YES_____ NO_____
If you answered "YES" go to question 3. If you answered "NO”, go to question 4.
3)
Attachment No. 3
Do you find that Defendant #1’s breach of the standard of care was a proximate cause of the decedent’s death? YES_____ NO_____
Go to question 4.
4) Do you find that Plaintiff’s proved the standard of care applicable to Defendant #2?
YES_____ NO_____
If you answered “YES”, go to question 5. If you answered “NO” to this
question and you answered “NO” to any one of questions 1, 2 or 3 above, go to question 11. If you answered "NO" to this question and you answered "YES" to all of questions 1, 2 and 3 above, go to question 7.
5) Do you find that Plaintiffs proved that Defendant #2 breached the standard of care he owed to the decedent? YES_____ NO____ If you answered "YES," go to question 6. If you answered "NO" to this question and you answered "NO” to any one of questions 1, 2 or 3 above, go to question 11. If you answered "NO" to this question and you answered "YES" to all of questions 1, 2 and 3 above, go to question 7.
6) Do you find that Defendant #2’s breach of the standard of care was a
proximate cause of the decedent’s death? YES_____ NO_____ If you answered "YES", go to question 7. If you answered "NO" to this
question and you answered "NO" to any one of questions 1, 2 or 3 above, go to question 11. If you answered "NO" to this question and you answered "YES" to all of questions 1, 2 and 3 above, go to question 7.
7) Indicate the percentages of the negligence or fault, if any, of the following which you have indicated legally caused damages to the plaintiffs. Any particular percentage may be as low as 0% or as high as 100%. Your answers must not exceed 100%. NOTE: Only assign a percentage number to a person whom you have either answered "YES" to all of questions 1, 2 and 3 (Defendant #1), or “YES” to all of questions 4, 5 and 6 (Defendant #2). Defendant #1 _____ Defendant #2 _____ TOTAL 100% Go to question 8.
8) What amount of damages do you find would be fair and adequate to compensate the plaintiffs for the damages suffered by the decedent? a) The decedent’s physical and mental pain and suffering prior to death $_____________________________ Go to question 9.
9) What amount of damages do you find would be fair and adequate to compensate Plaintiff #1 for the mental pain and suffering and the loss of love, affection, and companionship she suffered? $_______________________ Go to question 10.
10) What amount of damages do you find would be fair and adequate to compensate Plaintiff #2 for the mental pain and suffering and the loss of love, affection, and companionship she suffered? $________________________ Go to question 11.
11) Foreperson: Please sign and date this form, print your name, and alert the bailiff that you are ready to return to the courtroom. Signed this ____th day of __________, 20___. ____________________________ FOREPERSON
PLAINTIFF NO. ____________________ ____ JUDICIAL DISTRICT COURT VERSUS PARISH OF __________________ DEFENDANT STATE OF LOUISIANA FILED:_______________________ ____________________________ DEPUTY CLERK
SAMPLE – DEFENDANT PROPOSED JURY INTERROGATORIES
(wrongful death and loss of chance)
1) Did plaintiff prove the standard of care applicable to defendant?
YES _____NO _____ If you answered “YES”, go to question 2. If you answered “NO”, have your foreperson sign the verdict form and return to the courtroom.
2) Did plaintiff prove that defendant failed to comply with the standard of care?
YES_____ NO_____
If you answered "YES" go to question 3. If you answered "NO”, have your foreperson sign the verdict form and return to the courtroom.
3)
Attachment No. 4
Did plaintiff prove that defendant’s failure to comply with the standard of care proximately cause the patient’s death? YES_____ NO_____ If you answered “YES”, go to question 4. If you answered “NO”, go to question 5.
4) What amount, if any, will reasonably compensate plaintiff for the patient’s
death:
$_____________ $_____________ $_____________ $_____________ $_____________
5) Did plaintiff prove that defendant’s failure to comply with the standard of care proximately caused the patient to lose a chance of survival? YES_____ NO_____ If you answered "YES," go to question 6. If you answered "NO", have your foreperson sign the verdict form and return to the courtroom.
6) What amount, if any, will reasonably compensate plaintiff for the value of that lost chance?
$______________________
Foreperson: Please sign and date this form, print your name, and alert the bailiff that you are ready to return to the courtroom. Signed this ____th day of __________, 20___. ____________________________ FOREPERSON
PLAINTIFF NO. ____________________ ____ JUDICIAL DISTRICT COURT VERSUS PARISH OF __________________ DEFENDANT STATE OF LOUISIANA FILED:_______________________ ____________________________ DEPUTY CLERK
SAMPLE – DEFENDANT PROPOSED JURY INTERROGATORIES
(loss of chance)
1) Did plaintiff prove the standard of care applicable to defendant?
YES _____NO _____ If you answered “YES”, go to question 2. If you answered “NO”, have your foreperson sign the verdict form and return to the courtroom.
2) Did plaintiff prove that defendant failed to comply with the standard of care?
YES_____ NO_____
If you answered "YES" go to question 3. If you answered "NO”, have your foreperson sign the verdict form and return to the courtroom.
3)
Attachment No. 5
Did plaintiff prove that defendant’s failure to comply with the standard of care proximately caused the patient to lose a chance of survival? YES_____ NO_____ If you answered “YES”, go to question 4. If you answered “NO”, have your foreperson sign the verdict form and return to the courtroom.
4) What amount, if any, will reasonably compensate plaintiff for the value of that
lost chance?
$_____________
Signed this ____th day of __________, 20___. ____________________________ FOREPERSON
PLAINTIFF NO. ____________________ ____ JUDICIAL DISTRICT COURT VERSUS PARISH OF __________________ DEFENDANT STATE OF LOUISIANA FILED:_______________________ ____________________________ DEPUTY CLERK
SAMPLE - PLAINTIFF PROPOSED JURY INTERROGATORIES (single defendant enrolled with Patient’s Compensation Fund)
1) Do you find that Dr. ____________ breached the standard of care expected of an
emergency room physician?
YES _____NO _____ If you answered “YES”, go to question 2. If you answered “NO”, then return the form to Bailiff.
2) Did this breach cause or contribute to all or any of the injuries and damages
alleged by the plaintiff?
YES_____ NO_____
If you answered "YES" go to question 4. If you answered "NO”, go to question 3.
3)
Attachment No. 6
Did this breach cause Mr. ____________ to lose a less than 50% chance for a better outcome? YES_____ NO_____ If you answered “YES” go to question 5. If you answered “NO”, then return the form to the Bailiff.
4) What amount, in dollars and cents, will fairly and adequately compensate Mr.
__________ for his injuries, damages and losses?
Physical pain and suffering $___________________ Mental anguish and suffering, past and future $___________________ Loss of enjoyment of life $___________________ Permanent disability $___________________ Worry, concern and inconvenience $___________________ Loss of past and future wages $___________________ Past medical expenses $___________________ Past attendant care $___________________
5) What amount, in dollars and cents, will fairly and adequately compensate Mr. ___________________ for his loss of a chance for a better outcome?
$___________________ If you answer either question 4 or 5, then go to question 6 next.
6) Is Mr. ____________________ in need of future medical care and related benefits?
YES_____ NO____
__________________________ ___________________________ Date FOREPERSON
PLAINTIFF NO. ____________________ ____ JUDICIAL DISTRICT COURT VERSUS PARISH OF __________________ DEFENDANT STATE OF LOUISIANA FILED:_______________________ ____________________________ DEPUTY CLERK
SAMPLE - PLAINTIFF PROPOSED JURY INTERROGATORIES (multiple defendants enrolled with Patient’s Compensation Fund,
one settled for $100,000 before trial)
1) Do you find by a preponderance of the evidence, that Dr. #1 breached the standard of care expected of a neonatologist?
YES _____NO _____ If you answered “YES”, go to question 2.
2) Did this breach cause or significantly contribute to the death of Baby ________
and resulting in damages alleged by the plaintiffs?
YES_____ NO_____
If you answered "YES" go to question 4.
3)
Attachment No. 7
Do you find, by a preponderance of the evidence, that someone other than Dr. #1 also breached the standard of care? YES_____ NO_____ If you answered “YES” go to question 4. If you answered “NO”, do to question 6.
4) Did this breach cause or significantly contribute to the death of Baby ________
and resulting the damages alleged by the plaintiffs?
YES_____ NO_____ If you answered “YES”, go to question 5. If you answered “NO”, go to question 6.
5) Please allocate a percentage of fault to al persons whose actions or omissions caused or significantly contributed to ___________’s death:
Dr. #1 _________________% Dr. #2 _________________% _____________________ _________________% TOTAL 100%
6) What amount, in dollars and cents, will fairly and adequately compensate Baby __________ for her pre-death injuries and losses?
Physical pain and suffering $___________________ Mental anguish and suffering $___________________ Loss of enjoyment of life $___________________
7) What amount, in dollars and cents, will fairly and adequately compensate Mom
for her losses:
Loss of love, affection, companionship, consortium, Services and society $_________________ Mental anguish and suffering, past and future $_________________
8) What amount, in dollars and cents, will fairly and adequately compensate Dad for his losses:
Loss of love, affection, companionship, consortium, Services and society $_________________ Mental anguish and suffering, past and future $_________________
9) Alternatively, and only if you answered “No” to question 2 above, did the breach
of the standard of care by Dr. #1 cause Baby _________ to lose a chance of survival?
YES______ NO______
10) What amount, in dollars and cents, will fairly and adequately compensate Baby _________________ for her:
Loss of a chance of a better recovery or survival $_________________
__________________________ ___________________________ Date FOREPERSON
Moderator & Panelist Biographies: JUDGE WILL CRAIN is a member of the Louisiana First Circuit Court of Appeal. He
is formerly a Judge with the Twenty-Second Judicial District Court for St. Tammany and
Washington parishes. A 1983 graduate of Louisiana State University with a degree in
accounting, Judge Crain graduated from the LSU Law Center in 1986.
Judge Crain is a former law partner of Jones Fussell, L.L.P. in Covington, La. where for
23 years he handled complex judge and jury trial cases. He has been a lecturer at continuing legal
education seminars on many topics including “Evidence and Persuasion at Trial”,
“Professionalism” and writ practice at the court of appeal.
Judge Crain is a member of numerous bar associations and is the former president and
vice president of the Greater Covington Bar Association. He was appointed by the Louisiana
Supreme Court to be a member of the 2011 inaugural class of the Louisiana Judicial Leadership
Institute, and presently serves as a member on the court cost committee of the Louisiana Judicial
Council, the Board of Governors for the Louisiana Judicial College, and the Uniform Rules
Committee for the Louisiana Courts of Appeal.
Judge Crain is a member of St. Timothy United Methodist Church, and has been married
for 26 years to Cheri Hackett Crain. They are the parents of four children, William, Michael,
Matthew and Elizabeth.
JUDGE ROSEMARY LEDET was elected judge of Division “B” of Orleans Parish Civil
District Court in October 1999. A native New Orleanian, Judge Ledet graduated from St. Mary’s
Academy in 1975. She attended Loyola University, receiving a B.A. degree in communications
in 1979. A 1985 graduate of Loyola Law School, Judge Ledet received the outstanding student
award from the Loyola Law Clinic.
Judge Ledet began her legal career as an assistant city attorney. In January 1986, she
joined the firm of Berrigan, Litchfield, Schonekas, and Mann, where she practiced general civil
litigation. In August 1989, still maintaining a part-time law practice, Judge Ledet was appointed
clerk of First City Court and elected to that position in March 1990. She served in that position
until her election to the Civil Court bench in 1999.
Judge Ledet served on the Civil District Court bench through December 2011 until her
election to the Fourth Circuit Court of Appeal. She began serving on 4th Circuit bench in
January 2012.
Judge Ledet is a former board member of the Louisiana Judicial College. She also served
as a member of the Executive Committee, Mentoring Committee, and the New Judges Training
Committee of the Louisiana District Judges Association; as well as the Louisiana State Bar
Association’s Professionalism and Quality of Life Committee and Louisiana Supreme Court
Rules Committee and Committee to Study Plain Civil Jury Instructions. Judge Ledet was elected
as a 2008 district board member of the National Association of Women Judges and secretary
treasurer of the Loyola Alumni Board.
Judge Ledet is also a member of the American Bar Association, National Bar
Association, National Association of Women Judges, Louis A. Martinet Legal Society,
Louisiana Judicial Council, Association of Women Attorneys and New Orleans Bar Association.
Since serving as judge, Ms. Ledet has participated as a speaker in various continuing legal
education seminars.
BENJAMIN P. MOUTON Benjamin P. “Ben” Mouton is a partner of the Baton Rouge law
firm of McGlynn, Glisson & Mouton, where he focuses his law practice on plaintiff’s medical
malpractice, nursing home negligence, prescription drug errors, and legal malpractice cases. He
joined the firm in October 2000 and has more than 24 years of experience as a trial attorney. He
has a statewide practice in both state and federal courts. Ben is board certified in medical
malpractice law by the American Board of Professional Liability Attorneys. He has served on
the Louisiana Health Care Commission and is currently a member of the Louisiana Medical
Disclosure Panel.
Mr. Mouton was born in New Orleans and grew up in Lafayette. He was graduated from
the University of Southwestern Louisiana in Lafayette in 1987 with a major in business
administration, petroleum land management. He earned a J.D. degree from Louisiana State
University Law Center in 1990 and immediately went into the private practice of law.
He is a member of the Louisiana State and Baton Rouge bar associations. Ben is a
Double Century Club member of the Baton Rouge Bar, having donated 200+ hours of pro bono
legal service in the Baton Rouge metro area. He is also a member of the American Association
for Justice and the Louisiana Association for Justice, as well as being a member in the
Professional Liability/Medical Malpractice sections of both organizations.
He has served on LAJ’s Legislative Committee since 2008 and is a member of the LAJ Board of
Governors. He also served three terms as chairman of the Medical Malpractice Section of LAJ.
He has coached the St. Joseph Academy High School Mock Trial Competition Team for three
years. He is a frequent speaker to lawyers, judges, adjusters and paralegals on such topics as
medical malpractice, trial practice and medical records.
C.WILLIAM “BILL” BRADLEY is a River Parishes native – of both St. Charles and St. John
the Baptist parishes. Bill received an A.B. degree with honors from Brown University in 1973 and a
J.D. degree from Tulane University Law School in 1976.
In addition to Louisiana state and federal bar admissions, as well as SCOTUS, Bill is a
member of the American College of Trial Lawyers, Defense Research Institute, the International
Association of Defense Counsel, the Louisiana Association of Defense Counsel (past director), the
New Orleans Association of Defense Counsel (past president) and the American Board of Trial
Advocates. Gov. Mike Foster appointed him to serve on the Louisiana Senate’s Medical
Malpractice Advisory Board.
Bill practices in the Casualty and Professional Liability Section of Bradley Murchison
Kelly & Shea LLC.