CV301A Medical Malpractice Instruction Notes

The Advisory Committee intentionally omitted several of the MUJI 1st medical malpractice instructions.

MUJI 1st 6.27 (Physician Not Guarantor of Results) was deleted in view of the decisions in Green v. Louder, 2001 UT 62, 29 P.3d 638 (trial courts directed not to instruct juries that the “mere fact” of an accident does not mean that anyone was negligent), and Randle v. Allen, 863 P.2d 1329 (trial courts directed not to instruct juries on "unavoidable accidents").

MUJI 1st 6.34 and 6.35 (causation instructions) have been replaced by a single instruction.

The Advisory Committee considered but did not include instructions on the role of custom in determining the standard of care, loss-of-chance causation, and apparent agency claims against hospitals. There is no clear appellate authority on whether those claims exist in this state.

As with all MUJI 2d instructions, these are intended to replace the earlier versions found in MUJI 1st.

For a comparison of MUJI 1st and MUJI 2d medical malpractice instructions, and for further information on the deletion or revision of certain MUJI 1st instructions, see the advisory committee’s Correlation Table.


CV301B Elements of a medical negligence claim.

To establish that (name of defendant) was at fault, (name of plaintiff) has the burden of proving two things, a breach of the standard of care, and that the breach was a cause of (name of plaintiff)'s harm.

Amended Dates:

March 2014.

CV301C "Standard of care" defined.

A [health care provider] [doctor] is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent [providers] [doctors] in good standing practicing in the same [specialty] [field]. This is known as the "standard of care." The failure to follow the standard of care is a form of fault known as either "medical negligence" or "medical malpractice." (They mean the same thing.)

The standard of care is established through expert witnesses and other evidence. You may not use a standard based on your own experience or any other standard of your own. It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. If so, it will be your responsibility to determine the credibility of the experts and to resolve the dispute.

References

Lyon v. Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony). Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 96, 82 P.3d 1076.
Schaerrer v. Stewart's Plaza Pharmacy, 2003 UT 43, 79 P.2d 922.
Dalley v. Utah Valley Regional Med. Ctr., 791 P.3d 193, 195 (Utah 1990).
Dikeou v. Osborn, 881 P.2d 943, 947 (Utah 1981).
Chadwick v. Nielsen, 763 P.2d 817, 821 (Utah 1981).
Kent v. Pioneer Valley Hospital, 930 P.2d 904 (Utah App. 1997).
Robb v. Anderton, 863 P.2d 1322 (Utah App. 1993).
Farrow v. Health Servs. Corp., 604 P.2d 474 (Utah 1979).

MUJI 1st Instruction

6.2

Committee Notes

In Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), the courts held that instructions similar to this should not be given in conjunction with a "common knowledge" or res ipsa loquitor instruction unless the plaintiff is also alleging breach of a different standard of care.

Instruction CV129, Statement of opinion, should not be given when this instruction is used, as it instructs the jurors that they may disregard expert testimony.

Instruction CV324, Use of alternative treatment methods, should also be given when defendant claims to have used an alternative treatment method.

Amended Dates:

March 2014.

CV302 “Standard of care” for nurses defined.

A nurse is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent nurses in good standing practicing in the same [specialty] [field]. This is known as the "standard of care." The failure to follow the standard of care is a form of fault known as either "nursing negligence" or "nursing malpractice." (They mean the same thing.)

The standard of care is established through expert witnesses and other evidence. You may not use a standard based on your own experience or any other standard of your own. It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. If so, it will be your responsibility to determine the credibility of the experts and to resolve the dispute.

References

Schaerrer v. Stewart's Plaza Pharmacy, 2003 UT 43, 79 P.3d 922.
Sessions v. Dee Memorial Hosp. Ass'n, 94 Utah 460, 78 P.2d 645 (1938).

MUJI 1st Instruction

6.21

Amended Dates:

May 2014.

CV303 Care owed by nurse under varying circumstances.

The amount of care required of a nurse is measured by the patient's condition, the danger to the patient involved in the treatment, the service undertaken by the nurse, the information and instructions given to the nurse by the attending physician or surgeon, and other surrounding circumstances. These circumstances may require continuous attention or service, or they may justify lesser vigilance. These are matters for you to consider in deciding whether the nurse followed the standard of care.

References

Potter v. Groves Latter-Day Saints Hosp., 99 Utah 71, 103 P.2d 280 (1940).
Gitzhoffen v. Sisters of Holy Cross Hosp. Ass'n, 32 Utah 46, 88 P. 691 (1907).

CV304 Duty to disclose material medical information.

[Name of defendant] had a duty to disclose to [name of plaintiff] information concerning [name of plaintiff]’s condition that was unknown to [name of plaintiff], if the information would be important to a reasonable person in making decisions about health care, and if disclosure of the information would not be expected to make [name of plaintiff]’s health worse.

References

Shah v. Intermountain Healthcare, Inc., 2013 UT App 261.
Daniels v. Gamma West, 2009 UT 66.
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).

MUJI 1st Instruction

6.4

Committee Notes

Nixdorf v. Hicken post-dates the informed consent statute, and appears to establish a related, but different, claim for relief. See fn 20 on p 354. When that claim for relief exists and when the informed consent statute applies, remain unclear.

In Daniels v. Gamma West, the Supreme Court reaffirmed that doctors stand in a fiduciary relationship to their patients, but held that the informed consent statute narrowed the common law duties of disclosure. Nevertheless, in some circumstances, there may still be a valid Nixdorf-type claim: “Informed consent applies only to pretreatment information about the risks of a procedure or treatment; the fiduciary duty to disclose requires health care providers to apprise patients of material physical conditions throughout the course of their health care. Therefore, patients have a cause of action for breach of the fiduciary duty of disclosure except where a disclosure is explicitly governed by the informed consent statute.” Daniels ¶51.


CV305 Duty to refer.

If [name of defendant] knew or should have known that [he] did not possess the necessary expertise to properly treat [name of plaintiff]’s condition, and a referral to another who has the appropriate expertise could reasonably have been made under the circumstances, then [name of defendant] had a duty to offer that referral.

References

Swan v. Lamb, 584 P.2d 814 (Utah 1978).

MUJI 1st Instruction

6.3

CV306 Duty to warn of how to avoid injury.

[Name of defendant] had a duty to warn [name of plaintiff] how to avoid injury [to the area treated] following treatment.

References

Mikkelsen v. Haslam, 764 P.2d 1384 (Utah App. 1988).

MUJI 1st Instruction

6.17

Committee Notes

A jury must be specifically instructed on the duties of a physician in this context. Merely giving abstract instructions on negligence without adapting the instruction to the duties present in the case is error. Mikkelsen, 764 P.2d at 1388, citing Everts v. Worrell, 197 P. 1043, 1046 (Utah 1921).


CV307 Duties of hospital to patients.

A hospital has a duty to act with reasonable care towards its patients. In this action, [name of plaintiff] alleges that [name of defendant hospital] failed to do so in the following respects:

(1)

(2)

(3)

If you find that [name of hospital] failed to act with reasonable care toward [name of plaintiff] in any of these respects, then you must determine whether that failure was a cause of [name of plaintiff]’s harm.

References

Gitzhoffen v. Sisters of Holy Cross Hosp. Ass'n, 32 Utah 46, 88 P. 691 (1907).

MUJI 1st Instruction

6.20

Committee Notes

The trial court should tailor this instruction to set forth the particular duties at issue in the case before it; e.g., the duty to monitor a patient's well-being, the duty to follow reasonable orders of an attending physician, etc. Mikkelsen v. Haslam, 764 P.2d 1384, 1388 (Utah App. 1988)


CV308 Physicians may assume compliance with orders.

A physician may assume that appropriate orders and instructions to hospital nurses and other personnel for the care and management of a patient will be carried out. A physician is not at fault if hospital personnel fail to do so, unless that failure is brought to the physician's attention, and the physician then fails to take steps to remedy the situation.

References

Huggins v. Hicken, 6 Utah 2d 233, 310 P.2d 523 (1957).

MUJI 1st Instruction

6.28

Committee Notes

Some members of the committee questioned whether this instruction would be appropriate where the physician has reason to believe, but did not know, that his orders would not be carried out.


CV309 “Cause” defined.

[If you find that (name of defendant) breached the standard of care, then you must determine whether that failure was a cause of (name of plaintiff)'s harm.]

As used in the law, the word "cause" has a special meaning, and you must use this meaning whenever you apply the word.

"Cause" means that:

(1) (name of defendant)'s act or failure to act produced the harm directly or set in motion events that produced the harm in a natural and continuous sequence; and

(2) (name of defendant)'s act or failure to act could be foreseen by a reasonable person to produce a harm of the same general nature.

There may be more than one cause of the same harm.

MUJI 1st Instruction

6.34; 6.35

Committee Notes

For more information on this instruction, see the Committee Notes to Instruction CV209, "Cause" defined.

Expert testimony is usually necessary to establish causation in a medical malpractice claim. Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992). There are exceptions when the causal link is readily apparent using only “common knowledge.” Bowman v. Kalm, 2008 UT 9, 179 P.3d 754.

The committee considered a “loss of chance” instruction, but decided that Utah law is unclear on whether such instructions are appropriate. Counsel should review Restatement (Second) of Torts § 323(a) (1965); Medved v. Glenn, 2005 UT 77; 125 P.3d 913 (increased risk of harm is a cognizable injury where a related injury is also present) ; Anderson v. BYU, 879 F.Supp 1124 (D. Utah 1995); Seale v. Gowans, 923 P.2d 1361 (Utah 1996); George v. LDS Hospital, 797 P.2d 1117 (Utah App. 1990); Anderson v. Nixon, 139 P.2d 216 (Utah 1943); R.A. Eades, Jury Instructions on Medical Issues, Instructions 10-10 to 10-12 (LexisNexis, 6th ed. 2007).

Amended Dates:

March 2014.

CV310 Duty to obtain informed consent. “Informed consent” defined.

A physician has a duty to obtain the patient's informed consent to proposed care. Consent is informed if the patient gives consent after the physician outlines the substantial and significant risks of serious harm from the care and the reasonable alternatives to the care.

References

Utah Code Section 78B-3-406.
Burton v. Youngblood, 711 P.2d 245 (Utah 1985).
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).
Ficklin v. MacFarlane, 550 P.2d 1295 (Utah 1976).
Nguyen v. Primary Childrens’ Med. Ctr., 2012 Utah App 288. (Hospital does not have an independent duty to obtain informed consent except in special circumstances.)
Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

MUJI 1st Instruction

6.5; 6.9

Committee Notes

It is important to distinguish actual consent from informed consent. Informed consent is an agreement by the patient to a procedure after having been made aware of the substantial and significant risks of serious harm from the care, and the alternatives to it. One may actually consent to a procedure and yet not have given an informed consent. See Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

The persons authorized to provide consent to treatment are designated in Utah Code Section 78B-3-406(4). Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992) held that the reference in Section 78B-3-406(4) to “spousal” consent can only be interpreted to mean that a spouse can consent for care to an incapacitated spouse. See also Reiser v. Lohner, 641 P.2d 93, 99 (Utah 1982), for the proposition that a husband’s consent is not necessary for surgery on his wife.

Section 78B-3-407 has added a new limitation on actions brought against health care providers arising out of refusal of parents or guardians to consent to recommended treatment. There are other consent statutes scattered throughout the Utah Code. See for example, Sections 15-2-5 (parental consent not required for minor's blood donation), 26-6-18 (minor's power to consent to treatment for sexually transmitted diseases), 76-7-304.5 and -305 (abortions), and 62A-6-105 (sterilization).

The committee has not intended to provide an exhaustive list of every possible instruction that may be needed in any case alleging lack of consent. For this, we refer the reader to Chapter 5 of Professor Eade's comprehensive work, R.A. Eades, Jury Instructions on Medical Issues (LexisNexis, 6th ed. 2007).


CV311 Elements of an informed consent claim.

To establish a claim for the failure to obtain informed consent, [name of plaintiff] has the burden to prove all of the following:

(1) that a physician-patient relationship existed between [name of plaintiff] and [name of defendant];

(2) that [name of defendant] provided care to [name of plaintiff];

(3) that the care posed a substantial and significant risk of causing serious harm;

(4) that [name of plaintiff] was not informed of the substantial and significant risk or of reasonable alternatives,

(5) that a reasonable person in [name of plaintiff]’s position would [not have consented to] [would have rejected] the care after having been informed of the substantial and significant risks and alternatives; and

(6) that the care that was not consented to was a cause of [name of plaintiff]’s harm.

References

Utah Code Section 78B-3-406(1).
Ramon v. Farr, 770 P.2d 131 (Utah 1989).
Burton v. Youngblood, 711 P.2d 245 (Utah 1985).
Reiser v. Lohner, 641 P.2d 93 (Utah 1982).

MUJI 1st Instruction

6.7

Committee Notes

Elements (1) and (2) will normally be undisputed, and the court should tailor the instruction accordingly.

Section 78B-3-406 does not address the patient’s right to be informed of the risks from rejecting offered treatment. The committee has inserted the bracketed portion of Paragraph (5) in case the court wishes to consider the appropriateness of an instruction on rejection of offered care.


CV312 “Substantial and significant risk” defined.

A risk is “substantial and significant” if it occurs frequently enough and is serious enough that a reasonable patient would want to be informed about it.

References

Utah Code Section 78B-3-406(2).
Ramon v. Farr, 770 P.2d 131 (Utah 1989).
Reiser v. Lohner, 641 P.2d 93 (Utah 1982).
Ficklin v. MacFarlane, 550 P.2d 1295 (Utah 1976).

MUJI 1st Instruction

6.6

Committee Notes

Chadwick v. Nielsen, 763 P.2d 817 (Utah App. 1988), discusses the need for expert testimony in informed consent cases to establish the materiality of risks; that is, what the risks are, how serious they are, and how often they occur. But whether those risks should be disclosed is usually a matter for the jury to decide based upon their determination of substantiality and significance, not upon standard medical practice.


CV313 Standard for judging patient’s consent.

To determine whether a reasonable person would [not have consented to] [have rejected] the care, you must take the viewpoint of a reasonable person in [name of plaintiff]’s position before the care was provided and before any harm occurred.

References

Utah Code Section 78B-3-406(1).

MUJI 1st Instruction

6.8

CV314 Consent to or refusal of treatment.

A [consent to/refusal of] treatment is binding even if it is not in writing.

MUJI 1st Instruction

6.10

Committee Notes

The "safe harbor" defense for written consent forms of Utah Code Section 78B-3-406(2)(e) does not foreclose consent obtained by other means; such as orally, by acquiescence, or by a writing that does not comply with the statute. The statute simply means that if there is a writing that complies with its requirements, it is a defense to the action for lack of informed consent unless the patient proves lack of capacity or fraud.


CV315 Consent is presumed.

If a person submits to health care, the care was authorized, unless proved otherwise.

References

Utah Code Section 78B-3-406(1).
Lounsbury v. Capel, 836 P.2d 188 (Utah App. 1992).

MUJI 1st Instruction

6.11

CV316 Common knowledge defense.

You must decide whether the risk of harm was commonly known to the public. If the risk of harm was commonly known to the public, then [name of plaintiff] cannot succeed on a claim that informed consent was not obtained.

References

Utah Code Section 78B-3-406(2)(b).

MUJI 1st Instruction

6.13

Committee Notes

If this instruction is given, the verdict form should ask whether the risk of harm was commonly known to the public.


CV317 Refusal of information defense.

You must decide whether [name of plaintiff] refused to be informed of the risk of harm. If [name of plaintiff] refused to be informed of the risk of harm, then [he] cannot succeed on a claim that informed consent was not obtained.

References

Utah Code Section 78B-3-406(2)(c).

MUJI 1st Instruction

6.14

Committee Notes

If this instruction is given, the verdict form should ask whether plaintiff refused to be informed of the risk of harm.


CV318 Reasonable non-disclosure defense.

You must decide whether [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]’s condition. If [name of defendant] reasonably believed that disclosure of the risk of harm could have had a substantial and adverse effect on [name of plaintiff]’s condition, then [he] was not required to make that disclosure.

References

Utah Code Section 78B-3-406(2)(d).

MUJI 1st Instruction

6.15

CV319 Written consent defense.

A written consent is a defense to a claim for failure to obtain informed consent, unless:

[(1) [Name of plaintiff] proves by a preponderance of the evidence that the person giving consent lacked the capacity to do so.]

[(2) [Name of plaintiff] proves by clear and convincing evidence that [name of defendant] obtained the consent by fraudulent misrepresentation or fraudulent failure to state facts important to a reasonable person in making decisions about health care.]

References

Utah Code Section 78B-3-406(2)(e).

MUJI 1st Instruction

6.16

Committee Notes

The committee felt that the court would normally decide whether a written consent complies with the requirements of Section 78B-3-406(2)(e). Thus, there is no need for a jury instruction on the statutory elements of the "safe harbor" written consent as was contained in MUJI 1st 6.16. In this new instruction, "written consent" presumes a written consent that has been found to meet the statutory requirements. Otherwise, it should not be used.

It would be the unusual case where both lack of capacity and fraud are raised as defenses to a statutorily-compliant written consent. Therefore, the trial court will normally give only subsection (1) or (2) of this instruction, not both.

If the evidence warrants Paragraph (2), the verdict form should be amended to clear and convincing evidence instead of preponderance of the evidence.


CV320 Patient's duty of care.

A patient has the duty to use reasonable care to provide for his own health and safety. In this action, [name of defendant] claims that [name of plaintiff] failed to use reasonable care in the following respects:

(1)

(2)

(3)

If you find that [name of plaintiff] failed to act with reasonable care in any of these respects, then you must determine whether that failure was a cause of [his] harm.


CV321 Patient’s negligence in failing to follow instructions.

[Name of plaintiff] had a duty to follow [name of health care provider]'s reasonable instructions. You may consider the failure to do so in deciding whether the [name of plaintiff] was at fault and whether any of [name of plaintiff]’s fault was a cause of [his] harm.

MUJI 1st Instruction

6.23

CV322 Patient’s negligence in giving medical history.

A patient must use ordinary care in giving an accurate history to [his] treating physician. In determining whether this was done, you may consider whether the physician’s questions were sufficient to alert the patient of the need to disclose particular aspects of that history.

References

Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249 (Ky. Ct. App. 1989).

MUJI 1st Instruction

6.25

CV323 Reserved.


CV324 Use of alternative treatment methods.

The standard of care may include more than one acceptable method of treatment.

MUJI 1st Instruction

6.29

Committee Notes

The committee discussed this instruction at length and agreed that previous versions of the instruction were not adequately supported by Utah law. See Turner v. University of Utah Hospitals and Clinics, 2013 UT 52, 310 P.3d 1212. Whether there are multiple ways to comply with the standard of care is an issue that should be determined based on the facts and circumstances of the case. The court should determine whether it is appropriate to instruct the jury on alternative treatment methods.

Amended Dates:

May 2014.

CV325 Timely filing claim. “Discovery of injury” defined.

[Name of plaintiff] must file a medical malpractice claim within two years from the date [he] discovered the injury or the claim is barred. You must decide the date by which [name of plaintiff] should have discovered the injury.

“Discovery” of an injury from medical malpractice occurs when a patient knows or through reasonable diligence should know each of the following:

(1) that [he] sustained an injury;

(2) the cause of the injury; and

(3) the possibility of a health care provider’s fault in causing the injury.

References

Daniels v Gamma West, 2009 UT 26.
Seale v. Gowans, 923 P.2d 1361 (Utah 1996).
Chapman v. Primary Children's Hosp., 784 P.2d 1181 (Utah 1989).
Brower v. Brown, 744 P.2d 1337 (Utah 1987).
Hove v. McMaster, 621 P.2d 694 (Utah 1980).
Foil v. Ballinger, 601 P.2d 144 (Utah 1979).
McDougal v. Weed, 945 P.2d 175 (Utah App. 1997).
Deschamps v. Pulley, 784 P.2d 471 (Utah App. 1989).
Hargett v. Limberg, 598 F. Supp. 152 (D. Utah 1984).

MUJI 1st Instruction

6.37

CV326 Expert testimony required.

You must use only the standard of care established through evidence presented in this trial by expert witnesses and through other evidence admitted for the purpose of defining the standard of care. You may not use a standard based on your own experience or any other standard of your own.

References

Dalley v. Utah Valley Reg. Med. Ctr., 791 P.2d 193 (Utah 1990).
Farrow v. Health Servs. Corp., 604 P.2d 474 (Utah 1979).
Lyon v Bryan, 2011 UT App 256 (jury entitled to disregard even unrebutted expert testimony).

MUJI 1st Instruction

6.2

Committee Notes

In Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), the courts held that instructions similar to this should not be given in conjunction with a "common knowledge" or res ipsa loquitor instruction unless plaintiff is also alleging breach of a different standard of care.

Instruction CV129, Statement of opinion should not be given when this instruction is used, as it instructs the jurors that they may disregard expert testimony.


CV327 Inference of fault (res ipsa loquitur).

You may infer that [name of defendant] was at fault if three things are proved by a preponderance of the evidence:

(1) that [name of plaintiff]’s injury was of a kind that, in the ordinary course of events, would not have happened if due care had been observed;

(2) that [name of plaintiff]’s actions were not responsible for the injury; and,

(3) that the cause of the injury was under the exclusive control of [name of defendant].

If you find that all three of these things have been proved, this is sufficient to support a finding of fault by [name of defendant] without expert testimony, unless proved otherwise. [Name of defendant] may introduce evidence to rebut the inference of fault.

References

Dalley v. Utah Valley Regional Medical Ctr., 791 P.2d 193 (Utah 1990).
Nixdorf v. Hicken, 612 P.2d 348 (Utah 1980).
Talbot v. Dr. W.H. Groves Latter-Day Saints Hosp., 21 Utah 2d 73, 440 P.2d 872 (1968).
Robb v. Anderton, 863 P.2d 1322 (Utah App. 1993).
Virginia S. v. Salt Lake Care Ctr., 741 P.2d 969 (Utah App. 1987).
Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987).
Roylance v. Rowe, 737 P.2d 232 (Utah App. 1987).
Weeks v. Latter-Day Saints Hosp., 418 F.2d 1035 (10th Cir. 1969).
Pete v. Youngblood 2006 Utah App. 303, 141 P.3d 636.

MUJI 1st Instruction

6.32

CV328 Common knowledge and need for expert testimony.

Expert testimony is not needed to establish the [standard of care/cause] if the medical procedure is of a kind, or the outcome so offends commonly held notions of proper medical treatment, that the [standard of care/cause] can be established by the common knowledge, experience and understanding of jurors.

References

Bowman v. Kalm, 2008 UT 9.
Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980).
Kim v. Anderson, 610 P.2d 1270 (Utah 1980).
Malmstrom v. Olsen, 16 Utah 2d 316, 400 P.2d 209 (1965).
Fredrickson v. Maw, 119 Utah 385, 227 P.2d 772 (1951).

MUJI 1st Instruction

6.33

Committee Notes

Nielson v. Pioneer Valley Hospital, 830 P.2d 270 (Utah 1992), and Brady v. Gibb, 886 P.2d 104 (Utah App. 1994), held that instructions similar to this one are inconsistent with "need for expert testimony" instructions and should not be given together.

This instruction should be given only if there is another instruction stating the need for expert testimony on the standard of care as, for example, when a patient claims a needle was improperly left in the surgical site and that the suturing was done incorrectly. The first claim would probably not require expert testimony under Nixdorf v. Hicken; the second would. The instruction should also clarify which claim requires expert testimony and which does not.


CV329 Patient may rely on advice.

A patient may rely on the physician’s professional skill and advice. A patient is not required to determine whether the physician's advice is correct.

References

Mikkelsen v. Haslam, 764 P.2d 1384 (Utah App. 1988).

MUJI 1st Instruction

6.24

CV330 No recovery for oral promises.

To be enforceable, a guarantee, warranty, contract or assurance regarding a result to be obtained from the health care must be in writing and signed by [name of defendant] or [his] authorized agent.

References

Utah Code Section 78B-3-408.

MUJI 1st Instruction

6.36

CV399 Verdict Forms

Medical Malpractice

Committee Notes

These verdict forms must be tailored to fit the circumstances of the case. The templates include questions of fault about two defendants, a third party and plaintiff. Add or remove sections about parties and other actors as needed. Similarly, in the section on comparative fault, add or remove lines as needed to account for different actors.

After editing the form to account for all of the parties and other actors, renumber the questions and the references to the questions accordingly, remembering to do so also in the “next set of instructions.”

Regarding the question on damages, there must be some evidence to support each item of damages listed on the verdict form. The court should delete or add items as needed to conform to the evidence.

Amended Dates:

Amended January 10, 2012