The Florida Bar
www.floridabar.org
The Florida Bar News
click to print this page  click to e-mail the address for this page 
April 15, 2012
Amendments to jury instructions in civil cases

The Supreme Court Committee on Standard Jury Instructions in Civil Cases proposes amendments to Standard Jury Instructions in Civil Cases 402.4 and 502.2. Interested parties have until May 15 to submit comments electronically to the Chair of the committee, The Honorable James Manly Barton II, bartonjm@fljud13.org, with a copy to the committee liaison, Jodi Jennings, jjenning@flabar.org. After reviewing all comments, the committee may submit its proposals to the Florida Supreme Court.

402.4 MEDICAL NEGLIGENCE

a. Negligence (physician, hospital or other health provider):

Negligence is the failure to use reasonable care. Reasonable care on the part of a [physician] [hospital] [health care provider] is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful [physicians] [hospitals] [health care providers]. Negligence on the part of a [physician] [hospital] [health care provider] is doing something that a reasonably careful [physician] [hospital] [health care provider] would not do under like circumstances or failing to do something that a reasonably careful [physician] [hospital] [health care provider] would do under like circumstances.

[If you find that (describe treatment or procedure) involved in this case was carried out in accordance with the prevailing professional standard of care recognized as acceptable and appropriate by similar and reasonably careful [physicians] [hospitals] [health care providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.]
NOTES ON USE FOR 402.4a

1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1) and is intended to embody the statutory definition of “prevailing professional standard of care” without using that expression itself, which is potentially confusing.

2. The second bracketed paragraph is derived from F.S. 766.102(2)(a) and should be given only in cases involving a claim of negligence in affirmative medical intervention.

b. Negligence (treatment without informed consent):

[Negligence is the failure to use reasonable care.] Reasonable care on the part of a [physician] [health care provider] in obtaining the [consent] [informed consent] to treatment of a patient consists of
      (1). When issue is whether consent was obtained irregularly:
obtaining the consent of the patient [or one whose consent is as effective as the patient’s own consent such as (describe)], at a time and in a manner in accordance with an accepted standard of medical practice among members of the profession with similar training and experience in the same or a similar medical community.
      (2). When issue is whether sufficient information was given:
providing the patient [or one whose informed consent is as effective as the patient’s informed consent, such as (describe)] information sufficient to give a reasonable person a general understanding of the proposed treat­ment or procedure, of any medically acceptable alternative treat­ments or procedures, and of the substantial risks and hazards inherent in the proposed treatment or procedure which are recognized by other [physicians] [health care providers] in the same or a similar community who perform similar treat­ments or procedures.
NOTE ON USE FOR 402.4b

This instruction is derived from the provisions of F.S. 766.103.

c. Foreign bodies:

[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.
NOTES ON USE FOR 402.4c

1. This instruction is derived from F.S. 766.102(3). The statute uses the term “prima facie evidence of negligence.” The committee recommends that term not be used as not helpful to a jury. Rather, the committee has used the definition of prima facie. See, e.g., State v. Kahler, 232 So.2d 166, 168 (Fla. 1970) (“prima facie” means “evidence sufficient to establish a fact unless and until rebutted”).

2. Before this instruction is given, the court must make a finding that the foreign body is one that meets the statutory definition. See Kenyon v. Miller, 756 So.2d 133 (Fla. 2d DCA 2000).

d. Failure to make or maintain records:

[Negligence is the failure to use reasonable care.] The law requires (defendant) as a licensed health care provider to prepare and maintain health care records.

[Because (defendant) did not [make] [or] [maintain] (describe the missing record(s))

or

[If you find that a person who was responsible for [making] [or] [maintaining] (describe the missing record(s)) and failed to do so]

you should presume (describe the missing records(s)) contained evidence of negligence unless (defendant) proves otherwise by the greater weight of the evidence. You may consider this presumption, together with the other evidence, in determining whether (defendant) was negligent.]
NOTES ON USE FOR 402.4d

1. The second bracketed paragraph should be used if there is no issue about whether the records were made or maintained. If there is an issue about the making or maintenance of the records, then the third bracketed paragraph should be used.

2. This instruction applies only when records are required to be made and maintained and the court determines that the inability or failure to locate a record or records hinders the plaintiff’s ability to establish a case. Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987).

e. Res Ipsa Loquitur:

[Negligence is the failure to use reasonable care.] If you find that ordinarily the [incident] [injury] would not have happened without negligence, and that the (describe the item) causing the injury was in the exclusive control of (defendant) at the time it caused the injury, you may infer that (defendant) was negligent unless, taking into consideration all of the evidence in the case, you find that the (describe event) was not due to any negligence on the part of (defendant).

502.2 WRONGFUL DEATH DAMAGES: ELEMENTS FOR ESTATE AND SURVIVORS
ELEMENTS FOR ESTATE:

In determining the damages recoverable on behalf of (decedent’s) estate, you shall consider the following elements:

a. Lost earnings:

The estate’s loss of earnings of (decedent) from the date of injury to the date of death, [less any amount of monetary support you determine a survivor lost during that period].

b. Lost accumulations:

The estate’s loss of net accumulations: “Net accumulations” is the part of (decedent’s) net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which (decedent), after paying his personal expenses and monies for the support of [his] [her] survivors, would have left as part of [his] [her] estate if [he] [she] had lived [his] [her] normal life expectancy.
NOTE ON USE FOR 502.2b

The estate may recover lost accumulations when the sole survivor is a parent without a cause of action in his or her own right, as well as when survivors include a spouse or lineal descendant. F.S. 768.21(6)(a) (1985); Vildibill v. Johnson, 492 So.2d 1047 (Fla. 1986). The committee expresses no opinion concerning whether “net accumulations” include income ending at death which is not derived from salary or business. See F.S. 768.18(5) (1985); Delta Airlines, Inc. v. Ageloff, 552 So.2d 1089 (Fla. 1989); Wilcox v. Leverock, 548 So.2d 1116 (Fla. 1989).On the issue whether “net accumulations” include income ending at death which is not derived from salary or business, compare Delta Airlines, Inc. v. Ageloff, 552 So.2d 1089 (Fla. 1989), with Wilcox v. Leverock, 548 So.2d 1116 (Fla. 1989).

c. Medical or funeral expenses:

Medical or funeral expenses due to (decedent’s) injury or death which [have become a charge against (decedent’s) estate] [were paid by or on behalf of (decedent) by one other than a survivor].
ELEMENTS FOR SURVIVING SPOUSE, CHILD OR PARENTS OF CHILD:

In determining any damages to be awarded (decedent’s) personal representative for the benefit of (decedent’s) surviving [spouse] [children] [or] [parents], you shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence regarding the following elements:

d. Damages of surviving spouse:

The [(wife’s) (husband’s)] loss of (decedent’s) companionship and protection, and [her] [his] mental pain and suffering as a result of (decedent’s) injury and death. In determining the duration of the losses, you may consider the [joint life expectancy of (decedent) and (surviving spouse)] [life expectancy of (surviving spouse)] together with the other evidence in the case.
NOTES ON USE FOR 502.2d

1. F.S. 768.18 and 768.21 (1990), applicable to causes of action accruing after October 1, 1990, expand eligible survivor claimants in wrongful death actions by surviving parents and children, but are not applicable to claims for medical malpractice as defined by F.S. 766.106(1) (1989).

2. This instruction is intended to allow a jury determination, if warranted by the evidence, that the surviving spouse’s loss will continue beyond the “joint life expectancy” until the survivor’s death, or will end before that actuarial period has elapsed.

e. Damages by surviving child:

The loss by (name all eligible children) of parental companionship, instruction and guidance, and [his] [her] [their] mental pain and suffering as a result of (decedent’s) injury and death. In determining the duration of those losses, you may consider the [joint life expectancy of (decedent) and (surviving child) [each of (surviving children)]] [life expectancy of (surviving children) [each of the surviving children]] together with the other evidence in the case.

f. Damages by surviving parent of child:

The mental pain and suffering of (parents) as a result of the injury and death of (child). In determining the duration of mental pain and suffering, you may consider the life [expectancy] [expectancies] of (surviving parent(s)) together with the other evidence in the case.
ELEMENTS FOR SURVIVORS, INCLUDING SURVIVING SPOUSE, CHILD OR PARENTS OF CHILD:

In determining any damages to be awarded (decedent’s) personal representative for the benefit of [each of] (decedent’s) survivor[s]* (name them all), you shall consider the following elements:
      *Further instructions may be required if there is a factual question of whether a person is a “survivor” within the meaning of F.S. 768.18(1).

g. Lost support and services:

The [survivor’s] [survivors’, (name them all)], loss, by reason of (decedent’s) injury and death, of (decedent’s) support and services [including interest at (legal rate) on any amount awarded for such loss from the date of injury to the date of death]. In determining the duration of any future loss, you may consider the joint life expectancy of the survivor(s) and (decedent) [and the period of minority, ending at age 25, of a healthy minor child].

In evaluating past and future loss of support and services, you shall consider the survivor’s relationship to (decedent), the amount of (decedent’s) probable net income available for distribution to the survivor and the replacement value of (decedent’s) services to the survivor(s). [“Support” includes contributions in kind as well as sums of money. “Services” means tasks regularly performed by (decedent) for a survivor that will be a necessary expense to the survivor because of (decedent’s) death.]*
      *The bracketed material should be given only when warranted by the evidence and requested by a party.
NOTES ON USE FOR 502.2g

1. Period of minority. The period of minority for purposes of the wrongful death act is age 25. F.S. 768.18(2). The bracketed reference to the period of minority, in the first paragraph, should not be given if the minor survivor’s dependency will continue beyond that age because the child is not “healthy,” or if the decedent was a minor on whose support or services the claimant survivor would remain dependent beyond that time.

2. Support and services specially defined. The special definitions of these terms bracketed in the second paragraph should be given only when warranted by the evidence and requested by a party.

h. Medical and funeral expenses paid by survivor:

[Medical] [or] [funeral] expenses due to (decedent’s) [injury] [or] [death] paid by any survivor.

[Revised: 08-11-2014]