Del. P.J.I. Civ. § 7.1

DEFINITION OF MEDICAL NEGLIGENCE

A plaintiff must prove three elements to establish medical negligence: (1) a

“breach” or violation of the standard of care; (2) that causes injury; and (3) resulting

damages. The “standard of care” is that degree of skill and care ordinarily exercised

by healthcare providers of the same or similar medical specialty, using reasonable

care and diligence.

Every healthcare provider is held to the standard of care and knowledge

commonly possessed by members in good standing of his or her profession and

specialty. It is not the standard of care of the most highly skilled, nor is it necessarily

that of average members of this profession, since those who have somewhat less than

average skills may still possess the degree of skill and care to treat patients

competently. [Plaintiff’s name] cannot prove that [defendant’s name] was

negligent merely by showing that another healthcare provider would have acted

differently.

Medical negligence is never presumed. Instead, medical negligence occurs

when a healthcare provider does not meet the applicable standard of care. Simply

because a person is injured while under the care of a healthcare provider does not

mean medical negligence occurred.

Delaware law requires “expert medical testimony” to prove medical negligence.

[Plaintiff’s name] must present expert medical testimony showing that the alleged

deviation from the applicable standard of care caused the injury. You may not guess

about the standard of care that applies to [defendant’s name], or whether the breach

of that standard was a cause of harm to [plaintiff’s name]. When determining the

applicable standard, you must consider only expert testimony, then decide whether

the standard was met, and – if it was not – determine if the breach of the standard of

care caused [plaintiff’s name] harm. If the expert witnesses have disagreed on the

applicable standard of care, on whether it was met, or on the question of the cause

of harm, you must decide what expert testimony to accept and what expert testimony

to reject.

If you find that [defendant’s name] failed to meet this standard and that this

failure was a proximate cause of harm, then your verdict must be for [plaintiff’s

name]. [I will explain what “proximate cause” means in a moment.] On the other

hand, if [defendant’s name] met this standard, then your verdict must be against

[plaintiff’s name] and in favor of [defendant’s name].