N.C.P.I.—Civil 809.03

NOTE WELL: “Res Ipsa Loquitur” has been approved as

an option for liability in medical negligence cases only

for "injuries resulting from surgical instruments or other

foreign objects left in a [patient's] body following

surgery and injuries to a part of the patient's anatomy

outside of the surgical field."1 In any other instance,

this instruction should be used with caution.2

The (state number) issue reads:

"Was the plaintiff [injured] [damaged]3 by the negligence of the

defendant?"

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, two

things: (1) that the defendant was negligent; and (2) that such

negligence was a proximate cause of the plaintiff's [injury] [damage].

As to the first thing that the plaintiff must prove, negligence refers

to a person's failure to follow a duty of conduct imposed by law. Every

health care provider4 is under a duty

[to use his best judgment in the treatment and care of his patient]5

[to use reasonable care and diligence in the application of his

knowledge and skill to his patient's care]6 [and]

[to provide health care in accordance with the standards of practice

among members of the same health care profession with similar training

and experience situated in the same or similar communities at the time

the health care is rendered].7

A health care provider's violation of [this duty] [any one or more of

these duties] of care is negligence.8

As to the second thing that the plaintiff must prove, the plaintiff

not only has the burden of proving negligence, but also that such

negligence was a proximate cause of the [injury] [damage].

Proximate cause is a cause which in a natural and continuous

sequence produces a person's [injury] [damage], and is a cause which a

reasonable and prudent health care provider could have foreseen would

probably produce such [injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the plaintiff need not prove that the defendant's

negligence was the sole proximate cause of the [injury] [damage]. The

plaintiff must prove, by the greater weight of the evidence, only that the

defendant's negligence was a proximate cause.

Ordinarily, in order to recover, the plaintiff must prove some

negligent act or omission on the part of the defendant and that this act

or omission proximately caused his [injury] [damage]. Negligence cannot

be presumed or inferred from the mere fact of [injury] [damage].9

However, in certain situations, the law permits you, but does not require

you, to infer from the circumstances shown by the evidence that a

negligent act or omission has occurred and that it has proximately caused

[injury] [damage]. The plaintiff contends that this is a case where the

circumstances are such that you

should infer and find that the defendant was negligent and that his

negligence proximately caused the plaintiff's [injury] [damage]. On the

other hand, the defendant denies any negligence on his part and

contends that you should not infer or find that he was negligent or that

his negligence proximately caused the plaintiff's [injury] [damage].

The burden of proof on this issue is on the plaintiff. In order for

you to infer and find that the defendant was negligent and that his

negligence proximately caused the plaintiff's [injury] [damage],10 the

plaintiff must prove, by the greater weight of the evidence, four things:

First, the [injury] [damage] which occurred was not an inherent risk

of the [operation] [surgery] [(describe other procedure)]. [Injury]

[damage] is not an inherent risk of the [operation] [surgery] [(name other

procedure)] if it is not common to that procedure and is not a particular

hazard in that type of [operation] [surgery] [(describe other

procedure)].11

Second, direct proof of the cause of the [injury] [damage] is not

available to the plaintiff.

Third, the [medical care rendered to] [operation upon] [surgery

upon] the plaintiff was under the exclusive control or management of the

defendant.

And Fourth, the [injury] [damage] was of a type that would have

rarely occurred if the defendant had

[exercised his best judgment in the treatment and care of the

plaintiff]

[used reasonable care and diligence in the application of his

knowledge and skill to the plaintiff's care] [and]

[provided health care in accordance with the standards of practice

among members of the same health care profession with similar training

and experience situated in the same or similar communities at the time

the health care was provided. In order for you to find that the defendant

failed to meet this duty, the plaintiff must satisfy you, by the greater

weight of the evidence, what the standards of practice were among

members of the same health care profession with similar training and

experience situated in the same or similar communities at the time the

defendant (describe health care service rendered, e.g., "operated on the

plaintiff"). In determining the standards of practice applicable to this

case,12 you must weigh and consider the testimony of the witnesses who

purport to have knowledge of those standards of practice rather than your

own ideas of the standards].13

(Now, members of the jury, I have some additional instructions for

you to consider in relation to the [duty] [duties] I have just described.

Select from the following, as appropriate:14

(Duty to Attend. A health care provider is not bound to render

professional services to everyone who applies. However, when a health

care provider undertakes the care and treatment of a patient, (unless

otherwise limited by contract,) the relationship cannot be terminated at

the mere will of the health care provider. The relationship must continue

until the treatment is no longer required, until it is dissolved by the

consent of the parties or until notice is given which allows the patient a

reasonable opportunity to engage the services of another health care

provider.15 The failure of the health care provider to use reasonable care

and judgment in determining when his attendance may properly and

safely be discontinued is negligence. Whether he has used reasonable

care and judgment must be determined by comparison with the standards

of practice among members of the same health care profession with

similar training and experience situated in the same or similar

communities at the time the health care is rendered.)

(Highest Degree of Skill Not Required. The law does not require of

a health care provider absolute accuracy, either in his practice or in his

judgment. It does not hold him to a standard of infallibility, nor does it

require of him the utmost degree of skill and learning known only to a

few in his profession. The law only requires a health care provider to

have used those standards of practice exercised by members of the same

health care profession with similar training and experience situated in the

same or similar communities at the time the health care is rendered.)

(Not Guarantor of Diagnosis, Analysis, Judgment or Result. NOTE

WELL: Use only if an issue of guarantee is raised by the evidence.16 A

health care provider does not, ordinarily, guarantee17 the correctness of

his [diagnosis] [analysis] [judgment as to the nature] of a patient's

condition or the success of his (describe health care service rendered).18

Absent such guarantee, a health care provider is not responsible for a

mistake in his [diagnosis] [analysis] [judgment] unless he has violated

[the duty] [one or more of the duties] I previously described.)

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that the defendant was negligent in any one or more of the ways about

which I have instructed you and that such negligence was a proximate

cause of the plaintiff's [injury] [damage], then it would be your duty to

answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.