N.C.P.I.—Civil 809.03A

(Use for claims arising on or after 1 October 2011. For

claims arising before 1 October 2011, use 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] [her] best judgment in the treatment and care of the

patient]5

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

[her] knowledge and skill to the 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 under the

same or similar circumstances 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] 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 [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 this negligence proximately caused the plaintiff's

[injury] [damage]. On the other hand, the defendant denies any

negligence on [his] [her] part and contends that you should not infer or

find that the defendant was negligent or that such 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 this

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] [her] best judgment in the treatment and care of

the plaintiff]

[used reasonable care and diligence in the application of [his] [her]

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 under the

same or similar circumstances 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 under the same or similar circumstances 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 and not 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] [her] attendance may properly

and safely be discontinued is negligence. Whether the health care

provider 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 under the same or similar circumstances 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] [her] practice or

in [his] [her] judgment. It does not hold the health care provider to a

standard of infallibility, nor does it require the utmost degree of skill and

learning known only to a few in the 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 under the same

or similar circumstances 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

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

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

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

mistake in [diagnosis] [analysis] [judgment] unless the health care

provider 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.