N.C.P.I.—Civil 809.05A

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

claims arising before 1 October 2011, use N.C.P.I.—

Civil 809.05.)

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.

NOTE WELL: In cases where the evidence may give rise

to a finding that there was a negligent delay in

diagnosing or treating the plaintiff, and there is

conflicting evidence on whether the delay increased

the probability of injury or death sufficiently to amount

to proximate cause of the injury or death, the trial

court should further explain proximate cause.9 A

similar rule applies in cases where a different

treatment probably would have improved the chances

of survival or recovery.10 The following special

instruction should be given in these circumstances:

[It is not enough for the plaintiff to show that [different treatment]

[earlier [diagnosis] [treatment] [hospitalization]] of [name plaintiff]

[name decedent] would have improved the patient’s chances of survival

and recovery. Rather, the plaintiff must prove that it is probable that a

different outcome would have occurred with [different treatment] [earlier

[diagnosis] [treatment] [hospitalization]]. The plaintiff must prove by

the greater weight of the evidence that the [treatment] [alleged delay in

[diagnosis] [treatment] [hospitalization]] more likely than not caused the

[name the injury or precipitating condition] [and death] of [name

plaintiff] [name decedent].11

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.

In this case, the plaintiff contends, and the defendant denies, that

the defendant was negligent. Proof of negligence can be shown in two

ways. The first is by direct evidence. The second is by circumstantial

evidence.

I will instruct you on the plaintiff's burden of proof on this issue,

whether by direct or by circumstantial evidence.

I will first instruct you as to the plaintiff's burden of proof with

regard to direct evidence of negligence.

(Read all contentions of negligence supported by the

evidence.)

[The (state number) contention is that the defendant failed to use

[his] [her] best judgment in the treatment and care of the patient in that

(describe specific conduct supported by the evidence).]

[The (state number) contention is that the defendant failed to use

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

and skill to the patient's care in that (describe specific conduct supported

by the evidence).]

[The (state number) contention is that the defendant failed 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 was rendered in that

(describe specific conduct supported by the evidence).]

The plaintiff further contends, and the defendant denies, that the

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

[damage].

I instruct you that negligence is not to be presumed from the mere

fact of [injury] [damage].12

(Give law as to each contention of negligence included

above.)13

[With respect to the plaintiff's (state number) contention, a health

care provider has a duty to use [his] [her] best judgment in the

treatment and care of the patient.

A violation of this duty is negligence.]

[With respect to the plaintiff's (state number) contention, a health

care provider has a duty to use reasonable care and diligence in the

application of [his] [her] knowledge and skill to the patient's care.

A violation of this duty is negligence.]

[With respect to the plaintiff's (state number) contention, a health

care provider has a duty 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. 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, first, 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”), and, second, that the

defendant did not act in accordance with those standards of practice. In

determining the standards of practice applicable to this contention,14 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.15

A violation of this duty is negligence.]

I will now instruct you as to the plaintiff's burden of proof with

regard to circumstantial evidence of negligence.16

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 the plaintiff's [injury] [damage].

Negligence cannot be presumed or inferred from the mere fact of [injury]

[damage].17 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].

In order for you to infer and find that the defendant was negligent

and that this negligence proximately caused the plaintiff's [injury]

[damage],18 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)].19

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,20 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].21

(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:22

(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.23 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 [his] [her] 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.24 A

health care provider does not, ordinarily, guarantee25 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).26

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.