N.C.P.I.—Civil 809.160

(Use for medical malpractice claims filed on or after 1

October 2011.)

NOTE WELL: This instruction applies only if the

plaintiff seeks entry of a judgment that includes non-economic damages greater than $515,000, and

therefore seeks to overcome the limit on non-economic

damages in N.C. Gen. Stat. § 90-21.19(a).1

The (state number) issue reads:

“Did the plaintiff (or name deceased) suffer (disfigurement) (loss of

use of part of the body) (permanent injury) (death) that [was] [were]

proximately caused by conduct of the defendant that was (in reckless

disregard of the rights of others) (grossly negligent) (fraudulent)

(intentional) [or] (with malice)?”2

[You will answer this issue only if you have awarded actual

damages in answering issue (state number).3]

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.

First, that the acts or failures of the defendant for which you

already have awarded relief caused as one of its consequences

(disfigurement) (loss of use of part of the body) [or] (permanent injury)

(or proximately caused the death of (name deceased)).

(If you answered issue (state number)4 “Yes” in favor of the

plaintiff, you already have found that the defendant's medical negligence

proximately caused the death of (name deceased) and have found that

the plaintiff has satisfied this element.)

(As I already have instructed you, an injury is permanent when any

of its effects will continue throughout the plaintiff's life. 5 These effects

may include [medical expenses], [loss of earnings], [pain and suffering],

[scarring or disfigurement], [(partial) loss (of use) of part of the body],

or [(state any other element of damages supported by the evidence)] to

be incurred or experienced by the plaintiff over his life expectancy.) (Your

consideration of this issue is the same as it was in connection with issue6

(state number).)

Second, that the defendant's conduct that produced the injury was

(grossly negligent) (committed in reckless disregard of the rights of

others) (fraudulent) (intentional) (committed with malice).

[An act is grossly negligent when the defendant lacks even slight

care, when he shows indifference to the rights and welfare of others or

when his negligence is of an aggravated character.]7

[To find that an act was committed in reckless disregard for the

rights and safety of others, you must find more than mere failure to

exercise ordinary care. You must find that the defendant acted

needlessly, manifesting a reckless indifference to others.]8

[Fraud means a false representation of material fact made by the

defendant with intent to deceive which was reasonably calculated to

deceive and which did, in fact, deceive and damage the plaintiff because

of his reasonable reliance on it.]9

[Conduct is intentional if the defendant intentionally fails to carry

out some duty imposed by law which is necessary to protect the safety of

the person or property to which it is owed.]10

[Malice means a sense of personal ill will toward the plaintiff that

activated or incited the defendant to perform the act or undertake the

conduct that resulted in harm to the plaintiff.]11

Finally, as to this issue on which the plaintiff has the burden of

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

defendant's acts or failures proximately caused the plaintiff

(disfigurement) (loss of use of part of the body) [or] (permanent injury)

(or proximately caused the death of name deceased); and that the

defendant's conduct that produced the (injury) (death) was (grossly

negligent) (committed in reckless disregard of the rights of others)

(fraudulent) (intentional) (committed with malice), 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.