N.C.P.I.—Civil 809.24

(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

NOTE WELL: Medical malpractice can be premised on

breach of common law duties recognized in Wall v.

Stout, 310 N.C. 184, 192, 311 S.E.2d 571, 576-77

(1984), and on breach of the statutory 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. N.C. Gen. Stat. § 90-21.12(b) specifies that

in “any medical malpractice action arising out of the

furnishing or failure to furnish professional services in

the treatment of an emergency medical condition, . . .

the claimant must prove a violation of the standards of

practice set forth in subsection (a) of this section by

clear and convincing evidence.” Thus, for the

standards of practice duty set forth in the statute, the

plaintiff has the burden to prove a breach by clear and

convincing evidence. The statute, however, is silent

as to the common law duties to use best judgment in

the treatment and care of a patient and to use

reasonable care and diligence in the application of

knowledge and skill to a patient's care. Consequently,

based on the language of the statute, which addresses

only the statutory duty, this instruction incorporates

two different burdens of proof: “greater weight of the

evidence” for alleged breach of common law duties;

and “clear and convincing evidence” for alleged breach

of statutory standards of practice.

The (state number) issue reads:

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

defendant in treating the plaintiff's emergency medical condition4?”

On this issue the burden of proof is on the plaintiff to prove two

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

proximately caused [injury] [damage] to the plaintiff.

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 provider5 is under a duty

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

patient]6

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

[her] knowledge and skill to the patient's care]7 [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].8

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

these duties] is negligence.9

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].10 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],11 the

plaintiff must prove four things:

First, by the greater weight of the evidence, 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)].12

Second, by the greater weight of the evidence, direct proof of the

cause of the [injury] [damage] is not available to the plaintiff.

Third, by the greater weight of the evidence, the [medical care

rendered to] [operation upon] [surgery upon] the plaintiff was under the

exclusive control or management of the defendant.

And Fourth,

[by the greater weight of the evidence, that 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]

[by the greater weight of the evidence, that the [injury] [damage]

was of a type that would have rarely occurred if the defendant had used

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

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

[by clear and convincing evidence, that the [injury] [damage] was

of a type that would have rarely occurred if the defendant had 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,13 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. Once you have determined the standards of

practice applicable to this case, you must decide whether the plaintiff

proved a breach of those standards by clear and convincing evidence.

Clear and convincing evidence is evidence which, in its character

and weight, establishes what the plaintiff seeks to prove in a clear and

convincing fashion. You shall interpret and apply the words “clear” and

“convincing” in accordance with their commonly understood and accepted

meanings in everyday speech.]14

(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.15

(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.16 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. 17 A

health care provider does not, ordinarily, guarantee18 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).19

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

[breached the duty to use [his] [her] best judgment in the

treatment and care of the patient] [or] [breached the duty to use

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

knowledge and skill to the patient's care]] [or]

[by clear and convincing evidence, that the defendant breached the

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 was rendered],

and, by the greater weight of the evidence 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.