Wis JI-Civil 1023

In ((treating) (diagnosing)) (plaintiff)’s ((injuries) (condition)), (defendant) was

required to use the degree of care, skill, and judgment which reasonable ((specify type of

health care providers)1 who are in general practice) (specialists who practice the specialty

which (specify type of health care providers) practices)) would exercise in the same or

similar circumstances, having due regard for the state of medical science at the time

(plaintiff) was (treated) (diagnosed). A (specify type of health care provider) who fails to

conform to this standard is negligent. The burden is on (plaintiff) to prove that (defendant)

was negligent.

A (specify type of health care provider) is not negligent, however, for failing to use

the highest degree of care, skill, and judgment or solely because a bad result may have

followed ((his) (her)) (care and treatment) (surgical procedure) (diagnosis). The standard

you must apply in determining if (defendant) was negligent is whether (defendant) failed

to use the degree of care, skill, and judgment that reasonable (general practitioners)

(specialists) would exercise given the state of medical knowledge at the time of the

(treatment) (diagnosis) in issue.

[Use this paragraph only if there is evidence of two or more alternative methods

of treatment or diagnosis recognized as reasonable: If you find from the evidence that

more than one method of (treatment for) (diagnosing) (plaintiff)’s (injuries) (condition)

was recognized as reasonable given the state of medical knowledge at that time, then

(defendant) was at liberty to select any of the recognized methods. (Defendant) was not

negligent because (he) (she) chose to use one of these recognized (treatment) (diagnostic)

methods rather than another recognized method if (he) (she) used reasonable care, skill,

and judgment in administering the method.]

You have heard testimony during this trial from (specify type of health care providers)

who have testified as expert witnesses. The reason for this is because the degree of care,

skill, and judgment that a reasonable (specify type of health care provider) would exercise

is not a matter within the common knowledge of laypersons. This standard is within the

special knowledge of experts in the field of medicine and can only be established by the

testimony of experts. You, therefore, may not speculate or guess what the standard of care,

skill, and judgment is in deciding this case but rather must attempt to determine it from the

expert testimony that you heard during this trial. In determining the weight to be given an

opinion, you should consider the qualifications and credibility of the expert and whether

reasons for the opinion are based on facts in the case. You are not bound by any expert’s

opinion.

(Insert the appropriate cause instruction. To avoid duplication, JI-1500 should

not be given if the following two bracketed paragraphs are used.)

[The cause question asks whether there was a causal connection between negligence

on the part of (defendant) and (plaintiff)’s (injury) (condition). A person’s negligence is a

cause of a plaintiff’s (injury) (condition) if the negligence was a substantial factor in

producing the present condition of the plaintiff’s health. This question does not ask about

“the cause” but rather “a cause.” The reason for this is that there can be more than one

cause of (an injury) (a condition). The negligence of one (or more) person(s) can cause (an

injury) (a condition) or (an injury) (a condition) can be the result of the natural progression

of (the injury) (the condition). In addition, the (injury) (condition) can be caused jointly by

a person’s negligence and also the natural progression of the (injury) (condition).]

[If you conclude from the evidence that the present condition of (plaintiff)’s health

was caused jointly by (defendant)’s negligence and also the natural progression of

(plaintiff)’s (injury) (condition), then you should find that the (defendant)’s negligence was

a cause of the (plaintiff)’s present condition of health.]

[The evidence indicates without dispute that when (plaintiff) retained the services of

(defendant) and placed (himself) (herself) under (defendant)’s care, (plaintiff) was

suffering from some (disability resulting from injuries sustained in an accident) (illness or

disease). (Plaintiff)’s then physical condition cannot be regarded by you in any way as

having been caused or contributed to by any negligence on the part of (defendant). This

question asks you to determine whether the condition of (plaintiff)’s health, as it was when

(plaintiff) placed (himself) (herself) under the (specify type of health care provider)’s care,

has been aggravated or further impaired as a natural result of the negligence of

(defendant)’s (treatment) (diagnosis).]

(Insert appropriate damage instructions.)

[(Plaintiff) sustained injuries before the (treatment) (diagnosis) by (defendant). Such

injuries have caused (and could in the future cause) (plaintiff) to endure pain and suffering

and incur some disability. In answering these questions on damages, you will entirely

exclude from your consideration all damages which resulted from the original injury; you

will consider only the damages (plaintiff) sustained as a result of the (treatment) (diagnosis)

by (defendant).]

[It will, therefore, be necessary for you to distinguish and separate, first, the natural

results in damages that flow from (plaintiff)’s original (illness) (injuries) and, second, those

that flow from (defendant)’s (treatment) (diagnosis) and allow (plaintiff) only the damages

that naturally resulted from the (treatment) (diagnosis) by (defendant).]