35.18 [1998 Revision] Illustrations(Personal Injury and Consortium Claims(Action Against Health Care Provider(Comparative Fault

Instruction No 1 35.18 [1998 Revision] IllustrationsCPersonal Injury and Consortium ClaimsCAction Against Health Care ProviderCComparative Fault Dr. Edward Smith performed surgery on plaintiff John Jones. Plaintiff claims that Smith left a sponge in plaintiff's abdomen during the surgery. Smith claims that plaintiff failed to advise Smith of abdominal distention. Mary Jones has a claim for loss of consortium only and has presented no evidence or has chosen not to submit any elements of economic damage on her derivative claim. All parties agree that Jones would have had no residual problems from the surgery if the sponge had not been left in his abdomen. Instruction No. 1 Instruction No. 2 (Same as MAI 2.01) (See MAI 2.03 (1980 New)) As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room. Instruction No. 3 (See MAI 2.02 (1980 Revision)) In returning your verdict you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. Instruction No. 4 (See MAI 3.01 (1998 Revision)) In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition. Instruction No. 5 (See MAI 11.06 (1990 Revision) (Modified)) The term "negligent" or "negligence" as used in these instructions with respect to a physician means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of that physician's profession. Instruction No. 6 (See MAI 11.07 (1996 Revision) (Modified)) The term "negligent" or "negligence" as used in these instructions with respect to a patient means the failure to use ordinary care. The phrase "ordinary care" means that degree of care that an ordinarily careful person would use under the same or similar circumstances. Instruction No. 7 (See MAI 2.04 (1981 Revision)) The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it. Instruction No. 8 New)) In your verdict you must assess a percentage of fault to defendant Smith, whether or not plaintiff John Jones was partly at fault, if you believe: First, defendant Smith left a sponge in plaintiff's abdomen during surgery, and Second, defendant was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff. Instruction No. 9 (See MAI 31.04 (1991 Revision)) (See MAI 21.01 (1988 Revision), MAI 37.01 (1986 If you assess a percentage of fault to defendant, and if you believe that plaintiff Mary Jones sustained damage as a direct result of injury to her husband, then in your verdict you must find that plaintiff Mary Jones did sustain such damage. Instruction No. 10 (See MAI 37.02 (1986 New)) In your verdict you must assess a percentage of fault to plaintiff John Jones, whether or not defendant was partly at fault, if you believe: First, plaintiff John Jones failed to advise Dr. Smith of abdominal distention, and Second, plaintiff John Jones was thereby negligent, and Third, such negligence of plaintiff John Jones directly caused or directly contributed to cause any damage plaintiff John Jones may have sustained. Instruction No. 11 (Modified)) (See MAI 21.04 (1988 New), and 37.08 (1991 New) If you assess a percentage of fault to defendant, then, disregarding any fault on the part of plaintiff John Jones you must determine the total amount of plaintiff John Jones' damages on his claim for personal injury. If you further find that plaintiff Mary Jones did sustain damage as a direct result of injury to her husband, you must determine the total amount of her damages on her claim for damages due to injury to her husband. Total damages on each claim must be such sum as will fairly and justly compensate the plaintiff on that claim for any such damages you believe that plaintiff sustained and is reasonably certain to sustain in the future that the medical treatment by the defendant directly caused or directly contributed to cause. You must state separately in your verdict the total amount of each plaintiff's damages on each claim, and you must itemize those total damages on each claim by the categories set forth in the verdict form. In determining the total amount of each plaintiff's damages, you must not reduce such damages by any percentage of fault you may assess to plaintiff John Jones. The judge will compute the recovery of each plaintiff under the law and the percentages of fault you assess. Instruction No. 12 (See MAI 21.05 (1988 New) (Modified)) In these instructions, you are told to itemize any damages you award by the categories set forth in the verdict form. The phrase "past economic damages" means those damages incurred in the past for pecuniary harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, x-ray, dental, custodial, and other health and rehabilitative services and for past lost earnings and for past lost earning capacity. The phrase "past non-economic damages" means those damages arising in the past from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss