35.22 [2002 New] Illustrations(Health Care Providers(Settling Tortfeasor(Apportionment of Fault Under Section 538.230(No Comparative Fault of Plaintiff

Instruction No 1 35.22 [2002 New] IllustrationsCHealth Care ProvidersCSettling TortfeasorCApportionment of Fault Under Section 538.230CNo Comparative Fault of Plaintiff Dr. Edward Smith performed surgery on plaintiff John Jones. Plaintiff claims that Smith left a sponge in plaintiff's abdomen during surgery. Plaintiff previously settled with Nurse Davis, a surgical nurse. Plaintiff obtained the settlement with Nurse Davis on the claim that the nurse failed to perform a sponge count. Defendant Smith now makes the same claim with respect to the sponge count by Nurse Davis. He also seeks an apportionment of fault under section 538.230, RSMo, as to Nurse Davis as a "released party." Instruction No. 1 (Same as MAI 2.01) Instruction No. 2 (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 such 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 or nurse means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of those health care providers' respective professions. Instruction No. 6 (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. 7 (See MAI 21.01(1988 Revision), MAI 37.01(1986 New), MAI 19.01 (1986 Revision)) In your verdict you must assess a percentage of fault to defendant Smith, whether or not Nurse Davis was partly at fault, if you believe: First, defendant Smith left a sponge in plaintiff's abdomen during surgery, and Second, defendant Smith was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff. Instruction No. 8 (Converse Omitted) Instruction No. 9 (See MAI 21.01(1988 Revision), MAI 37.01(1986 New), MAI 19.01 (1986 Revision), (Modified)) If you assess a percentage of fault to Defendant Smith under Instruction No. 7, then you must assess a percentage of fault to Nurse Davis on Defendant Smith's claim that Nurse Davis is partly at fault, if you believe: First, Nurse Davis failed to perform a sponge count during surgery, and Second, Nurse Davis was thereby negligent, and Third, such negligence directly caused or directly contributed to cause damage to plaintiff. (Note: The burden of proof and the responsibility to tender this verdict director is on the party seeking an assessment of a percentage of fault to a released person.) Instruction No. 10 (Converse Omitted) (Note: Since Nurse Davis settled with plaintiff, and is not a party to the lawsuit, plaintiff may submit a converse to the defendant's tendered verdict directing instruction regarding the negligence of the settling tortfeasor.) Instruction No, 11 (See MAI 21.04 (1988 New), Modified in accordance with Carlson v. KBMart, 979 S.W.2d 145 (Mo. banc 1998)) If you assess a percentage of fault to defendant Smith, then, disregarding any fault on the part of Nurse Davis, you must determine the total amount of plaintiff's damages to be such sum as will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future that the sponge incident directly caused or directly contributed to cause. You must state such total amount of plaintiff's damages in your verdict, and you must itemize those total damages by the categories set forth in the verdict form. In determining the total amount of plaintiff's damages and in itemizing those total damages, you must not reduce such damages by any percentage of fault you may assess to Nurse Davis. The judge will compute plaintiff's recovery by reducing the amount you find as plaintiff's total damages by any percentage of fault you assess to Nurse Davis. Instruction No. 12 (See MAI 21.06 (1991 New)) Plaintiff's claim against Nurse Davis has been settled. In determining the total amount of plaintiff's damages and in assessing percentages of fault you are not to consider such settlement. (Note: This instruction, based on MAI 21.06, will be given only as a separate instruction if the jury has knowledge of the settlement from the evidence or a trial incident. The third sentence of MAI 21.06 has been deleted from this instruction to avoid repetition of information given to the jury in Instruction No. 11.) Instruction No. 13 (See MAI 21.05 (1988 New)) 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