Instructions 1- sample plaintiff's version in med mal suit

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Plaintiff's Jury Instructions

Baizer Kolar & Lewis, P.C., 513 Central Avenue, 5th Floor, Highland Park, IL 60035, 847-433-6677.

[1] Now that the evidence has concluded, I will instruct you as to the law and your duties.

[2] The law regarding this case is contained in the instructions I will give to you. You must consider the Court's instructions as a whole, not picking out some instructions and disregarding others.

[3] It is your duty to resolve this case by determining the facts based on the evidence and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration. My rulings, remarks or instructions do not indicate any opinion as to the facts.

[4] You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life, in evaluating what you see and hear during trial.

[5] You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness, you may consider that witness' ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

[6] You should not do any independent investigation or research on any subject relating to the case. What you may have seen or heard outside the courtroom is not evidence. This includes any press, radio, or television programs and it also includes any information available on the Internet. Such programs, reports, and information are not evidence and your verdict must not be influenced in any way by such material.

[7] For example, you must not use the Internet, including Google, Wikipedia, or any other sources that you might use every day, to search for any information about the case, or the law which applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, and judge.

[8] During the course of the trial, do not discuss this case with anyone--not even your own families or friends, and also not even among yourselves--until at the end of the trial when you have retired to the jury room to deliberate on your verdict. Even though this is hard to do, it will be a violation of these instructions and your oath if you discuss the case with anyone else.

[9] You must not provide any information about the case to anyone by any means at all, and this includes posting information about the case, or your thoughts about it, on any device or Internet site, including blogs, chat-rooms, or any social-networking websites, such as Twitter, Facebook or any other means.

[10] You cannot use any electronic devices or services to communicate about this case, and this includes cell-phones, smart-phones, lap-tops, the Internet, and any other tools of technology. The use of any such devices or services in connection with your duties is prohibited.

[11] The reason for these instructions is that your verdict must be based only on the evidence presented in this courtroom and the law I will provide to you in my instructions. It would be unfair to the parties and a violation of your oath to base your decision on information from outside this courtroom. You should feel free to remind each other that your verdict is to be based only on the evidence admitted in court and that you cannot use information from any other sources. If you become aware of any violation of these instructions, it is your legal duty to report this to me immediately.

[12] Disobeying these instructions could cause a mistrial, meaning all of our efforts have been wasted and we would have to start over again with a new trial. If you violate these instructions you could be found in contempt of court.

[13] Pay close attention to the testimony as it is given. At the end of the trial you must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

[14] An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence, you should disregard that statement or argument.

IPI 1.01 (2011 Ed.)

Plaintiff's Instruction No. 1

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Whether a party is insured or not insured has no bearing on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned your verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.03 (2011 Ed.)

Plaintiff's Instruction No. 2

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A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.04 (2011 Ed.)

Plaintiff's Instruction No. 3

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You have heard a witness give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case.

IPI 3.08 (2011 Ed.)

Plaintiff's Instruction No. 4

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More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

IPI 12.04 (2011 Ed.)

Plaintiff's Instruction No. 5

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If you decide that a defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

IPI 12.05 (2011 Ed.)

Plaintiff's Instruction No. 6

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When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff's injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 15.01 (2011 Ed.)

Plaintiff's Instruction No. 7

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Plaintiff does not have to prove that Dayanara Gutierrez had a greater than fifty percent chance of survival or recovery absent the alleged negligence of the defendants. If you decide or find that one or more of defendants' alleged negligent acts or omissions lessened the effectiveness of treatment she received, you may consider such delay one of the proximate causes of her death.

Not in IPI

Plaintiff's Instruction No. 8

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See Holton v. Memorial Hospital, 176 III.2d 95, 679 N.E.2d 1202 (1997) ( “To the extent a plaintiff's chance of recovery or survival is lessened by the malpractice , he or she should be able to present evidence to a jury that the defendant's malpractice , to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant. To hold otherwise would free health care providers from legal responsibility for even the grossest acts of negligence, as long as the patient upon whom the malpractice was performed already suffered an illness or injury that could be quantified by experts as affording that patient less than a 50% chance of recovering his or her health.”)

The Holton court also held that the First District Appellate Court had the “correct application” of the doctrine when it held that “ ‘the better rule is that ‘[e]vidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment * * * lessened the effectiveness of treatment is sufficient to establish proximate cause.’ ” Id. Holton, 176 Ill.2d at 115.

The plaintiff claims that Dayanara Gutierrez lost her chance of survival and died and that the defendants were negligent in one or more of the following respects:

Defendant Advocate Condell Medical Center in:

A. Failing to have a written policy or system in place to ensure the presence of a pediatrician in the delivery room at the time of Dayanara's birth; or

B. Its employee, nurse Jennifer Adams, failing to notify a pediatrician to be present for the delivery of Elizabeth Gutierrez's twins.

Defendant Aijaz Walji, M.D in:

A. Failing to timely and appropriately resuscitate Dayanara; or

B. Failing to timely order and administer emergency packed red blood cells for Dayanara.

Defendants Aalok Avinashi, M.D./Suburban Neonatal, Ltd in:

A. Failing to timely order and administer emergency packed red blood cells for Dayanara; or

B. Failing to appropriately treat Dayanara's hypovolemia.

The plaintiff further claims that one or more of the foregoing was a proximate cause of Dayanara's lost chance of survival and death.

The defendants deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the part of the defendants was a proximate cause of Dayanara's lost chance of survival and death.

IPI 20.01 (2011 Ed.)

Plaintiff's Instruction No. 9

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When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering ail the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.

IPI 21.01 (2011 Ed.)

Plaintiff's Instruction No. 10

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The plaintiff has the burden of proving each of the following propositions as to each defendant:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff's decedent lost her chance of survival and died;

Third, that the negligence of the defendant was a proximate cause of decedent's lost chance of survival and death.

You are to consider these propositions as to each defendant separately.

If you find from your consideration of all the evidence that any of these propositions has not been proved as to any of the defendants, then your verdict shall be for that defendant. On the other hand, if you find from your consideration of all the evidence that all of these propositions have been proved as to one or more or all of the defendants, then your verdict shall be for plaintiff as to that defendant or defendants.

IPI B21.02.01 (2011 Ed.)

Plaintiff's Instruction No. 11

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If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the parents, brother and sister of the decedent for the pecuniary loss proved by the evidence to have resulted to the parents, brother and sister from the death of the decedent.

“Pecuniary loss” may include loss of benefits, services and society.

Where a decedent leaves parents, the law recognizes a presumption that the parents have sustained some substantial pecuniary loss by reason of the loss of the child's society. The weight to be given this presumption is for you to decide from the evidence in this case.

There is no presumption of pecuniary loss to a brother or sister of the decedent.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

1. What the decedent's health and physical and mental characteristics would have been;

2. What the relationship between brother and sister and decedent would have been;

3. The grief, sorrow and mental suffering of the next of kin. IPI 31.03(a) (2011 Ed.)

Plaintiff's Instruction No. 12

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In determining “pecuniary loss” you may not consider the following:

1. The pain and suffering of the decedent; or

2. The poverty or wealth of the next of kin.

IPI 31.07 (2011 Ed.)(paragraph 2 omitted)

Plaintiff's instruction No. 13

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The plaintiff Elizabeth Gutierrez brings this action in a representative capacity by reason of her being special administrator of the estate of Dayanara Faith Gutierrez, deceased. She represents Victor Gutierrez, Alex Gutierrez and Daylin Gutierrez, the next of kin of the deceased. They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the special administrator of the estate of Dayanara Faith Gutierrez.

IPI 31.09 (2011 Ed.)

Plaintiff's instruction No. 14

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When I use the term “society” in these instructions, I mean the mutual benefits that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

IPI 31.11 (2011 Ed.)

Plaintiff's Instruction No. 15

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If you find for the plaintiff, then in assessing damages you may consider how long Elizabeth Gutierrez, Victor Gutierrez, Alex Gutierrez and Daylin Gutierrez will be likely to sustain pecuniary losses as a result of Dayanara Gutierrez's death, considering how long Dayanara Gutierrez was likely to have lived and how long Elizabeth Gutierrez, Victor Gutierrez, Alex Gutierrez and Daylin Gutierrez are likely to live.

According to a table of mortality in evidence, the life expectancy of a female person (Elizabeth Gutierrez) aged 28 years is 54.2 years a male person (Victor Gutierrez) aged 30 years is 47.8 years a male person (Alex Gutierrez) aged 8 years is 67.8 years a female person (Daylin Gutierrez) aged 4 years is 77.7 years

These figures are not conclusive. They are the average life expectancies of persons who have reached those ages. They may be considered by you in connection with other evidence relating to the probable life expectancies of the decedent and her next of kin including evidence of the decedent's health, bearing in mind that some persons live longer and some persons live less than the average.

Damages for loss of society are not reduced to present cash value.

IPI 31.13 (2011 Ed.)

Plaintiff's Instruction No. 16

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If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to that defendant.

IPI 36.01 (2011 Ed.)

Plaintiff's Instruction No. 17

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The rights of the defendants:

Advocate Condell Medical Center

Aijaz Walji, M.D.

Aalok Avinashi, M.D./Suburban Neonatal, Ltd. are separate and distinct. Each is entitled to a fair consideration of its/his own defense and you will decide each defendant's case separately as if it were a separate lawsuit. Each defendant's case must be governed by the instructions applicable to that case.

IPI 41.03 (2011 Ed.)

Plaintiff's Instruction No. 18

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Defendants Aalok Avinashi, M.D. and Suburban Neonatal, Ltd. are sued as principal and agent. The defendant Suburban Neonatal, Ltd. is the principal and the defendant Aalok Avinashi, M.D. is its agent. If you find that the defendant Aalok Avinashi, M.D. is liable, then you must find that the defendant Suburban Neonatal, Ltd. is also liable. However, if you find that Aalok Avinashi, M.D. is not liable, then you must find that Suburban Neonatal, Ltd. is not liable.

IPI 50.01 (2011 Ed.)

Plaintiff's instruction No. 19

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Jennifer Adams was the agent of the defendant Advocate Condell Medical Center at and before the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the defendant Advocate Condell Medical Center.

IPI 50.02 (2011 Ed.)

Plaintiff's Instruction No. 20

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The defendant Advocate Condell Medical Center is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant corporation.

IPI 50.11 (2011 Ed.)

Plaintiff's Instruction No. 21

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A pediatrician must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful pediatrician. The failure to do something that a reasonably careful pediatrician would do, or the doing of something that a reasonably careful pediatrician would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful pediatrician would act under these circumstances. That is for you to decide. In reaching your decision, you must rely upon opinion testimony from qualified witnesses and evidence of professional standards. You must not attempt to determine how a reasonably careful pediatrician would act from any personal knowledge you may have.

IPI 105.01 (2011 Ed.)

Plaintiff's Instruction No. 22

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A neonatologist must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful neonatologist. The failure to do something that a reasonably careful neonatologist would do, or the doing of something that a reasonably careful neonatologist would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful neonatologist would act under these circumstances. That is for you to decide. In reaching your decision, you must rely upon opinion testimony from qualified witnesses and evidence of professional standards. You must not attempt to determine how a reasonably careful neonatologist would act from any personal knowledge you may have.

IPI 105.01 (2011 Ed.)

Plaintiff's Instruction No. 23

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A nurse must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful nurse. The failure to do something that a reasonably careful nurse would do, or the doing of something that a reasonably careful nurse would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful nurse would act under these circumstances. That is for you to decide. In reaching your decision, you must rely upon opinion testimony from qualified witnesses and evidence of professional standards. You must not attempt to determine how a reasonably careful nurse would act from any personal knowledge you may have.

IPI 105.01 (2011 Ed.)

Plaintiff's Instruction No. 24

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Negligence by a hospital is the failure to do something that a reasonably careful hospital would do, or the doing of something that a reasonably careful hospital would not do, under circumstances similar to those shown by the evidence.

In deciding whether the defendant Advocate Condell Medical Center was negligent, you may consider opinion testimony from qualified witnesses, evidence of professional standards, evidence of by-laws/rules/regulations/policies/procedures, evidence of community practice and other evidence presented in this case.

The law does not say how a reasonably careful hospital would act under these circumstances. That is for you to decide.

IPI 105.03.01 (2011 Ed.)

Plaintiff's Instruction No. 25

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There were in force in the State of Illinois at the time of the occurrence in question certain administrative regulations which provided that:

Illinois Hospital Licensing Requirements

e) Maternity and Neonatal Service Plan

1) Hospitals providing maternity and neonatal services must develop a plan for the management of the obstetric and neonatal patients that meets the requirements of this Subpart. The plan must be developed by the nursing department and medical staff and must be approved by the governing authority of the hospital.

2) The hospital's written Maternity and Neonatal Service Plan shall be known to medical staff and nursing personnel and more specifically to maternity and nursery personnel. A copy of the Plan shall be available in each maternity and nursery unit and in every relevant hospital service area; the Plan must be reviewed at least every two years and revised as indicated by the review.

77 Ill.Adm.Code 250.1820(e)

The hospital shall adhere to the practices prescribed in Guidelines for Perinatal Care.

77 Ill.Adm.Code 250.1830(g)(17)

if you decide that a party violated the regulation on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.

IPI 60.01 (2011 Ed.)

Plaintiff's Instruction No. 26

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When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous. Forms of verdicts are supplied with these instructions. After you have reached your verdicts, fill in and sign the appropriate form and return it to the court. Your verdicts must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The parties in this case are:

Plaintiff: Elizabeth Gutierrez, as Special Administrator of the Estate of Dayanara Faith Gutierrez, deceased

Defendants:

Advocate Condell Medical Center

Aijaz Walji, M.D

Aalok Avinashi, M.D./Suburban Neonatal, Ltd

If you find for the plaintiff and against any of the defendants, then you should use Verdict Form A. If you find in favor of all defendants, then you should use Verdict Form B.

IPI B45.03 (2011 Ed.)

Plaintiff's Instruction No. 27

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VERDICT FORM A

We, the jury, find for the Estate of Dayanara Faith Gutierrez, deceased, and against the following defendants:

  • Advocate Condell Medical Center
  • Aijaz Walji, M.D
  • Aalok Avinashi, M.D. & Suburban Neonatal, Ltd
  • Yes _____
  • Yes _____
  • Yes _____
  • No _____
  • No _____
  • No _____

We further find the following:
We find that the total amount of damages suffered by the Estate of Dayanara Faith Gutierrez $ __________________________________________________, itemized as follows:

Loss of society: $

Grief, sorrow and mental suffering: $

Foreperson

IPI 45.03A2 (2011 Ed.)

Plaintiff's Instruction No. 28

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VERDICT FORM B

We, the jury, find for all of the defendants and against the plaintiff.

Foreperson

IPI B45.03B(2011 Ed.)

Plaintiff's Instruction No. 29

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