Fill and Sign the Medical Malpractice Statute Limitations Form

1.3 Negligence Medical Malpractice Claim Against Hospital And Physician Statute Of Limitations Defense In this case the Plaintiff claims that the Defendants were negligent and that such negligence was a legal cause of damage sustained by the Plaintiff. Specifically, the Plaintiff alleges that the Defendants [describe the specific act(s) or omission(s) asserted as negligence on the part of the Defendants]. In order to prevail on this claim the Plaintiff must prove both of the following facts by a preponderance of the evidence: First: That the Defendants were "negligent;" and Second: That such negligence was a "legal cause" of damage sustained by the Plaintiff. [In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues.] In general, "negligence" is the failure to use reasonable care. Reasonable care is that degree of care that a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances, or in failing to do something that a reasonable careful person would do under like circumstances. In a medical malpractice case such as this, however, what a “reasonably careful person” would or would not do is to be measured by the standard of what a reasonably careful, similar health care provider would or would not do under the same circumstances. Thus, the measure of the duty of care owed by a hospital to its patients is to exercise that degree of care, skill and diligence used by reasonably prudent hospitals generally [in the community or a similar community]. In the case of a physician, it is the duty of a medical practitioner to apply to the diagnosis and treatment of a patient the ordinary skills, means and methods that are recognized as necessary, and that are customarily followed in the diagnosis and treatment of similar cases, according to the prevailing professional standard of care of reasonably prudent physicians who are qualified by training and experience to practice in the same field or specialty [in the community or a similar community]. Physicians are not held liable, however, for honest errors of judgment. They are allowed a wide range in the exercise of their judgment and discretion. To hold a physician liable it must be shown that the course that the physician pursued was against the course recognized as correct by the profession[; but where a physician's duty to a patient and a subsequent breach of that duty are so obvious as to be apparent to persons of common experience, then the Plaintiff is not required to establish such duty and its breach through the use of expert testimony]. Negligence is a "legal cause" of damage if it directly and in natural and continuous sequence produces, or contributes substantially to producing such damage, so it can reasonably be said that, except for the negligence, the loss, injury or damage would not have occurred. Negligence may be a legal cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause, if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage. [If the evidence proves negligence on the part of the Defendants that was a legal cause of damage to the Plaintiff, you will then consider an issue in this case arising from a defense asserted by the Defendants and based upon what is called the statute of limitations. This is simply a provision of the law requiring that suit be commenced in Court on certain types of claims within a prescribed period of time, otherwise suit is barred or precluded. On this issue the Defendants have the burden of proof by a preponderance of the evidence. In a case like this one, the time limit placed upon the Plaintiff began to run when the Plaintiff first knew, or by the exercise of reasonable care should have known, that [here describe the operative fact triggering the statute of limitations]. In this instance the applicable limitations period is years, and the Defendants claim that suit is barred because the Plaintiff knew, or by the exercise of reasonable care should have known more than years before the commencement of this suit on, that [describe again the operative fact triggering the statute of limitations]. With regard to the Plaintiff's knowledge, you are instructed that the means of knowledge is ordinarily equivalent in law to knowledge. So, if it appears from a preponderance of the evidence in the case that the Plaintiff had information that would normally have led a reasonably careful person of the same age, mental capacity, intelligence, training and experience to make inquiry through which such a person would surely learn certain facts, then the Plaintiff may be found to have had actual knowledge of those facts just as though the Plaintiff had made such inquiry and had actually learned those facts. If you find against the Defendant on this defense, you will then consider the issue of the Plaintiff's damages. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable. On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as pain and suffering has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others: (a) Medical and hospital expenses, past and future (b) Mental or physical pain and anguish, past and future (c) Net lost wages and benefits to the date of trial (d) Net lost wages and benefits in the future [reduced to present value] [You are instructed that any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages - - that is, to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. So, if you should find from a preponderance of the evidence that the Plaintiff failed to seek out or take advantage of a business or employment opportunity that was reasonably available under all the circumstances shown by the evidence, then you should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably realized if the Plaintiff had taken advantage of such opportunity.] 1.3 Negligence Medical Malpractice Claim Against Hospital And Physician Statute Of Limitations Defense SPECIAL INTERROGATORIES TO THE JURY Do you find from a preponderance of the evidence: 1. That the Defendant was negligent in the manner claimed by the Plaintiff? Answer Yes or No [Note: If you answered No to Question No. 1 you need not answer the remaining questions.] 2. That such negligence was a legal cause of damage sustained by the Plaintiff? Answer Yes or No 3. That the Plaintiff knew, or by the exercise of reasonable care should have known, more than years before the commencement of this suit on [date] that [describe the operative fact triggering the statute of limitations]? Answer Yes or No 4. That the Plaintiff should be awarded the following damages: (a) Medical and hospital expenses, past and future $       (b) Mental or physical pain and anguish, past and future $       (c) Net lost wages and benefits to the date of trial $       (d) Net lost wages and benefits in the future [reduced to present value] $       SO SAY WE ALL. Foreperson DATED:       ANNOTATIONS AND COMMENTS Alabama law, see Ala. Code § 6-5-548. Florida law, see Fla. Stat. 766.102 (1997). With regard to reduction to present value of damages to be awarded for future losses, see Supplemental Damages Instruction No. 5.1, infra, and the Annotations and Comments that follow it, for commentary on when that instruction should be given.