Negligence 1. Medical negligence consists of a negligent or careless performance by a doctor of the duties imposed on him by the professional relationship with the patient. It is negligence when a doctor shows a lack of proper care in the performance of a professional act. 2. A doctor who claims to be a specialist in a particular field, in this case, internal medicine, must have the same knowledge and skill and use the same care as others in that same medical specialty. A specialist whose conduct does not meet this professional standard of care is negligent. 3. A doctor must have up-to-date medical skills and knowledge, and if he fails to keep current or fails to use current knowledge in the medical treatment of the patient, the physician is negligent. 4. If you decide that the defendant was negligent, then you must determine whether the defendant’s negligence was a factual cause of the plaintiff’s injuries. If you so decide, you must decide the amount of money damages the plaintiff sustained as a result of the defendant’s negligence. Increased Risk of Harm 5. When a defendant doctor negligently fails to act and his negligence is a factual cause of injuries to the patient, that negligent defendant physician is responsible for the injuries caused. 6. Where the plaintiff presents expert testimony that the failure to act has increased the risk of harm to the plaintiff, this testimony, if found credible, provides a sufficient basis from which you may find that the negligence was a factual cause of the injuries sustained. Causation 7. Negligent conduct is a factual cause of harm if the conduct played an actual, real role in harming the plaintiff. 8. You can find conduct a factual cause of harm even if a person’s contribution to the harm was relatively minor or the result unusual. 9. A person remains responsible for his or her conduct that causes harm even if other causes contributed to the harm. Burden of Proof 10. In this case, the plaintiff has the burden of proving the following claims: a. the defendant was negligent; b. the defendant’s negligence was a factual cause in bringing about the harm/damages; and c. the extent of damages caused by the defendant’s negligence. 11. If, after considering all the evidence, you find the plaintiff’s claims are more likely true than not, you must find for the plaintiff. Damages- Wrongful Death & Survival 12. When a person dies, the damages they would have been entitled to go to their estate or survivors. The estate and survivors are just as entitled to these damages as the deceased person would have been had she survived. 13. The plaintiff, as the Executor of the estate of the decedent, claims damages under the Wrongful Death Act and the Survival Act. He is entitled to claim damages under both acts, but the damages must not overlap or duplicate themselves. 14. Under the Wrongful Death Act, the damages recoverable by the plaintiff are as follows: a. the plaintiff is entitled to be awarded a sum that will fairly and adequately compensate his family for the monetary value of the services, society, and comfort that she would have given to her family had she lived, including such elements as work around the home, provision of physical comforts and services, and provision of society and comfort. 15. Under the Survival Act, the damages recoverable by the plaintiff are as follows: a. The plaintiff is entitled to be awarded an amount that you believe will fairly and adequately compensate for the mental and physical pain, suffering, and inconvenience and loss of life’s pleasures that the decedent endured from the moment of her injury to the moment of her death as a result of this accident. b. These damages include not only physical pain, but also the fright and mental suffering attributable to the peril leading to the decedent’s death. In re Consolidated Coal Co., 296 F. Supp. 837 (W.D. Pa. 1969). 16. You are to add each of these items of damages together in its proper category and return your verdict in two lump sum amounts, one under the Wrongful Death Act and the second under the Survival Act.
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