CHAPTER 6

OTHER NEGLIGENCE ACTIONS

T.P.I. - Civil

Number

A. Professional Negligence

Professional Fault	6.01

Duty of a Specialist	6.02

Professional Perfection not Required	6.03

Duration of Professional Responsibility	6.04

Standard of Care Determined by Expert Testimony	6.05

B. Attorney Fault

Attorney Fault - Litigation - Burden of Proof	6.07

Attorney Fault - Non Litigation - Burden of Proof	6.08

C. Medical Negligence

Duty of Physician	6.10

Duty of Specialist	6.11

Perfection not Required	6.12

Duty to Disclose When Doctor not Qualified	6.13

Alternate Methods	6.14

Duty to not Abandon Patient	6.15

Medical Negligence - Referring Patient	6.16

Vicarious Liability of Physician	6.17

Standard of Medical Care Determined by Expert Testimony	6.18

Res Ipsa Loquitur - Disputed Causation - Medical	6.19

Res Ipsa Loquitur - Medical	6.20

Patient's Duty to Follow Instructions	6.21

Duty to Warn Family Members	6.22

D. Consent

Informed Consent	6.25

Authorized Consent	6.26

Capacity to Consent	6.27

When Consent to an Operation not Necessary	6.28

Emergency Arising Before Treatment or Surgery	6.29

Reality of Consent - Duty to Disclose	6.30

Unauthorized Procedure - Medical Battery	6.31

Sudden Emergency During Treatment	6.32

E. Hospitals

Duty of a Hospital	6.35

Vicarious Liability - Hospital	6.36

Medical Malpractice - Physician as Agent While Controlling Operation	6.37

Medical Malpractice - Liability for Negligence of Physician Selected	6.38

F. Common Carriers

General Duty of Carrier	6.45

Safe Place to Board and Alight	6.46

Duty of Passenger	6.47

Relationship Between Passenger and Carrier	6.48

G. Railroad Crossings

Duty of One Crossing Tracks	6.50

Duty of Railroad Company at Crossing	6.51

Speed at Private Right of Way	6.52

Speed at Public Highway Crossings	6.53

Ordinance or Regulation Fixes Minimum Care Required of Railroad	6.54

Failure of Warning Devices	6.55

H. Animals

Dangerous Animals	6.65

Dog Attack - Off Premises	6.66

Dog Attack - On Premises	6.67

Livestock at Large	6.68

I. Food Contamination

Negligent Food Contamination	6.70

J. Negligent Entrustment

Negligent Entrustment	6.80

T.P.I. - CIVIL 6.01

PROFESSIONAL FAULT

A person who undertakes to perform professional services for another must use reasonable care to avoid causing injury to that person. The knowledge and care required of the professional is the same as other reputable professionals practicing in the same or a similar community and under similar circumstances. A professional not only must have that degree of learning and skill ordinarily possessed by other reputable professionals but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a professional is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment.

A failure to have and use such knowledge and skill is negligence.

T.P.I. - CIVIL 6.02

DUTY OF A SPECIALIST

A person who [holds oneself out as ][is] a specialist in a particular profession is required to have the knowledge and skill ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field and in the same or a similar community and under similar circumstances.

A failure to have and use such knowledge and skill is negligence.

T.P.I. - CIVIL 6.03

PROFESSIONAL PERFECTION

NOT REQUIRED

A professional is not negligent merely because of an unsuccessful result or an error in judgment. It is negligence, however, if the error of judgment or lack of success is due to the failure to use the required care and skill as defined in these instructions.

T.P.I. - CIVIL 6.04

DURATION OF PROFESSIONAL RESPONSIBILITY

The employment and duty of a professional continues until [ended by [consent] [or] [request] of the client] [or] [the professional withdraws from the employment, if it does not unduly jeopardize the interest of the client, after giving the client notice and a reasonable opportunity to employ another professional] [or] [the matter for which the professional was employed has been concluded].

T.P.I. - CIVIL 6.05

STANDARD OF CARE DETERMINED

BY EXPERT TESTIMONY

To determine the standard of professional learning, skill and care that was required of the defendant, you must consider only the opinions of the professionals [including the defendant] who have testified as expert witnesses as to that standard.

You must consider the opinion of each expert witness and the reasons given for the opinion, as well as the qualifications of each witness. Give each opinion the weight you believe it should have.

T.P.I. - CIVIL 6.07

ATTORNEY FAULT - LITIGATION

BURDEN OF PROOF

To recover damages for the negligent handling of a lawsuit, the plaintiff must prove that:

1.	The attorney was negligent; and

2.	Except for that negligence, the prior lawsuit [would have resulted in a collectible judgment in plaintiff's favor] [would have been successfully defended].

T.P.I. - CIVIL	6.08

ATTORNEY FAULT - NON LITIGATION

BURDEN OF PROOF

An attorney is at fault if you find by a preponderance of the evidence that the attorney was negligent and that the negligence was a legal cause of damages to the plaintiff.

T.P.I. - CIVIL 6.10

DUTY OF PHYSICIAN

A physician who undertakes to perform professional services for a patient must use reasonable care to avoid causing injury to the patient. The knowledge and care required of the physician is the same as that of other reputable physicians practicing in the same or a similar community and under similar circumstances. A physician not only must have that degree of learning and skill ordinarily possessed by other reputable physicians but also must use the care and skill ordinarily used in like cases. In applying that skill and learning, a physician is required to use reasonable diligence and best judgment in an effort to accomplish the purpose of the employment.

A failure to have and use such knowledge and skill is negligence.

T.P.I. - CIVIL 6.11

DUTY OF SPECIALIST

The skill, knowledge and care required of a physician who practices a particular specialty is the same as that of other reputable physicians who specialize in the same field and practice in the same or a similar community and under similar circumstances.

T.P.I. - CIVIL 6.12

PERFECTION NOT REQUIRED

By undertaking treatment a physician does not guarantee a good result. A physician is not negligent merely because of an unsuccessful result or an error in judgment. An injury alone does not raise a presumption of the physician's negligence. It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.

T.P.I. - CIVIL 6.13

DUTY TO DISCLOSE WHEN

DOCTOR NOT QUALIFIED

A physician who discovers, or should discover, that the patient's ailment is beyond the physician's knowledge or technical skill or capacity to treat with a likelihood of success, has a duty to disclose that situation to the patient or advise the patient of the need for other or different treatment.

T.P.I. - CIVIL 6.14

ALTERNATE METHODS

When there is more than one accepted method of diagnosis or treatment, and no one of them is used exclusively and uniformly by all physicians of good standing, a physician is not negligent for selecting an accepted method of diagnosis or treatment that later turns out to be unsuccessful. This is true even if the method is one not favored by certain other physicians.

T.P.I. - CIVIL 6.15

DUTY TO NOT ABANDON PATIENT

When the physician begins treating a patient, there is a duty to continue treating and not abandon the patient unless and until [the patient discharges the physician] [the physician gives the patient notice of intent to discontinue treatment and provides an opportunity to obtain the services of another physician].

T.P.I. - CIVIL 6.16

MEDICAL NEGLIGENCE - REFERRING PATIENT

A physician may send a substitute physician to care for the patient. The physician is not responsible for any negligence of the substitute unless the original physician was negligent in the selection of the substitute or there was an agency or partnership relationship between the two physicians.

T.P.I. - CIVIL 6.17

VICARIOUS LIABILITY OF PHYSICIAN

For a physician to be responsible for injuries caused by the negligence of a [nurse] [assisting physician], plaintiff must prove the following:

1.	The [nurse] [assisting physician] was negligent in the performance of required duties during surgery [or treatment] of the plaintiff; and

2.	The [nurse] [assisting physician] was under the direction or control of defendant at the time of the negligence, regardless of who employed or paid the [nurse] [assisting physician].

T.P.I. - CIVIL 6.18

STANDARD OF MEDICAL CARE

DETERMINED BY EXPERT TESTIMONY

It is your obligation to determine the recognized standard of acceptable professional practice in defendant's profession for this or a similar community. In making this determination, you may consider only the opinions of the physicians, including the defendant, who have testified concerning this standard. Consider each opinion and the reasons given for the opinion, as well as the qualifications of the witnesses, giving each opinion the weight you believe it deserves.

[The testimony of a physician as to what that physician personally would do or would not do or the personal opinion of a physician of what should or could not have been done does not prove the standard of medical practice.]

T.P.I. - CIVIL 6.19

RES IPSA LOQUITUR - DISPUTED

CAUSATION - MEDICAL

If you find that the [medication] [treatment] [operation] that was [administered] [performed] by the defendant[s] was not a legal cause of the injury to the plaintiff, then your verdict will be in favor of the defendant[s]. If you find that the plaintiff's [injury] [condition] was legally caused by the [medication] [operation] [treatment] [administered] [performed] by [any one or more of] the defendant[s], then you must consider the following instructions concerning [that] [those] particular defendant[s]:

T.P.I. - CIVIL 6.20

RES IPSA LOQUITUR - MEDICAL

You may, but are not required to, infer from the happening of the injury in this case that a cause of the injury was some negligent conduct by the defendant[s].

This theory requires the plaintiff to prove all of the following:

1.	The plaintiff received an injury that ordinarily would not occur in the absence of negligence. [Whether the injury is one that ordinarily does not occur in the absence of negligence may be determined from the evidence presented in this trial by physicians and surgeons called as expert witnesses.]

2.	The injury was caused while the care of the plaintiff was under the exclusive care and control of the defendants. [The plaintiff is not required to identify the particular agent or instrumentality that caused the injury if unable to do so because of the patient's condition at the time the [medication] [treatment] [operation] was [administered] [performed]].

The defendant may overcome an inference of negligence by showing that due care was exercised or that the injury was brought about by a cause other than the defendant's negligence.

T.P.I. - CIVIL 6.21

PATIENT'S DUTY TO FOLLOW INSTRUCTIONS

A patient must follow all reasonable instructions given by the physician regarding the patient's care, activities and treatment. A physician is not liable for any injury caused by the patient's failure to follow those instructions. The physician remains responsible for any injury caused by the physician's own negligence.

T.P.I. - CIVIL	6.22

DUTY TO WARN FAMILY MEMBERS

In a physician-patient relationship the physician has an affirmative duty to warn identifiable third persons in the patient's immediate family of foreseeable risks flowing from a patient's illness.

T.P.I. - CIVIL 6.25

INFORMED CONSENT

A physician has a duty to give a patient certain information before treating the patient; the information the physician must disclose is that information about the treatment involved and its attendant risks to enable the patient to make an intelligent decision about whether to undergo the treatment. The information that must be provided to the patient is that information that would be provided by physicians in the specialty in the community in which the physician practices or in similar communities.

In this case, plaintiff has the burden of proving:

(1)	what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the [treatment] [procedure] and risks of it;

(2)	that the defendant departed from that standard; and

(3)	that a reasonable patient in plaintiff's position would have [refused the treatment/procedure] if properly advised of the risks of the [treatment] [procedure] [chosen an alternative treatment/procedure].

In determining how a reasonable patient would have acted under the circumstances, you should consider the testimony of the [patient] [plaintiff], the plaintiff's [idiosyncrasies], [fears], [age], [medical condition], [and] [religious beliefs], the presence or absence of alternative [procedures] [treatments] and the potential risks and benefits thereof, and the impact of no [treatment] [procedure] on plaintiff's health.

T.P.I. - CIVIL 6.26

AUTHORIZED CONSENT

was authorized to consent on behalf of the plaintiff to the [operation] [treatment]. You must decide whether consent was given by that person.

T.P.I. - CIVIL 6.27

CAPACITY TO CONSENT

Although the patient is [a minor] [a person with impaired mental capacity], the patient's consent may be effective if the patient was capable of appreciating the nature, extent and consequences of the [operation] [treatment]. If the patient is capable of giving consent, the patient's informed consent is sufficient even though the consent of a parent, guardian or other responsible person is not obtained or was expressly refused. You must decide if the patient is of sufficient age, ability, experience, education, learning and degree of maturity or judgment to appreciate the risks and consequences of the medical treatment.

[If the patient was a minor under age fourteen, the law presumes that the patient did not have the capacity to appreciate the risks of the treatment, but you may find from the evidence that this particular minor was capable of doing so.] [If the patient was a minor between the ages of fourteen and eighteen, the law presumes that the patient did have the capacity to appreciate the treatment, but you may find from the evidence that this particular minor did not have the capacity to do so.]

T.P.I. - CIVIL 6.28

WHEN CONSENT TO AN

OPERATION NOT NECESSARY

Further consent is not required if, during an operation, a surgeon finds an unanticipated condition that requires immediate action that is necessary for the preservation of the life or health of the patient and it is impractical to obtain consent to further operation. A surgeon must conform to the usual and customary practice among surgeons in the same or a similar community faced with a comparable situation.

T.P.I. - CIVIL 6.29

EMERGENCY ARISING BEFORE

TREATMENT OR SURGERY

Consent to necessary treatment or surgery will be implied in an emergency if it would be impossible or impractical to delay the treatment or surgery necessary to preserve the patient's life or health long enough to obtain consent from the patient or other authorized person.

The physician's decision to treat or operate, as well as the performance of that treatment or surgery, must comply with the standard of acceptable professional practice followed by physicians in good standing under similar conditions in the same or similar community.

T.P.I. - CIVIL 6.30

REALITY OF CONSENT - DUTY TO DISCLOSE

T.P.I. Civil - 6.30 has been subsumed by T.P.I. Civil - 6.25.

T.P.I. - CIVIL 6.31

UNAUTHORIZED PROCEDURE - MEDICAL BATTERY

Performance by a doctor of an unauthorized procedure is a medical battery. The question in a medical battery case is simply whether the patient knew of and authorized a procedure. To determine whether a case constitutes a medical battery, the jury must answer two questions:

1. Was the patient aware that the doctor [dentist, etc.] was going to perform the procedure?

2. Did the patient authorize the procedure?

If either of these questions is answered "NO" then the doctor has performed an unauthorized procedure and has committed medical battery.

T.P.I. - CIVIL 6.32

SUDDEN EMERGENCY DURING TREATMENT

USE NOTE

Refer to T.P.I. - Civil 3.08 on Sudden Emergency.

T.P.I. - CIVIL 6.35

DUTY OF A HOSPITAL

A hospital must furnish the care, attention and protection reasonably required by the patient's known mental and physical condition. The amount of caution, attention and protection required is that generally used by hospitals in the same or a similar community and required by its express or implied contract with the patient.

T.P.I. - CIVIL 6.36

VICARIOUS LIABILITY - HOSPITAL

A hospital is responsible for injuries caused by a hospital employee's negligent performance of duties while acting in the scope of employment. Hospitals are responsible for the negligent acts of their employees, [including interns,] even though they have been selected with due care.

T.P.I. - CIVIL 6.37

MEDICAL MALPRACTICE - PHYSICIAN AS AGENT

WHILE CONTROLLING OPERATION

A physician who is in control of the treatment of a patient may at the same time be the agent of a hospital. A physician, however, does not become an agent of a hospital merely by admitting or treating patients in that hospital.

T.P.I. - CIVIL 6.38

MEDICAL MALPRACTICE - LIABILITY FOR

NEGLIGENCE OF PHYSICIAN SELECTED

A medical facility that selects a competent physician for the care of a patient is not liable for mistakes made by the selected physician in the treatment rendered. However, a medical facility is liable for the negligence of the physician selected by the medical facility if, before the injury, the medical facility knew, or should have known, that the physician was incompetent to perform those duties the physician was reasonably expected to undertake.

T.P.I. - CIVIL 6.45

GENERAL DUTY OF CARRIER

The defendant, _________________, is a common carrier. A common carrier does not guarantee the safety of a passenger. It has a duty to its passengers, however, to use the highest degree of care considering the type of transportation provided and the practical operation of its business.

T.P.I. - CIVIL 6.46

SAFE PLACE TO BOARD AND ALIGHT

It is the duty of a common carrier to select a reasonably safe place to receive or discharge passengers.

T.P.I. - CIVIL 6.47

DUTY OF PASSENGER

The passenger has a duty to exercise ordinary care for the passenger's own safety.

T.P.I. - CIVIL 6.48

RELATIONSHIP BETWEEN

PASSENGER AND CARRIER

The relationship of passenger and carrier begins when:

1.	A person has arrived at a place designated by custom or notice as a site where the carrier will take on passengers;

2.	The person has indicated to the operator an intention to board the vehicle by standing alongside or near the probable stopping or boarding place; and

3.	The operator has taken some action which indicates an intention to receive that person.

It is not necessary that there be any physical contact between the passenger and the vehicle.

The relationship of passenger and carrier continues until the passenger has cleared the vehicle and has had a reasonable opportunity to reach a place of safety.

T.P.I. - CIVIL 6.50

DUTY OF ONE CROSSING TRACKS

A railroad track is a warning of danger. A person nearing a railroad track must use every reasonable opportunity to look and listen for the approach of a train and to yield the right of way to any train so close that it is an immediate hazard. The care required is to be determined by considering what a reasonably careful person would do under all of the same circumstances.

T.P.I. - CIVIL 6.51

DUTY OF RAILROAD COMPANY AT CROSSING

A railroad company must use reasonable care at public highway crossings to warn and to avoid injury to persons traveling upon the highway and crossing the railroad tracks. In determining reasonable care you must consider the hazards and dangers that are apparent to the railroad company or that would be apparent to a reasonably careful person under similar circumstances.

T.P.I. - CIVIL 6.52

SPEED AT PRIVATE RIGHT OF WAY

The railroad operated its train on tracks that were laid upon a private right of way [except where those tracks crossed ]. Because there is no law that regulates the speed at which the railroad may operate its trains or cars over its private right of way, the railroad may operate at any speed consistent with the use of reasonable care.

T.P.I. - CIVIL 6.53

SPEED AT PUBLIC HIGHWAY CROSSINGS

It is the duty of a railroad company to exercise reasonable care for the speed at which it operates its equipment at public highway crossings.

T.P.I. - CIVIL 6.54

ORDINANCE OR REGULATION FIXES MINIMUM

CARE REQUIRED OF RAILROAD

The railroad company's duty to use reasonable care at public highway crossings is not necessarily fulfilled by compliance with an applicable law [read applicable ordinance or regulation].

That law prescribes only the minimum care required of the railroad company.

You must decide whether or not compliance with that law amounted to reasonable care under the circumstances shown by the evidence.

T.P.I. - CIVIL 6.55

FAILURE OF WARNING DEVICES

When a railroad company installs a mechanical device to warn persons approaching a railroad crossing, it must use reasonable care in the planning, construction and installation of the device. After installation the railroad company must use reasonable care in the operation and maintenance of the device.

A railroad company is negligent in failing to keep a device in good repair if it had actual notice of the defective condition and was not reasonably diligent in making repairs. If the company did not have notice of a defective condition, the company is negligent if its lack of notice was due to its failure to use reasonable care [or if the defective condition was caused by the company's own negligence in constructing or installing the device].

A railroad company's use of a flagman or other warning or signaling device at a railroad crossing is an invitation to a person approaching the crossing to rely upon the efficient operation of the warning system. A person who relies upon the operation of a warning system is not required to use the same amount of caution as when no method of warning is provided but still must use reasonable care.

T.P.I. - CIVIL 6.65

DANGEROUS ANIMALS

Plaintiff is entitled to recover from defendant if you find that:

1.	The plaintiff was injured by the ________________ owned or kept by the defendant; and

2.	Before the plaintiff was injured by that animal, the defendant knew, or had reason to know, of a vicious or dangerous trait or propensity in the animal that caused plaintiff's injuries. [An owner or keeper of an animal has reason to know of the traits or propensities of the animal when the owner has notice of facts that would inform a reasonable person of those traits.]

[If, however, a person voluntarily invites an attack by an animal, such person may be found at fault, along with the owner or keeper, for the consequences. A person invites an attack by voluntarily and knowingly doing something that is dangerous in relation to the animal and which induces an attack. A person does not invite an attack by acting reasonably while lawfully within a place.]

T.P.I. - CIVIL 6.66

DOG ATTACK - OFF PREMISES

When an owner allows a dog to be at large, the owner is responsible for damages caused by the dog without regard to whether the dog previously had been vicious or whether the owner knew of the viciousness. A dog is at large when it is free and unrestrained and not under the control of the owner.

T.P.I. - CIVIL 6.67

DOG ATTACK - ON PREMISES

The owner [harborer] of a dog that attacks [injures] a person while that person is on the owner's premises is responsible for the damages caused by the attack [injury] if the owner [harborer] knows or has reason to know that the dog is vicious or dangerous. A person is lawfully upon the private property of a dog owner [when performing any duty imposed by law] [or] [at the express or implied invitation of the owner].

[If, however, a person voluntarily invites an attack by a dog, such person may be found at fault, along with the owner or harborer for the consequences. A person invites an attack by voluntarily and knowingly doing something that is dangerous in relation to the dog and which induces an attack. A person does not invite an attack by acting reasonably while lawfully within a place.]

T.P.I. - CIVIL 6.68

LIVESTOCK AT LARGE

Where the owner of livestock negligently [intentionally] allows it to run at large, the owner is responsible for damages caused by the livestock being at large. The owner is not responsible, if without fault, the livestock has escaped from a pasture enclosed by a lawful fence or by an ordinary fence that is generally required to restrain that kind of stock. Negligence must be proved and is not to be presumed from the mere fact that the livestock was at large.

T.P.I. - CIVIL 6.70

NEGLIGENT FOOD CONTAMINATION

[Defendant] has a duty to use reasonable care to serve food that is not contaminated. [Defendant] is not an insurer of the safety and quality of the food served, but must use reasonable and ordinary care in the selection, preparation and serving of food.

[Plaintiff] has the burden of proving by a preponderance of the evidence that [Defendant] failed to use reasonable and ordinary care in the [selection] [ preparation] [and] [or] [serving] of food and that consumption of the food caused an injury.

T.P.I. - CIVIL 6.80

NEGLIGENT ENTRUSTMENT

To prevail on a claim of negligent entrustment, the plaintiff must prove the following by a preponderance of the evidence:

(1)	an entrustment of property by one who had the right to control that property;

(2)	to a person not competent to use it;

(3)	with knowledge that the person was incompetent, and

(4)	that the incompetence of the user was a cause in fact and legal cause of injury or damage to another.