§ 27-5 Medical Malpractice - Elements of Cause of Action - General Charge

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 27-5 Medical Malpractice - Elements of Cause of Action - General Charge

NOTE: This is a general medical malpractice charge. Please refer to other sections in this chapter for charges on specific issues not addressed in this charge.

There are three essential elements of the plaintiff's cause of action. They are denied by the defendant's answers.

To prevail in a cause of action against a defendant for medical malpractice, the plaintiff must prove these three essential elements by the greater weight or preponderance of the evidence:

(1) that the defendant was negligent in one or more of the particulars alleged in the complaint;
(2) that the plaintiff was damaged in his person;
(3) that the defendant's negligence in one or more of the particulars alleged in the complaint was the proximate cause of these damages.

You will hear the word negligence or carelessness used throughout my charge. Negligence is defined as the absence of due care. The word "carelessness" conveys the same idea: the failure by omission or commission to exercise due care as a person of ordinary reason and prudence would exercise in the same circumstances. In determining whether or not a particular act is negligent, the test you apply is what would a person of ordinary reason and prudence do under those circumstances.

I charge you that it is incumbent upon the plaintiff in this case to prove that the defendant was negligent in one or more of the particulars alleged in the complaint. It is not required that the plaintiff prove them all, but it is absolutely essential that the plaintiff prove at least one, otherwise your verdict would be for the defendant.

In this case, we are dealing with a special type of negligence. It is a medical malpractice case. So you will take the general definition of negligence or carelessness and put it into the proper perspective as I specifically now define for you and give you the law as it relates to malpractice.

Medical malpractice is a particular form of negligence that consists of not applying to the exercise of the practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstances.

In a case of this nature, negligence is the failure to do that which an ordinarily careful and prudent physician [cardiologist, dermatologist, surgeon, etc.] would do under the circumstances shown by the evidence to have existed at the time in question, or it is the doing of that which an ordinarily prudent physician [cardiologist, dermatologist, surgeon, etc.] would not have done under the existing circumstances. Negligence on the part of a physician [cardiologist, dermatologist, surgeon, etc.] has been said to consist in his doing something which he should not have done or omitting to do something which he should have done, or his failure to exercise the required degree of care, skill, and diligence.

I charge you that negligence on the part of a physician [cardiologist, dermatologist, surgeon, etc.] is not presumed, but must be affirmatively proven. I told you earlier that the burden of proof was on the plaintiff to prove the case by the preponderance or the greater weight of the evidence. In the absence of evidence to the contrary, it will be presumed that a physician [cardiologist, dermatologist, surgeon, etc.] has discharged his duty in full to the patient, including the exercise of reasonable care and skill in his treatment.

The law does not require of a physician [cardiologist, dermatologist, surgeon, etc.] absolute accuracy either in his practice or his judgment. The law does not hold a physician [cardiologist, dermatologist, surgeon, etc.] to the standard of infallibility, nor does it require of him the utmost degree of care and skill of which the human mind is capable. But the law does require, while in the practice of his profession that he shall exercise that degree of knowledge, care, and skill ordinarily possessed by members of his profession in good standing in that field or specialty.

A physician [cardiologist, dermatologist, surgeon, etc.] is liable to his patient for a failure to exercise requisite skill and care. By that it is meant that a physician [cardiologist, dermatologist, surgeon, etc.] must possess that reasonable degree of learning, skill, and experience which ordinarily is possessed by others practicing in his field or specialty, and that he must exercise reasonable and ordinary care and diligence in the exertion of his skill and the application of his knowledge. A physician [cardiologist, dermatologist, surgeon, etc.] is bound to bestow such reasonable and ordinary care, skill and diligence as physicians [cardiologists, dermatologists, surgeons, etc.] in good standing ordinarily have and exercise in similar and like circumstances in his field or specialty. By taking a case or patient, a physician [cardiologist, dermatologist, surgeon, etc.] represents that he possesses the ordinary...