9.12 Jury Instructions

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.12 JURY INSTRUCTIONS

9.1201 In General. A party is entitled to have jury instructions that address the party's theory of the case as long as that theory is supported both by law and fact. ⁸⁸ The Virginia Model Jury Instructions for medical malpractice litigation unfortunately fail to adequately address some of the issues unique to medical malpractice trials and, in at least one instance, incorrectly state the law of Virginia. For these reasons, instructions must sometimes be drawn from case law and statutes. Although many trial judges are hesitant to give instructions departing from the model instructions, an instruction that constitutes an accurate statement of the law applicable to the case cannot be withheld from the jury solely because it does not conform to the model instructions. ⁸⁹

9.1202 Supreme Court Scrutiny. When offering instructions other than model jury instructions, counsel should anticipate careful scrutiny of the instructions in any appeal predicated on the granting or refusal of an instruction. The Virginia Supreme Court has frequently disapproved of instructions

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drawn directly from the language of its own opinions. ⁹⁰ Instructions commenting upon the evidence are frowned upon by the court. ⁹¹

9.1203 Standard of Care.

A. In General. Standard of care instructions should be a straightforward recital of the statutory standard of section 8.01-581.20(A) of the Virginia Code. The Virginia Supreme Court has consistently rebuffed defense attempts to dilute the "reasonably prudent practitioner" standard of section 8.01-581.20(A). Accordingly, instructions suggesting that a physician can meet the standard of care by using medical judgment constituting "an acceptable and customary method of treatment" are inappropriate. ⁹² Terms such as "honest mistake" and "bona fide error" have no place in jury instructions. ⁹³

B. Expert Testimony. Model Jury Instruction No. 35.050 erroneously charges the jury that in determining the degree of care required of a defendant, it should only consider "the expert testimony on that subject." None of the cited cases in the instruction's accompanying memorandum discusses jury instructions at all, much less the propriety of giving an instruction such as No. 35.050. The cited cases simply state that in order to establish the appropriate standard of care, the existence of a deviation from it, and that the deviation was a proximate cause of injury, expert testimony is ordinarily necessary. ⁹⁴ The defect in this instruction is that it seemingly requires the jury to disregard all evidence other than the expert testimony. Other testimony from lay witnesses, learned treatises, and documents such as medical records can appropriately be considered by a jury in reaching its decision on what the standard of care is, whether it was breached, and whether the breach was a proximate cause of injury. The memorandum itself...