9.24 Jury Instructions

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

9.24 JURY INSTRUCTIONS

The Virginia Model Jury Instructions (the Model Instructions) were not written with medical malpractice cases in mind. Instructions on proximate cause and the role of expert testimony often do not address the subtleties that distinguish malpractice cases from more traditional tort cases. ¹⁵⁵ Nevertheless, most circuit court judges are reluctant to deviate from the Model Instructions in favor of "homemade" instructions that purport to represent Virginia law as reflected in Virginia Supreme Court opinions.

Although it may be error to reject an instruction merely because it is not represented in the Model Instructions, ¹⁵⁶ there are invariably other acceptable reasons to reject such instructions. Instructions that appear to argue or comment on the evidence or those that give undue emphasis to particular aspects of the evidence should be rejected by the trial court. Furthermore, the Model Instructions are, for the most part, streamlined and simple; thus, they are favored by judges.

In Blondel v. Hays, ¹⁵⁷ the plaintiff went beyond the Model Instructions with an instruction that lifted the "lost chance of survival" rule directly from

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Virginia case law. ¹⁵⁸ The plaintiff tendered that "[i]f you find that Dr. Hays was negligent, and you find that such negligence destroyed any substantial possibility that Ms. Sheehan-Blondel would have survived, then your verdict must be for Mr. Blondel on his claim for the wrongful death of his wife." ¹⁵⁹ Even though the rule itself appears to be the "law of Virginia," the Virginia Supreme Court nevertheless upheld the circuit court's refusal to so instruct the jury...