Dental Malpractice – Tongue Cancer

Jury Instructions-IL > Medical Malpractice > Dental Malpractice – Tongue Cancer

Georgie Anne Geyer v. Dr. Daniel Chin (DDS/OS) , Dr. Jeffrey Taugner and

Dr. Maryanne Kelly DDS 09 L 7875

Dental Malpractice – Tongue Cancer – Negligence/Informed Consent – Sole Proximate Cause – Special Interrogatory

This was a 2012 trial which resulted in a jury verdict for the defendants, two dentist and an oral surgeon. The plaintiff, a journalist, claimed that the defendant’s failed to properly diagnose, biopsy and treat certain lesion(s) which allegedly led to tongue cancer and the loss of two-thirds of her tongue.

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IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The testimony of several witnesses was presented on videotape to the jury. You should give this testimony the same consideration you would give it had the witness personally appeared in court to testify in person.

IPI 2.02 Evidence Admitted for a Limited Purpose/Modified

You have heard evidence concerning (1) the timeliness of phone calls made by and between the plaintiff to the defendants or other health care providers, and (2) the timeliness of the plaintiff’s scheduling of follow-up appointments with the defendants or other health care providers. This evidence is to be considered by you solely as it relates to whether the defendants complied with the standard of care.

It should not be considered by you for any other purpose.

IPI 2.02 Evidence Admitted for a Limited Purpose/Modified

You have heard evidence concerning examinations of the plaintiff by the defendants in August of 2007. You are not to consider this evidence relating to the defendants’ alleged negligence. You are only to consider it to aid your understanding of the circumstances surrounding the chronology of events in this case.

IPI 3.02 Witness Who Has Been Interviewed by Attorney

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not reflect adversely on the truth of the testimony of the witness.

3.03 Insurance

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

If you find for the plaintiff, you shall not speculate about or consider any possible sources of benefits the plaintiff may have received or might receive. After you have returned you verdict, the court will make whatever adjustments are necessary in this regard.

IPI 3.04 Circumstantial Evidence

A fact may be proved by circumstantial evidence. Circumstantial evidence consists of the proof of facts or circumstances which leads to a reasonable inference of the existence of other facts sought to be established.

IPI 3.08 – Opinion Testimony/New

You have heard witnesses give opinions about matters requiring knowledge and skill. You should judge their testimony in the same way you judge the testimony from any other witness. The fact that such persons have given opinions does not mean that you are required to accept then. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case.

12.04 Concurrent Negligence Other Than Defendant’s

More than one person may be to blame for causing an injury. If you decide that a defendant was negligent and that his or her negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

12.05 Negligence—Intervention of Outside Agency

If you decide that a defendant was negligent and that his or her negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.

However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury.

It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 20.01 – ISSUES – Professional Negligence

The plaintiff, Georgie Anne Geyer, claims that she was injured and that the defendants, Dr. Jeffery Taugner, Dr. Maryann Kelly and Dr. Daniel Chin were negligent in one or more of the following respects:

As to Dr. Jeffery Taugner,

Failed to include oral cancer of the tongue in his differential diagnosis;
Failed to obtain, or make the proper referral for a biopsy of the tongue of

Georgie Anne Geyer; or

Failed to provide adequate informed consent to Georgie Anne Geyer regarding her condition.

As to Dr. Maryann Kelly,

Failed to include oral cancer of the tongue in her differential diagnosis;
Failed to obtain, or make the proper referral for a biopsy of the tongue of

Georgie Anne Geyer; or

Failed to provide adequate informed consent to Georgie Anne Geyer regarding her condition.

As to Dr. Daniel Chin,

Failed to include oral cancer of the tongue in his differential diagnosis;
Failed to provide adequate informed consent to Georgie Anne Geyer regarding her condition.
Failed to biopsy the tongue of Georgie Anne Geyer;
Failed to diagnose oral cancer in the tongue of Georgie Anne Geyer; or
Failed to consult in a detailed and timely fashion with the referring dentist.

The plaintiff further claims that one or more of the foregoing was a proximate cause of the injuries to her.

The defendants deny that they did any of the things claimed by the plaintiff, deny that they were negligent in doing any of the things claimed by the plaintiff and deny that any claimed act or omission on the part of the defendants was a proximate cause of the claimed injuries to Georgie Anne Geyer.

The defendants further deny that Georgie Anne Geyer was injured or sustained damages to the extent claimed.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

IPI 21.02 – BURDEN /PROFESSIONAL NEGLIGENCE

The plaintiff has the burden of proving each of the following propositions:

First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff was injured.

Third, that the negligence of the defendant was a proximate cause of injury and damages to the plaintiff.

You are to consider these proposition as to each defendant separately.

If you find from your consideration of all the evidence that each of these propositions has been proved as to any one or more of the defendants, then your verdict should be for the plaintiff as against that or those defendant(s).

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved as to any one or more of the defendants, then your verdict should be for that or those defendant(s).

IPI 30.01 et seq Damage Instructions, Measure of Damages

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury and the aggravation of any pre-existing ailment or condition.

The disfigurement resulting from the injury.

Loss of Normal Life experienced or reasonably certain to be experienced in the future.

30.04.02 Loss of a Normal Life—Definition

When I use the expression “loss of a normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspect of life.

Pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries

The reasonable expenses of necessary medical care, treatment and services received.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 34.01/34.04 Combined Damages Arising in the Future—Extent and Amount/Mortality Tables as Evidence [PLAINTIFF]

If you find that the plaintiff is entitled to damages arising in the future because of injuries, you must determine the amount of these damages which will arise in the future.

If these damages are permanent in nature, then in computing these damages you may consider how long the plaintiff is likely to live.

According to a table of mortality in evidence, the life expectancy of a white female aged 77 years is 11 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 77. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of her occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

IPI 30.23 Injury from Subsequent Treatment

If a defendant negligently causes a condition of the plaintiff, then the defendant is liable not only for the plaintiff’s damages resulting from that condition, but is also liable for any damages sustained by the plaintiff arising from the efforts of health care providers to treat the condition caused by the defendant even if those health care providers were negligent.

IPI.36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant on the question of liability, you will have no occasion to consider the question of damages as to that defendant.

IPI 41.03 Two or More Defendants

The rights of the defendants, Dr. Jeffery Taugner, Dr. Maryann Kelly and Dr. Daniel Chin, are separate and distinct. Each is entitled to a fair consideration of each’s own defense and you will decide each defendant’s case separately as if it were a separate lawsuit. His or her case must be governed by the instructions applicable to that case.

IPI 105.01 Duty of a Non–Specialist Professional—Professional Negligence/General Dentist

A general dentist must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful general dentist. The failure to do something that a reasonably careful general dentist would do, or the doing of something that a reasonably careful general dentist would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful general dentist would act under these circumstances. That is for you to decide.

In reaching your decision, you must rely upon opinion testimony from qualified witnesses. You must not attempt to determine how a reasonably careful general dentist would act from any personal knowledge you may have

IPI 105.07.01 Informed Consent—Duty and Definition—Professional Negligence/General Dentist

In providing dental treatment to Georgie Anne Geyer, a general dentist must obtain Georgie Anne Geyer’s informed consent.

When I use the expression “informed consent” I mean a consent obtained from a patient by a general dentist after the disclosure by the dentist of those risks of and alternatives to the proposed treatment which a reasonably careful general dentist would disclose under the same or similar circumstances. A failure to obtain informed consent is professional negligence.

The only way in which you may decide what risks and alternatives a general dentist should have disclosed to Georgie Anne Geyer is from expert testimony presented in the trial. You must not attempt to determine this from any personal knowledge you have.

IPI 105.01 Duty of a Non–Specialist Professional—Professional Negligence/ Oral and Maxillofacial Surgeon.

A oral and maxillofacial surgeon must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful oral and maxillofacial surgeon. The failure to do something that a reasonably careful oral and maxillofacial surgeon would do, or the doing of something that a reasonably careful oral and maxillofacial surgeon would not do, under circumstances similar to those shown by the evidence, is “professional negligence”.

The phrase “deviation from the standard of care” means the same thing as “professional negligence”.

The law does not say how a reasonably careful oral and maxillofacial surgeon would act under these circumstances. That is for you to decide.

In reaching your decision, you must rely upon opinion testimony from qualified witnesses. You must not attempt to determine how a reasonably careful oral and maxillofacial surgeon would act from any personal knowledge you may have

IPI 105.07.01Informed Consent—Duty and Definition—Professional Negligence/ Oral and Maxillofacial Surgeon

In providing oral surgical treatment to Georgie Anne Geyer, an oral and maxillofacial surgeon must obtain Georgie Anne Geyer’s informed consent.

When I use the expression “informed consent” I mean a consent obtained from a patient by an oral and maxillofacial surgeon after the disclosure by the oral and maxillofacial surgeon of those risks of and alternatives to the proposed treatment which a reasonably careful oral and maxillofacial surgeon would disclose under the same or similar circumstances. A failure to obtain informed consent is professional negligence.

The only way in which you may decide what risks and alternatives an oral and maxillofacial surgeon should have disclosed to Georgie Anne Geyer is from expert testimony presented in the trial. You must not attempt to determine this from any personal knowledge you have.

B45.01 – FORMS OF VERDICT

Multiple Defendants & 600.02 Apportionment of Responsibility—Complaint and Claims for Contribution Tried Concurrently (Same Issues)—Negligence

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

The plaintiff in this case is: Georgie Anne Geyer

The defendants in this case are: Dr. Jeffery Taugner, Dr. Maryann Kelly and

Dr. Daniel Chin.

If you find for the plaintiff, Georgie Anne Geyer, and against one or more of the defendants, then you should use Verdict Form A.

If you find for all of the defendants, and against the plaintiff, then you should use

Verdict Form B.

“Special Interrogatories” are supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatories and return them to the court along with the forms of verdict. The Special Interrogatories must be signed by each of you.

VERDICT FORM A

We, the jury, find for the plaintiff, GEORGIE ANNE GEYER, and against the following defendant or defendants:

JEFFERY TAUGNER YES _____ NO _____

MARYANN KELLY YES _____ NO _____

DANIEL CHIN YES _____ NO _____

We assess the damages in the sum of $_______________________________________________,

itemized as follows:

Disfigurement resulting from the injury. $_________________

Loss of normal life experienced. $_________________

Loss of normal life reasonably certain to be experienced

in the future. $_________________

Pain and suffering experienced $_________________

Pain and suffering reasonably certain to be experienced

in the future. $_________________

Necessary medical care, treatment, and services received. $_________________

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find for all of the defendants, DR. JEFFERY TAUGNER, DR. MARYANN

KELLY, and DR. DANIEL CHIN, and against the plaintiff, GEORGIE ANNE GEYER.

[Signature Lines ]

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(Foreperson

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SPECIAL INTERROGATORY#1

Do you find that DR .JEFFERY TAUGNER was professionally negligent in his care and treatment of GEORGIE ANNE GEYER?

YES __________ NO ____________

If your answer to the preceding question was “yes”, was that negligence a proximate cause of injury to GEORGIE ANNE GEYER?

YES __________ NO ____________

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(Foreperson)

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SPECIAL INTERROGATORY#2

Do you find that DR. MARYANN KELLY was professionally negligent in her care and treatment of GEORGIE ANNE GEYER?

YES __________ NO ____________

If your answer to the preceding question was “yes”, was that negligence a proximate cause of injury to GEORGIE ANNE GEYER?

YES __________ NO ____________

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(Foreperson)

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SPECIAL INTERROGATORY#3

Do you find that DR. DANIEL CHIN was professionally negligent his care and treatment of GEORGIE ANNE GEYER on or about September 15, 2006?

YES __________ NO ____________

If your answer to the preceding question was “yes”, was that negligence a proximate cause of injury to GEORGIE ANNE GEYER?

YES __________ NO ____________

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(Foreperson)

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SPECIAL INTERROGATORY#4

Do you find that DR. DANIEL CHIN was professionally negligent his care and treatment of GEORGIE ANNE GEYER on or about April 30, 2007?

YES __________ NO ____________

If your answer to the preceding question was “yes”, was that negligence a proximate cause of injury to GEORGIE ANNE GEYER?

YES __________ NO ____________

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(Foreperson)

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