Chiropractic Malpractice – Disc Herniation

Jury Instructions-IL > Medical Malpractice > Chiropractic Malpractice – Disc Herniation

Barton Powell v. Dr. Chang Rung Han, D.C. 09 L 10146

Chiropractic Malpractice – Disc Herniation

This was a 2012 jury trial with a verdict for the defendant-chiropractor who was accused of malpractice for doing chiropractic manipulations upon a patient who had allegedly displayed symptoms of disc disease and who had a history of back fusion surgeries. Plaintiff further claimed that the defendant failed to take an x-ray before rendering treatment.

THIRD/FINAL DRAFT OF STANDARD JURY INSTRUCTIONS

[MARKED, CONTINUOUS PER SUBMISIONS OF PARTIES & COURT]

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.

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, Internet access devices or media 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 Evaluation of Deposition or Prior Testimony

The testimony of Dr. Baback Lami was presented by videotape. You should give this testimony the same consideration you would give it had the witness personally appeared in court.

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 or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony

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 them. 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.

12.05 Negligence—Intervention of Outside Agency

If you decide that the defendant was professionally negligent and that his professional 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 which, in natural or probable 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.

105.01 Duty of a Non–Specialist Professional—Professional Negligence

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

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

The law does not say how a reasonably careful chiropractor would act under these circumstances. That is for you to decide. In reaching your decision, you must rely upon the opinion testimony from qualified witnesses. You must not attempt to determine how a reasonably careful chiropractor would act from any personal knowledge you have.

IPI 20.01 – ISSUES – Negligence

The plaintiff claims that he was injured and sustained damages, and that the defendant was professionally negligence in one or more of the following respect, Failed to obtain and review x-rays of plaintiff prior to implementing a treatment plan; Continued to perform cervical manipulation of the plaintiff’s cervical spine despite the presence of edema; or Failed to obtain x-rays to rule out advanced degenerative arthritis or other pathology prior to implementing a treatment plan.

The plaintiff further claims that one or more of the foregoing was a proximate cause of his injuries and damages.

The defendant denies doing any of the things claimed by the plaintiff, denies professional negligence in doing any of the things claimed by the plaintiff, and denies that any claimed act or omission on the part of the defendant was a proximate cause of the plaintiff’s claimed injuries or damages.

The defendant further denies that the plaintiff 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 he has the burden of proof is more probably true than not true.

IPI 21.02 – BURDEN

As to a plaintiff’s claim of professional negligence, the plaintiff has the burden of proving each of the following propositions as to a defendant:

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 professionally negligent;

Second, that the plaintiff was injured;

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

If you find from your consideration of all the evidence that the plaintiff has proved all of the propositions required of the plaintiff, then your verdict shall be for the plaintiff as to the defendant.

On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved by the plaintiff, then your verdict should be for the defendant.

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 him for any of the following elements of damages proved by the evidence to have resulted from the professional negligence of the defendant, taking into consideration the nature, extent and duration of the injury.

The reasonable expense of necessary medical care, treatment and services received;

The value of earnings lost

Pain and suffering experienced as a result of the injuries

Loss of Normal Life experienced as a result of the injuries.

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.

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

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

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

B45.01 – FORMS OF VERDICT

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 of verdict 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: Barton Powell

The Defendant in this case is: Dr. Chang Rung Han, D.C.

If you find for the Plaintiff and against the Defendant, then you should use Verdict Form A.

If you find for the Defendant and against the Plaintiff, then you should use Verdict Form B.

VERDICT FORM A

We, the jury, find for the Plaintiff and against the Defendant. We assess the

damages in the sum of $________________________________________________,

itemized as follows:

Loss of Normal Life experienced. $_________________

Pain and suffering experienced. $_________________

Reasonable expense of necessary medical care, treatment and

services received. $_________________

Value of earnings lost. $_________________

[Signature Lines ]

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(Foreperson

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VERDICT FORM B

We, the jury, find for the Defendant and against the Plaintiff.

[Signature Lines ]

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(Foreperson

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