Supreme Court releases Standard Jury Instruction for use in cases involving subsequent injuries caused by medical treatment

IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 13-02. Supreme
Court of Florida. Case No. SC13-1669. March 20, 2014. Original Proceedings —
Supreme Court Committee on Standard Jury Instructions in Civil Cases. Counsel:
Honorable James Manly Barton, II, Committee Chair, Supreme Court Committee on
Standard Jury Instructions, (Civil), Tampa; Joseph Hagedorn Lang, Jr., Committee
Vice-Chair and Subcommittee Chair, Supreme Court Filing Subcommittee, Tampa; and
Elizabeth K. Russo, Subcommittee Chair, Negligence Subcommittee, Miami, for
Petitioner.

(PER CURIAM.) The Supreme Court Committee on Standard Jury Instructions in
Civil Cases (Committee) has submitted proposed changes to the standard jury
instructions and asks that the Court authorize the amended standard instructions
for publication and use. We have jurisdiction. See art. V, § 2(a), Fla.
Const.

The Committee proposes amending instruction 501.5 (Other Contributing Causes
of Damages), with a new paragraph, (c), Subsequent injuries caused by medical
treatment. The proposal was prompted by the law that considers the treating
doctor’s negligence in rendering medical care to the victim for the initial
injuries as part of the consequences caused by the original actor’s negligence
that required the medical treatment. Stuart v. Hertz Corp., 351 So. 2d
703 (Fla. 1977). There is a need for a specific instruction for this complex
legal subject. The Committee published its proposal in The Florida Bar
News. Two comments were received.

We authorize the changes to instruction 501.5 as proposed. Instruction
501.5(c), as amended, sets out the proposition that if the defendant caused the
injury, loss, or damage to the claimant, he or she is responsible for any
injury, loss, or damage caused by medical care or treatment reasonably obtained
by the claimant. In Stuart, the Court held that an active tortfeasor in
an automobile accident may not bring a third party action for indemnity against
a physician for damages directly attributable to malpractice which aggravated
the plaintiff’s injuries. 351 So. 2d at 704-705. The Court noted that “Florida
continues to follow the general rule that where each tortfeasor is
chargeable with active or affirmative negligence contributing to the injury for
which recovery was had, neither is entitled to indemnity from the other.”
Id. at 705. The Court thereupon stated that “[i]t follows that the rights
of a party to indemnification will be denied where his own wrongful act or
omission proximately contributes to the injury complained of.” Id.
Underlying the Court’s ruling is the proposition that “a wrongdoer is liable for
the ultimate result, although the mistake or even negligence of the physician
who treated the injury may have increased the damage which would otherwise have
followed from the original wrong.” Id. at 707 (quoting 57 Am.Jur.2d
Negligence § 149, at 507).

After consideration of the Committee’s proposal, the dissenting view, and the
comments submitted to the Committee, we hereby authorize the publication and use
of instruction 501.5 as amended, set forth in the appendix to this opinion. In
doing so, we express no opinion on the correctness of the instruction and remind
all interested parties that this authorization forecloses neither requesting
additional or alternative instructions, nor contesting the legal correctness of
the instruction. We further caution all interested parties that any comments
associated with the instruction reflect only the opinion of the Committee and
are not necessarily indicative of the views of this Court as to their
correctness or applicability. New language is indicated by underlining. The
instruction as set forth in the appendix shall be effective when this opinion
becomes final.

It is so ordered. (POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY,
LABARGA, and PERRY, JJ., concur.)

__________________

a. Aggravation or activation of disease or defect:

If you find that the (defendant(s)) caused a bodily injury, and that the
injury resulted in [an aggravation of an existing disease or physical defect]
[or] [activation of a latent disease or physical defect], you should attempt to
decide what portion of (claimant’s) condition resulted from the [aggravation]
[or] [activation]. If you can make that determination, then you should award
only those damages resulting from the [aggravation] [or] [activation]. However,
if you cannot make that determination, or if it cannot be said that the
condition would have existed apart from the injury, then you should award
damages for the entire condition suffered by (claimant).

This instruction is intended for use in situations in which a preexisting
physical condition is aggravated by the injury, or the injury activates a latent
condition. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937).
Instruction 501.5a is necessary where Instruction 401.12b, Concurring cause, is
given. See Hart v. Stern, 824 So.2d 927, 932-34 (Fla. 5th DCA 2002);
Auster v. Gertrude & Philip Strax Breast Cancer Detection Institute,
Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995).

b. Subsequent injuries/multiple events:

You have heard that (claimant) may have been injured in two events. If you
decide that (claimant) was injured by (defendant) and was later injured by
another event, then you should try to separate the damages caused by the two
events and award (claimant) money only for those damages caused by (defendant).
However, if you cannot separate some or all of the damages, you must award
(claimant) any damages that you cannot separate as if they were all caused by
(defendant).

1. Instruction 501.5b addresses the situation occurring in Gross v.
Lyons, 763 So.2d 276 (Fla. 2000). It is not intended to address other
situations. For example, see Stuart v. Hertz Corp., 351 So.2d 703 (Fla.
1977), and Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So.2d 549
(Fla. 1951). The committee recognizes that the instruction may be inadequate in
situations other than the situation in Gross.

2. The committee takes no position on whether the subsequent event is limited
to a tortious event, or may be a nontortious event.

c. Subsequent injuries caused by medical treatment:

If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to
(claimant), then (defendant(s)) [is] [are] also responsible for any additional
[loss] [injury] [or] [damage] caused by medical care or treatment reasonably
obtained by (claimant).

This instruction is intended for use in cases involving additional injury
caused by subsequent medical treatment. See, e.g., Stuart v. Hertz Corp.,
351 So.2d 703 (Fla. 1977); Pedro v. Baber, 83 So.3d 912 (Fla. 2d DCA
2012); Tucker v. Korpita, 77 So.3d 716, 720 (Fla. 4th DCA 2011); Nason
v. Shafranski, 33 So.3d 117 (Fla. 4th DCA 2010); Dungan v. Ford, 632
So.2d 159 (Fla. 1st DCA 1994).