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Florida Supreme Court amends standard medical malpractice jury instructions to delete ambiguous provision which could be read as allowing jury to find physician liable even with no finding of negligence

On September 13, 2018, the Florida Supreme Court issued IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 18-01, authorizing the use of a revised standard jury instruction, 402.41(a) Medical Negligence), concerning the standard of care for affirmative medical intervention. The previous version of the instruction included a sentence stating: [i]f you find that (describe treatment or procedure) involved in this case was carried out in accordance with the prevailing professional standard of care recognized as acceptable and appropriate by similar and reasonably careful [physicians] [hospitals] [health care providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.” This sentence is derived from § 766.102(2)(a), Florida Statutes, but it was eliminated from the standard jury instructions “because it is susceptible to varying interpretations as it can be read as instructing the jury that it may find that the defendant acted within the prevailing professional standard of care and still find the defendant liable.” See Auster v. Gertrude & Philip Strax Breast Cancer Detection Inst., 649 So. 2d 883 (Fla. 4th DCA 1995).

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