CACI 500 Medical Negligence—Essential Factual Elements

California Civil Jury Instructions CACI

500 Medical Negligence—Essential Factual Elements

Please see CACI No. 400, Negligence—Essential Factual Elements

Directions for Use

In medical malpractice or professional negligence cases, the word “medical” or “professional” should be added before the word “negligence” in the first paragraph of CACI No. 400. From a theoretical standpoint, medical negligence is still considered negligence. (See Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997–998 [35 Cal.Rptr.2d 685, 884 P.2d 142].)

Also give the appropriate standard-of-care instruction for the defendant’s category of medical professional. (See CACI No. 501, Standard of Care for Health Care Professionals, CACI No. 502, Standard of Care for Medical Specialists, CACI No. 504, Standard of Care for Nurses, CACI No. 514, Duty of Hospital.)

It is not necessary to instruct that causation must be proven within a reasonable medical probability based upon competent expert testimony. The reference to “medical probability” in medical malpractice cases is no more than a recognition that the case involves the use of medical evidence. (Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 746 [184 Cal.Rptr.3d 79].)

Sources and Authority

“Professional Negligence” of Health Care Provider Defined. Code of Civil Procedure section 340.5, Civil Code sections 3333.1 and 3333.2.

“The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [191 Cal.Rptr.3d 766].)

“The court’s use of standard jury instructions for the essential elements of negligence, including causation, was appropriate because medical negligence is fundamentally negligence.” (Uriell, supra, 234 Cal.App.4th at p. 744 [citing Directions for Use to this instruction].)

“Section 340.5 defines ‘professional negligence’ as ‘a negligent act or omission by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.’ The term ‘professional negligence’ encompasses actions in which ‘the injury for which damages are sought is directly related to the professional services provided by the health care provider’ or directly related to ‘a matter that is an ordinary and usual part of medical professional services.’ ‘[C]ourts have broadly construed “professional negligence” to mean negligence occurring during the rendering of services for which the health care provider is licensed.’ ” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 297 [170 Cal.Rptr.3d 125], original italics, internal citations omitted.)

“With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation.” (Flowerssupra, 8 Cal.4th at pp. 997–998.)

“Since the standard of care remains constant in terms of ‘ordinary prudence,’ it is clear that denominating a cause of action as one for ‘professional negligence’ does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers, supra, 8 Cal.4th at p. 998.)

“The Medical Injury Compensation Reform Act (MICRA) contains numerous provisions effecting substantial changes in negligence actions against health care providers, including a limitation on noneconomic damages, elimination of the collateral source rule as well as preclusion of subrogation in most instances, and authorization for periodic payments of future damages in excess of $ 50,000. While in each instance the statutory scheme has altered a significant aspect of claims for medical malpractice, such as the measure of the defendant’s liability for damages or the admissibility of evidence, the fundamental substance of such actions on the issues of duty, standard of care, breach, and causation remains unaffected.” (Flowerssupra, 8 Cal.4th at p. 999.)

“On causation, the plaintiff must establish ‘it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.’ ‘ “A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.” ’ ‘[C]ausation in actions arising from medical negligence must be proven within a reasonable medical probability based on competent expert testimony, i.e., something more than a “50-50 possibility.” ’ ‘[T]he evidence must be sufficient to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.’ ” (Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 247 [235 Cal.Rptr.3d 629], internal citations omitted.)

“That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [8 Cal.Rptr.3d 363], original italics, internal citations omitted.)

“The rationale advanced by the hospital is that … if the need for restraint is ‘obvious to all,’ the failure to restrain is ordinary negligence. … [T]his standard is incompatible with the subsequently enacted statutory definition of professional negligence, which focuses on whether the negligence occurs in the rendering of professional services, rather than whether a high or low level of skill is required. [Citation.]” (Bellamy v. Appellate Dep’t of the Superior Court (1996) 50 Cal.App.4th 797, 806–807 [57 Cal.Rptr.2d 894].)

“[E]ven in the absence of a physician-patient relationship, a physician has liability to an examinee for negligence or professional malpractice for injuries incurred during the examination itself.” (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1478 [37 Cal.Rptr.2d 769].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1066–1068, 1071, 1072
California Tort Guide (Cont.Ed.Bar 3d ed.) § 9.65
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of Professionals, § 30.11, Ch. 31, Liability of Physicians and Other Medical Practitioners, § 31.01 (Matthew Bender)
17 California Forms of Pleading and Practice, Ch. 209, Dentists, § 209.15 (Matthew Bender)
27 California Forms of Pleading and Practice, Ch. 295, Hospitals, §§ 295.13, 295.43 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 415, Physicians: Medical Malpractice, § 415.11 (Matthew Bender)
17 California Points and Authorities, Ch. 175, Physicians and Surgeons, § 175.20 et seq. (Matthew Bender)