Supreme Court of Missouri
en banc

IN RE:

REVISIONS AND ADDITIONS TO MAI-CIVIL

TABLE OF INSTRUCTIONS

MAI 35.21 ILLUSTRATIONS – HEALTH CARE PROVIDERS – SETTLING
TORTFEASOR – APPORTIONMENT OF FAULT UNDER

SECTION 538.230 – WITH COMPARATIVE FAULT

(Illustrations – New)
(Committee Comment - New)

MAI 35.22 ILLUSTRATIONS – HEALTH CARE PROVIDERS – SETTLING TORTFEASOR – APPORTIONMENT OF FAULT UNDER

SECTION 538.230 – NO COMPARATIVE FAULT

(Illustrations – New)

(Committee Comment - New)

1.  Revisions and additions of previously approved MAI-CIVIL Illustrations, and Committee Comments as listed above, having been prepared by the Committee on Jury Instructions - Civil and reviewed by the Court, are hereby adopted and approved.

2.  The Illustrations and Committee Comments revised as set forth in the specific exhibits attached hereto must be used on and after January 1, 2002, and may be used prior thereto; any such use shall not be presumed to be error.

3.  It is further ordered that this order and the specific exhibits attached hereto shall be published in the South Western Reporter and the Journal of The Missouri Bar.

Day - to - Day

________________________
WILLIAM RAY PRICE, JR.
Chief Justice


35.21 [2002 New] Illustrations – Health Care Providers - Settling Tortfeasor- Apportionment of Fault Under Section 538.230 – WITH Comparative Fault


Dr. Edward Smith performed surgery on plaintiff John Jones.  Plaintiff claims that Smith left a sponge in plaintiff’s abdomen during surgery.  Smith claims that plaintiff failed to advise Smith of abdominal distention.  Plaintiff previously settled with Nurse Davis, a surgical nurse.  Plaintiff obtained the settlement with Nurse Davis on the claim that the nurse failed to perform a sponge count.  Defendant Smith now makes the same claim with respect to the sponge count by Nurse Davis.  He seeks an apportionment of fault under section 538.230, RSMo, as to Nurse Davis as a “released party” and as to plaintiff Jones for his alleged comparative fault.


In returning your verdict you will form beliefs as to the facts.  The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you.  The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true.  In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence.  If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.

The term “negligent” or “negligence” as used in these instructions with respect to a physician or nurse means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of those health care providers’ respective professions.

The term “negligent” or “negligence” as used in these instructions with respect to a patient means the failure to use ordinary care.  The phrase “ordinary care” means that degree of care that an ordinarily careful person would use under the same or similar circumstances.

The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case.  Nine or more of you must agree in order to return any verdict.  A verdict must be signed by each juror who agrees to it.

In your verdict you must assess a percentage of fault to defendant Smith, whether or not plaintiff John Jones or Nurse Davis was partly at fault, if you believe:
First, defendant Smith left a sponge in plaintiff’s abdomen during surgery, and
Second, defendant Smith was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to plaintiff.

If you assess a percentage of fault to Defendant Smith under Instruction No. 8, then you must assess a percentage of fault to Nurse Davis on Defendant Smith’s claim that Nurse Davis is partly at fault if you believe:
First, Nurse Davis failed to perform a sponge count during surgery, and
Second, Nurse Davis was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage to plaintiff.

(Note:   The burden of proof and the responsibility to tender this verdict director is on the party seeking an assessment of a percentage of fault to a released person.)

(Note:  Since Nurse Davis settled with plaintiff, and is not a party to the lawsuit, plaintiff may submit a converse to the defendant’s tendered verdict directing instruction regarding the negligence of the settling tortfeasor.)

In your verdict you must assess a percentage of fault to plaintiff John Jones, whether or not defendant Smith or Nurse Davis was partly at fault, if you believe:
First, plaintiff John Jones failed to advise Dr. Smith of abdominal distention, and
Second, plaintiff John Jones was thereby negligent, and
Third, such negligence of plaintiff John Jones directly caused or directly

contributed to cause any damage plaintiff John Jones may have sustained.

If you assess a percentage of fault to defendant Smith, then, disregarding any fault on the part of plaintiff, you must determine the total amount of plaintiff’s damages to be such sum as will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future that the sponge incident directly caused or directly contributed to cause.  You must state such total amount of plaintiff’s damages in your verdict, and you must itemize those total damages by the categories set forth in the verdict form.
In determining the total amount of plaintiff’s damages and in itemizing those total damages, you must not reduce such damages by any percentage of fault you may assess to plaintiff [or Nurse Davis].  The judge will compute plaintiff’s recovery by reducing the amount you find as plaintiff’s total damages by any percentage of fault you assess to plaintiff [or Nurse Davis (see Note following Instruction No. 15)]. Plaintiff’s claim against Nurse Davis has been settled.  In determining the total amount of plaintiff’s damages and in assessing percentages of fault, you are not to consider such settlement.  The total damages assessed by you on plaintiff’s claim against the defendant Smith will be reduced by the judge by any percentage of fault you assess to Nurse Davis.
(Note:  This instruction, based on MAI 21.06, will be given only as a separate instruction if the jury has knowledge of the settlement from the evidence or a trial incident.  If there is no such knowledge, the preceding damage instruction No. 14 should be modified by adding the phrase “or Nurse Davis” to the last two sentences.)

In these instructions, you are told to itemize any damages you award by the categories set forth in the verdict form.
The phrase “past economic damages” means those damages incurred in the past for pecuniary harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, x-ray, dental, custodial, and other health and rehabilitative services and for past lost earnings and for past lost earning capacity.
The phrase “past non-economic damages” means those damages arising in the past from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.
The phrase “future medical damages” means those damages arising in the future for medical expenses such as necessary drugs, therapy, and medical, surgical, nursing, x-ray, dental, custodial, and other health and rehabilitative services.
The phrase “future economic damages” means those damages arising in the future from pecuniary harm such as lost earnings and lost earning capacity.
The phrase “future non-economic damages” means those damages arising in the future from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.


Note: Complete the following paragraph by filling in the blanks as required by your verdict.  If you assess a percentage of fault to any of those listed below, write in a percentage not greater than 100%; otherwise write in “zero” next to that name.  If you assess a percentage of fault to any of those listed below, the total of such percentages must be 100%.

On the claim of plaintiff John Jones for personal injury against defendant Smith, we, the undersigned jurors, assess percentages of fault as follows:
Defendant Smith __________% (zero to 100%)
Nurse Davis __________% (zero to 100%)
Plaintiff Jones __________% (zero to 100%
TOTAL __________% (zero OR 100%)
Note: Complete the following if you assessed a percentage of fault to defendant Smith.  Complete by writing in the amount of damages, if any, for each of the following itemized categories.  If you do not find that plaintiff has damages in a particular category, write “none” in that category.  The total damages must equal the total of the itemized damage amounts you have assessed.

We, the undersigned jurors, disregarding any fault on the part of plaintiff or Nurse Davis, find the total damages of plaintiff Jones as follows:

For past economic damages including past

    medical damages $_____________________

For past non-economic damages $_____________________
For future medical damages $_____________________
For future economic damages excluding future

    medical damages $_____________________

For future non-economic damages $_____________________

    TOTAL DAMAGES $_____________________
Note: The judge will compute the plaintiff’s recovery under the law and the percentages of fault you assess.

Note: All jurors who agree to the above must sign below:
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________
_______________________________ ________________________________


Illustrations 35.21 and 35.22 demonstrate appropriate methods of submission of apportionment of fault under section 538.230, RSMo, in situations involving comparative fault of plaintiff (Illustration 35.21) and no comparative fault of plaintiff (Illustration 35.22).  These illustrations are for use only in actions involving health care providers under sections 538.205, RSMo et seq.  These illustrations are not to be used in other apportionment of fault cases.  For claims submitting apportionment of fault under Missouri Pacific R.Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978) (in cases not involving health care providers under sections 538.205 et seq.), see MAI 4.12, 4.13, 4.14, 36.14, and 36.15; and see Illustrations 35.02, 35.03, 35.05, 35.15, and 35.19.
In actions other than those against health care providers under sections 538.205, RSMo et seq., apportionment of fault issues among defendants or third party defendants have no direct relevance to liability and damage issues in plaintiff’s claim in light of the doctrine of joint and several liability.  See section 537.067, RSMo.  Thus, traditional apportionment of fault issues under Whitehead & Kales should not be commingled with the instructions and verdict form pertinent to plaintiff’s claim.  In cases involving comparative fault of plaintiff, where all parties from whom apportionment is sought have been sued by plaintiff, all necessary percentages of fault of all parties on all issues (plaintiff’s claim and apportionment claim) are determined in the verdict form in plaintiff’s claim, and no separate package is necessary to submit apportionment issues.

However, the above discussion of the submission of apportionment issues under Whitehead & Kales is not applicable to actions involving health care providers under sections 538.205, RSMo et seq.  By specific statutory directive in section 538.230, in actions against health care providers, “where fault is apportioned among the parties and persons released (pursuant to subsection 3 of section 538.230), the court, unless otherwise agreed by all the parties, shall instruct the jury to apportion fault among such persons and parties. . .. ”  The findings of percentages of fault in such cases, unlike the traditional Whitehead & Kales cases, do affect the judgment on plaintiff’s claim.  Under subsections 2 and 3 of section 538.230, the jury verdict on plaintiff’s claim is reduced by the percentage of fault assessed to a settling tortfeasor, and a non-settling tortfeasor is jointly and severally liable only for percentages of fault of other defendants whose apportioned percentage of fault is “equal to or less than such defendant.”  In light of this statutory interplay between “apportionment”, fault of a “settling tortfeasor”, and “joint and several liability” under section 538.230, the Committee believes it is most simple and efficient to submit all such issues in a single package (that submitting plaintiff’s claim) whether or not the comparative fault of plaintiff is at issue, as demonstrated in these Illustrations 35.21 and 35.22.

Apportionment of Fault Under Section 538.230 – NO Comparative Fault of Plaintiff

Dr. Edward Smith performed surgery on plaintiff John Jones.  Plaintiff claims that Smith left a sponge in plaintiff’s abdomen during surgery.  Plaintiff previously settled with Nurse Davis, a surgical nurse.  Plaintiff obtained the settlement with Nurse Davis on the claim that the nurse failed to perform a sponge count.  Defendant Smith now makes the same claim with respect to the sponge count by Nurse Davis.  He also seeks an apportionment of fault under section 538.230, RSMo, as to Nurse Davis as a “released party.”
As you remember, the court gave you a general instruction before the presentation of any evidence in this case.  The court will not repeat that instruction at this time.  However, that instruction and the additional instructions, to be given to you now, constitute the law of this case, and each such instruction is equally binding upon you.  You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence.  The order in which the instructions are given is no indication of their relative importance.  All of the instructions are in writing and will be available to you in the jury room.

In returning your verdict you will form beliefs as to the facts.  The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are.

In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you.  The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true.  In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence.  If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.

The term "negligent" or "negligence" as used in these instructions with respect to a physician or nurse means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of those health care providers' respective professions.

The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case.  Nine or more of you must agree in order to return any verdict.  A verdict must be signed by each juror who agrees to it.


In your verdict you must assess a percentage of fault to defendant Smith, whether or not Nurse Davis was partly at fault, if you believe:
First, defendant Smith left a sponge in plaintiff’s abdomen during surgery, and
Second, defendant Smith was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause

damage to plaintiff.

If you assess a percentage of fault to Defendant Smith under Instruction No. 7, then you must assess a percentage of fault to Nurse Davis on Defendant Smith’s claim that Nurse Davis is partly at fault, if you believe:

First, Nurse Davis failed to perform a sponge count during surgery, and
Second, Nurse Davis was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to

plaintiff.

(Note: The burden of proof and the responsibility to tender this verdict director is on the party seeking an assessment of a percentage of fault to a released person.)
  (Note: Since Nurse Davis settled with plaintiff, and is not a party to the lawsuit, plaintiff may submit a converse to the defendant's tendered verdict directing instruction regarding the negligence of the settling tortfeasor.)


If you assess a percentage of fault to defendant Smith, then, disregarding any fault on the part of Nurse Davis, you must determine the total amount of plaintiff's damages to be such sum as will fairly and justly compensate plaintiff for any damages you believe he sustained and is reasonably certain to sustain in the future that the sponge incident directly caused or directly contributed to cause.  You must state such total amount of plaintiff’s damages in your verdict, and you must itemize those total damages by the categories set forth in the verdict form.
In determining the total amount of plaintiff’s damages and in itemizing those total damages, you must not reduce such damages by any percentage of fault you may assess to Nurse Davis.  The judge will compute plaintiff’s recovery by reducing the amount you find as plaintiff’s total damages by any percentage of fault you assess to Nurse Davis.

Plaintiff’s claim against Nurse Davis has been settled.  In determining the total amount of plaintiff’s damages and in assessing percentages of fault you are not to consider such settlement.
(Note: This instruction, based on MAI 21.06, will be given only as a separate instruction if the jury has knowledge of the settlement from the evidence or a trial incident.  The third sentence of MAI 21.06 has been deleted from this instruction to avoid repetition of information given to the jury in Instruction No. 11.)

In these instructions, you are told to itemize any damages you award by the categories set forth in the verdict form.
The phrase “past economic damages” means those damages incurred in the past for pecuniary harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, x-ray, dental, custodial, and other health and rehabilitative services and for past lost earnings and for past lost earning capacity.
The phrase “past non-economic damages” means those damages arising in the past from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.
The phrase “future medical damages” means those damages arising in the future for medical expenses such as necessary drugs, therapy, and medical, surgical, nursing, x-ray, dental, custodial, and other health and rehabilitative services.
The phrase “future economic damages” means those damages arising in the future from pecuniary harm such as lost earnings and lost earning capacity.
The phrase “future non-economic damages” means those damages arising in the future from pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.


Note: Complete the following paragraph by filling in the blanks as required by your verdict. If you assess a percentage of fault to any of those listed below, write in a percentage not greater than 100%: otherwise write in “zero" next to that name. If you assess a percentage of fault to any of those listed below, the total of such percentages must be 100%.

On the claim of plaintiff John Jones for personal injury, we, the undersigned jurors, assess percentages of fault as follows:
Defendant Smith _________________% (zero to 100%)
Nurse Davis _________________% (zero to 100%)
TOTAL _________________% (zero OR 100%)
Note: Complete the following if you assessed a percentage of fault to defendant Smith. Complete by writing in the amount of damages, if any, for each of the following itemized categories. If you do not find that plaintiff has damages in a particular category, write “none” in that category.  The total damages must equal the total of the itemized damage amounts you have assessed.

We, the undersigned jurors, disregarding any fault on the part of Nurse Davis, find the total damages of plaintiff Jones as follows:
For past economic damages including past
medical damages $_____________________

For past non-economic damages $_____________________
For future medical damages $_____________________
For future economic damages excluding future
medical damages $_____________________

For future non-economic damages $_____________________
TOTAL DAMAGES $_____________________
Note: The judge will compute the plaintiff’s recovery under the law and the percentages of fault you assess.

Note: All jurors who agree to the above must sign below:
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
_______________________________ ____________________________
Illustrations 35.21 and 35.22 demonstrate appropriate methods of submission of apportionment of fault under section 538.230, RSMo, in situations involving comparative fault of plaintiff (Illustration 35.21) and no comparative fault of plaintiff (Illustration 35.22).  These illustrations are for use only in actions involving health care providers under sections 538.205, RSMo et seq.  These illustrations are not to be used in other apportionment of fault cases.  For claims submitting apportionment of fault under Missouri Pacific R.Co. v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978) (in cases not involving health care providers under sections 538.205 et seq.), see MAI 4.12, 4.13, 4.14, 36.14, and 36.15; and see Illustrations 35.02, 35.03, 35.05, 35.15, and 35.19.
In actions other than those against health care providers under sections 538.205, RSMo et seq., apportionment of fault issues among defendants or third party defendants have no direct relevance to liability and damage issues in plaintiff’s claim in light of the doctrine of joint and several liability.  See section 537.067, RSMo.  Thus, traditional apportionment of fault issues under Whitehead & Kales should not be commingled with the instructions and verdict form pertinent to plaintiff’s claim.  In cases involving comparative fault of plaintiff, where all parties from whom apportionment is sought have been sued by plaintiff, all necessary percentages of fault of all parties on all issues (plaintiff’s claim and apportionment claim) are determined in the verdict form in plaintiff’s claim and no separate package is necessary to submit apportionment issues.
However, the above discussion of the submission of apportionment issues under Whitehead & Kales is not applicable to actions involving health care providers under sections 538.205 et seq.  By specific statutory directive in section 538.230, in actions against health care providers, “where fault is apportioned among the parties and persons released (pursuant to subsection 3 of section 538.230), the court, unless otherwise agreed by all the parties, shall instruct the jury to apportion fault among such persons and parties. . .. ”  The findings of percentages of fault in such cases, unlike the traditional Whitehead & Kales cases, do affect the judgment on plaintiff’s claim.  Under subsections 2 and 3 of section 538.230, the jury verdict on plaintiff’s claim is reduced by the percentage of fault assessed to a settling tortfeasor, and a non-settling tortfeasor is jointly and severally liable only for percentages of fault of other defendants whose apportioned percentage of fault is “equal to or less than such defendant.”  In light of this statutory interplay between “apportionment”, fault of a “settling tortfeasor”, and “joint and several liability” under section 538.230, the Committee believes it is most simple and efficient to submit all such issues in a single package (that submitting plaintiff’s claim) whether or not the comparative fault of plaintiff is at issue, as demonstrated in these Illustrations 35.21 and 35.22.