Arkansas Case – Is it Appropriate to Charge the Jury in a Medical Negligence Case That A Defendant Can Assume That Another Provider Will Use Due Care?

Plaintiff settled a case with the hospital concerning care given by the nurses and proceeded to trial against the doctor. Over the plaintiff’s objection, the judge gave this instruction to the jury:

“Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.”

The jury decided in favor of the defendant. Plaintiffs appealed, and the Arkansas Supreme Court reversed and remanded. They argued as follows:

“Dr. Costa was negligent in failing to properly evaluate the entirety of the fetal monitor strip on January 4, 1998 (as well as the days leading up to January 4), and in failing to respond to the abnormalities and decelerations on the strip by performing a cesarean section on January 4. …[T]he nurses were negligent when they failed to properly evaluate the fetal monitor strip and failed to keep Dr. Costa informed of the information on the monitor strip. The effect of the modified AMI Civ. 602 instruction [quoted above]… is that Dr. Costa was insulated from liability because the instruction informed the jurors that Dr. Costa could not be negligent for assuming that the nurses would not act negligently. By telling the jurors that Dr. Costa had a right to rely on the nurses to use ordinary care, the Englands assert, there was no way that Dr. Costa could have been found negligent.”

After explaining that the instruction arose in cases where the plaintiff was alleged to be contributorily negligence, the Court announced this holding:

“In sum, where there is no evidence of contributory negligence, AMI 602 should not be given. Generally speaking, when the instruction is utilized in a contributory negligence case, the phrase “every person” in the instruction is intended to refer to the plaintiff. Here, however, the jury was instructed that “every physician” is entitled to the assumption that other medical-care providers are not being negligent. In other words, the instruction informed the jury that a defendant is entitled to the presumption. This utilization of the instruction in this context was entirely improper, and is not to be countenanced. Obviously,there was neither evidence nor intimation that Daphne England was negligent in any manner. The trial court was clearly wrong in giving AMI 602 in any form.”

The judgment for Dr. Costa was reversed and the case remanded for a new trial.

The case is England v. Costa; read the entire opinion here.