All local Illinois injury attorneys (and some intrepid non-lawyers) might be interested to know that the latest set of Illinois civil pattern jury instructions are now available online. The complete set of instructions can be found HERE –at the Illinois Courts main website. The information can be obtained as downloadable .pdf in its entirely or each individual section can be obtained.
Of particularly value to Illinois medical malpractice attorneys, the professional negligence pattern instructions (Section 105.00) can be obtained HERE. As noted in the introduction to this particular section, the professional negligence instructions apply to doctors, dentist, attorneys, architects, and other professionals. Of course, contrary to other versions of these pattern instructions, the term “malpractice” no longer appears. Instead, it is has been replaced entirely by “professional negligence.”
The classic medical negligence instruction uses the familiar language of possessing the “knowledge, skill, and care ordinarily used by a reasonably careful [professional].” It then follows with the geographic component in the professional negligence standard of “practicing in the same or similar localities.” It continues with the statement first added in 2006 noting that it also includes “the doing of something that a reasonably careful [professional] would not do, under circumstances similar…” This last addition, retained form 2006, has led to much consternation and had provoked widespread criticism.
Of particularly noteworthiness, the comment following this particular negligence instruction was revised this month following the court’s analysis in Studt v. Sherman Health Sys., 951 N.E.2d 1131, 2011. The court suggested in Studt that this civil jury instruction from 2006 relating to professional negligence may be an inaccurate statement of the law. In the case the state’s highest court explicitly distinguished between professional medical negligence and institutional negligence. It was clarified that except in limited circumstances, professional negligence required use of expert opinion testimony.
Many local medical malpractice attorneys may be aware that the 2006 revision was seen as problematic by many in the community. Some trial judges struggled with the situation and ultimately used their own versions. Since the change (and the Studt case) many local advocates have argued that there need to be less frequent changes to these instructions. Some even called for an explicit revocation of the 2006 change to professional negligence rules. However, with this latest release the Committee on Jury Instructions does not seem to have explicitly backtracked.
The pattern instructions from institutional negligence can be found at sec. 105.03.01. The second paragraph of the instructions makes note of the potential need to rely upon expert opinion testimony. However, the paragraph should be omitted if the jury is allowed to rely upon “common knowledge.” Expert testimony can be used to prove institutional negligence, along with by-laws, statutes, accreditation, community practices, and similar customs. Unlike the strict standards applicable to professional negligence, institutional negligence does not necessarily require expert testimony. As explained in the note following the instructions, institutional negligence is distinct from vicarious liability, but instead refers to the independent duties that the hospital owes to its patients (beyond ordinary care being exercised by the medical professionals working there).
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