
    In re STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT NO. 15-02.
    No. SC15-1279.
    Supreme Court of Florida.
    April 21, 2016.
    Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury Instructions in Civil ' Cases, Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, FL; Joseph Hagedorn Lang, Jr., Past Chair, Supreme Court Committee on Standard Jury Instructions in Civil Cases, Carlton Fields Jorden Burt,. P.A., Tampa, FL; Neal Allan Roth, Subcommittee. Chair, Professional Malpractice Subcommittee, Coral Gables, FL; John F. Harkness,. Jr,, Executive Director, and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Supreme- Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted a report proposing amendments to one existing standard- jury instruction. We have jurisdiction. See art. V, § 2(a), Fla.. Const.

The Committee proposes replacing the current version of instruction 402.16 (Emergency Medical Treatment Claims), which is relocated to appendix D of the civil jury instruction book by the Committee’s proposal, with a “placeholder” instruction. The “placeholder” instruction explains that the Committee will propose a new instruction 402.16 that is consistent with the current version of section 768.13(2)(b), Florida Statutes (2015), when “guidance is provided from decisions of the Florida appellate courts.”

Prior to filing its report with the Court, the Committee published its proposals for comment. No comments were received by the Committee. After the Committee filed its report, the Court republished the Committee’s proposals for comment. No comments were .received.

Having considered the CommitteeV report, we hereby authorize the relocation of instruction 402.16, as modified below, but decline to authorize the Committee’s proposed “placeholder” instruction for publication and use.- Appendix D of the civil jury instruction book is currently occupied with directions on how to write and use jury instructions in civil -cases. No civil jury instructions are contained in appendix D. Thus, relocating instruction 402.16 to appendix D would impair the organizational structure of the civil- jury instruction book and lead to confusion. We therefore authorize the creation of new appendix E and the relocation of instruction 402.1& to that appendix;

Accordingly, the instruction, as set forth in the áppendix to this opinion, is authorized for publication and use. In authorizing the publication and use of this instruction, we express no-opinion on its correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that any comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instruction as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

Appendix

40246-EMERGENCY MEDICAL TREATMENT CLAIM&-IN-T-RQ-DUCTQRY COMMENT

■Instruction.402,16 addresses the provisions-of-J¿4?. — 76842(¾)(⅞>),—I-t-applies-pnly ■to.cases-described-in-4hat-statute -or- to cases-in-which-there-is-a-juiy-issue-as-to the-applibillty-of-fhe-statute. — Instruction 402,16 -does-not- apply-to-cases.involving patients capable of receiving treatment as non emergency patients, even-if treated in an-emergency-roona

Instruction 402,16a applies to eases- in which there is-a jmy-issue-as-to-whether the- -statute — applies,—Instruction ■ 402,16b applies-to-eases-in-which either-the parties agree-that the statute•applies-or-the-court has , ruled that.the-statute-applies-as-a matter of law.-

The applicable-part-of-mstruction~4Q246 should be preceded-by instructions--4Q247 402.2, ■ 402-⅜ and- 40⅛.-6, — Instruction 402,4 should-not be given- in-the-ordinary-se-quenee-as it is, to the extent applicable, incorporated — fe—instruction—40246,—If there -are-any-preliminary vicarious liability issues. Instructions.402,9-and — 40240 should also-be-given,-

■No-reported^ decision constr-ues-tfae-leg-upon the-definition ofi-reckless disregard” in F'.S. -768.43(2)(⅛)3, the-cemmittee-bas concluded- that the intent-was-to limitdia-bility-in-civil -actions for damages ■ arising out-of-faet situations, to which the-statute applies-to oasps where.something mote than “simple” -negligence is- established? Therefore, the standard instructions-dealing--with-‘‘simple”--negligenee are not-ap-proprlate-for civil damage-actions to which the statute applies.

402.16a EMERGENC-Y-MEDICAL TREATMENT Jury- Issue as-to Application of F.S. 768.-13(2-)(b>

⅜), — Preliminary~issue-<m-appiication-of statutes

The first issue- for you- to decide on (claimant-s)--cla-im-against (defendant-)-is whether-(claimant) was being [cared for] [treated] — under—emergency—circumstances.

[Care] [treatment]-is-rendered under emergency- circumstances-when a [hospital] [physician] renders medical-[care] [treatment] required by a suddeny-unex-pected situation-or event that-resulted in a serious medical condition demand-ingimmediate -medical — attention, for which~(-elaimant or decedent) initially-entered -the hospital-through its [emergency-room] [trauma center], before (clairn-ant or decedent) was medically stabilized and capable of receiving [care] [treatment] as a nonemergency patient.

If the greater weight of the evidence does-not-support-that (cIaimant’s or decedent’s) [carej-ftreatment] was being rendered under emergency circumstances then-you-shall-pr-oceed-ta-decide whether-■ (defendant) was negligent in — [his-] [her-]-[its-]-[care]-[treatment]-of-(claimaat or-decedent).

However,-if-the-gr-eater weight of the evidence supports that (claimant’s or decedent’s)[care-] — [treatment] was being rendered — under-—emergency—circumstances,-then-you-shaU-proceed to decide whether (defendant) - acted.in -reckless disregard of -the- -consequences -in-~[his] [her]--[-its] [care] [treatment] of (claimant or-decedent).

⅜¾), — Issues regarding-negUgsmei-

[If you find that (claimant’s or- decedent’s) [care] [treatment] was not-being rendered — under—emergency—circumstances,-]-the-[-next-]4esué-for you to decide is -whether.(defendant) - was.-negligent-in-(describe conduct in question); and,-if-so,-whether that negligencewvas a-legal-cause of the [loss] [injury] [or] [damage].to■■ (claimant,-decedent or person for whose injury claim is-made).

“Negligence” is the failure to use rea-sonablecare, — Reasonable care on the part-of-a [hospital] [physician] is that level of carer-skill-and-treatment -which, in light of all-relevant- surrounding-circumstances, is recognized as acceptable and-appropriate by similar and reasonably careful . [hospitals] — [physicians]. Negligence on the part-of a [hospital] [physician] is doing- something that-a reasonably careful- [hospital] [physician] would not do under-like circumstances or failing to do-something that a-reasonably-carefuH-hospitafl-iphysician] would do under like circumstances.

If the greater-weight-of-the evidence does-not-support this claim, then your verdict [on- this — elaim]-should be for (defendant),

[However, if the greater weight of-the evidence-does-support (claimant’s) claim on these issues, then your verdict [on this-claim] should be-for (claimant)-and against-(defendant)^}

[Howeverr-if-the-greater-weig-ht-of-the evidence does support (claimant’s) dainty then you should consider the defense(s) raised-by-(defendant).]

4$)-. — Issues- regarding reckless disregopek

[If-you find that (claimant’s or decedent’s) [care] [treatmentj-was-being-ren-dered under emergency circumstances,] the-[-next]-issue for you to ¡decide is whether (defendant) acted with reckless disregard of the consequences in (describe conduct-in- question);.and»- if so, whether that reckless disregard-was-a legal cause of the- [toss] [injury] - [or] (damage]-to-(claimant, decedent or person for-whose-injuryclaimis-made).]

A [hospital] [physician] -acts — -with -reckless — disregard”—for—the—cense-quences-of--(-iis-]-[-hig] [her] actions if [it] [he] [she]-knew or should have known at the time [it] [he] [she] rendered-emergency-serv-iGes-that [its-] [his] [her] conduct — would-likely result in injury or death, considering [the seriousness of the situation] [the-lack of a prior patient physician relationship] [time constraints-due — to other emergencies requiring [care] [treatment] at the same time]- [the lack of-time or-ability-to obtain appropriate medical — consultation] [and] [the inability to obtain an appropriate-medical history of the patient].

íf-rémergency circumstanees-have-not been established by- the greater weight of the evidence but-the greater weight of the evidence supports (claimants) claim of negligence, then [your verdict [on this claim]-should be for (claimant) and against (defendant)-] [you should consider the defense(s) raised-by- (defendant) ].

(■Proceed to-mstmctions 402,1-4.and-402.15)

[However, if the-greater weight of the evidence does not support -(claimant’s) claim of negligence, then your verdict [on-, this--claim] should'be for (defendant).]

On the other hand, if emergency circumstances have been estáblishéd-by-the greater weight of thb-cvidence and the greater weight of the evidence-also- supports (claimant’s) claim of-reckless disregard of -the consequences, then -[your verdict [on this claim]: should be for (claimant)-and against (defendant)-]-[-you should consider the.defense(s) raised by(defendant) ].

(Rroceed to instructions 402.14 and 402,15)

[However, if the greater-weight-of- the evidence , does not support (claimant’s) claim of reckless disregard of the consequences,- — then your verdict [on this claim] should be-for (defendant-) — and against-(claimant).]

402.16b EMERGENCY-MEDICAL TREATMENT

(Describe- conduct in question) occurred in the course of [rendering-]-[or-]-[-failing to render] emergency-[Care] [treatment] to (claimant-or. decedent). — The issue for you-to decide is whether-(defendant-)-act-éd with reckless disregard of the conse-qnences- in-(describe conduct-in question); and, if so,-whether that reckless-disregard — was-a legal cause of the [loss] [injury] [or] [damage] to (claimant,-decedent-or- person for ■ whose injury-claim-is made).

A — [hospital]—[physician]—acts—with “reckless — disregard”—for—-the—consequences of-[-its]-[-his-] [her]-actions-'if [it] [he] [she] knew or should have known at the time [it] [he] [she] rendered emergent-services that [its] [his]-[-her] conduct would likely result — in-4njur-y—of death, considering • [the — seriousness of the situation] -[the lack of-a.prior--patient physician relationship] [time con-attaints-due to other emergencies requiring-[care] [treatment-]-at the same time] [the lack--of time or ability -to obtain-.appropriate- medical — consultation] [and-]-[-the-inability to obtain-an appropriate medical history of the patient]»

If the greater — weight of the evidence does not-suppor-t-(-claimant’s) claim, then your.verdict [on this claim] should -be for (defendant-)»

[However, if the greater weight of the evidence does support (claimant’s) claim on these -issues, then your-verdiet-[-on this-claim] should be for (claimant) and against-(-d&fendant),]

[However, if the greater weig-ht-of-the evidence does support (claimant’s) claim on these-issues, then you should consider the defense(s)-raised by (defendant).]

(Proceed to instructions 408.15)

NOTES ON USE FOR 402.16

1» — Instruction 402.16a-ghould~be - given when-there is a jury issue as to> whether the-eare-or treatment was being rendered under emergency, circumstances. ^An-appropriate-special-verdict will- be necessary to - distinguish-between-a-finding that the care-or-tr e atment was not being- rendered under emergency circumstances, in--which case-the-standard of care is negligence, and-ar-lnding that- the care or treatment was being rendered-under emergency--circumstances) in-which-case-the- standard-of care-is-reckless disregard of the circumstances, — The verdict-should — eontain-in-structions to guide the jury-depending on their finding as- to -whether the care and ■treatment was- ■ or-was-not -rendered-under-emergency circumstances..-The-barden-of proof- provisions.of — instraetion 402.16a should also-be-modified-to-iacorpor-ate-tfae instructions-ln — the-special-werdict.-;.See Appendix-ArModel- Jury Instructions?

2r. — I-nstr-action 402>16b should - be -given when-the-par-ties-agree -that - the- statute applies-er when the.eoart-has-ruled — it applies as a-matter-of-lawr

3» — Negligence of a patient, which contributes to or - causes -the-medical-Condition for which treatment is-sought,-ie-not-available- as-a defense (as- comparative negligence) to subsequent-medical-negligence which causes- a--distinct-dnj-ury» — See, e.g., Norman v. Mandarin Emergency Care Center, Inc., 499 So.2d 76 (Fla. 1st DCA 1986); Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975) but see Vandergrift v. Fort Pierce Memorial Hospital, Inc., 354 So.d 398 (Fla. 4th DCA 1978). Rare circumstances - -may-ari-sej-i-nvolvi-ng-a patient’s negligence after emergency-care or treatment- has -begunrin which-comparative negligence is -a--legitimate™issue» — See generally Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981).

4 — Pending-further developments in-the law,-the-committee--resegyes the issue of whether comparative.negligence - is-a-defense -when- -the-reckless-disregard — standard is in effect. If the court decides-that comparative negligence is a defense, then an instruction- on-simple-negllgence-sheuld-be-given-

5.- ■■ ■ ■-Beckless-dl&regardT”-as-defined-and-used in- the context of F,S-.-.768.-13(2-)(b),does-not~appear-to-have the same meaning as reckless-disregard when used in-the context-of-standards -for -punitive-damages; See - E-la.-Std.-Jury- Instr (Civ) 501.12 and 50143

APPENDIX E

402.16 EMERGENCY MEDICAL TREATMENT CLAIMS INSTRUCTIONS FOR CAUSES OF ACTION ARISING PRIOR TO SEPTEMBER 15, 2003

INTRODUCTORY COMMENT

Instruction 402.16 addresses the provisions of F.S. 768.13(2)(b). It applies only to cases described in that statute or to cases in which there is a jury issue as to the applicability of the statute. Instruction 402.16 does not apply to cases involving patients capable of receiving treatment as non-emergency patients, even if treated in an emergency room.

Instruction 402.16a applies to cases in which there is a jury issue as to whether the statute applies. Instruction 402.16b applies to cases in which either the parties agree that the statute applies or the court has ruled that the statute applies as a matter of law.

The applicable part: of instruction 402.16 should be preceded by instructions 402.1, 402.2, 402.3, and 403.6. Instruction 402.4 should not be given in .the ordinary sequence as it is, to the extent applicable, incorporated in instruction 402.16. If there are any preliminary vicarious liability issues, instructions 402.9 and 402.10 should also be given.

No reported decision construes the legislative intent behind this section. Based upon the definition of “reckless disregard” in F.S. 768.13(2)(b)3., the committee has concluded that ⅛⅛ intent was to limit liability in civil actions for damages arising out of fact situations to which the statute applies to cases where something more than “simple” negligence is established. Therefore, the standard instructions dealing with “simple” negligence are not appropriate for civil damage actions to which the statute applies.

402,16a EMERGENCY MEDICAL TREATMENT — Jury Issue as to Application of F.S. 768,13(2)(b)

(1). Preliminary issue on application of statute:

The first issue for you to decide on (claimant’s) claim against (defendant) is whether (claimant) was being [cared for] [treated] under emergency circumstances.

[Care] [treatment] is rendered under emergency circumstances when a [hospital] [physician] renders medical [care] [treatment] required by a sudden, unexpected situation or event that resulted in a serious medical condition demanding immediate medical attention, for which (claimant or decedent) initially entered the hospital through its [emergency room] [trauma center], before (claimant or decedent) was medically stabilized and capable of receiving [care] [treatment] as a nonemergency patient.

If the greater weight of the evidence does not support that (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances then you shall proceed to decide whether (defendant) was negligent in [his] [her] [its] [care] [treatment] of (claimant or decedent).

However, if the greater weight of the evidence supports that. (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances, then you shall proceed to decide whether (defendant) acted in reckless disregard of the consequences in [his] [her] [its] [care] [treatment] of (claimant or decedent).

(2). Issues regarding negligence:

[If you find that (claimant’s or decedent’s) [care] [treatment] was not being rendered under emergency circumstances;] the [next] issue for you to decide is whether (defendant) was negligent in (describe conduct in question); and, if so, whether that negligence was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).

“Negligence” is the failure to use reasonable care. Reasonable care on the part of a [hospital] [physician] is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful [hospitals] [physicians]. Negligence on the part of a [hospital] [physician] is doing something that a reasonably careful [hospital] [physician] would not do under like circumstances or failing to do something that a reasonably careful [hospital] [physician] would do under like circumstances.

If the greater weight of the evidence does not support this claim, then your verdict [on this claim] should be for (defendant).

[However, if the greater weight of the evidence does support (claimant’s) claim on these issues, then your verdi¿t [on this claim] should be for (claimant) and against (defendant),]

[However, if the greater weight of the evidence does support (claimant’s) claim, then you should consider the defense(s) raised by (defendant).]

(3). Issues regarding reckless disregard:

[If you find that (claimant’s or decedent’s) [care] [treatment] was being rendered under emergency circumstances,] the [next] issue for you to decide is whether (defendant) acted with reckless disregard of the consequences in (describe conduct in question); and, if so, whether that reckless disregard was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent, or person for whose injury claim is made).]

A [hospital] [physician] acts with “reckless disregard” for the consequences of [its] [his] [her] actions if [it] [he] [she] knew or should have known at the time [it] [he] [she] rendered emergency services that [its] [his] [her] conduct would likely result in injury or death, considering [the seriousness of the situation] [the lack of a prior patient-physician relationship] [time constraints due to other emergencies requiring [care] [treatment] at the same time] [the lack of time or ability to obtain appropriate medical consultation] [and] [the inability to obtain an appropriate medical history of the patient].

If emergency circumstances have not been established by the greater weight of the evidence but the greater weight of the evidence supports (claimant’s) claim of negligence, then [your verdict [on this claim] should be for (claimant) and against (defendant) ] ■ [you should consider the defense(s) raised by (defendant) ].

(Proceed to instructions W2.U and mis)

[However, if the greater weight of the evidence does not support (claimant’s) claim of negligence, then your verdict [on this claim] should be for (defendant).]

On the other hand, if emergency circumstances have been established by the greater weight of the evidence and the greater weight of the evidence also supports (claimant’s) claim of reckless disregard of the consequences, then [your verdict [on this claim] should be for (claimant) and against (defendant) ] [you should consider the defense(s) raised by (defendant) ].

(Proceed to instructions m.U and m.15)

[However, if the greater weight of the evidence does not support (claimant’s) claim of reckless disregard of the consequences, then your verdict [on this claim] should be for (defendant) and against (claimant).]

402,16b EMERGENCY MEDICAL TREATMENT

(Describe conduct in question) occurred in the course of [rendering] [or] [failing to render] emergency [care] [treatment] to (claimant or decedent). The issue for you to decide is whether (defendant) acted with reckless disregard of the consequences in (describe conduct in question); and, if so, whether that reckless disregard was a legal cause of the [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).

A [hospital] [physician] acts with “reckless disregard” for the consequences of [its] [his] [her] actions if [it] [he] [she] knew or should have known at the time [it] [he] [she] rendered emergency services that [its][his][her] conduct would likely result in injury or death, considering [the seriousness of the situation] [the lack of a prior patient-physician relationship] [time constraints due to other emergencies requiring [care] [treatment] at the same time] [the lack of time or ability to obtain appropriate medical consultation] [and] [the inability to obtain an appropriate medical history of the patient].

If the greater weight of the evidence does not support (claimant’s) claim, then your verdict [on this claim] should be for (defendant).

[However, if the greater weight of the evidence does support (claimant’s) claim on these issues, then your verdict [on this claim] should be for (claimant) and against (defendant).]

[However, if the greater weight of the evidence does support (claimant’s) claim on these issues, then you should consider the defense(s) raised by (defendant).]

(Proceed to instructions m-U and 402.15)

NOTES ON USE FOR 402,16

1.' Instruction 402,16a should be given when there is a jury issue as to whether the care or treatment was being rendered under emergency circumstances. An appropriate special verdict will be necessary to' distinguish between a finding that the care or treatment was not being rendered 'under emergency circumstances, in which case the standard of care is negligence, and a finding that the care or treatment was being rendered under emergency circumstances, in which case the standard of care is reckless disregard of the circumstances. The verdict should contain instructions to guide the jury depending on their finding as to whether the care and treatment was or was not rendered under emergency circumstances. The burden of proof provisions of instruction 402.16a should also be modified to incorporate the instructions in the special verdict. See Appendix A, Model Jury Instructions.

2. Instruction 402.16b should be given when the parties agree that the statute applies or when the court has ruled it applies as a matter of law.

3. Negligence of a patient, which contributes to or causes the medical condition for which treatment is sought, is not available as a defense (as comparative negligence) to subsequent medical negligence which causes a distinct injury. See, e.g., Norman v. Mandarin Emergency Care Ctr., Inc., 490 So.2d 76 (Fla. 1st DCA 1986); Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975); but see Vandergrift v. Fort Pierce Mem. Hos., Inc., 354 So.2d 398 (Fla. 4th DCA 1978). Rare circumstances may arise, involving a patient’s negligence after emergency care or treatment has begun, in which comparative negligence is a legitimate issue. See generally Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981).

4. Pending further developments in the law, the committee reserves the issue of whether comparative negligence is a defense when the reckless disregard standard is in effect. If the court decides that comparative negligence is a defense, then an instruction on simple negligence should be. given.

5. “Reckless disregard,” as defined and used in the context of F.S. 768.13(2)(b), does not appear to have the same meaning as reckless disregard when used in the context of standards for punitive damages. See Fla. Std. Jury Instr. (Civ.) 501.12 and 501.13.  