IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES — REPORT NO. 18-01. (2018)

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has submitted proposed changes to the Standard Jury Instructions in Civil Cases and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amendments to instructions 402.4 (Medical Negligence) and 402.9 (Preliminary Issues — Vicarious Liability). The Committee's proposals were published in The Florida Bar News and no comments were received that addressed the Committee's proposals, which are straightforward and noncontroversial.

The Committee proposes removing the second paragraph of instruction 402.4a (Medical Negligence), which is derived from section 766.102(2)(a), Florida Statutes, and concerns the standard of care for affirmative medical intervention. The paragraph provides:

If you find that (describe treatment or procedure) involved in this case was carried out in accordance with the prevailing professional standard of care recognized as acceptable and appropriate by similar and reasonably careful [physicians] [hospitals] [health care providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.

The Committee proposes deleting this paragraph because it is susceptible to varying interpretations as it can be read as instructing the jury that it may find that the defendant acted within the prevailing professional standard of care and still find the defendant liable. See Auster v. Gertrude & Philip Strax Breast Cancer Detection Inst., 649 So.2d 883 (Fla. 4th DCA 1995). We delete the second paragraph from instruction 402.4a, as proposed.

The Committee also proposes deleting the second Note on Use for instruction 402.4a, which refers to the second paragraph of the instruction, and removing the numbering for the remaining Note on Use. We delete the second Note on Use for 402.4a and remove the numbering for the remaining Note on Use, as proposed.

Next, instruction 402.9a(1) is modified, as proposed by the Committee, to make clear that the determination of whether an individual is an independent contractor or an employee for purposes of vicarious liability should be based on the circumstances of the parties' dealings with each other and not on the basis of the labels used by them. The Committee determined that the proposed amendment removes ambiguity from the instruction.

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

It is so ordered.

APPENDIX

PER CURIAM.

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