IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





JOHN TOMPKINS, Personal Representative for the Estate of GLADYS I. TOMPKINS,
Plaintiff,

No. C 98-4035-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS TO THE JURY

NORTHWEST IOWA HOSPITAL CORPORATION d/b/a ST. LUKE'S REGIONAL MEDICAL CENTER, JAMES W. ROAT, CALVIN F. ANDERSEN, and SIOUX CITY RADIOLOGICAL GROUP P.C.,
Defendants.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF PLAINTIFF'S NEGLIGENCE CLAIMS

NO. 4 - BURDEN OF PROOF

NO. 5 - DUTY OF JURORS

NO. 6 - ORDER OF TRIAL

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - STIPULATED FACTS

NO. 10 - DEPOSITIONS

NO. 11 - INTERROGATORIES

NO. 12 - ADMISSIONS

NO. 13 - OBJECTIONS

NO. 14 - BENCH CONFERENCES

NO. 15 - NOTE-TAKING

NO. 16 - ADMONITION

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - PLAINTIFF'S CLAIMS

NO. 4 - NEGLIGENCE OF DR. ROAT

NO. 5 - NEGLIGENCE OF DR. ANDERSEN

NO. 6 - NEGLIGENCE OF THE HOSPITAL

NO. 7 - COMPARATIVE FAULT

NO. 8 - DAMAGES--IN GENERAL

NO. 9 - DAMAGES--SPECIFIC

NO. 10 - DELIBERATIONS



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case brought by plaintiff John Tompkins, as the personal representative of the estate of Gladys I. Tompkins, against defendants Northwest Iowa Hospital Corporation, doing business as St. Luke's Regional Medical Center (the Hospital); Dr. James W. Roat; and Dr. Calvin F. Andersen, doing business as Sioux City Radiological Group, P.C. (Dr. Andersen). The plaintiff's claims arise from treatment of Gladys I. Tompkins at the Hospital on September 21, 1996.

About mid-morning on the date indicated, Gladys I. Tompkins presented at the emergency room at the Hospital. She was examined by Dr. Roat, x-rays were taken, and those x-rays were examined by Dr. Andersen. Gladys Tompkins was then given some medical and nursing care, but she was dismissed from the emergency room about mid-afternoon. Some time during the evening hours of September 21, 1996, Tompkins died as a result of a ruptured abdominal aortic aneurysm.

John Tompkins, as the personal representative of the estate of Gladys I. Tompkins, asserts that the defendants were negligent in providing medical and hospital treatment, care, or diagnoses, and that, as a result, Gladys Tompkins died. John Tompkins seeks an award of money damages caused by the defendants' negligence. Each of the defendants denies negligence.

You will be asked to resolve these disputes between the parties.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF

PLAINTIFF'S NEGLIGENCE CLAIMS



To help you follow the evidence, here is a brief summary of the elements of John Tompkins's negligence claims against the defendants. You must give separate consideration to Tompkins's negligence claim against each defendant.

In order to win his claim of negligence against a defendant, Mr. Tompkins must prove each of the following elements by the greater weight of the evidence against that defendant:

One, the defendant was negligent in one or more of the ways specified by the plaintiff;

Two, the negligence of the defendant was a proximate cause of damage to the plaintiff; and

Three, the amount of damage.



This is only a preliminary outline of the elements of Mr. Tompkins's claims. At the end of the trial, I will give you further final written instructions that explain these claims. Because the final instructions are more detailed, those instructions govern on the elements of Mr. Tompkins's claims.

PRELIMINARY INSTRUCTION NO. 4 - BURDEN OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim or defense depends upon that fact. In this case, facts must be proved by the "greater weight of the evidence." To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The "greater weight" of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 5 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. An individual, such as Mr. Tompkins or Dr. Roat, and a corporation, such as the Hospital or Dr. Andersen, doing business as Sioux City Radiological Group, P.C., stand equal before the law, and are entitled to the same fair consideration by you. The mere fact that a party is a corporation, not an individual, does not mean that it is entitled to any greater or lesser consideration by you.

When a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by the acts and declarations made while acting within the scope of the authority delegated to the employee by the corporation, or within the scope of the employee's or agent's duties as an employee or agent of the corporation. In this case, the nurses of the Hospital were employees of the Hospital, acting within the scope of their employment. Therefore, the Hospital is responsible for the actions of its nurses. However, neither Dr. James W. Roat nor Dr. Calvin F. Andersen was an employee or agent of the Hospital. Therefore, the Hospital is not responsible for the actions of these physicians.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL



The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendants' lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiff will then present evidence and witnesses and the defendants may cross-examine. Following the plaintiff's case, the defendants may present evidence and witnesses and the plaintiff may cross-examine. Following the defendants' case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.

PRELIMINARY INSTRUCTION NO. 9 - STIPULATED FACTS



The plaintiff and defendants have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.



PRELIMINARY INSTRUCTION NO. 10 - DEPOSITIONS



Certain testimony from a deposition may be read into evidence or played from a videotape. A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 11 - INTERROGATORIES



During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 12 - ADMISSIONS



During this trial, you may also hear the word "admissions." A party may serve on the other a written request for the admission of the truth of certain matters of fact. You should consider facts expressly admitted in this way, or facts that a party failed to deny in response to a request for admissions, as though they had been conclusively proved here in court.

PRELIMINARY INSTRUCTION NO. 13 - OBJECTIONS



From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 14 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.







PRELIMINARY INSTRUCTION NO. 15 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 16 - ADMONITION



You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 15th day of November, 1999.





FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary instructions, nor are written instructions more important than oral ones. Again, all instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 8, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

FINAL INSTRUCTION NO. 3 - PLAINTIFF'S CLAIMS





John Tompkins, as the personal representative of the estate of Gladys I. Tompkins, asserts that the defendants were negligent in providing medical and hospital treatment, care, or diagnoses, and that, as a result, Gladys Tompkins died. John Tompkins seeks an award of money damages caused by the defendants' negligence. Each of the defendants denies negligence.

Remember that you must give separate consideration to Tompkins's negligence claim against each defendant and each defendant's defense to that claim. I will explain the elements of Mr. Tompkins's claims in more detail in the instructions that follow.

In considering each of these claims, the standards of medical and hospital care with which this case is concerned are the standards that existed in September 1996, the period during which the defendants provided medical and hospital care to Gladys Tompkins.

Also, you should understand that the mere fact that an incident occurred and a lawsuit was filed does not mean that some party was negligent or at fault.

FINAL INSTRUCTION NO. 4 - NEGLIGENCE OF DR. ROAT



Mr. Tompkins claims first that defendant Dr. James W. Roat was negligent in his treatment, care, or diagnosis of Gladys Tompkins, and that, as a result, Gladys Tompkins died. In order to win his claim of negligence against this defendant, Mr. Tompkins must prove each of the following elements by the greater weight of the evidence against this defendant:

One, Dr. Roat was negligent in one or more of the ways specified by the plaintiff.

"Negligence" means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. "Negligence" is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances.

A physician must use the degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances. Physicians who hold themselves out as specialists must use the degree of skill, care, and learning ordinarily possessed and exercised by specialists in similar circumstances, not merely the average skill and care of a general practitioner. A physician's violation of this duty is negligence.

Physicians may disagree in good faith upon what would be the proper treatment or diagnosis of a medical condition in a given situation. It is for the physician to use his or her professional judgment to select which recognized method of diagnosis or treatment to use in a given situation. If you determine that there were two or more recognized alternative courses of action that have been recognized by the medical profession as proper methods of treatment, and a defendant, in the exercise of his best judgment, elected one of these proper alternatives, then that defendant not negligent.

Mr. Tompkins alleges that Dr. Roat was negligent in the following ways:

A. Failing to diagnose Gladys Tompkins's abdominal aortic aneurysm;
B. Failing to order further testing to diagnose Gladys Tompkins's abdominal aortic aneurysm; and
C. Dismissing Gladys Tompkins from the emergency room of the Hospital despite her request to remain in the Hospital


You do not have to find that Dr. Roat was negligent in all of the respects alleged by Mr. Tompkins; rather, it is sufficient if you find that he was negligent in any one of the respects alleged. However, you must unanimously agree on the manner in which Dr. Roat was negligent for you to find that this element has been proved.



Two, Dr. Roat's negligence was a proximate cause of damage to the plaintiff.

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damage and when the damage would not have happened except for the conduct. "Substantial" means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.



Three, the amount of damage.

If Mr. Tompkins has failed to prove all of the above elements by the greater weight of the evidence against this defendant, your verdict must be for Dr. Roat on Mr. Tompkins's negligence claim against him. However, if you find that Mr. Tompkins has proved all of these elements by the greater weight of the evidence, then he is entitled to damages in some amount on his negligence claim against Dr. Roat.

FINAL INSTRUCTION NO. 5 - NEGLIGENCE OF DR. ANDERSEN



Mr. Tompkins also claims that defendant Dr. Calvin F. Andersen was negligent in his treatment, care, or diagnosis of Gladys Tompkins, and that, as a result, Gladys Tompkins died. In order to win his claim of negligence against this defendant, Mr. Tompkins must prove each of the following elements by the greater weight of the evidence against this defendant:

One, Dr. Andersen was negligent in one or more of the ways specified by the plaintiff.

"Negligence" and the duties of a physician were explained to you in the explanation of element one of Final Jury Instruction No. 4. Those explanations apply equally to the claim against Dr. Andersen.

Mr. Tompkins alleges that Dr. Andersen was negligent in the following ways:

A. Failing to diagnose Gladys Tompkins's abdominal aortic aneurysm; and
B. Failing to recommend further testing to diagnose Gladys Tompkins's abdominal aortic aneurysm.


Again, you do not have to find that Dr. Andersen was negligent in all of the respects alleged by Mr. Tompkins; rather, it is sufficient if you find that he was negligent in any one of the respects alleged. However, you must unanimously agree on the manner in which Dr. Andersen was negligent for you to find that this element has been proved.



Two, Dr. Andersen's negligence was a proximate cause of damage to the plaintiff.

"Proximate cause" was defined for you in the explanation to element two of Final Jury Instruction No. 4.



Three, the amount of damage.

If Mr. Tompkins has failed to prove all of the above elements by the greater weight of the evidence against this defendant, your verdict must be for Dr. Andersen on Mr. Tompkins's negligence claim against him. However, if you find that Mr. Tompkins has proved all of these elements by the greater weight of the evidence, then he is entitled to damages in some amount on his negligence claim against Dr. Andersen.

FINAL INSTRUCTION NO. 6 - NEGLIGENCE OF THE HOSPITAL



Mr. Tompkins also claims that the defendant Hospital was negligent in the treatment and care of Gladys Tompkins, and that, as a result, Gladys Tompkins died. In order to win his claim of negligence against this defendant, Mr. Tompkins must prove each of the following elements by the greater weight of the evidence against this defendant:

One, the Hospital was negligent in one or more of the ways specified by the plaintiff.

"Negligence" was explained to you in the first paragraph of the explanation of element one of Final Jury Instruction No. 4. A hospital must use the degree of skill, care, and learning ordinarily possessed and exercised by other hospitals in similar circumstances. A violation of this duty is negligence.

Mr. Tompkins alleges that the Hospital was negligent in that a nurse failed to inform the treating physician of Gladys Tompkins's request to stay in or be admitted to the Hospital.

Again, the Hospital can act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the Hospital by the acts and declarations made while acting within the scope of the authority delegated to the employee by the Hospital, or within the scope of the employee's or agent's duties as an employee or agent of the Hospital. In this case, the nurses of the Hospital were employees of the Hospital, acting within the scope of their employment. Therefore, the Hospital is responsible for the actions of its nurses. However, neither Dr. James W. Roat nor Dr. Calvin F. Andersen was an employee or agent of the Hospital. Therefore, the Hospital is not responsible for the actions of these physicians.

You must unanimously agree on the manner in which the Hospital was negligent.



Two, the Hospital's negligence was a proximate cause of damage to the plaintiff.

"Proximate cause" was defined for you in the explanation to element two of Final Jury Instruction No. 4.



Three, the amount of damage.

If Mr. Tompkins has failed to prove all of the above elements by the greater weight of the evidence against this defendant, your verdict must be for the Hospital on Mr. Tompkins's negligence claim against it. However, if you find that Mr. Tompkins has proved all of these elements by the greater weight of the evidence, then he is entitled to damages in some amount on his negligence claim against the Hospital.

FINAL INSTRUCTION NO. 7 - COMPARATIVE FAULT



If you find any defendant was negligent, Iowa law requires that you compare the fault of the parties involved in an action for damages for negligence. In these instructions I will be using the term "fault." Fault means one or more acts or omissions towards the person or the property of the actor or of another that constitutes negligence. The mere fact that an accident occurred or a party was injured does not mean a party was negligent or at fault.

Damages may be the fault of more than one person. In comparing fault, you should consider all of the surrounding circumstances as shown by the evidence, together with the conduct of the parties and the extent of the causal relation between their conduct and the damages claimed. You should then determine what percentage, if any, each party's fault contributed to the damages.

If you find that a defendant bears less than fifty percent of the total fault assigned to all parties, that defendant will only be liable for damages to the extent of its percentage of fault. However, if a defendant bears fifty percent or more of the total fault assigned to all parties, the plaintiff can claim the entire amount of damages from that defendant.

In arriving at any percentage of fault, you cannot arrive at a figure by taking down the estimate of each juror as to a percentage of fault, and agreeing in advance that the average of those estimates shall be your percentage of fault.

FINAL INSTRUCTION NO. 8 - DAMAGES--IN GENERAL



The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in the event that you should find that a party is entitled to damages in accord with the other instructions.

However, if you find in favor of Mr. Tompkins on one or more of his negligence claims, you must award him such sum as you find will fairly and justly compensate him for any damages you find were sustained by Gladys Tompkins or her estate as a direct result of the wrongful conduct of the responsible defendant or defendants. I will now explain to you some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. However, the amount, if any, that you assess for some items of non-economic damages, such as pre-death physical and mental pain and suffering, cannot be measured by an exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence.

You must not award damages under any of these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant or defendants as proved by the evidence.

You must award the full amount for any item of damages that Mr. Tompkins has proved by the greater weight of the evidence. I will make any appropriate adjustments in the damages awarded against specific defendants in light of your findings on comparative fault. However, a party cannot recover duplicate damages. Therefore, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage.

Attached to these Instructions is a Verdict Form, which you must fill out upon completion of your deliberations. You should only award those damages, if any, that Mr. Tompkins has proved by the greater weight of the evidence.



FINAL INSTRUCTION NO. 9 - DAMAGES--SPECIFIC



If you find in favor of Mr. Tompkins on one or more of his negligence claims, as those claims are explained in Final Jury Instructions Nos. 4, 5, and 6, then you must award Mr. Tompkins damages as proved by the greater weight of the evidence. Mr. Tompkins seeks three distinct types of damages and you must consider them separately:

Pre-death physical and mental pain and suffering. First, Mr. Tompkins seeks damages for Gladys Tompkins's physical and mental pain and suffering from the date or time of injury to the date or time of her death. Physical pain and suffering may include, but is not limited to, bodily suffering or discomfort. Mental pain and suffering may include, but is not limited to, mental anguish, fear, or loss of enjoyment of life.

Loss in value of estate. Second, Mr. Tompkins seeks damages for the present value of the additional amounts Gladys Tompkins would reasonably be expected to have saved and accumulated as a result of her own effort if she had lived out the term of her natural life. "Present value" is a sum of money paid now in advance which, together with interest earned at a reasonable rate of return, will compensate the plaintiff for future losses. A Standard Mortality Table indicates the normal life expectancy of people who are the same age as Gladys Tompkins was at the time of her death is 6.96 years. Gladys Tompkins was 80 years old at the time of her death. The statistics from a Standard Mortality Table are not conclusive. You may use this information, together with all the other evidence about Gladys Tompkins's prior health, habits, education, general ability, industriousness, intelligence, manner of living, sobriety or intemperance, frugality or lavishness, and other personal characteristics that are of assistance in securing business or earning money, when deciding the additional amounts Gladys Tompkins would reasonably be expected to have saved or accumulated as a result of her own effort if she had lived out the term of her natural life.

Interest on reasonable burial expenses. Finally, Mr. Tompkins seeks the interest on the reasonable burial expenses of Gladys Tompkins from the time of death until the time when those expenses would reasonably have been expected to be paid, had Gladys Tompkins lived out the term of her natural life. You may again refer to the information from the Standard Mortality Table shown just above to determine the time at which burial expenses would reasonably have been expected to be paid, had Gladys Tompkins not died on September 21, 1996. The amount you award as interest on reasonable burial expenses cannot exceed the reasonable cost of the burial.

FINAL INSTRUCTION NO. 10 - DELIBERATIONS



In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict forms. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your decision must be unanimous. If you all agree, the verdict form must be signed by your foreperson and all members of the jury.

DATED this 19th day of November, 1999.





IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



JOHN TOMPKINS, Personal Representative for the Estate of GLADYS I. TOMPKINS,
Plaintiff,

No. C 98-4035-MWB

vs.



VERDICT FORM

NORTHWEST IOWA HOSPITAL CORPORATION d/b/a ST. LUKE'S REGIONAL MEDICAL CENTER, JAMES W. ROAT, CALVIN F. ANDERSEN, and SIOUX CITY RADIOLOGICAL GROUP P.C.,
Defendants.

____________________





On the claims of plaintiff John Tompkins, as the personal representative of the estate of Gladys I. Tompkins, we the Jury, find as follows:



LIABILITY
Claim As explained in Was the defendant negligent?
Negligence of Dr. Roat Final Jury Instruction No. 4 _____ Yes

_____ No

Negligence of Dr. Andersen Final Jury Instruction No. 5 _____ Yes

_____ No

Negligence of the Hospital Final Jury Instruction No. 6 _____ Yes

_____ No

If you found a defendant was negligent, in which respect or respects do you unanimously agree that defendant was negligent? (Mark all that apply for each defendant found negligent.) Was the negligence of the defendant in the respect marked a proximate cause of the damage to Gladys Tompkins or her estate?
Dr. Roat _____ Failing to diagnose Gladys Tompkins's abdominal aortic aneurysm _____ Yes

_____ No

_____ Failing to order further testing to diagnose Gladys Tompkins's abdominal aortic aneurysm _____ Yes

_____ No

_____ Dismissing Gladys Tompkins from the emergency room of the Hospital despite her request to remain in the Hospital _____ Yes

_____ No

Dr. Andersen _____ Failing to diagnose Gladys Tompkins's abdominal aortic aneurysm _____ Yes

_____ No

_____ Failing to recommend further testing to diagnose Gladys Tomkins's abdominal aortic aneurysm _____ Yes

_____ No

The Hospital _____ Failure of a nurse to inform the treating physician of Gladys Tompkins's request to stay in or be admitted to the Hospital _____ Yes

_____ No

COMPARATIVE FAULT
As explained in Final Jury Instruction No. 7 Using one hundred percent (100%) as the total combined fault of all of the parties whose fault you determined was a proximate cause of damage to Gladys Tompkins or her estate, what percentage of such combined fault do you assign to each party? (If a party was not at fault, or that party's fault was not a proximate cause of damage, enter zero as the percentage of fault for that party.) Dr. James W. Roat _____

Dr. Calvin F. Andersen

(Sioux City Radiological

Group, P.C.) _____

The Hospital _____

TOTAL 100%

DAMAGES
As explained in Final Jury Instructions Nos. 8 & 9 for pre-death physical and mental pain and suffering $ _______________
for loss in value of the estate $ _______________
for interest on reasonable burial expenses $ _______________







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