          Supreme Court of Florida
                                   ____________

                                   No. SC13-1669
                                   ____________


IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT
                        NO. 13-02.

                                  [March 20, 2014]



PER CURIAM.

      The Supreme Court Committee on Standard Jury Instructions in Civil Cases

(Committee) has submitted proposed changes to the standard jury instructions 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 amending instruction 501.5 (Other Contributing

Causes of Damages), with a new paragraph, (c), Subsequent injuries caused by

medical treatment. The proposal was prompted by the law that considers the

treating doctor’s negligence in rendering medical care to the victim for the initial

injuries as part of the consequences caused by the original actor’s negligence that

required the medical treatment. Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977).
There is a need for a specific instruction for this complex legal subject. The

Committee published its proposal in The Florida Bar News. Two comments were

received.

      We authorize the changes to instruction 501.5 as proposed. Instruction

501.5(c), as amended, sets out the proposition that if the defendant caused the

injury, loss, or damage to the claimant, he or she is responsible for any injury, loss,

or damage caused by medical care or treatment reasonably obtained by the

claimant. In Stuart, the Court held that an active tortfeasor in an automobile

accident may not bring a third party action for indemnity against a physician for

damages directly attributable to malpractice which aggravated the plaintiff’s

injuries. 351 So. 2d at 704-705. The Court noted that “Florida continues to follow

the general rule that where each tortfeasor is chargeable with active or affirmative

negligence contributing to the injury for which recovery was had, neither is entitled

to indemnity from the other.” Id. at 705. The Court thereupon stated that “[i]t

follows that the rights of a party to indemnification will be denied where his own

wrongful act or omission proximately contributes to the injury complained of.” Id.

Underlying the Court’s ruling is the proposition that “a wrongdoer is liable for the

ultimate result, although the mistake or even negligence of the physician who

treated the injury may have increased the damage which would otherwise have




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followed from the original wrong.” Id. at 707 (quoting 57 Am.Jur.2d Negligence §

149, at 507).

      After consideration of the Committee’s proposal, the dissenting view, and

the comments submitted to the Committee, we hereby authorize the publication

and use of instruction 501.5 as amended, set forth in the appendix to this opinion.

In doing so, we express no opinion on the correctness of the instruction 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. The instruction as set forth in the appendix

shall be effective when this opinion becomes final.

      It is so ordered.

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

Original Proceedings – Supreme Court Committee on Standard Jury Instructions in
Civil Cases

Honorable James Manly Barton, II, Committee Chair, Supreme Court Committee
on Standard Jury Instructions, (Civil), Tampa, Florida; Joseph Hagedorn Lang, Jr.,
Committee Vice-Chair and Subcommittee Chair, Supreme Court Filing
Subcommittee, Tampa, Florida; and Elizabeth K. Russo, Subcommittee Chair,
Negligence Subcommittee, Miami, Florida,


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for Petitioner




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                                   APPENDIX
         501.5 OTHER CONTRIBUTING CAUSES OF DAMAGES
a.   Aggravation or activation of disease or defect:
     If you find that the (defendant(s)) caused a bodily injury, and that the
injury resulted in [an aggravation of an existing disease or physical defect]
[or] [activation of a latent disease or physical defect], you should attempt to
decide what portion of (claimant’s) condition resulted from the [aggravation]
[or] [activation]. If you can make that determination, then you should award
only those damages resulting from the [aggravation] [or] [activation].
However, if you cannot make that determination, or if it cannot be said that
the condition would have existed apart from the injury, then you should
award damages for the entire condition suffered by (claimant).
                           NOTE ON USE FOR 501.5a
     This instruction is intended for use in situations in which a preexisting
physical condition is aggravated by the injury, or the injury activates a latent
condition. See C. F. Hamblen, Inc. v. Owens, 172 So. 694 (Fla. 1937). Instruction
501.5a is necessary where Instruction 401.12b, Concurring cause, is given. See
Hart v. Stern, 824 So.2d 927, 932–34 (Fla. 5th DCA 2002); Auster v. Gertrude &
Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883, 887 (Fla. 4th
DCA 1995).
b.   Subsequent injuries/multiple events:
     You have heard that (claimant) may have been injured in two events. If you
decide that (claimant) was injured by (defendant) and was later injured by
another event, then you should try to separate the damages caused by the two
events and award (claimant) money only for those damages caused by (defendant).
However, if you cannot separate some or all of the damages, you must award
(claimant) any damages that you cannot separate as if they were all caused by
(defendant).
                          NOTES ON USE FOR 501.5b

    1. Instruction 501.5b addresses the situation occurring in Gross v. Lyons,
763 So.2d 276 (Fla. 2000). It is not intended to address other situations. For
example, see Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977), and Eli Witt Cigar
& Tobacco Co. v. Matatics, 55 So.2d 549 (Fla. 1951). The committee recognizes



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that the instruction may be inadequate in situations other than the situation in
Gross.

     2. The committee takes no position on whether the subsequent event is
limited to a tortious event, or may be a nontortious event.

c.   Subsequent injuries caused by medical treatment:

If you find that (defendant(s)) caused [loss] [injury] [or] [damage] to (claimant),
then (defendant(s)) [is] [are] also responsible for any additional [loss] [injury]
[or] [damage] caused by medical care or treatment reasonably obtained by
(claimant).

                           NOTE ON USE FOR 501.5c

This instruction is intended for use in cases involving additional injury caused by
subsequent medical treatment. See, e.g., Stuart v. Hertz Corp., 351 So.2d 703 (Fla.
1977); Pedro v. Baber, 83 So.3d 912 (Fla. 2d DCA 2012); Tucker v. Korpita, 77
So.3d 716, 720 (Fla. 4th DCA 2011); Nason v. Shafranski, 33 So.3d 117 (Fla. 4th
DCA 2010); Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994).




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