          Supreme Court of Florida
                                   ____________

                                   No. SC15-1279
                                   ____________


IN RE: STANDARD JURY INSTRUCTIONS IN CIVIL CASES—REPORT
                        NO. 15-02.

                                  [April 21, 2016]

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 Committee’s 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 402.16 to that appendix.

      Accordingly, the instruction, as set forth in the appendix 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


                                         -2-
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.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

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

Rebecca Mercier Vargas, Chair, Supreme Court Committee on Standard Jury
Instructions in Civil Cases, Kreusler-Walsh, Compiani & Vargas, P.A., West Palm
Beach, Florida; Joseph Hagedorn Lang, Jr., Past Chair, Supreme Court Committee
on Standard Jury Instructions in Civil Cases, Carlton Fields Jorden Burt, P.A.,
Tampa, Florida; Neal Allan Roth, Subcommittee Chair, Professional Malpractice
Subcommittee, Coral Gables, Florida; John F. Harkness, Jr., Executive Director,
and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee,
Florida,

      for Petitioner




                                        -3-
                                           Appendix

          402.16 EMERGENCY MEDICAL TREATMENT CLAIMS

                          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
applibility 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 the 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


                                           -4-
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 verdict [on this claim]
should be for (claimant) and against (defendant).]



                                       -5-
       [However, if the greater weight of the evidence does support (claim-
ant’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 402.14 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 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 402.14 and 402.15)



                                       -6-
      [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 402.14 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,


                                       -7-
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 Center, 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 Memorial Hospital, 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.



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

                                         -8-
       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 the 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.


                                          -9-
      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 verdict [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:




                                       - 10 -
       [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 402.14 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 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 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

                                      - 11 -
       (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 402.14 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

                                       - 12 -
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.




                                        - 13 -
