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Allen v. Tong2/10/2003
tanding alone, would not establish a breach of a duty. Many of the statements contained facts to be argued to the jury, not to be placed in a 302B instruction. Thus, the court did not err in requiring Plaintiff to submit another instruction. See id. at 452, 872 P.2d at 870 ("The trial court may submit the instruction as tendered or change the instruction, with or without consultation with counsel, to suit his or her particular proclivity and style. Only legal or factual insufficiency will justify rejection.").
Plaintiff's evidence of breach of duty was: Defendant's delay in coming to the hospital; the existence of facts tending to indicate testicular torsion; Defendant's alleged failures to properly evaluate symptoms and tests, to read reports, and to conduct a proper physical examination; and Defendant's having caused or permitted critical time to pass due to his own faulty clinical judgment and diagnosis, unnecessary tests; and his having sent Plaintiff home. Plaintiff attempted to condense these evidentiary facts in his five-part instruction.
Plaintiff's five-part instruction came much closer to the letter and spirit of UJI 13-302B. However, that instruction still did not clearly and succinctly set out the factual contentions underlying Plaintiff's negligence claim. The crux of Plaintiff's claim of negligence is contained in paragraph 2 of the given 302B instruction, namely, that "Defendant failed to operate on [Plaintiff] in a timely manner and sent him home from the hospital with testicular torsion which he knew or should have known existed." All of the more specific, evidentiary detail constituted support for the factual statements in this contention. The experts' testimony and the facts as to Defendant's specific actions and failures to act could potentially show that Defendant should have diagnosed the probability of torsion, should have known to conduct timely exploratory surgery, and should not have sent Plaintiff home without conducting that surgery.
The court, therefore, did not err in rejecting Plaintiff's five-part instruction as written and by working with Plaintiff on a restated 302B instruction. The five-part instruction needed refinement before its presentation to the jury. The court obviously wanted the instruction to more clearly and succinctly set out Plaintiff's factual contentions establishing negligence. Yet, it is equally obvious that the court also wanted to accommodate Plaintiff by incorporating in the instruction wording used in his five-part instruction.
It appears from the last of the discussion between the court and Plaintiff's counsel that Plaintiff's counsel was in charge of drafting appropriate language. Where the court and Plaintiff went wrong was that the instruction given to the jury was defective. The two contentions listed in the given 302B instruction need not, and should not, have been separated by the word "or." See UJI 13-302, Examples A and B (listing factual contentions without "or"). Further, because of the use of the conjunction "and" in each of the two contentions in the given instruction, the jury was instructed that it had to find the existence of each fact stated in order to conclude Defendant was negligent. Thus, in the first paragraph, to prove that Defendant failed to diagnose testicular torsion as opposed to epididymitis, it appears Plaintiff had to prove not only that Defendant failed to properly consider Plaintiff's symptoms, but also failed to consider history, laboratory and other test results, and to conduct a proper physical examination. In addition, the parties did not follow the example in Appendix 1 to Chapter 11 which sets out UJI 13-302B with a general contention of failure to use the skill and care
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