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Koch v. Northport Health Services of Arkansas3/24/2005
m, stage, size, color, odor and drainage if any. The chart shall also document the date and time of treatments and dressings.
The facility must be administered in a manner that enables it to use its resources effectively to attain or maintain the highest practical physical, mental and psychosocial well-being of each resident. A violation of one or more of these regulations or statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.
Appellees' first argument against this instruction is that the federal regulations do not create a standard of care. This argument was not presented to the circuit court and, consequently, is not preserved for appeal. Though the appellees objected to the use of AMI Civ. 4th 601 at trial, they did not make this precise argument to the trial court. At trial, appellees argued:
As to Jury Instruction Number Fifteen, Defendants object to the giving of that instruction which is a violation of statute or ordinance is evidence of negligence. Defendants contend that this is an exceedingly lengthy, drawn out jury instruction which there really is no hope for the jury to understand. It gives well in excess of ten or twelve Code of Federal Register references, one to which the jury, the defendants would contend, have no hope of interpreting and applying. It is fully covered by the other instructions in this case. It is confusing and refers to negligence, again going back to our objection to giving this case to the jury on both negligence and medical malpractice.
Notably, the appellees made no mention of the words "standard of care" at any time during their objection. Nonetheless, on appeal, appellees have shifted their argument to contend that the CFRs do not create a standard of care and thus are not an appropriate subject for an AMI Civ. 4th 601 instruction. We will not consider arguments made for the first time on appeal. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 335 Ark. 701, 120 S.W.3d 525 (2003).
Furthermore, there is no merit to appellees' argument that the instruction was duplicative or abstract. First, the entire purpose of AMI Civ. 4th 601 is to alert the jury to the existence of regulations that might be relevant to the case and not to establish a standard of care. AMI Civ. 4th 601 provides that violations of these regulations can be considered evidence of negligence on the part of the defendant, even if the regulations themselves do not govern the case. See Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976). In Dunn, Brimer was in an accident where he fell off a ladder that was not properly fastened in place. The trial court issued an AMI Civ. 4th 601 instruction based on certain federal regulations providing that the ladders "shall be fastened and that the area below them shall be kept clean." Id. at 856, 537 S.W.2d 165. The defendants appealed the use of this instruction, arguing that the federal regulation did not apply to the case because the regulation targeted only employer-employee relationships, and Brimer was hired by an independent contractor. Id. We rejected this argument and quoted Prosser saying:
here the statute does set up standard precautions, although only for the protection of a different class of persons, or the prevention of a distinct risk, this may be a relevant fact, having proper bearing upon the conduct of a reasonable man under the circumstances, which the jury should be permitted to consider.
Id. (citing Prosser, Torts, p. 202 (4th ed. 1971)). In other words, the AMI Civ. 4th 601 instruction does not instruct the jury on the relevant standard of care applicabl
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