105.11. Claims (Of) Apparent Agency-Principal Sued Only Under Respondeat Superior-Med Mal

B105.09 Res Ipsa Loquitur--Burden of Proof--Professional Negligence--Where Contributory Negligence Is Claimed [Under Count [__],] T[t]he plaintiff has the burden of proving each of the following propositions: First: That [name of patient] was injured. Second: That the injury [was received from] [occurred during] a [name of instrumentality or procedure] which [was] [had been] under the defendant's [control] [management]. Third: That in the normal course of events, this injury would not have occurred if the defendant had used a reasonable standard of professional care while the [name of instrumentality or procedure] was under his [control] [management]. [Whether the injury in the normal course of events would not have occurred if the defendant had used a reasonable standard of professional care while the [name of instrumentality or procedure] was under his [control] [management] must be determined from expert testimony presented in this trial. You must not attempt to determine this question from any personal knowledge you have.] If you find that each of these propositions has been proved, the law permits you to infer from them that the defendant was negligent with respect to the [name of instrumentality or procedure] while it was under his [control] [management]. If you do draw such an inference, and if you further find that [name of patient]'s injury was proximately caused by that negligence, you must next consider the defendant's claim that [name of patient] was contributorily negligent. As to that claim, the defendant has the burden of proving each of the following propositions: First, that [name of patient] acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting, or failing to act, [name of patient] was negligent; Second, that [name of patient]'s negligence was a proximate cause of his injury. You must reach one of the following four verdicts (A, B, C, or D): A: If you have found that the defendant was negligent and that that negligence was a proximate cause of plaintiff's injury, and if you further find that the defendant has not proved both of the propositions required of him, then your verdict should be for the plaintiff [under this Count] and you will not reduce the plaintiff's damages. B: If you have found that the defendant was negligent and that that negligence was a proximate cause of plaintiff's injury, and if you further find that the defendant has proved both of the propositions required of him, and if you further find that [name of patient]'s contributory negligence was 50% or less of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the plaintiff [under this Count] and you will reduce the plaintiff's damages in the manner stated to you in these instructions. If you have found that the defendant was negligent and that that negligence was a proximate cause of plaintiff's injury, and if you further find that the defendant has proved both of the propositions required of him, and if you further find that [name of patient]'s contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the defendant. If you find that any of the propositions required of the plaintiff has not been proved, or if you find that the defendant used a reasonable standard of professional care for the safety of [name of patient] in his [control] [management] of the [name of instrumentality or procedure] or if you find that the defendant's negligence, if any, was not a proximate cause of [name of patient]'s injury, then your verdict should be for the defendant [under this Count]. C: D: