Is there any reason why BAJI 3.16 should not be used in a medical malpractice case?
California, United States of America
The following excerpt is from Dincau v. Tamayose, 131 Cal.App.3d 780, 182 Cal.Rptr. 855 (Cal. App. 1982):
Although it is urged that this instruction is improper, all counsel at one point in the trial stipulated that it be given. Even if it is deemed excepted to under Code of Civil Procedure section 647 as an instruction offered by one's opponent, the instruction is a clear statement of the law which seems to be applicable to this case. Since evidence of habit and custom was properly introduced, as discussed supra, the jury was entitled to an instruction that they had a right to consider such evidence, but that it is not necessarily controlling on the issue of ordinary care. Although the Use Note refers the user to BAJI 3.10 (which should not be used in a medical malpractice case, (Putensen v. Clay Adams Inc., (1970) 12 Cal.App.3d 1062, 91 Cal.Rptr. 319)) there is no reason why BAJI 3.16 should not be used in a medical malpractice case.
2. BAJI 2.43 (Modified).
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