Chapter 4 - Negligence Flashcards
What are the Elements of a Cause of Action for Negligence? (traditional formula/majority)
(1) failure of the duty to use reasonable care
(2) A breach of the duty
(3) Causation
(4) damages
What are the two elements of duty to use reasonable care in negligence?
(1) foreseeable problem
(2) Duty to address
What are the two types of causation for the negligence cause of action?
(1) Causation in fact
(2) legal or proximate causation
Who does the standard of care apply to in negligence?
the plaintiffs and defendants both
In R3 Sec. 3 of Torts, when does negligence exist?
If a person does not exercise reasonable care under all circumstances
(1) foreseeable likelihood that conduct will result in harm
(2) foreseeable severity if harm
(3) burden of precautions to eliminate or reduce harm
What does the formula B state?
If the burden to take precautions is less than the probability x liability then negligence exists
What is the objective standard of negligence?
Whether the defendant acted as a prudent person would.
If a defendant has a shortcoming (like low IQ etc.), does the court consider the shortcoming generally?
No
Is custom determinative of standard of care?
No, however, custom may show the standard of care.
What is the sudden emergency doctrine?
What would a reasonable person do in an emergency (self-preservation) which os not of his own making.
The general rule for children is whether the child exercised discretion and care reasonably exprected from children of like age, intelligence and experience. What is the exception?
When a child is engaged in adult or inherently dangerous activities, the child is held to the standard of care of an adult.
Is a mental illness judged differently regarding the standard of care?
No. The mentally ill party is judged by the standard of care of the reasonable person.
Does the reasonable person standard within a particular profession vary based on an individuals personal training and experience within that profession?
No, individuals within a particular profession are under a duty to act with the same standard of care as would an ordinary, rational member of the profession.
Why is the similar community similar circumstances standard the most common standard out of (1) national v. Local (2) urban v. rural (3) similar community v. similar circumstances?
increased accessibility of expert testimony
If a patient is suing for medical malpractice under the theory of informed consent, what must the patient prove?
(1) defendant physician failed to adequately inform the patient of a material risk before securing the consent to the proposed treatment
(2) If patient was informed of the risks he/she would not have consented to the treatment
(3) The adverse consequences that were not made known did in fact occur and he/she was injured as a result of submitting to the treatment
How is the standard of care applied to professionals?
Contextualized to the profession to give a norm (excluding clergy and teachers)
When applied to a professional, are mistakes always negligence?
No, when acting in good faith and with honest belief that their actions are in the best interest of a client, a professional will not be liable (Hodges v. Carter)
What is required to prove the malpractice of a professional?
Expert testimony to show the professional has deviated from the proper standard of care
How does custom apply to malpractice?
Custom is admissable in professional cases, and can be influential in deciding whether the professional was negligent
Problems with applying Rules of Law to negligence?
Rigid application of standards of care for human behavior creates difficulties in evaluating extraordinary situations
Negligence per se
negligence that violates a statute
Physician’s informed consent defenses
(1) emergency situation
(2) it’s something everyone knows/ patient has reason to know
(3) disclosure would be detrimental to patient’s best interests
An informed consent claim (med mal) must prove
(1) DR failed to inform of a material risk before obtaining consent
(2) If P had known, likely would not have consented
(3) The unknown risk/consequence did occur as a result
What is the “but for” test & when is it applied
In determining NPS, whether imposing liability is reasonable
P’s injury would not have occurred “but for” D’s violation of the statute
