Chapter 6: Negligence Flashcards
In a negligence case, “duty” refers to:
A) A legal obligation to pay damages
B) A legal obligation the defendant owes to the plaintiff
C) The plaintiff’s responsibility to prove harm
D) The requirement to have insurance coverage
B) A legal obligation the defendant owes to the plaintiff
The four essential elements that must be proven for a plaintiff to prevail in a negligence case are:
A) Duty, breach, injury, and causation
B) Intent, negligence, harm, and damages
C) Responsibility, fault, damage, and liability
D) Standard of care, malpractice, injury, and compensation
A) Duty, breach, injury, and causation
The “standard of care” in medical malpractice cases is generally measured against:
A) What the average person would do in the situation
B) What hospital administrators would require
C) What other physicians in the same specialty would do in similar circumstances
D) What insurance companies consider reasonable treatment
C) What other physicians in the same specialty would do in similar circumstances
The traditional “locality rule” held that physicians should be judged by:
A) National standards of practice
B) International standards of practice
C) Standards of physicians in the same or similar locality
D) Standards set by medical school training
C) Standards of physicians in the same or similar locality
Most jurisdictions today employ which standard when determining the standard of care in malpractice cases?
A) The local standard
B) The national standard
C) The specialty-specific standard
D) The reasonable person standard
B) The national standard
The “school rule” refers to:
A) Where a healthcare practitioner received their education
B) Judging practitioners by the standards of their own branch of medicine
C) What is taught in medical schools
D) The educational requirements for practitioners
B) Judging practitioners by the standards of their own branch of medicine
In Helling v. Carey, the court determined that:
A) The standard of care should always be determined by expert testimony
B) A physician’s compliance with professional standards was sufficient to avoid liability
C) The profession’s own standards could be deemed inadequate by the court
D) Ophthalmologists are never liable for failing to test for glaucoma
C) The profession’s own standards could be deemed inadequate by the court
Expert witnesses in medical malpractice cases must be:
A) From the same town as the defendant
B) Familiar with the practice of medicine in question and professionally qualified
C) Specialists in the same field as the defendant
D) Both professors and practitioners
B) Familiar with the practice of medicine in question and professionally qualified
When can medical treatises be used as evidence to prove the standard of care?
A) Never, as they are always considered hearsay
B) Always, as they are published scientific materials
C) Most states limit their use to impeaching an expert witness or reinforcing expert testimony
D) Only if the author testifies in person
C) Most states limit their use to impeaching an expert witness or reinforcing expert testimony
Negligence that is established by showing a violation of law is called:
A) Vicarious liability
B) Strict liability
C) Negligence per se
D) Res ipsa loquitur
C) Negligence per se
Which of the following would likely NOT require expert testimony to establish professional negligence?
A) Delayed diagnosis of cancer
B) Amputation of the wrong limb
C) Allergic reaction to medication
D) Failed surgical procedure
B) Amputation of the wrong limb
For the doctrine of res ipsa loquitur to apply, which condition is NOT required?
A) The injury must be of a type that normally would not occur without negligence
B) The defendant must have had sole control of the apparent cause of injury
C) The plaintiff could not have contributed to the injury
D) The plaintiff must have signed an informed consent form
D) The plaintiff must have signed an informed consent form
In the landmark case of Byrne v. Boadle that established res ipsa loquitur, what happened?
A) A surgeon left a sponge inside a patient
B) A barrel of flour fell from a warehouse and hit a pedestrian
C) A patient was given the wrong medication
D) A doctor failed to diagnose a common condition
B) A barrel of flour fell from a warehouse and hit a pedestrian
Strict liability differs from negligence in that:
A) It requires proof of intentional wrongdoing
B) It imposes liability even without showing negligence
C) It only applies to government entities
D) It requires a higher standard of proof
B) It imposes liability even without showing negligence
Causation in a medical malpractice case requires proving:
A) The defendant was the only cause of injury
B) The defendant’s negligence was the proximate cause of the injury
C) The plaintiff had no pre-existing conditions
D) The injury could not have happened any other way
B) The defendant’s negligence was the proximate cause of the injury
The plaintiff’s burden of proof in a civil trial for malpractice is:
A) Beyond a reasonable doubt
B) Clear and convincing evidence
C) Preponderance of the evidence
D) Substantial certainty
C) Preponderance of the evidence
“Loss of a chance” doctrine refers to:
A) A physician’s failure to refer a patient to a specialist
B) A patient’s inability to recover damages in a malpractice case
C) Compensation for reducing a patient’s chance of survival or recovery
D) The lottery-like nature of jury awards
C) Compensation for reducing a patient’s chance of survival or recovery
Which of the following is a valid defense in a malpractice suit?
A) The physician was overworked
B) The hospital was understaffed
C) Assumption of risk by the patient
D) The injury was minor
C) Assumption of risk by the patient
Under the defense of contributory negligence:
A) A patient who contributed in any way to their injury cannot recover damages
B) The physician shares responsibility with the hospital
C) The defendant must prove the patient was at least 50% responsible
D) The jury determines the percentage of fault
A) A patient who contributed in any way to their injury cannot recover damages
In comparative negligence jurisdictions:
A) Only the defendant’s negligence is considered
B) The plaintiff’s negligence is irrelevant
C) A plaintiff who is partly at fault may still recover reduced damages
D) The defendant must be at least 51% at fault
C) A plaintiff who is partly at fault may still recover reduced damages
An exculpatory contract in healthcare is:
A) A contract for exclusive services
B) A release from liability for future negligence
C) An agreement to use specific treatment methods
D) A contract for payment of services
B) A release from liability for future negligence
According to the landmark case Tunkle v. Regents of the University of California, exculpatory contracts in healthcare are generally:
A) Valid if signed before treatment
B) Contrary to public policy and invalid
C) Enforceable if properly witnessed
D) Valid for elective procedures
B) Contrary to public policy and invalid
Good Samaritan statutes typically provide:
A) Immunity from negligence liability for physicians rendering emergency care
B) Mandatory duty for physicians to assist in emergencies
C) Tax benefits for charitable care
D) Protection only for paramedics
A) Immunity from negligence liability for physicians rendering emergency care
The doctrine of sovereign immunity means:
A) Only the king can be sued
B) Government entities traditionally could not be sued
C) Foreign countries cannot be sued in domestic courts
D) Physicians working for the military cannot be sued
B) Government entities traditionally could not be sued
Statutes of limitation in medical malpractice cases generally begin when:
A) The patient first sees the doctor
B) The cause of action accrues
C) The patient leaves the hospital
D) The patient pays their final bill
B) The cause of action accrues
Under the “discovery rule,” the statute of limitations begins to run when:
A) The negligent treatment is rendered
B) The treatment ends
C) The patient discovers or should have discovered the alleged malpractice
D) The doctor admits the mistake
C) The patient discovers or should have discovered the alleged malpractice
Vicarious liability means:
A) Only the supervisor is responsible for negligence
B) A person can be held responsible for the negligent acts of their agents
C) Multiple parties share responsibility equally
D) Liability for actions beyond one’s control
B) A person can be held responsible for the negligent acts of their agents
The doctrine of respondeat superior means:
A) The superior is responsible for the acts of subordinates
B) The patient is responsible for following doctor’s orders
C) The doctor must respond to all patient questions
D) The hospital is responsible only for its own acts
A) The superior is responsible for the acts of subordinates
A physician who wants to countersue a patient after winning a malpractice case would likely have the most success with which legal theory?
A) Defamation
B) Negligence
C) Malicious prosecution
D) Abuse of process
C) Malicious prosecution
Which is NOT a common tort reform measure?
A) Limiting awards for pain and suffering
B) Shortening the statute of limitations
C) Requiring defendants to have minimum insurance
D) Limiting attorneys’ contingency fees
C) Requiring defendants to have minimum insurance
A structured settlement differs from a lump sum payment in that it:
A) Is always larger in total amount
B) Compensates the plaintiff through periodic payments
C) Is paid directly to the plaintiff’s attorney
D) Is determined solely by the judge
B) Compensates the plaintiff through periodic payments
In the Perin v. Hayne case, what was the central issue regarding the plaintiff’s vocal cord paralysis?
A) Whether the injury could occur despite due care
B) Whether the surgeon severed the nerve intentionally
C) Whether proper consent was obtained
D) Whether the surgery was necessary
A) Whether the injury could occur despite due care
According to the Perin v. Hayne case, when is the battery theory appropriate in medical cases?
A) When any complication occurs
B) When the doctor fails to disclose risks
C) When a doctor performs an operation to which the patient has not consented
D) When the standard of care is violated
C) When a doctor performs an operation to which the patient has not consented
In Perin v. Hayne, why did the court reject the application of res ipsa loquitur?
A) The plaintiff contributed to her injury
B) Multiple practitioners were involved
C) The injury could occur even with due care
D) The surgeon admitted negligence
C) The injury could occur even with due care
Which of the following would qualify as a “never event” according to healthcare quality standards?
A) A patient developing pneumonia after surgery
B) Surgery on the wrong body part
C) A patient falling in their home after discharge
D) A medication causing a known side effect
B) Surgery on the wrong body part
In the “loss of a chance” doctrine, some courts have held that a defendant should be liable if:
A) The patient had a greater than 50% chance of survival
B) The patient had any chance of survival, no matter how small
C) The defendant increased the risk of death by lessening a significant chance of survival
D) The patient died from the condition
C) The defendant increased the risk of death by lessening a significant chance of survival
Explain how a physician’s standard of care is established in a medical malpractice case.
A physician’s standard of care is established by demonstrating what a reasonably prudent physician in the same specialty would do under similar circumstances. This can be proven through expert testimony from other physicians in the same field, published medical guidelines or principles, or (rarely) through common sense standards that a jury can understand without expert testimony.
The standard may consider locality (national vs. local standard), the physician’s specialty, and the school of medicine practiced. Courts may occasionally find that the profession’s own standards are inadequate (as in Helling v. Carey).
Describe the doctrine of res ipsa loquitur and the three conditions required for it to apply in medical malpractice cases.
Res ipsa loquitur (“the thing speaks for itself”) is a doctrine that allows a plaintiff to prevail without proving specific negligent acts when three conditions are met:
(1) The injury must be of a type that normally wouldn’t occur without someone’s negligence;
(2) The defendant must have had sole control over the apparent cause of the injury; and
(3) The plaintiff could not have contributed to the injury.
In medical malpractice, it’s often applied in cases like foreign objects left in patients during surgery, where negligence is obvious even without specific proof of what went wrong.
Explain the concept of vicarious liability through respondeat superior and how it applies in healthcare settings.
Vicarious liability through respondeat superior (“let the superior respond”) holds employers responsible for the negligent acts of their employees or agents performed within the scope of employment. In healthcare, hospitals can be held liable for the negligence of their employees (nurses, technicians, etc.), and physicians may be liable for their staff’s actions when they exercise direction and control over them.
The key factor is not just employment status but whether the superior had the right to control the actions of the subordinate. This doctrine ensures injured patients can recover damages even when the specific negligent actor might have limited resources.
Discuss the evolution of the “locality rule” in medical malpractice cases and why most jurisdictions have moved away from it.
The traditional locality rule measured a physician’s standard of care against only other physicians practicing in the same or similar locality. This was based on the theory that doctors in remote areas shouldn’t be held to the same standards as urban doctors due to differences in resources, communication limitations, and facilities.
Most jurisdictions have abandoned or broadened this rule because:
(1) it created a “conspiracy of silence” where local doctors wouldn’t testify against colleagues;
(2) it potentially protected substandard care in small communities; and
(3) modern advances in communications, standardized medical education, national board certifications, and technology have largely eliminated geographical differences in medical knowledge. Today, most courts apply a national standard.
What is the “loss of a chance” doctrine and how has it altered the traditional approach to causation in medical malpractice cases?
The “loss of a chance” doctrine addresses situations where a patient had less than a 50% chance of survival or recovery, but the physician’s negligence reduced that chance further. Traditionally, if a patient was more likely than not to die anyway, the physician wouldn’t be liable. This doctrine allows recovery when the physician’s negligence was a substantial factor in reducing even a limited chance of survival or recovery.
Courts adopting this approach reason that defendants shouldn’t escape liability simply because the patient’s prognosis was already poor. Damages are typically proportional to the percentage of chance lost rather than full wrongful death damages.
Discuss the limitations and legal framework of countersuits by physicians against patients who file unsuccessful malpractice claims.
Physicians’ countersuits against patients who file unsuccessful malpractice claims face significant legal barriers. Defamation claims typically fail because statements in legal proceedings are privileged. Negligence claims are unsuccessful because attorneys owe no duty to adverse parties.
Malicious prosecution claims require proving:
(1) the original case was decided in the physician’s favor;
(2) there was no probable cause to believe the physician was liable; and
(3) the plaintiff acted with malice in bringing the suit. Additionally, special damages beyond normal litigation costs must usually be shown.
While theoretically possible, such countersuits rarely succeed and often result in additional legal costs and time for the physician.
Based on Helling v. Carey, discuss the court’s reasoning for rejecting the standard of practice established by the ophthalmology profession.
In Helling v. Carey, the court rejected the ophthalmology profession’s standard (not routinely testing for glaucoma in patients under 40) despite expert consensus that this was accepted practice. The court reasoned that when a test is simple, inexpensive, harmless, and capable of detecting a condition that causes devastating outcomes, it should be required regardless of the rarity of the condition (1 in 25,000) in that population.
The court concluded that reasonable prudence may demand more than common practice, stating “what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.”
The court held that the judiciary must ultimately determine what precautions are “so imperative” that even universal disregard won’t excuse their omission.
In Perin v. Hayne, what distinction did the court make between battery and negligence in cases of undisclosed medical risks?
In Perin v. Hayne, the court distinguished between battery and negligence theories in medical consent cases. The court held that battery applies only when a doctor performs an operation to which the patient has not consented or performs a substantially different procedure than what was authorized. In contrast, when a patient consents to a specific treatment but suffers from an undisclosed inherent complication with low probability, this represents not battery but a potential failure of the doctor’s duty to disclose pertinent information (negligence).
The court further noted that recovery for undisclosed risks requires proving the patient would not have consented to the procedure had they known of the risk - evidence that was lacking in this case.
Explain how strict liability differs from negligence and why it generally doesn’t apply to healthcare services.
Strict liability imposes responsibility without requiring proof of negligence or fault. It applies to inherently dangerous activities and defective products regardless of how carefully they were made.
Negligence, by contrast, requires proving that the defendant failed to exercise reasonable care. Strict liability generally doesn’t apply to healthcare services because medicine involves professional judgment and skill rather than selling products. Courts have consistently held that providing medical care (including blood transfusions) constitutes a service, not a product.
This distinction protects healthcare providers from being guarantors of outcomes in an inherently risky field where bad outcomes can occur despite perfect care.
Discuss the impact of “never events” on proving negligence in healthcare settings.
“Never events” are serious, preventable adverse events that should never occur in healthcare settings (e.g., wrong-site surgery, retained surgical items, patient falls). These events significantly impact negligence cases because they’re considered so egregious that they’re indefensible - experts typically aren’t needed to establish that the standard of care was breached.
These events often establish negligence per se or trigger res ipsa loquitur. Healthcare facilities must report these events, and insurers often won’t reimburse for associated costs.
The identification and categorization of never events by quality organizations has created clear standards that make litigation more straightforward when these events occur, often leading to settlement rather than trial.
Compare and contrast contributory negligence and comparative negligence as defenses in medical malpractice cases.
Contributory negligence is an “all or nothing” defense where patients who contribute in any way to their injury cannot recover damages, even if the physician was primarily at fault. For example, a patient who doesn’t follow discharge instructions might be barred from recovery.
Comparative negligence, adopted by most states, allows recovery reduced by the patient’s percentage of fault.
For instance, if a patient is found 30% responsible, they can still recover 70% of damages. Comparative negligence is considered more equitable as it recognizes shared responsibility without completely barring compensation for injuries primarily caused by healthcare providers.
Both defenses require proof that the patient failed to act as a reasonably prudent person would have in similar circumstances.
Explain structured settlements in medical malpractice cases and their advantages for both parties.
Structured settlements provide periodic payments to plaintiffs over time rather than a lump sum. Advantages include:
(1) For defendants/insurers: lower initial payout, protection against plaintiffs mismanaging large sums, and potentially lower total costs;
(2) For plaintiffs: guaranteed income stream, tax advantages (payments are usually tax-free), protection from spending the entire award quickly, and funds tailored to accommodate future medical needs.
Structured settlements often use annuities or trusts, and may include provisions for funds to revert to the defendant if the plaintiff dies before the payment period ends (reversionary trusts).
They’re particularly useful in cases involving long-term care needs or minors, ensuring funds remain available throughout the plaintiff’s lifetime.
Standard of Care
The caution and prudence that a reasonable person would exercise under the circumstances or which are required by appropriate authority for such situations. In medical malpractice, it refers to what a reasonably prudent physician in the same specialty would do under similar circumstances.
Q: Physician
For purposes of federal healthcare programs, “physicians” are doctors of medicine (MD), doctors of osteopathy (DO), doctors of dental surgery or dental medicine (DDS or DMD), doctors of podiatric medicine (DPM), doctors of optometry (OD), and chiropractors (DC).
School Rule
The principle that healthcare practitioners are judged by the standards of their own branch of medicine, recognizing that different schools of medical thought (like allopathic, osteopathic, or chiropractic medicine) may have different approaches to treatment.
Positive Predictive Value
The probability that subjects with a positive screening test truly have the condition tested for. A test with low positive predictive value produces many false positives, which can lead to unnecessary procedures and anxiety.
Hearsay
An out-of-court statement offered into evidence to prove the truth of the matter asserted in the statement. Medical treatises are generally considered hearsay, though many jurisdictions allow limited use to impeach witnesses or support expert testimony.
Guardian ad Litem
A guardian appointed by a court to represent the interests of a minor or an incompetent person in legal proceedings, such as in cases of child abuse or when a minor is injured by medical malpractice.
Res Ipsa Loquitur
A rule of law that even when there is no specific evidence of negligence, one is presumed to have been negligent if one had exclusive control of the cause of the accident or injury. Literally means “the thing speaks for itself.”
Proximate Cause
The legal cause of damages to the plaintiff; the cause that immediately precedes and produces the effect. In malpractice, it links the healthcare provider’s breach of duty to the patient’s injury, showing the injury would not have occurred without the breach.
Assumption of Risk
An affirmative defense in negligence actions where individuals are barred from recovering damages for injuries sustained after voluntarily exposing themselves to known dangers. In healthcare, typically applies when patients consent to experimental procedures knowing the risks.
Contributory Negligence and Comparative Negligence
Common-law doctrines relating to allocation of responsibility when the plaintiff was partially at fault. Contributory negligence completely bars recovery if the plaintiff was even slightly at fault; comparative negligence reduces recovery by the plaintiff’s percentage of fault.
Public Policy
The general, well-settled, and usually unwritten sense of public opinion relating to the duties of citizens to one another. Courts use public policy considerations to invalidate exculpatory contracts in healthcare, as in the Tunkle case.
Sovereign Immunity
An ancient legal doctrine exempting the sovereign (monarch or governmental entity) from liability for wrongs. While largely waived today, derivative immunities may protect government-employed healthcare workers from personal liability for acts within the scope of employment.
Vicarious Liability
Attachment of responsibility to a person whose agent caused the plaintiff’s injuries. In healthcare, holds employers (hospitals, physician practices) responsible for the negligent acts of their employees performed within the scope of employment.
Respondeat Superior
A doctrine in the common law of agency that provides that a principal—the employer (superior)—is responsible for the actions of their agent done in the course of employment. Literally means “let the superior respond.”
Negligence Per Se
Negligence established by proving violation of a statute or regulation. In healthcare, violating reporting laws (like mandatory child abuse reporting) or regulatory safety requirements can constitute negligence per se if the violation causes injury.
Helling v. Carey (1974)
Landmark case where the Supreme Court of Washington held that the standard practice of ophthalmologists (not testing patients under 40 for glaucoma) was inadequate and negligent as a matter of law. Established that courts can determine that professional standards are inadequate when simple, inexpensive tests could prevent devastating outcomes.
Tunkle v. Regents of the University of California
Landmark case holding that exculpatory contracts between hospitals and patients that attempt to release the hospital from liability for negligence are invalid as contrary to public policy. Established that patients cannot be required to waive their rights to sue for malpractice as a condition of receiving treatment.
Darling v. Charleston Community Memorial Hospital
Landmark case that established that hospital accreditation standards (like those from The Joint Commission) and medical staff bylaws are admissible as evidence of the standard of care in negligence cases.
Perin v. Hayne
Case illustrating the distinction between battery and negligence theories in medical consent cases. The court held that battery only applies when a doctor performs an operation to which the patient has not consented, while undisclosed risks with resulting complications should be pleaded as negligence.
Landeros v. Flood
Case establishing that a physician’s failure to diagnose and report suspected child abuse as required by law constitutes negligence per se, allowing the injured child to bring suit against the doctor who returned them to an abusive environment.
Ybarra v. Spangard
Influential California case that expanded the application of res ipsa loquitur to situations with multiple potential defendants. Held that when a patient suffers unusual injuries while unconscious during medical treatment, all providers who had control over the patient may be required to explain their conduct.
McDermott v. Manhattan Eye, Ear and Throat Hospital
Case establishing that a plaintiff in a malpractice case may call the defendant physician as an expert witness to establish the standard of care and deviation from that standard.
Cobbs v. Grant
Landmark case distinguishing between battery and negligence in medical consent cases. Established that performing a substantially different procedure than consented to constitutes battery, while failure to disclose risks is negligence.
Byrne v. Boadle
English case from the 1860s that established the doctrine of res ipsa loquitur. A barrel of flour fell from a warehouse onto a pedestrian, and the court found the defendant liable without proof of specific negligence because such accidents don’t ordinarily happen without negligence.
Locality Rule
A principle that historically measured a physician’s standard of care only against other physicians practicing in the same or similar geographical area. Most jurisdictions have abandoned or broadened this rule in favor of a national standard due to advances in communication, standardized education, and technology.
Never Events
Serious, preventable adverse events that should never occur in healthcare settings, such as surgery on the wrong body part, retained surgical items, or patient falls resulting in serious injury. These events often establish negligence without requiring expert testimony.
Discovery Rule
A principle that the statute of limitations in medical malpractice cases begins to run when the patient discovers or reasonably should have discovered the injury and its cause, rather than when the negligent act occurred.
Structured Settlement
A financial arrangement that compensates a plaintiff through periodic payments rather than a lump sum. Often used in medical malpractice cases involving long-term care needs or when the plaintiff is a minor.
