Custom and medical malpractice Flashcards
*Titus
Blocks on railroad secured with wire caused car to wobble and decedent employee riding on top jumped off and was hit. Court said putting a broad gauge car on a narrow gauge track is a “regular part of the business of narrow gauge railroads.” Old RULE for custom: even if a practice is dangerous, it is not necessarily negligent – party not liable merely for failing use some special device or precaution not in common use that may have prevented the accident; instead the party correctly performs their duty when they use a devices of “ordinary character and reasonable safety” where reasonable safety means safe according to the usages, habits, and ordinary risks of the business.
*Mayhew
Miner fell down ladder hole installed in platform without a railing around it. Court claimed “custom” and “average” have no proper place in the definition of ordinary care.
*T.J. Hooper
Tugboat didn’t have an effective radio set to warn it of weather. The lower court said the use of such radios was almost universal in navigation of tugboats along the coast, therefore there was a duty to have it (use of sword). Learned Hand said there wasn’t a general custom to equip boats with the radios, but it didn’t really matter, because courts can’t just look to custom. Hand RULE for custom: Custom is never a MEASURE of negligence because a whole industry may have “unduly lagged” in adopting a new technology (although custom can be examined). Had the tug been properly equipped, it could have gotten weather reports and prevented injury, therefore negligent.
o The defendant wants to use custom as a shield and the plaintiff wants to use it as a sword.
Lucy Webb
Decedent was mental patient at psychiatric hospital. Jumped through window and plaintiff said the hospital had fallen short of its own internal standard by allowing the decedent to wander. Other recent cases have similarly allowed the plaintiff to introduce the defendant’s own internal rules on the standard of care question (potentially very problematic – unfair penalties for defendant trying to be more safe).
*Lama
Dr. failed to prescribe bed rest before surgery which (possibly) led to a whole chain of problems. Court said that failure to provide conservative treatment prior to the 1st operation was negligent (foreseeable harm). RULE for medical malpractice: plaintiff must show 1) basic norms of knowledge and medical care applicable to general practitioners or specialists (normally need expert testimony to both identify the relevant standard and establish the violation UNLESS negligence is “within the understanding of lay members of the public”) 2) proof of failure to follow those norms 3) causal relation between act/omission and injury. The plaintiff must prove by a preponderance of the evidence that physician’s negligent conduct was the factor that “most probably” caused harm to the plaintiff. When the physician has negligently exposed a patient to a risk prone surgery, the physician is liable for harm associated with foreseeable risk.
Jones
Where 2 schools of thought: doctor has absolute defense when treatment approved by on group of medical experts even if alternative school of thought BUT there must be a “considerable number of physicians, recognized and respected in their field, sufficient to create another “school of thought.”
*Murray
Death could have been prevented through earlier use of Flolan, which physician had written order for. Although there may be benefits and drawbacks to considering the cost of treatment, the key here was that the case turned on a completely medical decision because delayed treatment was safer than potentially interrupted treatment.
*Canterbury
Informed consent. Back pain of plaintiff led to defendant conducting surgery and while he was recuperating was left unattended and fell out of bed, so needed 2nd surgery, which left him hobbled for life; plaintiff said defendant didn’t inform him of risk beforehand and defendant said that communication of risk is bad medical practice bc can deter needed surgery. Court concluded that not revealing the risk of a surgery is enough for a prima facie case (new trial bc negligent performance but unclear causation; not told of hazards, 1% risk of paralysis, no evidence that patient’s emotional makeup would justify concealment). Duty to disclose not accepted in England.
Canterbury: why disclose risk?
1) Every adult has a right to determine what is done with their body
2) Consent requires informed exercise of a choice, and to be informed, need reasonable divulgence by physician
3) It is a duty to warn of risks of treatment, and that is part of due care. Also duty to impart info the patient has every right to expect (trusting relationship).
Canterbury: when has physician discharged duty?
Physician discharges duty when he makes a reasonable effort to convey sufficient information although the patient, without fault of the physician, may not fully grasp it. RULE for scope of disclosure is whether the patient’s need for information to make an intelligent choice has been met – all risks potentially affecting the decision must be unmasked, based on foresight not hindsight. (Schwab NOTE: this is NOT full disclosure with all the details). Bly v. Rhoads broke with Canterbury and required expert evidence on the disclosure question (“require a patient-plaintiff to show by qualified medical experts whether and to what extent information should be disclosed by the physician to his patient.”). This is now the majority view.
Canterbury: custom in informed consent
Departure from custom may mean liability, but a patient’s cause of action isn’t dependent on this departure. It isn’t a good idea to bind disclosure and custom.
Canterbury: exceptions to disclosure
1) no obligation to communicate risks of which persons of average sophistication are aware 2) no responsibility for discussion of hazards the patient already discovered 3) no liability when no disclosure if patient was unconscious and the imminent harm from failure to treat > harm of proposed treatment or 4) when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view (this is narrow – doesn’t include silence bc fear that divulgence will make patient forego therapy)
Canterbury: causal connection
causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it AND this is determined on an objective basis of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance (NOTE: this objective standard keeps injured patient from going to court and using hindsight subjectively) (HYPO: if soccer star’s kick was going to be affected by foot surgery, probably need to disclose even under objective standard bc the “reasonable soccer star”… (in patient’s position)).
