Duty of Care/Breach of Care Flashcards
What is the duty of care?
An obligation, recognized by law, to protect another person from foreseeable unreasonable risk of harm
Is there a universal duty?
No
What is the objective standard of care?
What a reasonable prudent person would do under the circumstances
What is the standard of care for a person with a physical disability ?
A person with a physical disability must act as a reasonable prudent person with the same disability would under the circumstances
What is the standard of care for a person with a mental illness?
A person with a mental disability is held to the objective standard unless the mental illness is sudden with no forewarning
What is the standard of care for a child?
A child must act as a reasonable child of similar age, education, intelligence, and experience under the same or similar circumstances, except when they engage in adult activities and is dangerous
What is the standard of care for a professional?
A professional must act as another professional with the same skill, knowledge, and care in the same or similar locality, however, it must be established by expert testimony
What is the standard of care for a medical profession?
Members of the medical profession are measured solely by the standard of care and skill of another member in the medical profession in the same or similar locality
When does a physician not have to tell a patient about their condition?
- Full disclosure would be detrimental to a patients care
- Emergency or patient is not in a position to make a decision
- Risk is known by everyone or are already known to the patient
Informed Consent
A physician has a duty to fully inform a patient of the risk of a procedure
A patient is able to give informed consent based on:
- Adequate information about the treatment
- Available alternatives to the treatment
- Risk of complications from the treatment
Breach of Duty
A person fails to meet the standard of care owed to the plaintiff
Rule of Law
Doing something or failing to do something so obvious and certain that one conclusion and only one conclusion is permissible for rational and candid minds
Elements of Negligence per se (Statute sets the standard)
- Is this the type of harm the legislature intended to guard against?
- Is the plaintiff a member of the class the legislature intended to protect by the statute?
- Would the harm not have occurred if the defendant had complied with the statute?
- Is it appropriate to apply the standard in this case?
If the statute does not set the standard of care, what standard is then used?
Reasonable prudent person standard
