Horton Liability

Question 1

in strict liability, the claimant needs only prove

Answer 1

that the tort occurred and that the defendant was responsible.

Question 2

T/F Strict liability is a another concept under tort law. It is different than medical negiglence

Answer 2

true. The defedent is not required to prove that the defendant acted in an unreasonable manner. They just need to prove it happended.

Question 3

Product liability claims involve

Answer 3

optometrists who sell defective products

Question 4

Product liability is imposed if a consumer is using a product in a reasonable manner and is injured by the product, if it can be shown

Answer 4

“the product is ““defective”” (unreasonably dangerous for the purpose for which it was sold);
the seller is engaged in the business of selling the product (as designer, manufacturer or seller); and
the product reaches the consumer without substantial change in the condition in which it was sold”

Question 5

Optometrists are named as defendants in products liability cases because

Answer 5

because they are sellers of products

Question 6

The most likely ophthalmic products to result in a products liability claim are

Answer 6

ophthalmic lenses, safety eyewear, athletic frames, and ophthalmic drugs.

Question 7

vicarious liability is another kind of strict liability.

Answer 7

true. Vicarious liability and products liability are strict liabilities . Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency.

Question 8

describe vicarious liability in laymens terms

Answer 8

without doing wrong yourself, you can be liabile for someone who did the wrongful act

Question 9

What are the two most important legal relationships in vicarious liability

Answer 9

1. principal and agent (partnership) 2. Master and Servant (employer and employee)

Question 10

vicarious liability explained in legal terms

Answer 10

imputes the negligence of A to B, due to the legal relationship between A and B

Question 11

Key issue in employee-employer claims is often

Answer 11

whether the employee was actining in the line and scope of the employees duties at the time the injury occurred. Can involve conduct by an employee outside of office

Question 12

most significant issue in a business-related vicarious liiability claims is the

Answer 12

is the type of business organization

Question 13

if the business organization is a LLC or Professional association or coporation (PA or PC), the partners are liabile.

Answer 13

false. They are not liable.

Question 14

In a general partnership, the partners are liable for one another’s negligence.

Answer 14

true

Question 15

another application of strict liability is co-management of surgerical clases. The ophthalmogist is not held liable for negiglence by the optometrist.

Answer 15

false. they are held responsible.

Question 16

informed consent

Answer 16

patient has the right to consent to treatment based on the patient’s to consent to txt based on patients informed decision as to costs, benefits, side effects, other risks

Question 17

for a consent to be “informed”

Answer 17

healthcare provider must make appropriate disclosures to patient

Question 18

what are the two standards of disclosure?

Answer 18

1. professional standard (aka “Medical Standard” or Malpractice Standard
2. Patient Centered or Material Risk Standard

Question 19

Professional standard of disclosure is based on custom

Answer 19

what would a reasonable practitioner disclose under the same or similar circumstances

Question 20

Patient-Centered standard of disclosure is based on

Answer 20

what information would a reasonable patient in the same or similar circumstance would want to know.

Question 21

what information must be disclosed for it to be “informed” consent?

Answer 21

potential hazards/risks of treatment
alternative treatments
potential results of no txt
disclosures should be specific to the decision to be made, not just general risks
and there is no duty to disclose what is already known to the patient.

Question 22

____ ____ ___is evidence that may give rise to a presumption of consent

Answer 22

signed consent form

Question 23

a consent form should disclose

Answer 23

specific relevant factors

Question 24

T/F. patient can not consent to being malpracticed on

Answer 24

true

Question 25

Exceptions to duty to disclose.

Answer 25

emergency (consent implied if provider’s action was reasonable under circumstances), waiver (should be in writing, and patient must know he/she has right to receive disclosure) , therapeutic privilege (limited circumstance where provider reasonably concludes that distance could cause additional harm to patient )

Question 26

other elements of cause of action

Answer 26

must have harm/damages (no harm, no foul)

Question 27

Causation of informed consent

Answer 27

majority rule is the patient must show that, had disclosure been made, a reasonable person would have refused (or accepted) the treatment- “objective test”

alternative is the subjective “ actual patient” test: what would the specific patient have done. patient own testimony