Horton Liability Flashcards
in strict liability, the claimant needs only prove
that the tort occurred and that the defendant was responsible.
T/F Strict liability is a another concept under tort law. It is different than medical negiglence
true. The defedent is not required to prove that the defendant acted in an unreasonable manner. They just need to prove it happended.
Product liability claims involve
optometrists who sell defective products
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
“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”
Optometrists are named as defendants in products liability cases because
because they are sellers of products
The most likely ophthalmic products to result in a products liability claim are
ophthalmic lenses, safety eyewear, athletic frames, and ophthalmic drugs.
vicarious liability is another kind of strict liability.
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.
describe vicarious liability in laymens terms
without doing wrong yourself, you can be liabile for someone who did the wrongful act
What are the two most important legal relationships in vicarious liability
- principal and agent (partnership) 2. Master and Servant (employer and employee)
vicarious liability explained in legal terms
imputes the negligence of A to B, due to the legal relationship between A and B
Key issue in employee-employer claims is often
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
most significant issue in a business-related vicarious liiability claims is the
is the type of business organization
if the business organization is a LLC or Professional association or coporation (PA or PC), the partners are liabile.
false. They are not liable.
In a general partnership, the partners are liable for one another’s negligence.
true
another application of strict liability is co-management of surgerical clases. The ophthalmogist is not held liable for negiglence by the optometrist.
false. they are held responsible.
informed consent
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
for a consent to be “informed”
healthcare provider must make appropriate disclosures to patient
what are the two standards of disclosure?
- professional standard (aka “Medical Standard” or Malpractice Standard
- Patient Centered or Material Risk Standard
Professional standard of disclosure is based on custom
what would a reasonable practitioner disclose under the same or similar circumstances
Patient-Centered standard of disclosure is based on
what information would a reasonable patient in the same or similar circumstance would want to know.
what information must be disclosed for it to be “informed” consent?
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.
____ ____ ___is evidence that may give rise to a presumption of consent
signed consent form
a consent form should disclose
specific relevant factors
T/F. patient can not consent to being malpracticed on
true
Exceptions to duty to disclose.
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 )
other elements of cause of action
must have harm/damages (no harm, no foul)
Causation of informed consent
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
