Negligence Duty and Breach Flashcards
What are the elements of informed consent?
(1) defendant physician failed to adequately inform plaintiff of material risks before the procedure
(2) plaintiff, if informed of the risks, would not have consented
(3) material risk not made known to plaintiff occurred as a result of the treatment
What are the exceptions to informed consent?
emergency situation or incapable of understanding
if risks are common knowledge
full disclosure detrimental to total care (alarm an emotionally upset or apprehensive patient)
When can a physician act in absence of consent?
(1) if plaintiff is unable to consent (unconscious, etc)
(2) if a reasonable person would consent under the circumstances
(3) if physician has no reason to believe patient would not consent
(4) if the risk of serious harm from delaying treatment is very high
What are the elements of negligence per se?
(1) the injury is done to a member of the class of person the statute was meant to protect
(2) the harm is of the kind which the statute/regulation was enacted to prevent
(3) whether it is appropriate to impose tort liability for violations of the statute
What does element (3) of negligence per se mean?
(3) whether it is appropriate to impose tort liability for violations of the statute
almost always satisfied, only in extraordinary cases like Perry v SN and SN will cause element 3 not to be satisfied
consider:
there is an element of duty solely from the statute
would it create liability without fault?
would it impose ruinous liability disproportionate to the seriousness of defendant’s conduct?
whether the injury directly or indirectly resulted from the violation of statute
What are the negligence per se excuses?
if one applies, then negligence per se cannot satisfy duty and breach, but the conventional duties of care may still be used
(1) violation is reasonable because of actor’s incapacity
(2) he neither knows nor should have known of the occasion for compliance
(3) the person is unable after reasonable diligence or care to comply
(4) he is confronted by an emergency not due to his own misconduct
(5) the compliance would involve a great risk of harm to actor or to others
translation:
(1) reasonable violation because of incapacity
(2) not on notice of occasion for compliance
(3) unable to comply even with reasonable diligence
(4) emergency situation (not defendant’s fault)
(5) compliance = greater risk of harm
What is constructive notice?
if a reasonable person exercising reasonable care knew or should have known of the hazard, then the party has constructive notice
What are the elements of constructive notice?
(1) actual or constructive knowledge of a condition on the premises
(2) condition posed an unreasonable risk of harm
(3) company did not exercise reasonable care to reduce or eliminate the risk
(4) company’s failure to use such care proximately caused her injuries
What are the elements of res ipsa loquiter?
(1) event is of a kind which ordinarily does not occur in the absence of negligence
(2) thing or instrumentality which caused the accident was at the time or and prior thereto under the exclusive control and management of defendant
(3) indicated negligence is within scope of defendant’s duty to plaintiff
What do we use to determine breach?
learned hand formula b < PL
the greater risk of harm to others that is created by a person’s chosen activity, the greater the burden or duty to avoid injury to others becomes
