Negligence - Duty of Healthcare Prioviders, Families, Charites, and Government Flashcards
Standard of care
Set by the medical profession
Apologies
Some jurisdiction don’t allow apologies be used as evidence of a wrong doing
Standards
National Standard
Modified Localities (similar communities)
Strict local standard
Informed consent
Patient standard
Professional standard
Patient standard
Sufficient information to enable an informed judgement by a reasonable person
Material and sufficient
Can include:
- nature of the condition
- risks
- probable benefits
- results of non-treatment
- available alternatives
Professional standard
Only tell what a reasonable professional would
Not required to give success rate of the doctor
Privilege for non-disclosure
Complicate the condition
Rare outcome
Comparative fault for the patient
If patient failed to provide family history
Res ipsa loquitur
Allowed on all defendants who had control over the patient
Spouses
Allowed to sue each other
Parents and children
Parents have immunity when
- reasonable parental authority (supervision)
- reasonable parental discretion (food, clothing, etc…)
Reasonable parent standard
What would a reasonable parent do
Duty to the world
Owe a duty to children if you owe a duty to the world
Charities
Immunity for negligent torts
No immunity for intentional torts
Government
Traditionally had full immunity
Federal Torts Claim Act (FTCA)
Allowed to sue the government where a private citizen could be held liable
State law used where the tort occurred
Bench trial
Cannot sue for intentional torts (except for police officers)
Discretionary immunity
Immunity from claims based on an act or omission by a government employee
Exceptions:
- where there is a mandated duty by statute, policy, or regulation
- where the action cannot be susceptible to social, economic, or policy analysis
Planning v. Implementation
Planning = discretion and immunity
Implementation = no discretion and no immunity
Feres doctrine
Common law
Government is not liable for injuries arising out of or in the course of activities incident to service
- location
- duty status
- factual situation
State and municipal government
Some abolished immunity with exceptions
Some kept immunity with exceptions
Special relationship
There was a commitment by law enforcement
Public duty doctrine
Government owes a duty to the public at large, not to individuals
Qualified immunity
Shields officers from discretionary functions
Plaintiff must show that the conduct violated a right a reasonable person would have known or (case precedent)
Absolute immunity
Judicial and legislative officers
Federal officers
BIVENS claim
West wall act
- negligence in scope of the job = immunity
