Negligence - Standard of Care

Question 1

What are the standards of care?

Answer 1

1. Reasonably prudent person under the same or similar circumstances
2. Child standard of care
3. Statutory standard of care/Negligence per se
4. Professional Standard of care

Question 2

What is the standard of care for a reasonable prudent person?

Answer 2

• it is an object standard
• Δ must rise to the level of n average person in the community
  
  • do not take into consideration mental ability, sanity or reflexes
  • do consider phyisical conditions (i.e. - Blind, one leg, etc.)
    
    • not if b/c Δ physical condition is b/c intoxicated
  • also consider emergenies not of the Δ’s own making

Question 3

How to analyze a breach of the reasonable prudent person standard?

Answer 3

Ask yourself:

• What is the Δ’s specific, unreasonable conduct
• What is the probablity of harm based on what the Δ did
• What is the likely injury going to be
• What would it take for the Δ to behave differently/burden
• Are there any custom evidence to present

Question 4

What is the standard of car for children?

Answer 4

• Majority Rule
  
  • standard of a reasonable child of the same age, experience & intelligence
    
    • Subjective - look @ the age, experience & intelligence of this particular child
    • Objective - compare it to the age, intelligenc & experience of like children
• Minority Rule
  
  • Children 6 & under are pressumed they cannot be negligent
• Exception
  
  • If child is engaged in an adult activity or an inherently dangerous activity, they will be treated as a reasonable prudent person for an adult

Question 5

What is the standard of care for Negligence pe se and statutory standard)?

Answer 5

• Statutory - if a statutue provides for civil liability, it supercedes common law of torts
• Negligence per se - Δ’s violation of a criminal statute establishes the standard of care if:
  
  • injury caused by Δ was the type the statute was created to prevent
  • P is a member of the class intended to be protected, AND
  • Δ’s violation of the statute is not excuse.
  • AND in New York, the Δ be an adult

NOTES - In majority - the statute becomes the standard of care; in minority - the statute is evidence of breach & standard is still that of reasonably prudent person

Question 6

What is the standard of care when the staute does not apply?

Answer 6

• if compliance with the statute would have resulted in greater harm than that of the violation
• when it is impossible

Question 7

What is the professional standard of care (malpractice)?

Answer 7

• Cts defer to the customary practice of the profession
• Deviation from the customary practice would ocnstitute breach of duty

Medical Malpractice

• Dr. are required to possess & use the knowledge, skill & training as other dr.s in good standing in the relative geographical community
  
  • Specialist community is a national focus
  • General practicioners community is the same or similar locality

Question 8

What is lack of informed consent (another malpractice)?

Answer 8

• Traditionally professional rule, Dr. must divulge the risks that are customary divulge
• Trend moving towards standard of materiality (patient rule)
  
  • requires dr to divulge all material risks
  • these are risks that a reasonable patient would want to know in determining whether to undergo a specific procedure
  • failure to divulge a material risk is a breach of duty

Question 9

What is the duty for other professionals (architects, lawyers & accountants)

Answer 9

• Architects, lawyers & accountants must act in accordance with the customary practice of other architects, lawyers & accountants
• Lawyers - for P to prevail, they need to also prove that (cause in fact) if not for the lawyer’s malpractice the would probably have prevailed on the underlying case

Question 10

What standard dors New York adopt for medical malpractice?

Question 11

What does a physician have to show in New York to defend from a failure to obtain informed consent?