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Question 1

When can someone have indemnity?

Answer 1

If defendant is only secondarily liable for plaintiff’s injury but is forced to pay a judgment, he can recover indemnification against the primarily responsible party

Question 2

What is the primary purpose of indemnification?

Answer 2

To prevent unjust enrichment

Question 3

What are the two major circumstances that indemnity comes up in?

Answer 3

• when D is only vicariously liable

- when a contract requires one party to indemnify the other

Question 4

What is a release?

Answer 4

The surrender of the plaintiff’s claim against only one or more of the tortfeasors

Question 5

What are two ways that the court can proceed if a plaintiff signs a release with one or more of the tortfeasors?

Answer 5

• the settled payment is deducted from the final total, so other tortfeasors pay the full amount minus that settlement
• the settled tortfeasor’s percentage is subtracted from the damages the P got from that tortfeasor, so this risks losing part of his recovery if he settles for too small a payment

Question 6

What is a Mary Carver agreement?

Answer 6

Sometimes private agreements are made between the plaintiff and defendant where the defendant remains in litigation even though he agreed on a settlement contingent on the trial’s outcome

Question 7

How do courts deal with Mary Carver agreements?

Answer 7

• some prohibit them
• some allow them
• others say they’re okay as long as the public knows about them and they aren’t secret

Question 8

What is Contribution?

Answer 8

Collection between tortfeasors

Question 9

What are the common law and modern views on contribution?

Answer 9

• CL: not allowed
• Modern: allowed against negligent, but not intentional tortfeasors and only works when joint and several liability is applied

Question 10

Who does professional negligence apply to?

Answer 10

• doctors
• lawyers
• accountants
• architects
• engineers

Question 11

Why is there professional negligence?

Answer 11

Because these people have specialized skills and training, so courts have to defer to expert testimony to figure out the appropriate standard of care and custom in the field

Question 12

If a professional defendant deviates from the appropriate standard of care and custom in the field, what is that considered?

Answer 12

A breach of duty

Question 13

If a professional defendant complies with the appropriate standard of care and custom in the field, what does that do?

Answer 13

Makes him safe from liability

Question 14

What is the rule for medical malpractice?

Answer 14

Doctors must possess and use the knowledge and skill common to ordinary members of the profession in good standing when on the job

Question 15

If a doctor fails to act with minimal competence that would be exercised by other doctors in good standing, what is that considered?

Answer 15

Breach

Question 16

It is important to remember that for medical malpractice we are talking about what kind of members of the profession?

Answer 16

Ordinary, not average, so you must have the customary level of intent and knowledge

Question 17

Doctors are free to use what types of ways to practice medicine?

Answer 17

Any accepted or reputable way

Question 18

If a doctor complies with the customary practice, can he be liable for malpractice?

Answer 18

No, no matter how small the burden was

Question 19

If an expert is used to testify in medical malpractice case, what is important?

Answer 19

• what the custom of other doctors in that medical community is (it doesn’t matter how the expert would have personally behaved).
• the expert must be familiar with the custom applicable to the defendant’s practice in the same or similar locality

Question 20

Medical specialists are held to what standard?

Answer 20

National standard

Question 21

If testifying experts disagree, what happens?

Answer 21

Jury decides which person to believe

Question 22

Chiropractors are allowed to practice what?

Answer 22

According to their school’s belief and are not held to medical standards

Question 23

What is the duty of a pharmacist to warn of side effects or excessive dosage?

Answer 23

No duty, because this is the doctor’s job

Question 24

If a pharmacist voluntarily undertakes to give warnings about side effects or the excessive dosage of a prescription, and negligently does this, what happens?

Answer 24

He is liable

Question 25

Some courts say if the pharmacist knows of contraindications or that the plaintiff has an allergy, he must do what?

Answer 25

Warn the patient or the doctor

Question 26

How can Res Ipsa be used in a medical malpractice situation?

Answer 26

• to show the harm suffered doesn’t usually happen without negligence
• the situation probably involves medical malpractice
• the defendant was probably the responsible party

Question 27

What is usually required in medical malpractice situations?

Answer 27

Expert testimony

Question 28

Can a patient terminate treatment at any point?

Answer 28

Yes

Question 29

When can a doctor or hospital abandon a patient?

Answer 29

Only once treatment is complete

Question 30

What does the EMTALA stand for?

Answer 30

Emergency medical treatment and active labor act

Question 31

What is EMTALA?

Answer 31

If any person walks into an emergency department and requests an exam/treatment, the hospital must provide appropriate medical screening exams and necessary stabilizing treatment for the emergency condition, or transfer the patient to another facility

Question 32

Is labor considered an emergency condition?

Answer 32

Yes

Question 33

What is the only time that a hospital or doctor can transfer a patient to another facility?

Answer 33

Once the patient has stabilized

Question 34

What is elder abuse liability?

Answer 34

Each resident must receive, and facility must provide the necessary care/services to maintain the highest physical, mental, and psychosocial well-being of its patients that is possible

Question 35

Does the Good Samaritan statute in reference to doctors apply only for roadside accident emergencies?

Answer 35

No, sometimes it can involve hospital care, like the case where the doctor showed up in an emergency and wasn’t held liable

Question 36

How can not getting informed consent become a battery?

Answer 36

If a doctor performs a substantially different procedure than what was agreed to and exceeds the scope of the plaintiff’s consent

Question 37

What is informed consent?

Answer 37

If an undisclosed complication arises, and the plaintiff complained he didn’t get enough information about the risks of the treatment/procedure to be able to make an intelligent decision about his medical care

Question 38

What are defenses to comparative fault?

Answer 38

• Plaintiff’s incapacity
• Defendant has greater knowledge/experience
• Defendant is a professional rescuer
• Litigation would harm the litigants
• Determining this would breach constitutional values
• Plaintiff’s conduct only caused harm to himself