Page 30 Flashcards
When can someone have indemnity?
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
What is the primary purpose of indemnification?
To prevent unjust enrichment
What are the two major circumstances that indemnity comes up in?
- when D is only vicariously liable
- when a contract requires one party to indemnify the other
What is a release?
The surrender of the plaintiff’s claim against only one or more of the tortfeasors
What are two ways that the court can proceed if a plaintiff signs a release with one or more of the tortfeasors?
- 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
What is a Mary Carver agreement?
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
How do courts deal with Mary Carver agreements?
- some prohibit them
- some allow them
- others say they’re okay as long as the public knows about them and they aren’t secret
What is Contribution?
Collection between tortfeasors
What are the common law and modern views on contribution?
- CL: not allowed
- Modern: allowed against negligent, but not intentional tortfeasors and only works when joint and several liability is applied
Who does professional negligence apply to?
- doctors
- lawyers
- accountants
- architects
- engineers
Why is there professional negligence?
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
If a professional defendant deviates from the appropriate standard of care and custom in the field, what is that considered?
A breach of duty
If a professional defendant complies with the appropriate standard of care and custom in the field, what does that do?
Makes him safe from liability
What is the rule for medical malpractice?
Doctors must possess and use the knowledge and skill common to ordinary members of the profession in good standing when on the job
If a doctor fails to act with minimal competence that would be exercised by other doctors in good standing, what is that considered?
Breach
It is important to remember that for medical malpractice we are talking about what kind of members of the profession?
Ordinary, not average, so you must have the customary level of intent and knowledge
Doctors are free to use what types of ways to practice medicine?
Any accepted or reputable way
If a doctor complies with the customary practice, can he be liable for malpractice?
No, no matter how small the burden was
If an expert is used to testify in medical malpractice case, what is important?
- 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
Medical specialists are held to what standard?
National standard
If testifying experts disagree, what happens?
Jury decides which person to believe
Chiropractors are allowed to practice what?
According to their school’s belief and are not held to medical standards
What is the duty of a pharmacist to warn of side effects or excessive dosage?
No duty, because this is the doctor’s job
If a pharmacist voluntarily undertakes to give warnings about side effects or the excessive dosage of a prescription, and negligently does this, what happens?
He is liable
Some courts say if the pharmacist knows of contraindications or that the plaintiff has an allergy, he must do what?
Warn the patient or the doctor
How can Res Ipsa be used in a medical malpractice situation?
- to show the harm suffered doesn’t usually happen without negligence
- the situation probably involves medical malpractice
- the defendant was probably the responsible party
What is usually required in medical malpractice situations?
Expert testimony
Can a patient terminate treatment at any point?
Yes
When can a doctor or hospital abandon a patient?
Only once treatment is complete
What does the EMTALA stand for?
Emergency medical treatment and active labor act
What is EMTALA?
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
Is labor considered an emergency condition?
Yes
What is the only time that a hospital or doctor can transfer a patient to another facility?
Once the patient has stabilized
What is elder abuse liability?
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
Does the Good Samaritan statute in reference to doctors apply only for roadside accident emergencies?
No, sometimes it can involve hospital care, like the case where the doctor showed up in an emergency and wasn’t held liable
How can not getting informed consent become a battery?
If a doctor performs a substantially different procedure than what was agreed to and exceeds the scope of the plaintiff’s consent
What is informed consent?
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
What are defenses to comparative fault?
- 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
