Page 31 Flashcards
What is the physician rule for informed consent?
Liability is based on the doctor’s nondisclosure of the risk, so the plaintiff must show that the customary practice of doctors in good standing in that community is to disclose the risk
The standard of care for the physician rule is set by what and proved by what?
Set by custom and proved by expert testimony
If there is a 5% risk of loss of hearing that the doctor doesn’t tell a patient about, what does the patient have to prove under the physician rule for informed consent?
That the professional custom would be to divulge that risk
What is the patient rule under informed consent?
Doctors must disclose all material risks involved in a procedure/treatment and divulge anything that a reasonable patient would want to know in making the decision to have a procedure
How do you determine materiality for the patient rule for informed consent?
Look at the gravity and probability of potential harm
What is an example of a material risk under the patient rule?
Any real risk of death
What is an example of a risk that is not material under the patient rule?
Risk of infection
For informed consent, a doctor must divulge what?
- risks of the treatment
- available alternatives and their risks
- risks of not having the medical procedure
If you choose not to have a pap smear, because the doctor didn’t tell you about the risks of not having it, what do you have to prove for an informed consent breach?
That you would’ve had the procedure if you had known the risks of not having it
Can you claim negligence if a doctor doesn’t refer you to a specialist?
Yes, so long as you can prove a referral was required and it would’ve led to a reasonably better outcome or improved patient chance
Can laypeople determine what is material for an informed consent situation?
Yes generally
What do you have to discuss for an informed consent breach on an essay?
- that the doctor didn’t disclose a material risk
- that if you had been informed, you wouldn’t have had the procedure
- a reasonable person in your situation also wouldn’t have had it
- adverse consequences occurred
What are exceptions to informed consent breach?
- emergency
- therapeutic privilege
- lack of experience
How is emergency an exception to informed consent breach?
Can justify the nondisclosure, especially if the treatment was required to protect the plaintiff’s health, it was impossible to get consent, and the doctor had no reason to believe the plaintiff wouldn’t consent
How can therapeutic privilege be an exception to an informed consent breach?
If the doctor thinks that disclosure would be detrimental to the plaintiff’s well-being, he doesn’t have to disclose it
How can lack of experience be an exception to informed consent breach?
An inexperienced doctor doesn’t have to tell the patient that he has never performed the procedure before
When would expert testimony not be required in a medical malpractice situation?
If the doctor’s conduct is so egregious and obvious that a layperson can identify the breach of duty
If respectable medical opinions differ about the best technique to use, what must the doctor do?
He can follow either view
What is attorney malpractice?
- the relationship between the attorney and the client establishes a duty
- the custom of the profession sets the standard of care
- breach happens when the lawyer fails to meet the standard of care
Unless malpractice is glaring in an attorney malpractice situation, what does the plaintiff need in order to prove the standard of care and breach of duty?
Expert testimony
What must the P prove in an attorney malpractice situation?
He must provide by a preponderance of the evidence that if it weren’t for the attorney’s negligence, he would’ve prevailed in the underlying action
What has to happen in an attorney malpractice situation to figure out if the plaintiff would’ve prevailed on the initial lawsuit?
A trial to determine if he would’ve prevailed, and then a trial for the malpractice, so essentially a trial within a trial
What is the attorney standard of care?
Custom of behavior of other lawyers in good standing in the profession
What are the two major rules for informed consent?
- Physician rule
- Patient rule
What are immunities?
Things that protect the defendant from tort liability
Is an immunity a defense?
No because it is not dependent on the plaintiff’s behavior
What do immunities depend on?
The defendant’s status or relationship to the plaintiff
What are the different tort immunities?
- charities
- spouses
- parent-child
- government
- family members
- public duty doctrine
What is a charitable immunity?
Historically charities were immune from tort liability, but this is no longer the case
What is spousal immunity?
Historically spouses couldn’t sue one another, but now that is not true
If an exam has a tort that is committed by one spouse against the other or a parent against a child, how do you deal with this?
Mention the common-law rule first, then explain that it has been abolished or modified
What is parent-child immunity?
Doesn’t allow tort actions between parents (and anyone standing in loco parentis) and their non-adult children. Intentional torts and personal injuries caused by negligence can be collected for
What is the current status of the parent-child immunity?
Some states have abolished it, others have kept it, others have partly abolished it
What is government immunity?
At common-law it prevents any tort suits against the government, but modernly many states and the federal government have waived this immunity in some situations
What are three different categories of government immunity?
- discretionary functions
- ministerial functions
- proprietary functions
What are discretionary functions under the government immunity?
Policy making decisions where immunity is allowed because decision-makers are held accountable through the electoral process
What are ministerial functions as a part of government immunity?
Government conduct that implements/executes policy decisions, and there is no immunity here if the government negligently performs
If the government makes the decision to do something, and they do it, but they screw it up, what happens?
No governmental immunity because that is considered a ministerial function and it was negligently performed
What is a proprietary function as part of government immunity?
When the government is doing something that is normally done by private enterprise, they are treated like a private actor, so they only owe a duty of reasonable care and there’s no immunity
If the government provides cable TV, can that be considered a part of government immunity?
No, because private organizations can do that so will be a proprietary function that doesn’t have immunity
Where has the federal government kept governmental immunity?
- intentional torts
- strict liability cases
- military cases
- mail delivery cases
- anything related to the fiscal operation of the treasury
Is it possible for state or federal governments to take private property for public purposes without compensation?
No, because of due process
What is sovereign immunity?
Indian tribes have this so suits against them are barred unless there’s a clear waiver by the tribe
Do family members have immunity against each other?
There is no immunity between siblings or when family members are coincidentally involved in an injury causing event
If a teenager negligently hit a pedestrian on a crosswalk that turns out to be her dad, is the dad barred from recovery because a family member immunity?
No, because this involves family members that were coincidentally involved in an injury causing event
What is the public duty doctrine?
Because public departments have a duty to everyone, they don’t owe a duty to any specific individual
