SoC + Breach Flashcards
Standards of Care
RPPSSC
Child
Negligence per se (statutory)
Professional/Medical
Breach analysis for RPPSSC
BPL (+customer or slip/fall)
or RIL
Breach analysis for Child
BPL (child modifier), custom, slip/fall
or RIL
UNLESS inherently dangerous/adult activity
Breach analysis for Negligence per se
Violation of a statute = breach
“some evidence” jx = BPL + some evidence
Breach analysis for Professional/Medical
(Failed) performance (with jx split)
custom
—-Same or similar locality
—-national standard for board certified specialists
—-national standard for all doctors
OR
Informed consent (with jx split)
The physician Rule
The Patient/Materiality Rule
“Add ons” to RPPSSC
Sudden emergency
physical condition (mental health conditions excluded)
–
*Superior skill/Heightened ability does not raise the minimum threshold, but a reasonable person is expected to use all of their skills and abilities to prevent harm (so can be considered when looking at overall negligence)
*Common carrier: same as SS/HA
Child standard of care elements
Child is compared to other children of the same:
age
experience
intelligence
maturity
B<PL
Burden < Probability x Likely Harm
Burden: Not subjective – applies to D’s general category (airlines, construction companies, etc)
Probability: Probability ANY harm will result
Likely Harm: (loss, gravity, injury)
custom evidence (elements)
It is widely used or well-established
It is highly relevant
There was a deviation from custom or compliance with it.
Res Ipsa Loquitur - Somebody done goofed
The incident does not generally happen without negligence
It was caused by an instrument within the defendant’s control
The plaintiff did not contribute to the cause of their injury
Standard of care (medical)
A medical worker is expected to possess and use the same level of knowledge, skills, and training as other professionals in good standing in the same practice are in the relevant geographical community.
Requirements for Medical Experts
Someone who can show they have knowledge from the relevant geographical area, even if it isn’t their own area of practice
Someone substantially familiar with the standard of care applicable to the defendant’s specialty or their own standard of care is substantially similar.
–
If in a same/similar locality jx, the expert must satisfy both
Cases where experts are not needed
Common knowledge cases
Known inherent risk (***UNLESS it wasn’t disclosed prior)
RIL in Med Mal
Must show that when these things happen, it is the result of medical malpractice
Control can be found for “all those defendants who had any control over the body or instrumentalities which might have caused the injury” (Ybarra)
Plaintiff did not contribute to their own injury (usually a non-issue because the patient is unconscious)
The Physician Rule
A doctor is only required to divulge risks that other doctors in good standing in the relevant community would
Causation: a reasonable patient would have refused the procedure if the omitted information had been provided (objective only)
The outcome is decided purely on compliance or deviation