Special duty rules DUTY BASED UPON DEFENDANT’S STATUS: PROFESSIONALS Flashcards
Professional standard of care
In professional negligence cases, the standard of care is typically defined by the customary practices and accepted standards within the relevant profession and under a duty to act with the same standard of care as would an ordinary, rational member of that profession. Cannot be found negligent for failing to perform tests that were not part of customary practices within the profession.
The standard is higher than that of a reasonable person.
(Departure from TJ Hooper standard)
Does that professional standard go across the board? (ie car companies)
- Standard of custom and practice in an industry like car manufacturing, as opposed to professions such as physicians and attorneys, is more likely to be tainted by motives such as saving time, effort, or money. Consequently, industries are generally not permitted to establish their own standards of conduct (Volkswagen faulty battery placement).
In the context of medical malpractice under informed consent, what must be proven for liability?
In a medical malpractice suit for lack of informed consent, the plaintiff must prove that
the doctor failed to inform her of material risk, that if she had been informed, she would not have consented,
and that the consequences that were not made known did occur and she was injured as a result.
Limitation on professional duty (attorney duty to someone other than the client)
Under the common law privity rule, an attorney only owes a duty of care to his or her client, not to anyone else. some states allow exceptions to this rule. The rationale is to not distract lawyers from their duty to their clients.
