Torts Class Notes 10/1/03


Last time, we went over the locality rule.  The strict locality rule has been largely abandoned.  Some jurisdictions use a rule that says doctors can be judged against doctors in a similar community under similar circumstances.  Other jurisdictions use a national standard of care, especially when the doctor in question is nationally certified.


After break, we will talk about causation.  This is a problem in medical malpractice: if only 1% of doctors do something a certain way, an expert will not testify that this practice is the custom of the profession.  In order to show custom, you must also show that a certain minimum percentage of doctors have adopted a certain practice.


Informed consent


We previously started going over informed consent, which has three different standards:


1.     Reasonable doctor standard (the majority standard)

2.     Reasonable patient standard

3.     Subjective patient standard (small minority)


What must be revealed?  Only material risks must be divulged.  But how can you judge this?  Do you judge material risks by the subjective view of the patient?  The patient might say that “this would have been a material risk to me”.


Or, on the other hand, we may set an objective standard and ask what would constitute a material risk for a reasonable patient or doctor.


So the questions are: (1) Is this a material risk?  (2) Would the patient have agreed to go through with the procedure if this risk had been disclosed?


The material risk must be something that really matters to the health of the patient.


Can we quantify “material risks”?  In determining materiality, it matters both the probability of the risk and the gravity of the possible harm (think of pL in the Hand formula).


What does the doctor have to reveal to the patient about his personal life?  This will come up in light of Moore.  Does a doctor have to reveal his HIV status to a patient?  Does a doctor have to tell a patient that he is an alcoholic?


The doctor must provide information about alternative treatments as well as the risks of non-treatment.


Exceptions to informed consent


·        You don’t need to tell the patient anything the patient knows or should know.

·        You don’t need to disclose information that would be detrimental to the overall best interests of the patient.

·        You don’t need to disclose in an emergency situation where consent is impossible to obtain.


Moore v. The Regents of the University of California


What happened in this case?  The plaintiff had leukemia and was treated by Dr. Golde, who recommended, among other things, to have his spleen removed.  He went back many times for follow-up procedures.  Dr. Golde used Moore’s spleen cells for big bucks.  Basically, Moore has valuable cells, and Golde keeps him coming down from Seattle to L.A. for “more treatment” when, in fact, he was just extracting more cells for his own profit.


What should Dr. Golde have told Moore about these procedures in order to get adequate informed consent?  First off, Golde has a financial interest in Moore’s cells.  Furthermore, the doctor is in a position of trust when it comes to caring for a patient, and therefore Golde’s conduct represents a breach of fiduciary duty.


There was a cause of action for conversion in this case, but it was dismissed by the trial court.  In fact, the trial court dismissed the entire complaint because they thought the whole claim was based on conversion.


Compare this to Compuserve: shall we expand a common-law tort to apply to a new situation?  In order to make a case for conversion, you must show there is a market for the good converted.


So what should Dr. Golde have told Moore?  It seems that Moore was entitled to know that Dr. Golde had other interests besides Moore’s best interests.  When should this information have been given?  The court says that the first testing of the cells was perfectly alright because the doctor did not know of the unique qualities of the spleen for research.  Once the doctor knows the spleen is valuable and doesn’t tell Moore, there will probably be a cause of action.


California uses the “reasonable patient” standard for informed consent.  Would this case have come out differently under a “reasonable doctor” standard?  A doctor’s ethical obligations would require informing the patient that he was using his cells for research.  It’s usually easier to prove a breach of informed consent under “reasonable patient”, but this is a fairly easy case and it would not be difficult to prove under the “reasonable doctor” standard.


It will not be difficult to calculate damages because there are probably good records of the big money licensing agreement between the doctor and the pharmaceutical companies.


Is a physician required to inform a patient of alcoholism?  What about HIV status?  It can be argued that the case for informing patients of HIV status is not as strong because it is a very private matter and there are precautions against spreading infectious diseases in a clinical setting.


Automobile guest statutes


They’re interesting, though not a big deal.


Negligence alone is not enough to get punitive damages.  You need something more.  What more do you need?


There used to be legislation that prevented private passengers (i.e. not cab fares) from suing drivers in an accident.  The theory was that this was necessary to prevent insurance fraud.


Ultimately, these statutes were found unconstitutional because they treated some people differently than others.  The importance of these statutes is a demonstration of “negligence plus”, “aggravated negligence” or “gross negligence”.


If you drive negligently and you get into an accident, no punitive damages will be allowed.  However, if you drive negligently and are drunk, this could be “negligence plus”, and you could be subject to punitive damages.


Rules of law – Pokora v. Wasbash Ry. Co.


What happened in this case?  What’s going on?  The plaintiff is approaching a set of four tracks in his truck.  There are boxcars on the closest track to him, and they’re five or ten feet to the north.  He pulls up as closely as he can to the first track and looks and listens but doesn’t see anything.  He proceeds and then gets hit by a train.


The trial court says that there is a rule of law that says that you must “stop, look and listen” or else you lose.


How does the plaintiff argue against this rule?  The plaintiff argues that it shouldn’t apply in his case, and in fact, it is ridiculous in this case.  The problem is that the rule doesn’t always work.


There is a big debate in the legislatures of the country: Do we make a rule, or do we leave it up to the jury to figure out what constitutes reasonable behavior?  What is the advantage of a rule?  Well, it gives notice of what you should do.


So do we just get rid of this rule if it isn’t always right?  The Supreme Court suggests that questions like this should go to the jury.  The Court is willing to hear evidence of what is customary, and that’s good information, but it is not dispositive to the case.


The jury will hear evidence in cases like this of whether the rule was right in a given case or if it doesn’t really apply correctly.


Does this ruling change the way things work in practice?  Probably not so much, because the jury will be informed of custom and will judge the parties’ behavior against it.


Negligence per se


These are basically rules of law.  It is within the court’s discretion to adopt them or not.


If a judge determines that a statute constitutes negligence per se in a given case, the plaintiff automagically satisfies the elements of duty and breach of duty.  The plaintiff need only prove that the defendant caused the injury and prove that there were actual damages.


The judge will not adopt a certain statute as the standard of care unless the defendant violated it.


What kind of statutes are we talking about?  These are criminal statutes.  If the legislature thinks that something is criminal, we might well infer that they believe it is unreasonable as well.


Judges don’t play as big a role in tort cases as juries.  The plaintiff will try to argue that some statute applies.  Defendants will generally prefer judges to make decisions while plaintiffs want to have juries make decisions.  On the other hand, in this specific case, the plaintiff wants to get the case to a jury and negligence per se helps them do that.


Why have negligence per se?


·        It would be weird for a court to approve conduct as reasonable if it violates a criminal statute.

·        If the legislature sets the standard of care, you don’t need the jury to say what behavior is reasonable.  In other words, there is better evidence of society’s views on what behavior is reasonable and unreasonable.

·        Negligence per se also deals well with cases of recurring conduct.  If certain statutes will be treated as the standard of care, society will be on notice of how they have to act in order to be considered reasonable.


Osborne v. McMasters


To test for negligence per se, you must find out what injury a statute is intended to prevent and who you’re trying to protect from that injury.  If the plaintiff is actually the person you were protecting and suffered the injury you were trying to prevent by the statute, then you’ll have negligence per se.


This should be in your exam answer if you want to answer the question of whether there is negligence per se.


So the defendant has acted unreasonably in not labeling a poison “poison”.  But even if the court doesn’t adopt the statute, the plaintiff can still present a prima facie case and get a judgment for regular old negligence.


If the statute doesn’t apply, that doesn’t mean the claim will automagically be dismissed.


Take the example of the statute that says you can’t sell alcohol before 1 PM on Sunday.  Say Brenda slips and falls while she’s going to purchase brandy before 1 PM.  Brenda is one of the people the statute is designed to protect (sort of everybody), but the injury is not of the type that the legislature anticipated.


Stachniewicz v. Mar-Cam Corp.


The plaintiff got beat up in a bar and due to his injuries couldn’t identify his assailants.  The plaintiff sued the bar based on a statute that said that you can’t sell drinks to people who are already drunk.


The court rejects the statute as a standard of care because they don’t think the “one more drink” caused the harm in this case.  They use the causation question to help them decide the standard of care.


We can imagine that a jury would find that intoxication was a major factor in causing the fight, so the judge might have taken a good shot away from the plaintiff.


On the other hand, the regulation does not allow “loud, noisy, disorderly, or boisterous conduct” and it doesn’t allow anyone who is visibly drunk to stay around.  The court finds that this is sort of a strict liability offense, and that the “boisterous conduct” caused the harm.


But whom was this rule designed to protect?  It’s tough to interpret statutes, and the more difficult it is to interpret a statute the less likely a court is to adopt it as the standard of care in a given case.  However, it seems that this statute was designed to protect “the public”, which would exclude the employees of the bar.  This is why you have bouncers.


Back to Class Notes