Torts
Class Notes
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
What
should Dr. Golde have told
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
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.
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
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.