1L Tort: Negligence-Professional Standard of Care

• standard of knowledge,
• training, and skill of an ordinary member of the profession in good standing

• (1) "Average" is
• incorrect b/c this literally means that 1/2 of the members could not meet the
• standard

• (2) While the standard of care of
• the reasonable prudent person remains constant, the quantity or degree of care
• required varies significantly with the attendant circumstances. (IE: specialist
• v. general practitioners)

• Specialists—held to a higher
• standard of care than a general practitioner b/c hold themselves out to a
• higher skill. However, still held
• to objective standard. Ex—a doctor claiming to be a specialist in obstetrics or an
• attorney claiming to be a specialist in labor law.

• Professional Negligence=Malpractice—any
• professional misconduct, unreasonable lack of skill or duty, evil practice, or
• illegal or immoral conduct.

• P MUST offer expert
• testimony on the standard of care and to establish that there was a breach of
• the duty or standard. Unless the
• negligence is so obvious that it is within the common knowledge and experience
• of lay jurors.

(1) Duty—standard of care is that of attorneys in the same or similar locality under similar circumstances.

• (a) Possession of knowledge, skill,
• and ability necessary to practice
• (b) Exercise of best judgment (Good
• Faith)
• (c) Use of due care (Customary
• Practice-evidence comply w/ standard of care)

(2) Breach of duty

(3) Causation

• (a) Client must show that the original
• case would have been won had the attorney not been negligent

(4) Damages

• (1) Duty—standard of care is that of attorneys in the same or
• similar locality under similar circumstances.

• (a) Possession of knowledge, skill,
• and ability necessary to practice

(i) IE: f ailed to research; professionals are not expected to know everything, just what the ordinary member of the profession does.

• (b) Exercise of best judgment (Good
• Faith)

• (i) Doctor and lawyer is not liable
• for a "mere error of judgment"

• (c) Use of due care (Customary
• Practice-evidence comply w/ standard of care)

• (i) Violation of—it is not enough
• that an expert witness testify that he would not personally follow the
• defendant’s practice. He must also
• testify that the practice was not recognized as valid.

(1) Battery v. Breach

(a) Primary consideration whether the patient knew and authorized a procedure or exceeds scope of consent

(b) Battery= Treatment is completely unauthorized and performed without any consent at all

• (i) Does not require testimony of
• expert witness

(c) Negligence=Dr. obtains a patient's consent but has breached his duty to inform

• (i) Cause of action regardless of
• the due care exercised at treatment, assuming there is injury

(ii) Require expert testimony

• (a) Duty—held to comply with the standards of practice among members of his profession with
• similar knowledge, training and skill in good standing under the same or
• similar circumstances

• (b) Breach of Duty—doctor
• must do something in his treatment of his patient which is forbidden within
• recognized standard of good medical practice in the community or he must have
• neglected to do something which such standard requires.

(i) Expert testimony required

• (ii) Custom Rules help determine
• standard of care and custom must be met b/c custom practice IS conclusive of a
• breach for medical malpractice

1. Locality Rule

• 2. Similar community in similar
• circumstances

3. National standard

(c) Causation

(d) Injury

• (a) Duty—held
• to comply with the standards of practice among members of his profession with
• similar knowledge, training and skill in good standing under the same or
• similar circumstances

• (i) Possession of knowledge or
• skill

• (ii) Exercise of best judgment (Good
• Faith)

• 1. Doctor and lawyer is not liable
• for a "mere error of judgment"

• (iii) Use of due care—Customary
• Practice

• 1. Violation of—it is not enough
• that an expert witness testify that he would not personally follow the
• defendant’s practice. He must also
• testify that the practice was not recognized as valid.

(b) Breach of Duty—doctor must do something in his treatment of his patient which is forbidden within recognized standard of good medical practice in the community or he must have neglected to do something which such standard requires.

• (i) Expert testimony required to establish proof that professional violated the standard of
• care, unless the negligence is so obvious that it is within the common
• knowledge and experience of lay jurors or if the cause of action is a battery

(ii) Custom Rules must be met b/c custom practice IS conclusive of a breach for medical malpractice

• 1. Locality Rule—conduct measured solely by the standard of conduct within a
• specific community

• 2. Similar community in similar
• circumstances— extension of locality rule;
• Dr. act like a Dr in a different community w/ similar community and
• circumstances

• 3. National standard—Quality of medical care should not be limited to
• geographical areas; nationwide approach

• a. Specialist must adhere to this
• standard!

• Locality Rule—held to the standard of conduct within a specific community
• by other Drs in good standing

1. National standard—Held to the standard throughout the nation

a. Specialist and Board-Certified must adhere to this standard even when in a locality or similar communities jurisdiction

• extension of locality rule; Dr.
• act like a Dr in a different community w/ similar community and circumstances.
• Looks at other factors like technology.

• Dr. has a duty to inform the patient of material risks associated with proposed treatments or procedures and alternatives as well as material facts (personal interests unrelated to the
• patient’s health whether research or economic, that may affect the physicians
• professional judgment.)

Material risk—anything that may change the patient’s decision

• (i)
• IE: high risk of infection,
• risk of death, paralysis, loss of sight/appetite

• (ii)
• Must consider the
• circumstance—singer on verge of superstar has 5% chance loss voice

• Material
• facts – any personal interest of Dr. unrelated to the patient’s health that may affect the Dr’s professional judgment

• Patient has burden of proof to establish informed consent negligence. The burden of
• proving an exception to his duty and thus a privilege not to disclose, rests
• upon the physician as an affirmative defense.

• (a) Duty to
• inform—disclose any material risks and alternatives and material facts

Exceptions—

• 1.
• Common Knowledge—risk is known
• by everyone (IE: infection)

• 2.
• Risk ought to be known by the
• patient. Ex—another doctor.

• 3.
• Therapeutic
• Privilege—Disclosure will do more medical harm than to not tell patient

• a.
• Unnecessary mental, physical or
• emotional damage

• 4.
• Emergency—patient is in no
• condition to give consent

• (ii)
• Most informed consent cases
• involve whether to disclose particular risks of treatment or particular
• alternatives to treatment

(b) Causation

• (i)
• Requirements:

• 1.
• Material risk arose

• 2.
• Patient decision would have
• been different; Requires that patient would have chosen no treatment or a
• different course of treatment had the alternatives and material risks of each
• been made known

• a.
• Casual connection exist btwn Dr.’s breach of the duty and
• patient’s injury only when disclosure of material risks incidental to treatment
• would have resulted in a decision against it.

• (ii) Jurisdictions:
• should this be under causation

• 1.
• Canterbury— (Majority/Objective
• Rule)—NC rule: Reasonable Patient (C=collective)

• a.
• Reasonable patient under
• the circumstances would have undergone the same course of treatment?

• 2.
• Scott— (Subjective Rule)—
• Specific Patient (S= specific)

• a.
• Would this specific patient have undergone the same course of treatment?

• 3.
• Traditional (Minority)—Reasonable
• Physician

• a.
• Reasonable physician
• under the circumstances would have shared the information/ informed patient?

• (c) Injury occurs
• directly due to failure of Dr. to disclose material risk or fact

• (i)
• Tied/associated to the NON-disclosed
• risk

(i) Exceptions—

• 1. Common Knowledge—risk is known
• by everyone (IE: infection)

• 2.
• Risk ought to be known by the
• patient. Ex—another doctor.

• 3.
• Therapeutic
• Privilege—Disclosure will do more medical harm than to not tell patient

• a.
• Unnecessary mental, physical or
• emotional damage

• 4.
• Emergency—patient is in no
• condition to give consent

• (a) Causation
• Requirements:

• 1.
• Material risk arose

• 2.
• Patient decision would have
• been different; Requires that patient would have chosen no treatment or a
• different course of treatment had the alternatives and material risks of each
• been made known

(i) Jurisdictions: should this be under causation

• 1.
• Canterbury— (Majority/Objective
• Rule)—NC rule: Reasonable Patient (C=collective)

• a.
• Reasonable patient under
• the circumstances would have undergone the same course of treatment?

• 2.
• Scott— (Subjective Rule)—
• Specific Patient (S= specific)

• a.
• Would this specific patient have undergone the same course of treatment?

• 3.
• Traditional (Minority)—Reasonable
• Physician

• a.
• Reasonable physician
• under the circumstances would have shared the information/ informed patient?

• (a) Injury occurs
• directly due to failure of Dr. to disclose material risk or fact

• (i)
• Tied/associated to the NON-disclosed
• risk