Torts-Negligence

Front 1

Lack of Informed Consent
Elements

Back 1

Duty
1. Doc must make patient aware of all material risks involved with a treatment
2. Any alternatives to treatment, and adequate info about the treatment.
3. Must disclose any financial stake (research, kickbacks from pharma): fiduciary interests he may have in said treatment.
Breach
• doc didn't inform of these things

Damages
Injury sustained by π is result of submitting to treatment/procedure in question

Front 2

Lack of Informed Consent
• Privilege to Non-Disclose

Back 2

a. Risks that would be detrimental to the patient’s best interest. (ex. Would render patient unfit for treatment.);
b. Risks that everyone knows or risks that the patient already knows.
c. If there is an emergency and the patient is in no condition to determine whether treatment should be given.

• The decision of whether or not patient was in condition that warranted non disclosure is up to the jury

Front 3

Medical Battery v. Lack of Informed Consent:

Back 3

Med Battery: didn’t get any consent

Lack Of Informed Consent: got consent, patient didn’t know all he needed to know

Front 4

The Reasonable Prudent Person

Back 4

Defendant has a duty to act as a reasonably prudent person would in similar circumstances

Front 5

The Standard of Care
Professionals and others

Back 5

Must exercise the requisite learning, skill, and ability of the average person in their field

Need an expert to establish what a reasonably prudent professional would/should have done

Must testify that Defendant actions were below the standard of care

Front 6

Lack of Informed Consent
Standards (Physician & Patient)

Back 6

Physician Standard: Doctor must disclose those risks that other doctors in the relevant community would have disclosed (requires expert testimony)

Patient Standard: MAJ: Doctor must disclose material risks, which are risks that a physician knows, or should know, and that he can reasonably expect a patient would want to consider in determining whether to undergo the medical procedure.

Front 7

Lack of Informed Consent
Causation

Back 7

Subjective – MIN: Plaintiff would not have chosen to have the treatment/procedure if he had been informed of the risks

Objective – MAJ: The non-disclosure would have affected the decision of a reasonable patient to have the treatment/procedure and Plaintiff must also establish he would have foregone treatment/procedure

Front 8

Standard of Care
Store Owners

Back 8

GEN: Duty to correct/address dangerous conditions on premises within reasonable time after active or constructive notice

EXC: When dangerous conditions are continuously present or easily foreseeable, a Plaintiff is not required to demonstrate that the Defendant had constructive notice of the dangerous conditions

Front 9

Standard of Care
Landlords

Back 9

GEN: A landlord must exercise ordinary (reasonable) care toward his tenants and toward others on the premises with the tenants' permission

GEN: A landlord is under a duty to take precautions to protect tenants from foreseeable criminal acts committed by third parties when:
(1) He has notice of repeated crimes in the past
(2) He has notice that the crimes occurred in common areas under his exclusive control
(3) He has every reason to expect reoccurrence of such crimes
(4) He has the exclusive power to take preventive measures to prevent the crime

Front 10

Standard of Care
Social Host

Back 10

no duty to drunky guest unless a minor

Front 11

Standard of Care
Minors

Back 11

GEN: They are held to a child standard == Child of like age, experience, and education
EXC: Child is engaged in an inherently dangerous activity normally undertaken only by adults

Rule of Seven:
1. Under 7 incapable
2. 7-14, presumed incapable but rebuttable
3. 14 and over, presumed capable but rebuttable

Front 12

Standard of Care
Minors & Motor Vehicles

Back 12

GEN-Maj: The operating of a motor vehicle (snow mobile, four-wheeler) is not done strictly by adults, so still child standard

GEN-Min: The operating of this type of vehicle is inherently dangerous, so adult standard of care

Front 13

Standard of Care
Violation of a Statute
Elements

Back 13

• Injured person is of the class that the statute was enacted to protect
• The harm done is the type that the statute was meant to protect against
• The violation was the proximate cause of the harm done
• Is it appropriate to impose liability for a violation of the statute?
i. Does the statute create a duty not recognized at Common Law?
ii. Is the statute too obscure to put the public on notice?
iii. Impose liability without fault
iv. Does imposing negligence per se impose ruinous liability disproportionate to the seriousness of the D’s conduct
v. Did injury occur from direct or indirect violation of statute

Front 14

Violation of a Statute
Procedural Effects

Back 14

• Negligence Per Se
• Rebuttable Presumption Of Negligence
• Evidence for Negligence

Front 15

Violation of a Statute
Negligence Per Se

Back 15

• Conclusive evidence for negligence
• Rebuttable, judge decides if excuse is admissible, jury accepts or rejects

Front 16

Violation of a Statute
Excuses

Back 16

a. Actor’s incapacity and violation is acceptable in light of that incapacity
b. He neither knows nor should know of the occasion for compliance
c. He is unable after reasonable diligence or care to comply
d. He is confronted by an emergency not due to his own misconduct and in light of that emergency is unable to comply with the statute
e. Violating the statute is safer for the actor (or others) than compliance.

Front 17

Violation of a Statute
Evidence for Negligence

Back 17

Jury may decide that Defendant was negligent but may reject also

Front 18

Circumstantial Evidence

Back 18

(Indirect evidence)- Evidence that, though not directly observed, is supported by inferences drawn from principal facts

Front 19

Proof of Negligence
Burden of Proof on Plaintiff

Back 19

1) burden of pleading: alleges sufficient facts in his complaint

2) burden of coming forward with enough evidence to avoid a directed verdict against him: convinces judge that the reasonable jury could find on a more probable than not basis that Plaintiff’s contention is correct

3)burden of persuading the jury to find in his favor

Front 20

Res Ipsa Loquitur
Defined

Back 20

- A rule of law giving rise to an inference of negligence where the instrument inflicting the injury is in the exclusive control of the defendant and where such harm could not ordinarily result in the absence of negligence.

Front 21

Res Ipsa Loquitur
Elements

Back 21

1. There was an accident
2. Accident wouldn’t happen unless someone was negligent
3. Defendant had exclusive control over the instrumentality that caused the harm
4. The negligent conduct was within the duty owed to the Plaintiff

Front 22

Res Ipsa Loquitur
Procedural Effect

Back 22

i. Creates an inference of negligence. Does not require jury to find for Plaintiff
Jury can say you are or are not negligent

ii. Creates a presumption of negligence.
Defendant can rebut the presumption

iii. Raises a presumption of negligence and shifts the ultimate BOP to the D, and requires the D to prove, by a preponderance of evidence, that the injury wasn’t caused by his negligence