Professional Standard of Care

Three ways to establish standard of care

1. common law case-by-case basis (reasonable man under the circumstances) 2. Judicial Rule of Law 3. Negligence Per Se

Informed Consent

1. Definition: P doesn't claim D was negligent; P claims that, had P known risks of competently-performed treatment, P wouldn't have done it 2. Requires full disclosure of all material risks incident to the treatment to be made a. Material = likely to affect patient's decision 3. Elements: a. Duty to inform b. Causation (P would have chosen no treatment or different treatment if fully informed) c. Injury 4. Privilege Not to Disclose if: a. Risk ought to be known to everyone b. Patient already knows c. Emergency d. Full disclosure would be detrimental to patient's best interests (emotionally upsetting to fragile patient) 1) Read VERY narrowly 5. Duty to Disclose Interest/Capacity a. Dr. must disclose personal interests that may affect his professional judgment

Aggravated Negligence

1. Degrees of Care a. As danger increases, actor must use more care 2. Degrees of Negligence a. Slight, ordinary, gross 3. Automobile Guest Statutes a. Don't exist anymore b. Say if you're a non-paying guest in a car and driver acts negligently, mere negligence not enough, must prove recklessness/gross negligence

Negligence Per Se/Violation of a Statute Definition

1. Legislature establishes a standard in a statute or regulation that doesn't provide for a civil cause of action 2. Court adopts standard, so violation of standard is negligence as a matter of law/negligence per se

Locality Rule

1. Locality Rule = conduct of medical professionals measured solely by standard of conduct expected of other members in same locality/community a. Many states still follow locality rule, saying "in this or a similar community" 1) "Similar community" hard to define 2) Balance needed to avoid holding rural doctor to urban standard with need to find experts willing to testify against doctor b. Some states use national standard, especially for specialists certified by nat'l boards 1) Courts say we can't standardize resources/equipment 2) Can standardize education b/c information costs lower c. **Have to have minimum level of care (equipment/resources/standards)

Effect of Statute

1. Negligence Per Se (most extreme): When statute applies to facts, unexcused violation is negligence PS which must be declared by court 2. Prima Facie Negligence (middle ground): violation of statute creates presumption of negligence, become negligence as a matter of law unless presumption is rebutted by adequate excuse 3. Evidence of Negligence (most diluted): Violation of statutes is evidence of negligence which jury may accept or reject a. Effect of 1 and 2 are same b/ca all states allow excuses b. Some statutes = liability regardless of excuse: child labor acts, pure food acts, gun sales to minors, etc c. Compliance w/statutes NOT standard of care as matter of law (mere evidence)

Effect of Negligence Per Se

1. P doesn't have to show CL duty or breach of that duty a. If statute violated, D negligent as a matter of law 2. Federal courts: no federal CL of negligence so federal court must imply a civil action from a statute (not Neg PS) 3. Ordinances generally treated like statutes, administrative regulations sometimes given less effect

Negligence Per Se Elements

1. P within class of persons intended to be protected by regulation AND 2. Harm caused to P within kind statute intended to prevent a. Court has wide discretion on both "class" and "hazard" elements 3. It is appropriate to impose liability for violations of the statute a. Court must look beyond facts at hand to consider full reach of statute b. **Factors: 1) Would adoption of statute standard create new duty (as opposed to precisely defining CL duty?) 2) Does statute clearly define prohibited/required conduct? 3) Does applying negligence per se to statue create liability w/o fault? 4) Would it impose disproportionate liability to the seriousness of D's conduct? 5) Does injury result directly or indirectly from violation of statute? c. Judge decides purpose of statute, jury applies the standard if adopted

Rule of Law

A. Rule of Law: court holds that actor must do something or actor is negligent as a matter of law 1. Problem = no flexibility 2. Rare b/c things different in different circumstances

Common Law Standard of Care

A. Standard of Care for a Professional 1. Knowledge, training, skill of ordinary reasonable member of the profession in good standing (don't say "average") 2. Applicable to actor holding himself as having special training, etc B. Exercise of Best Judgment 1. Not liable for "mere error of judgment" 2. Best judgment just can't fall below standard of reasonable care C. Proof 1. Medical Malpractice a. Standard of care must be established by expert testimony unless so obvious that it's w/in common knowledge/experience of jurors b. Custom IS reasonable standard of care (only one case where custom held unreasonable - later overturned by statute) 2. Attorney Malpractice a. P must show that, but for atty's negligence, P would have won 1) Have to show that negligence actually harmed you