PROFESSIONAL STANDARD OF CARE

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

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

Aggravated Negligence

"Degrees" of Care - As danger increases, an actor is required to exercise caution commensurate with it and so to be more careful. Those who deal with things that are known to be dangerous, such as explosives or electricity, must exercise more care than one who is merely walking down the street. Same thing applies to common carriers responsible for safety of passengers. However, many courts find instructions on degrees of care to be erroneous because it is not recognized by the law; but merely amounts of care, greater or less. The care required of actor is always same under traditional formula that of a reasonable person under like circumstances.

Court must look beyond facts at hand to consider full reach of statute **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? Judge decides purpose of statute, jury applies the standard if adopted

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

Negligence Per Se/Violations of Statute

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 Duty and breach by a defendant can sometimes be established (or at least an inference of negligence can be raised) by proving the violation of a statute. Court is required to treat violation of legislation (which defines reasonable conduct in certain kind of situation) as 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)

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

D. **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)

Exercise of Best Judgment

1. Not liable for "mere error of judgment" 2. Best judgment just can't fall below standard of reasonable care

"Degrees" of Negligence

Distinctions according to different types of conduct with different legal consequences: Sight negligence- failure to use great care Ordinary negligence- failure to use reasonable care Gross negligence- failure to exercise even slight care.

Superior ability or knowledge

If D has a higher degree of knowledge, skill or experience than a reasonable person, she is charged with using that higher level, so that she will be held for using only the skill of an ordinary reasonable person or less.

Automobile Guest Statutes

Major context in which a standard of gross negligence or recklessness is applied is that in which a nonpaying passenger in an automobile is injured, and sues the driver-owner of the care. The AGS proved that the owner-driver is not liable for injuries received by his nonpaying passengers unless the driver has been "grossly" or "willfully negligent" or "reckless." Don't exist anymore

Pokara v. Wabash R. Co.

Man gets run over by train even after stopping, looking and listening before crossing. Trial court ruled for D on ground of contributory negligence as matter of law. This court held that the rule of law established in prior case to get out of car to look should be limited because it's ineffective. Judge in this case established the rule of law for the standard of care.

Osborne v. McMasters

Poison label. There are statutes that impose a standard of care and a violation thereof is negligence per se and the attorney only has to prove proximate cause and damages.

Willful, Wanton, and Reckless Conduct

This type if conduct is defined as consisting of a deliberate and conscious disregard for a known high degree of probability of harm to another. This level of conduct is worthy of punitive damages, and mere causes of action in other jurisdiction.

Negligence per se

Unexcused violation of the statue is negligence per se, and D will not be permitted to show that legislature set an unduly high standard of care. Under this doctrine, violation of a statute by itself establishes a lack of care, if: (1) that D violated the statute (2) harm is type of harm statute intends to prevent (3) P was member of class to be protected

Judge-made standards

When appellant court attempts to regulate standards of behavior by issuing strict rule, these standards are likely to prove too inflexible and other courts are not likely to apply them in every situation.

Effect of Statute Cases:

a) Martin v. Herzog - Omission of light. Unexcused violation of statute is negligence. b) Zeni v. Anderson - Snow path. Reasonable excuse for violation of statute could negate negligence.

Applicability of Statute Cases

a) Stachnievwicz v. Mar-Cam Corp. - Bar brawl. There is a statute that imposed duty on bar not to serve patron already drunk; there was also administrative regulation mandating the bar owners to prevent brawls. Violation of either statute or admin. reg is negligence per se if both apply to same injuries. b) Ney v. Yellow Cab Co. - Taxis left unattended with engine one, used by thief, and crashed into P. Entry of third party negates proximate cause: not situation statute was enacted to protect. Injury must have direct and proximate relation to violation of statute. c) Perry v S.N. and S.N. - Abuse at day care. No negligence for not reporting child abuse because violation of statute did not cause injuries. d) Federal Statutes and Regulations - there is no doctrine of negligence per se in federal law. Ordinances - are treated in same manner as statues, some states give lesser effect to ordinances. Administrative Regulations - regulations promulgated under authority of administrative agencies are sometimes given lesser effect than statutes. Advisory codes, voluntary industry standards - may be admissible, thought not binding, on issue of negligence if properly identified and shown through expert testimony to have general acceptance in industrial community.

Three ways to establish standard of care:

a. Common law case-by-case basis (reasonable man under the circumstances) b. Judicial Rule of Law c. Negligence Per Se

Rules 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

Professional Standard of Care Cases:

• Heath v. Swift Wings, Inc. - Inexperienced pilot. A professional is held to standard of his given profession. • Hodges v. Carter - Attorneys & process of service. Mistake is not conclusive evidence of malpractice. • Boyce v. Brown - Physician's pinning ankle. Negligence never presumed; must be evidence of deviation from professional standard of care. • Morrison v. MacNamara - Urethral smear test. Court held locality rule is obsolete because local doctors do not conform to national standard of care. • Scott v. Bradford - Hysterectomy. Lack of informed consent could support malpractice claim. • Moore v. The Regents of the University of California - Spleen. Physician seeking patent's consent for medical procedure must disclose personal interest unrelated to patient's health.