Week 6 Standard of Care

What is the common knowledge rule?

Negligence so bad that no expert is needed

Which court's statement of the standard of care will govern in future cases?

The supreme court's custom presumptively

What is the error in judgement rule?

A misleading admonition not to hold a health care provider negligent because of a "mere" error in judgement

what are the examples of tort reform and what is their purpose?

Damage caps, special statutes of limitations, special requirements for experts. they can be seen as either welfare for healthcare providers or a check on rampant litigation against health care providers that is ruining professions and our economy

what criteria might be used to judge an expert's qualifications?

Experience, knowledge, in the same field or specialty

Res ipsa loquitur will only apply if the common knowledge rule applies. true or false

False, the requirement that the injury alleged not usually occur in the absence of negligence can be established through common knowledge or expert testimony

Why might a doctor have a duty to notify a patient that the doctor was negligent?

Fiduciary duty or the patient needs ongoing care

what is the range of amount that medical experts might charge per hour?

From a hundred or so up to 1,000 per hour or more

What is the main ambiguity concerning the "respectable minority" rule?

If it requires a certain minimum number of adherents, reasonable adherents, or both

Five variations of the standard of care

National, local, similar community, best judgement, respectable minority, custom, custom presumptively, custom layperson

What are the possible effects of a court's determination that res ipsa loquitur applies?

Negligence per se, presumption of negligence, the jury can accept or reject

what is the Daubert case about?

Not allowing junk science as evidence

What is the Frye rule?

Novel scientific evidence will not be admitted unless it is accepted by consensus of pertinent experts

what is the difference between the physician oriented and patient oriented standards concerning informed consent?

Physician oriented standard for disclosure depends on use of one articulation of the various articulations of the standard of care for professionals. Patient-oriented standard looks to what a reasonable patient would consider material info

What is the standard of care?

The definition of the duty of a health care provider in the specific situation and court.

What was the disagreement about the standard of care among courts in the Quintana case?

Trial court said custom blood banks, Appellate court said reasonable blood bank, Supreme Court said custom presumptively

the respectable minority rule is an affirmative defense: true or false

True and thus the defendant has the burden of proving this defense

The Daubert rule generally does not apply to expert testimony concerning the standard of care, but it might well apply to causation: true or false

True but this question is ambiguous because it can apply to either standard of care or causation in any given case circumstances.

Apology laws always exclude testimony concerning a health care provider's expression of regret or outright admission of negligence. true or false

false but ambiguous because "or"

Juries decide whether experts are qualified or not: true or false

false, judges decide

Hired guns refers to the disgruntled clients who shoot their attorneys: true or false

false. it refers to experts who will testify just because of the money involved

The Frye rule is irrelevant to the application of Daubert:

false. that the one offeror of evidence meets Frye is a good indication that he will probably meet Daubert

what causes the conspiracy of silence?

health care providers might fear retaliation, non referrals, or consider it unfair to testify vs. colleagues

what are the competing standards of care that might govern experiment cases?

strict liability or negligence

What is jury instruction?

the Court's statement to the jury of the controlling law