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Tort Notes1

Tort Notes1 - Torts Class Notes Professor Weisberg...

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Torts – Class Notes www.swapnotes.com Page 1 of 35 Professor Weisberg Fall 2004 WeisbergTortNotes1.pdf 10/13 Old days of medical malpractice had locality rule. Not applicable to lawyers. In that sense, medicine treated more liberally than law. Hodges never got to jury. Means whatever facts most favorable to plaintiff, still hasn’t asserted enough to get to jury. Declaration of higher standard of care for all professions—degree of knowledge and skill ordinarily possessed by others of his profession similarly situated…. But next paragraph says not a scintilla of evidence that breached duty. They leave out of reasoning the reasonable care necessary; they mention good faith, but leave out the higher level of the professional standard of care. Interesting to see how tort law treats lawyers. Strongest element of Ds defense is custom. But know that element of custom is admissible but not dispositive—custom is not reasonability. Courts can find that custom of entire trade is wrong (shattered glass, T. J. Hooper). Jury found in Hooper that entire industry was wrong. This case usurps jury function. Morrison v. MacNamara Medical malpractice has many avenues to liability, like battery and negligence . Negligence falls into 3 categories. plain negligence. Operation botched, plain and simple. Held to higher standard. Informed consent Res ipsa loquitur Here, guy fell down while taking test and hurt head. Holding—moving off strict locality rule; goes with national standard rule. Scott v Bradford Not a battery. She got hysterectomy; she alleges it was handled negligently. Had problems after, suffered side effects that weren’t result of the way dr. operated; the handling was careless because he didn’t inform of the future side effects. (Word “consent” in battery is not to be confused with informed consent, which is a negligence theory.) Dr. had duty to inform of material risks of procedure, adverse consequences. Pleading must show that involved in those risks were exactly the results in the proceeding that happened to her. Elements of cause of action breach of not informing if informed, patient would not have consented to the operation. Necessary causal link between breach of duty and injury. must have injury.
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Torts – Class Notes www.swapnotes.com Page 2 of 35 Professor Weisberg Fall 2004 WeisbergTortNotes1.pdf If #2 missing and dr. didn’t tell, no causal link between breach by dr. and injury of patient, b/c she would have done it anyway. It’s plaintiff’s burden to prove she would not have gone ahead with it. How would one go about proving wouldn’t have gone through with it? Whether a reasonable person, with the info provided, would have done the same thing. This objective approach probably favors the patient more than the subjective, if this particular patient would have gone through with it. Hypothetical:
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